Elections have consequences.
Recently, in "The Darkest Hour is Just Before Dawn", we described how the decision by the U.S. Supreme Court's corrupt, right-wing "radicals in robes" last year to overturn the Constitutional right to an abortion led directly to the election of pro-choice Wisconsin Supreme Court Justice Janet Protasiewicz "by 11 percentage points, a huge margin in a narrowly divided state," as The New York Times described it.
On Aug. 1, the new Justice was seated, thereby flipping the WI's Supreme Court from a 4-3 right-wing majority to a 4-3 liberal majority for the first time in more than 15 years.
The very next day, on Aug. 2, state voters filed a Petition [PDF] directly with the WI Supreme Court. In Clarke v. Wisconsin Elections Commission, petitioners seek to break the chains of the GOP's 12-year entrenched control in both Houses of the Badger State legislature --- control that was and is the product of what petitioners allege to be unlawful, extreme partisan gerrymandering.
Two days after that, a second Petition [PDF] (Wright v. Wisconsin Elections Commission) was also filed in the WI Supreme Court by a group of mathematicians and computer scientists. In addition to presenting essentially the same legal challenge, the Wright petitioners bolstered both cases with objective scientific evidence establishing that the 2011 and 2021 Wisconsin legislative maps are the product of unlawful gerrymandering.
Both petitions are based upon a scathing judicial dissent issued last year in Johnson v. Wisconsin Elections Commission. In their dissenting opinion, the Court's three liberal Justices --- then in the minority --- opined that the WI Supreme Court's right-wing majority usurped the constitutional functions of the Badger State's other branches. In Johnson, the Court's then-majority overrode Democratic Governor Tony Evers' veto of the 2021 gerrymander after Badger State Republicans in the Legislature failed to muster sufficient votes to override the Governor's veto on their own. Both petitions and the dissent identify multiple provisions within the WI Constitution that were violated by extreme partisan gerrymandering.
The Clarke Petition not only seeks to replace the partisan gerrymandered map with a fair map in time for next year's legislative elections but also seeks an emergency writ that would schedule a 2024 special election for all Badger State senators, including those whose terms would not otherwise expire until 2027. This is based upon the argument that all state Senators "lack legal entitlement to their office" because their respective offices are the product of unconstitutionally configured districts.
The Petitions, however, do not seek to redress Wisconsin's partisan gerrymandered Congressional map which helped hand Republicans six of the Badger State's eight seats in the U.S. House of Representatives, in a state where almost all statewide seats are now held by Democrats and where Joe Biden won in 2020...
The goal of extreme partisan gerrymandering is to manipulate electoral maps so that political power becomes entrenched. The Party engaging in extreme partisan gerrymandering locks in its power over an ensuing decade when it draws up new maps following the decennial U.S. Census.
At its core, extreme partisan gerrymandering is a deeply undemocratic project that strips a majority of the electorate of its ability to remove one Party --- here Wisconsin Republicans --- from its entrenched power.
The history of extreme partisan gerrymandering in Wisconsin provides a classic example of that deeply undemocratic project.
In 2010, Wisconsin Democrats had trifecta control over the Badger State's government: a Democratic Governor, an 18 – 15 majority in the WI Senate and a 52 – 46 majority in the Assembly.
That trifecta control was narrowly flipped as a result of a low turn-out, 2010 midterm election in which Democrats also lost their majority in the U.S. House.
As the mathematicians and computer scientists explain in their petition in Wright, in 2011 the Republican trifecta then produced a "radical reshape" of the Badger State's legislative map. "Republicans produced a 2011 Plan that shifted 2.3 million Wisconsin residents --- more than 40% of the State's population --- into new assembly districts, to entrench a Republican majority in the Legislature over at least the next decade."
It was all part of the GOP's so-called "Project REDMAP," headed up successfully at the time by longtime political operative Karl Rove, as detailed in David Daley's 2016 book, Ratf**ked: The True Story Behind the Secret Plan to Steal America's Democracy.
The Petition, in Clarke, describes the manner in which extreme partisan gerrymandering, via the 2011 and 2021 maps in WI, served to ensure entrenchment...
In the November 2022 election, Republicans won 64 of 99 assembly seats and saw victories that yielded them 22 of 33 senate seats…At the same time, Democratic candidates won three of five statewide elections.
Violations of Wisconsin Constitution
In Clarke --- as consistent with the dissent in Johnson --- the voter petitioners persuasively argue that extreme partisan gerrymandering violates provisions of the Badger State Constitution entailing equal protection, free speech/association and a provision that mandates the maintenance of a free government.
Petitioners also argue that the new maps, which had been vetoed by Gov. Evers, also violate a provision of the WI Constitution that mandates legislative districts be "contiguous".
By way of example, the petition contains a color coded map of Assembly District 47 revealing how small, disconnected spots (see the tiny yellow pieces in the map below) from the largely Democratic college town of Madison were woven into large swaths of Republican-leaning rural Wisconsin as part of its undemocratic new map...
"Noncontiguity", the voters allege, "pervades in both the assembly and senate maps --- with noncontiguous districts across the entire state."
What about partisan gerrymandered Congressional districts?
If, as both the dissenting Justices in Johnson and the petitioners in these two new cases assert, extreme partisan gerrymandering of state legislative districts violates multiple provisions of the Wisconsin Constitution, surely extreme partisan gerrymandering of the Badger State's U.S. Congressional Districts does so as well.
In 2022, incumbent Democratic Governor Tony Evers defeated his Republican rival 51.2% to 47.8%, yet the 8-member 2022 Wisconsin delegation in the U.S. House of Representatives consists of six Republicans and only two Democrats.
In Rucho v. Common Cause [PDF] (2019), the U.S. Supreme Court's right-wing majority ducked the issue of whether extreme partisan gerrymandering violated the U.S. Constitution, ruling that the issue was not justiciable in federal courts. However, earlier this year, in Moore v. Harper, the U.S. Supreme Court rejected the fringe Independent State Legislature theory in which Republicans had unsuccessfully argued that State courts could not order new maps, even if state legislatures created extreme partisan gerrymanders of Congressional districts that violated State constitutions.
The question isn't whether the Wisconsin judiciary can address the issue but whether it could move fast enough to compel the creation of a new map for it to be in place before the Feb. 20, 2024 Wisconsin primary elections.
That, in turn, depends upon the prompt filing of a legal challenge to Wisconsin's Congressional map. But it isn't clear that such a legal challenge could be filed directly in the WI Supreme Court.
In both Clarke and Wright, petitioners argued that the WI Supreme Court has original jurisdiction, in part, because the Court itself had improperly approved the Badger State's existing legislative map in Johnson. In that case, last year, the WI Supreme Court did not address the issue of whether that state's Congressional map violated the Wisconsin constitution.
On Aug. 5, we submitted an email to Law Forward, one of the Wisconsin based groups involved in the Clarke petition. To date, Law Forward has not responded to our inquiry as to whether a separate legal challenge to Wisconsin's Congressional map might be forthcoming. If they do, we will update this item as appropriate.
UPDATE 8/17/2023: Reacting swiftly, on August 15, the Wisconsin Supreme Court issued an Order [PDF], in response petitioners' request in Clarke v. Wisconsin Election Commission that it exercise its original jurisdiction to hear and rule on petitioners' legal challenge to the Badger State's partisan gerrymandered Legislative map. The Election Commission must file its response by August 22.
While not expressly stated, it seems likely that the prompt decision reflects that time is of the essence. If the Court, in an exercise of original jurisdiction, rules that the current Legislative map is unconstitutional, either a new map would have to be in place in advance of the Feb. 20, 2024 primary or the primary, itself, would have to be delayed.
The Court's order was issued over a dissent, issued by Justice Rebecca Bradley, a 2015 Gov. Scott Walker appointee currently embroiled in her own controversy for deceptively rewriting her own Wikipedia page.
Bradley argues that the outcome of the case is "predetermined", noting that the petition was filed one day after Justice Protasiewicz was seated, arguing: "Only a change in court membership makes a do-over [of Johnson] possible."
Justice Bradley's dissent reflects a desire by the state's hard-right Republicans to cling to their entrenched power by any means necessary.
Shortly after the case was filed, Republican Assembly Speaker Robin Vos threatened to initiate impeachment proceedings against Justice Protasiewicz if she did not recuse.
Vos based his recusal demand upon a campaign remark by the new Justice. "I don't think you could sell any reasonable person that the maps are fair," Protasiewicz said, adding: "I cant tell you what I would do on a particular case, but I can tell you my values, and the maps are wrong."
Stating that the maps are "unfair" is not the same thing as stating, as the three liberal Justices did in their Johnson dissent, that the maps are unconstitutional. So, her remarks did not amount to "prejudgment".
That distinction, however, may not matter to Wisconsin Republicans, who need only a simple majority in the Assembly to impeach. Perhaps, ironically, as a result of the extreme partisan gerrymandering at issue, Republicans hold the 2/3 majority in the Senate needed to convict and remove a Justice who just won an 11-point statewide victory at the polls earlier this year.