The Wisconsin Supreme Court on Friday declined a request from Republicans to adopt new redistricting rules meant to keep litigation over drawing the state’s next political maps before the state’s highest court.
The decision, handed down via an unsigned order, represents a defeat for Republicans as Wisconsin lawmakers gear up to draw the state’s next set of 10-year maps in a political environment that is already more difficult for the GOP given they have lost control of the governor’s office since the last map-drawing process a decade ago.
“The court determined that, as drafted, the procedures proposed in this administrative rule petition are unlikely to materially aid this court’s consideration of an as yet undefined future redistricting challenge, and voted to deny the petition,” the court said. In the decision, however, justices said the denial of the petition doesn’t predict whether the court would bypass lower courts to take up a redistricting case, or to review a lower court’s decision on a redistricting matter.
“It remains well-settled that redistricting challenges often merit this court’s exercise of its original jurisdiction,” the court said.
Liberal redistricting attorney Douglas Poland welcomed the court’s decision because it keeps in place well-established judicial procedures used for redistricting and prevents a change many liberals regarded as a political maneuver.
“Just to return to normal procedures is a victory,” Poland said. “We need to return the state to a status where rules aren’t trying to be manipulated for partisan gain.”
Poland said the court’s decision represents a backing away from a practice used particularly by Republicans to appeal directly to the majority conservative state Supreme Court and bypass lower courts in the process. Poland said such appeals were a sign of increasingly partisan gamesmanship in the state.
The conservative Wisconsin Institute for Law and Liberty, along with former Republican Assembly Speaker Scott Jensen, sought the rule change.
Under their proposal, any legal challenge would start and end in the Wisconsin Supreme Court instead of first working its way through lower courts. The court would have to decide on the legality of any maps by April 2022. That would guarantee candidates for office would know the boundaries of their districts before they begin circulating nomination papers to get on the ballot that fall.
WILL maintained the request made to the Supreme Court was consistent with the court’s previous wish in a 2000 legal challenge to keep all redistricting cases in state courts, not federal courts. That year, the state Supreme Court deferred to federal courts because there was no rule like the one being proposed now to keep the challenges in state courts. Conservatives maintain a 4-3 majority on the Wisconsin Supreme Court.“We filed a petition because of prior remarks from the Court that a rule would be helpful for it in assessing redistricting matters,” WILL president and general counsel Rick Esenberg said in an email. “The Court has determined the proposed rule is not needed, but has made clear that rejection of the rule does not mean the Court will reject its jurisdictional role with respect to redistricting.”
Since the Republicans drew the maps 10 years ago, the party has maintained large majorities in the state Senate and Assembly and holds five of the state’s eight congressional districts, despite Democrats sweeping all statewide elected offices in 2018. Who draws the maps next year, and which court resolves the expected legal fight, will give the winner an upper hand in having majority control for a decade.
Even though Republicans currently control both chambers, Democratic Gov. Tony Evers has the power to veto any map passed by the Legislature. Most expect courts to have the final say. Keeping any lawsuits in the state Supreme Court, as the rule change proposes, would seem to favor conservatives, given the current makeup of the court.
Nonpartisan redistricting advocates applauded the decision.
“The state Supreme Court has made the right decision in denying the effort to rig the map-drawing process through a ridiculously partisan proposed rule,” said Fair Elections Project director Sachin Chheda. “The legislature should now commit to an open, honest, transparent and fair process to draw and approve the district maps for the next decade. The people deserve nothing less.”