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Wisconsin Supreme Court Hears Gerrymandering Case

Based on multiple recent elections, Wisconsin is the most closely balanced state in the country. For example, Joe Biden beat Donald Trump by 0.63% in 2020 and Sen. Ron Johnson (R-WI) beat Mandela Barnes (D) by 1.00% in the 2022 Senate race. Nevertheless, six of the eight U.S. representatives (75%) are Republicans, 22 of the 33 state senators (67%) are Republicans, and 64 of the 99 state assemblymembers (65%) are Republicans. Something is rotten in the state of Wisconsin. Bad cheese? Probably not. More likely, bad district maps.

On Tuesday, the Wisconsin Supreme Court heard oral arguments in a lawsuit in which the plaintiffs claim the federal and state maps are unconstitutionally gerrymandered. The state Constitution requires districts to be "contiguous." The site gives two definitions of contiguous:

  1. touching; in contact
  2. in close proximity without actually touching; near

According to the staff mathematician in consultation with the staff topologist, a set of points is contiguous if every point in the set can be connected to every other point in the set by a path that never exits the set. About half the state districts do not have this property. In other words, they consist of two blobs separated by one or more other districts. The plaintiffs claim this is unconstitutional and the Court should throw out the maps and hire a special master to draw new ones.

Since the bitterly contested election of Justice Janet Protasiewicz (D) in April, the Democrats have a 4-3 majority on the Court and Republicans are scared witless that the Court will invalidate the maps and hire someone to draw fair ones, which will cost the Republicans dozens of seats. Much of the discussion Tuesday wasn't about the maps or the law or the state Constitution, but about whether Protasiewicz should get to vote on the case. Her view is "yes," and ultimately, that's what counts. Only she can recuse herself and she sees no reason to do that. She was elected in a landslide in a fair (partisan) election and she had every right to campaign on a platform of "the state Constitution requires fair maps." The nature of partisan elections for judges and justices basically requires them to campaign. Maybe electing judges and justices in partisan elections is truly stupid, but it is the law in Wisconsin (and many other places).

The defense threw out every possible excuse to see if anything sticks, but it seems unlikely to work. If the Court votes 4-3 to get rid of the maps, the Republicans will probably appeal to the U.S. Supreme Court. Generally, SCOTUS leaves interpretations of state Constitutions up to the state Supreme Courts unless the case involves some provision of the U.S. Constitution. In the Harper v. Moore ruling in June, the Supreme Court shot down the "independent state legislature theory" and declared that the state courts most definitely have a role to play handling election-related cases. Will Chief Justice John Roberts refer to that case when the Wisconsin one is dumped in his lap? We don't know. (V)

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