Amicus Curiae Brief — Timothy K. Moore, in His Official Capacity as Speaker of the North Carolina House of Representatives, et al., Petitioners v. Rebecca Harper, et al.
Supreme Court briefOct 26, 2022
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No. 21-1271
In the Supreme Court of the United States
TIMOTHY K. MOORE, in his official capacity as
Speaker of the North Carolina House of
Representatives, et al.,
Petitioners,
v.
REBECCA HARPER, et al.,
Respondents.
________________________________________________
On Writ of Certiorari to the
North Carolina Supreme Court
________________________________________________
BRIEF OF AMICI CURIAE LAW FORWARD
AND HELEN HARRIS, MARY LYNNE
DONOHUE, AND WILLIAM WHITFORD
IN SUPPORT OF RESPONDENTS
________________________________________________
Mel Barnes*
Jeffrey A. Mandell
Daniel S. Lenz
Douglas M. Poland
LAW FORWARD, INC.
Colin T. Roth
222 West Washington
STAFFORD ROSENBAUM
Ave. #250
LLP
Madison, WI 53703
222 West Washington
mbarnes@lawforward.org Ave. #900
608.535.9808
P.O. Box 1784
*Counsel of Record
Madison, WI 53701
608.256.0226
Counsel for Amici
Curiae
i
TABLE OF CONTENTS
INTEREST OF AMICI CURIAE ................................1
SUMMARY OF ARGUMENT .....................................2
ARGUMENT................................................................4
I.
II.
ISLT would damage core federalism principles
by usurping Wisconsin state courts’ authority
over state election law and transferring that
authority to the federal courts. ........................4
A.
ISLT would prevent Wisconsin courts
from enforcing its state constitution. .... 6
B.
Adopting ISLT would transfer from
Wisconsin’s state courts to its two
federal district courts state election law
disputes involving its 1,850 separatelyadministered voting jurisdictions........11
C.
ISLT would create significant doubt
over the proper method of interpreting
Wisconsin’s election statutes. ..............17
ISLT would render Wisconsin’s election
administration unworkable............................20
A.
Wisconsin’s election administration is
uniquely decentralized.........................20
B.
Petitioners’ proposed adoption of ISLT
would fundamentally disrupt Wisconsin
election administration. .......................23
ii
C.
III.
ISLT would weaken Wisconsin’s
bipartisan election administration......26
Adopting ISLT would eviscerate this Court’s
promise in Rucho v. Common Cause that state
remedies may exist to address partisan
gerrymandering and contravene Wisconsin’s
efforts to do so. ................................................30
A.
State-law remedies are all that stand
between Wisconsin’s political branches
and irredeemable partisan
gerrymandering of congressional
districts. ................................................30
B.
While Wisconsin has not yet heard a
state-law partisan gerrymandering
claim, there is reason to believe its
courts will police the practice, absent
this Court adopting ISLT. ................... 33
CONCLUSION ..........................................................38
iii
TABLE OF AUTHORITIES
Cases
Attorney Gen. ex rel. Bashford v. Barstow,
4 Wis. 567 (1855) ....................................................34
Baker v. Carr and Colegrove v. Green,
72 Yale L. J. 13 (1962) ...........................................36
Becker v. Dane Cnty., 2022 WI 63, 403 Wis. 2d
424, 977 N.W.2d 390 ................................................2
Black Leaders Organizing for Communities v.
Spindell, 3:21-cv-00534-jdp-ajs-eec (May 5,
2022). ......................................................................32
Britton v. Bd. of Election Comm’rs of City &
Cnty. of San Francisco, 129 Cal. 337, 61 P. 1115
(1900) ........................................................................8
Burdick v. Takushi, 504 U.S. 428 (1992)..................20
Carey v. Wis. Elec. Comm., No. 22-cv-402, 2022
WL 3910457 at *9 ..................................................24
Carey v. Wis. Elections Comm’n, No. 22-cv-402-jdp,
2022 WL 3910457 (W.D. Wis. Aug. 31, 2022) .........2
iv
Clapp v. Joint Sch. Dist. No. 1 of Vills. of Hammond
& Roberts, 21 Wis. 2d 473, 479, 124 N.W.2d 678
(1963) ......................................................................18
Dem. Nat’l Com. v. Bostelmann, 451 F.Supp.3d 952
(W.D. Wis. Apr. 2, 2020), stayed in part, 2020 WL
3619499 (7th Cir. Apr. 3, 2020), stayed in part sub
nom., Rep. Nat’l Com. v. Dem. Nat’l Com., 140
S.Ct. 1205 (2020) .............................................. 24, 28
Democratic Nat’l Comm. v. Wis. State Legislature,
141 S. Ct. 28 (2020) .............................. 12, 13, 16, 17
Erie R. Co. v. Tompkins, 304 U.S. 64 (1938) ..............5
Fabick v. Wis. Elections Comm’n, No. 2021AP428-OA
(Wis. Jun. 25, 2021) ................................................. 1
Gableman v. Genrich, No. 2021CV1710 (Waukesha
Cnty. Cir. Ct. Aug. 29, 2022) ...................................2
Hawkins v. Wisconsin Elections Commission, 2020
WI 75, 393 Wis. 2d 629, 948 N.W.2d 877 (per
curiam) ...................................................................14
Jefferson v. Dane Cnty., 2020 WI 90, 394 Wis. 2d 602,
951 N.W.2d 556 ......................................................15
v
Johnson v. Wis. Elections Comm’n, 2021 WI 87, 399
Wis. 2d 623, 967 N.W.2d 469, followed by 2022 WI
14, 400 Wis. 2d 626, 971 N.W.2d 402, vacated and
remanded sub nom. Wis. Legislature v. Wis.
Elections Comm’n, 142 S. Ct. 1245 (2022) (per
curiam), decided on remand, 2022 WI 19, 401 Wis.
2d 198, 972 N.W.2d 559 ............................... 1, 28, 32
Kormanik v. Wis. Elec. Comm., No. 2022CV1395
(Waukesha Cnty. Cir. Ct.) ............................... 24, 28
League of Women Voters of Wis. Educ. Network, Inc.
v. Walker, 2014 WI 97, 357 Wis. 2d 360, 851
N.W.2d 302 ...............................................................7
League of Women Voters of Wis. v. Evers, 2019 WI 75,
387 Wis. 2d 511, 929 N.W.2d 209 ..........................28
League of Women Voters of Wis. v. Millis, No. 21-cv805 (W.D. Wis. Aug. 17, 2022) .................................2
League of Women Voters of Wis. v. Wis. Elections
Comm’n, No. 2022CV2472 ............................... 15, 28
League of Women Voters of Wis. v. Wis. Elections
Comm’n, No. 2022CV2472 (Dane Cnty. Cir. Ct.)
(pending)................................................................... 2
Logic v. City of S. Milwaukee Bd. of Canvassers,
2004 WI App 219, ¶5, 277 Wis. 2d 421, 689
N.W.2d 692 .............................................................18
vi
Luft v. Evers, 963 F.3d 665 (7th Cir. 2020) ........ 23, 24
Michigan v. Long, 463 U.S. 1032 (1983)........... 5, 6, 10
Ollmann v. Kowalewski, 238 Wis. 574, 300 N.W. 183
(1941) ........................................................................7
PruneYard Shopping Ctr. v. Robins, 447 U.S. 74
(1980) ........................................................................8
Republican Nat’l Comm. v. Democratic Nat’l Comm.,
140 S. Ct. 1205 (2020) ............................................20
Rise, Inc. v. Wis. Elections Comm’n, No.
2022CV2446 ...........................................................15
Roth v. Lafarge Sch. Dist. Bd. of Canvassers, 2004
WI 6, ¶¶19-25, 268 Wis. 2d 335, 677 N.W.2d 599 19
Rucho v. Common Cause, 139 S. Ct. 2484
(2019) .............................................................. passim
Sewell v. Racine Unified Sch. Dist. Bd. of
Canvassers, 2022 WI 18, 401 Wis. 2d 58, 972
N.W.2d 155 ...............................................................1
State ex rel. Bond v. French, 2 Pin. 181, 1 Chand. 130
(Wis. 1849) ..............................................................24
State ex rel. Kaul v. Prehn, 2022 WI 50, 402 Wis. 2d
539, 976 N.W.2d 821 ................................................1
vii
State ex rel. McGrael v. Phelps, 144 Wis. 1, 128 N.W.
1041 (1910) ........................................................... 7, 8
State ex rel. Michalek v. LeGrand, 77 Wis. 2d 520,
253 N.W.2d 505 (1977)...........................................22
State ex rel. Pelishek v. Washburn, 223 Wis. 595, 270
N.W. 541 (1936)......................................................18
State ex rel. Reynolds v. Zimmerman, 22 Wis. 2d 544,
126 N.W.2d 551 (1964)...........................................34
State ex rel. Wettengel v. Zimmerman, 249 Wis. 237,
24 N.W.2d 504 (1946).............................................24
State ex rel. Wood v. Baker, 38 Wis. 71 (1875) ...........7
State ex rel. Zignego v. Wis. Elections Comm’n, 2021
WI 32, 396 Wis. 2d 391, 957 N.W.2d 208 ..............15
State v. Cole, 2003 WI 112, ¶10, 264 Wis. 2d 520, 665
N.W.2d 328 .............................................................10
State v. Halverson, 2021 WI 7, ¶23, 395 Wis. 2d 385,
953 N.W.2d 847 .................................................. 9, 10
State v. Knapp, 2005 WI 127, ¶60, 285 Wis. 2d 86,
700 N.W.2d 899 ........................................................9
viii
Teigen v. Wis. Elections Comm’n, No. 2021CV958
(Waukesha Cnty. Cir. Ct. Jan. 25, 2022), aff’d as
modified, 2022 WI 64, 403 Wis. 2d 607,
976 N.W.2d 519 ............................................ 2, 15, 24
Trump v. Biden, 2020 WI 91, 394 Wis. 2d 629, 951
N.W.2d 568 ................................................. 12, 13, 24
Waity v. Vos, No. 2021CV589 (Dane Cnty. Cir. Ct.
Apr. 29, 2021), rev’d, 2022 WI 6, 400 Wis. 2d
356, 969 N.W.2d 263 ................................................1
White v. Wis. Elections Comm’n, No. 2022CV1008
(Waukesha Cnty. Cir. Ct. Oct. 3, 2022)...................2
Wis. Elections Comm’n, et al., v. Wis. State Assembly,
et al., No. 2021CV2552 (Dane Cnty. Cir. Ct. Aug.
29, 2022) ...................................................................2
Wis. Justice Initiative, Inc. v. Wis. Elections Comm’n,
No. 2020AP2003 (Wis.) (pending) ...........................2
ix
Constitutional Provisions
Wis. Const. art. I, § 1...................................................7
Wis. Const. art. I, § 9.................................................36
Wis. Const. art. III, § 1 ................................................6
Wis. Const. art. XI, § 3(1) ..........................................22
U.S. Const. art. I, § 4, cl. 1 ........................................20
Statutes
2022 Minn. Stat. § 204B.071.....................................28
2022 Minn. Stat. § 204B.146.....................................28
2022 Minn. Stat. § 204B.27.......................................28
Mich. Comp. Laws § 168.31 ......................................28
Wis. Stat. §§ 10.01(2)(a) ............................................25
Wis. Stat. § 10.06(1)(f) ...............................................25
Wis. Stat. § 15.61(1)(a) ..............................................27
Wis. Stat. § 15.61(1)(a)1–4 ........................................27
Wis. Stat. § 227.01(3m) .............................................27
Wis. Stat. § 227.19.....................................................28
x
Wis. Stat. § 227.26.....................................................28
Wis. Stat. § 227.40(5) ................................................28
Wis. Stat. § 5.01(1) .............................................. 18, 19
Wis. Stat. § 5.05(1) .............................................. 23, 27
Wis. Stat. § 5.05(1)(f) .................................................27
Wis. Stat. § 5.05(13)(a) ..............................................29
Wis. Stat. § 5.05(2m) .................................................27
Wis. Stat. § 5.05(6a) ..................................................27
Wis. Stat. § 5.06(1) ....................................................27
Wis. Stat. § 5.25.........................................................22
Wis. Stat. § 6.30.........................................................21
Wis. Stat. § 6.33(1) ....................................................27
Wis. Stat. § 6.84(1) ....................................................18
Wis. Stat. § 6.86(1)(ar) ..............................................21
Wis. Stat. § 6.86(3)(a)1 ..............................................27
Wis. Stat. § 6.869.......................................................27
Wis. Stat. § 7.10.........................................................23
xi
Wis. Stat. § 7.15(1) ....................................................20
Wis. Stat. § 7.15(1)(b) ................................................21
Wis. Stat. § 7.15(1)(cm) .............................................21
Wis. Stat. § 7.15(9) ....................................................22
Wis. Stat. § 7.30(2)(a) ................................................22
Wis. Stat. § 7.52.........................................................22
Wis. Stat. § 7.53(2)(a)(1)............................................21
Wis. Stat. § 7.60.........................................................23
Wis. Stat. §§ 6.87(1)–(3) ............................................21
Wis. Stat. §§ 7.15(1)(e)–(g), (11)................................21
Wis. Stat. ch. 5–10, 12...............................................23
Other Authorities
Daniel P. Tokaji, America’s Top Model: The
Wisconsin Government Accountability Board, 3
U.C. Irvine L. Rev. 575, 577 (2013) .......................27
Elizabeth Pierson & Nicole Safar, Who’s behind all
the election administration lawsuits?, Wisconsin
Examiner (Oct. 17, 2022) .......................................17
xii
Jason Stein & Larry Sandler, 1,850 Municipal Clerks
Another Complication, Milwaukee JournalSentinel (Apr. 6, 2011) ...........................................21
Jenny Peek, From Kitchen Tables to Town Halls,
How Municipal Clerks Power Wisconsin’s Elections,
Wisconsin Public Radio (Oct. 29, 2018).................21
JT Cestkowski, City of Madison stands by
‘Democracy in the Park’ despite letter from
Republicans, WKOW (Oct. 1, 2020).......................29
Matthew Rothschild, Fair Maps Movement in
Wisconsin Rolls On, Wisc. Democracy Campaign
(Apr. 7, 2021) ..........................................................31
William J. Brennan, Jr., State Constitutions and the
Protection of Individual Rights, 90 Harv. L. Rev.
489, 491 (1977) .........................................................8
William Whitford et al, Comment on Rules Petition
20-03 (Nov. 24, 2020) .............................................32
Wisconsin Elections Commission, 2021 Election
Security Report (Sept. 23, 2021)............................22
Wisconsin Fair Maps Coalition, Gerrymandering in
Wisconsin, Bills or Resolutions Introduced to
Reform Redistricting in Wisconsin in the Past
Decade, (Accessed Oct. 25, 2022) ...........................37
1
INTEREST OF AMICI CURIAE1
Law Forward is a nonprofit, nonpartisan law
firm that exists to advance democracy in Wisconsin.
Law Forward works to promote fundamental
democratic principles, to revive Wisconsin’s
traditional commitment to clean and open
government, and to advance a progressive vision
through impact litigation, administrative process, and
public education. Law Forward has significant
experience in cases involving election and
constitutional issues, both as counsel and as an
amicus curiae. Recent cases include Fabick v. Wis.
Elections Comm’n, No. 2021AP428-OA (Wis. Jun. 25,
2021); Waity v. Vos, No. 2021CV589 (Dane Cnty. Cir.
Ct. Apr. 29, 2021), rev’d, 2022 WI 6, 400 Wis. 2d 356,
969 N.W.2d 263; Sewell v. Racine Unified Sch. Dist.
Bd. of Canvassers, 2022 WI 18, 401 Wis. 2d 58, 972
N.W.2d 155; Johnson v. Wis. Elections Comm’n, 2021
WI 87, 399 Wis. 2d 623, 967 N.W.2d 469, followed by
2022 WI 14, 400 Wis. 2d 626, 971 N.W.2d 402, vacated
and remanded sub nom. Wis. Legislature v. Wis.
Elections Comm’n, 142 S. Ct. 1245 (2022) (per
curiam), decided on remand, 2022 WI 19, 401 Wis. 2d
198, 972 N.W.2d 559; State ex rel. Kaul v. Prehn, 2022
WI 50, 402 Wis. 2d 539, 976 N.W.2d 821; Teigen v.
Wis. Elections Comm’n, No. 2021CV958 (Waukesha
1 No counsel for a party authored this brief in whole or in part,
and no person or entity other than amici or their counsel made a
monetary contribution intended to fund the preparation or
submission of this brief. All parties have filed blanket consents
to the filing of briefs by amici curiae.
2
Cnty. Cir. Ct. Jan. 25, 2022), aff’d as modified, 2022
WI 64, 403 Wis. 2d 607, 976 N.W.2d 519; Becker v.
Dane Cnty., 2022 WI 63, 403 Wis. 2d 424, 977 N.W.2d
390; League of Women Voters of Wis. v. Millis, No. 21cv-805 (W.D. Wis. Aug. 17, 2022); Gableman v.
Genrich, No. 2021CV1710 (Waukesha Cnty. Cir. Ct.
Aug. 29, 2022); Wis. Elections Comm’n, et al., v. Wis.
State Assembly, et al., No. 2021CV2552 (Dane Cnty.
Cir. Ct. Aug. 29, 2022); Carey v. Wis. Elections
Comm’n, No. 22-cv-402-jdp, 2022 WL 3910457 (W.D.
Wis. Aug. 31, 2022); White v. Wis. Elections Comm’n,
No. 2022CV1008 (Waukesha Cnty. Cir. Ct. Oct. 3,
2022); League of Women Voters of Wis. v. Wis.
Elections Comm’n, No. 2022CV2472 (Dane Cnty. Cir.
Ct.) (pending); Wis. Justice Initiative, Inc. v. Wis.
Elections Comm’n, No. 2020AP2003 (Wis.) (pending).
Helen Harris, Mary Lynne Donohue, and
William Whitford were plaintiffs in Whitford v. Gill,
the case challenging partisan gerrymandering in
Wisconsin that reached this Court as Gill v. Whitford
in 2018. 138 S. Ct. 1916 (2018). That case was
dismissed in the midst of remand proceedings,
pursuant to Rucho v. Common Cause, 139 S. Ct. 2484
(2019). All three are U.S. citizens and registered
voters residing in Wisconsin.
SUMMARY OF ARGUMENT
Whether or not constitutional text and history
support the novel independent state legislature
theory (ISLT) that Petitioners and certain amici
3
envision, this much surely is true: adopting ISLT
would open a Pandora’s Box in the world of state
election law. While it is impossible to predict all the
ways which ISLT, if loosed, could wreak havoc,
viewing the theory through the lens of Wisconsin
elections provides some unsettling clarity.
First, the volume of election litigation in
Wisconsin during (and after) the 2020 election cycle
demonstrates the enormity of the task that ISLT
would thrust upon the state’s federal courts. While
this particular case would apply ISLT to redistricting,
versions of the theory have already arisen that would
transform virtually every dispute about state election
law—whether over its validity, interpretation, or
anything else—into federal cases. During every
heated election cycle to come, ISLT would enlist
federal courts in Wisconsin to referee some of the most
technical, yet impactful, issues of state election law.
And not all such disputes would be technical or
statutory ones; some could involve thorny issues of
state constitutional law in which federal courts have
no expertise. So, although ISLT ostensibly aims to
empower state legislatures, adopting this theory
would dynamite bedrock federalism principles.
Second, ISLT could throw a wrench into
Wisconsin’s
complex,
decentralized
elections
administration machinery. Unlike many other states,
Wisconsin charges 1,850 municipal clerks—many of
them part-time public servants working out of their
homes—with
the
most
important
election
4
administration tasks. ISLT threatens to embroil those
clerks in federal litigation whenever they make
choices one candidate or another dislikes. Worse, the
theory could conceivably lead to two bodies of election
law that they would need to administer, one for state
elections and another for federal ones. ISLT would
make their already-demanding job impossibly
complicated.
Third, Wisconsin voters remain at the mercy
of one of the most extreme partisan gerrymanders in
the nation. Despite this Court’s assurance in Rucho v.
Common Cause that their complaints would not be
condemned to “echo into a void,” 139 S. Ct. at 2507
(2019), that is precisely the fate they would suffer
under ISLT. Absent the state law remedies that ISLT
would demolish, Wisconsin voters would be left with
no place to turn but a gerrymandered state legislature
that surely has no interest in diminishing its own
power.
ARGUMENT
I.
ISLT would damage core federalism
principles by usurping Wisconsin state
courts’ authority over state election law
and transferring that authority to the
federal courts.
It is a bedrock principle of federalism that
federal courts must respect the primacy of state courts
in interpreting and applying state law. Ever since
5
Green v. Neal’s Lessee, federal courts have “adher[ed]
... to the exposition of the local law, as given by the
courts of the state,” an approach that “greatly tend[s]
to preserve harmony in the exercise of the judicial
power, in the state and federal tribunals.” 31 U.S. 291,
301 (1832). This policy of deference recognizes that, in
the federal courts, “[t]he process of examining state
law is unsatisfactory because it requires [them] to
interpret state laws with which [they] are generally
unfamiliar.” Michigan v. Long, 463 U.S. 1032, 1039
(1983). The Erie doctrine embodies this same idea, as
it “recognizes and preserves the autonomy and
independence of the states,—independence in their
legislative and independence in their judicial
departments.” Erie R. Co. v. Tompkins, 304 U.S. 64,
78–79 (1938). And this spirit of humility carries
through cases like Pennhurst State School & Hospital
v. Halderman, which observed that “it is difficult to
think of a greater intrusion on state sovereignty than
when a federal court instructs state officials on how to
conform their conduct to state law.” 465 U.S. 89, 106
(1984).
ISLT would undermine these core federalism
principles in at least three important ways, as shown
by its hypothetical application to Wisconsin. First, if
adopted, ISLT would interfere with state
constitutional law, an area in which federal courts
have no expertise. Second, it would transport a legion
of garden-variety disputes over Wisconsin’s election
statutes into federal courts. Third, it would upend
background rules of interpretation of state election
6
law that have prevailed in Wisconsin state courts for
at least a century.
A.
ISLT would prevent Wisconsin
courts from enforcing its state
constitution.
“It is fundamental that state courts be left free
and unfettered by [federal courts] in interpreting their
state constitutions.” Michigan, 463 U.S. at 1041. This
hands-off policy properly gives state courts the
“opportunity to develop state jurisprudence
unimpeded by federal interference.” Id. But ISLT
would accomplish precisely the opposite by strangling
Wisconsin’s long tradition of construing its own state
constitution to develop a body of law that channels
and constrains the exercise of legislative power,
including in the electoral context. At minimum,
Petitioners’ (ironically vague) attack on “vague state
constitutional
provisions”
and
“open-ended
guarantee[s]” (Pet. Br. I, 46) would create substantial
uncertainty over who can interpret and apply
Wisconsin’s constitution at the worst possible
moment—during heated election-season disputes
when democratic legitimacy may be on the line.
Start with Article III, section 1 of the Wisconsin
Constitution,2 which the Wisconsin Supreme Court
2 This provision reads: “Every United States citizen age 18 or
older who is a resident of an election district in this state is a
qualified elector of that district.”
7
has long recognized protects the “right to vote.” State
ex rel. McGrael v. Phelps, 144 Wis. 1, 128 N.W. 1041,
1046 (1910); see also Ollmann v. Kowalewski, 238 Wis.
574, 300 N.W. 183, 185 (1941) (“[A]ny statute that
denies a qualified elector the right to vote is
unconstitutional and void.”); State ex rel. Wood v.
Baker, 38 Wis. 71, 89 (1875) (“[I]t would be monstrous
in us to give such [disenfranchising] effect to the
registry law, against its own spirit and in violation of
the letter and spirit of the constitution.”). Wisconsin
law acknowledges that this provision permits the
Legislature to regulate voting rights, so long as “the
interference, from the standpoint of a legitimate
purpose, can stand the test of reasonableness.”
McGrael, 128 N.W. at 1047. For example, the
Wisconsin Supreme Court affirmed the validity of
photo identification requirements for voting under
this provision. League of Women Voters of Wis. Educ.
Network, Inc. v. Walker, 2014 WI 97, 357 Wis. 2d 360,
851 N.W.2d 302.
Likewise,
the
Wisconsin
Constitution’s
“declaration of rights” provision in Article I, section 1
has traditionally been understood to protect the
electoral process.3 The McGrael Court acknowledged
that “electors holding certain political principles in
common may fully assemble, organize themselves into
3 Article I, section 1 of the Wisconsin Constitution reads: “All
people are born equally free and independent, and have certain
inherent rights; among these are life, liberty and the pursuit of
happiness; to secure these rights, governments are instituted,
deriving their just powers from the consent of the governed.”
8
political parties and use all legitimate means to carry
their principles of government into active operation
through the suffrages of their fellows.” 128 N.W. at
1046–47 (quoting Britton v. Bd. of Election Comm’rs
of City & Cnty. of San Francisco, 129 Cal. 337, 61 P.
1115, 1117 (1900)). Accordingly, “[f]reedom to do those
things reasonably appropriate to the effectual
maintenance of party organizations; and use thereof
to accomplish legitimate party ends,––cannot be
abridged any more than can the right to vote.” Id. at
1047.
Other provisions may also be brought to bear
on elections. Modern litigants have typically pursued
election-related due-process and equal-protection
claims under the Fourteenth Amendment. But that
recent history does not diminish Justice Brennan’s
observation that “[s]tate constitutions … are a font of
individual liberties, their protections often extending
beyond those required by the Supreme Court’s
interpretation of federal law.” William J. Brennan,
Jr., State Constitutions and the Protection of
Individual Rights, 90 Harv. L. Rev. 489, 491 (1977);
see also PruneYard Shopping Ctr. v. Robins, 447 U.S.
74, 81 (1980) (recognizing states’ “sovereign right to
adopt in [their] own Constitution[s] individual
liberties more expansive than those conferred by the
Federal Constitution”).
The Wisconsin Supreme Court has thus rightly
noted that “[f]ulfilling our duty to uphold the
Wisconsin Constitution as written could yield
9
conclusions affording greater protections than those
provided by the federal Constitution.” State v.
Halverson, 2021 WI 7, ¶23, 395 Wis. 2d 385, 953
N.W.2d 847; see also State v. Knapp, 2005 WI 127,
¶60, 285 Wis. 2d 86, 700 N.W.2d 899 (“While textual
similarity or identity is important when determining
when to depart from federal constitutional
jurisprudence, it cannot be conclusive, lest this court
forfeit its power to interpret its own constitution to the
federal judiciary.”). Given the significant textual
differences between Article I, section 1 of the
Wisconsin Constitution and the Fourteenth
Amendment, there may be good reasons to find more
expansive—or, at least, different—protections under
the former. Wisconsin courts have simply not yet had
occasion to fully consider, much less definitively
answer, these questions.
Yet Petitioners’ ISLT proposal would threaten
to terminate or, at minimum, stunt the development
of Wisconsin law regarding all these state
constitutional provisions. Are they specific enough to
govern state election law under Petitioners’ nebulous
“vagueness” test? Or are they too “open-ended”?4
These questions seem particularly absurd with respect to
Wisconsin’s due process and equal protection guarantees. As
with all such provisions, they are, by design, worded broadly
enough to cover the infinite factual scenarios that arise in
running a government. Demanding greater specificity of such
provisions before they can be applied to election statutes runs
contrary to this basic purpose and to the federal analog on which
Wisconsin’s framers drew in drafting the provisions.
4
10
What standard should a federal court use to decide
that question? And how should federal courts
interpret state constitutional provisions when
conducting this “vagueness” analysis? Wisconsin
courts aim “to give effect to the intent of the framers
[of the state’s constitution] and of the people who
adopted it,” State v. Cole, 2003 WI 112, ¶10, 264 Wis.
2d 520, 665 N.W.2d 328 (cleaned up), by “focus[ing] on
the language of the adopted text and historical
evidence including the practices at the time the
constitution was adopted, debates over adoption of a
given provision, and early legislative interpretation as
evidenced by the first laws passed following the
adoption,” Halverson, 2021 WI 7, ¶22 (cleaned up).
There is scant reason to believe that the two federal
courts in Wisconsin are prepared now to take on a task
currently shouldered by Wisconsin’s 72 circuit courts,
four courts of appeal, and Supreme Court, and in their
place become the experts in interpreting Wisconsin’s
constitution (and in the midst of heated election
contests). Petitioners’ ISLT would demand no less.
Of course, a categorical version of ISLT that
does not turn on the vagueness of state constitutional
provisions would be easier to administer, but that
(presumably stricter) version would amputate vital
pieces of Wisconsin’s constitution by severing
Wisconsin courts’ “opportunity to develop state
jurisprudence unimpeded by federal interference,”
Michigan, 463 U.S. at 1041. Wisconsin voters would
lose whatever additional protections their state
constitution grants them, as well as the ability to
11
amend that charter when and as the people see fit,
and to elect judges that guard those rights. It is
difficult to imagine a result more hostile to federalism
than this.
B.
Adopting ISLT would transfer from
Wisconsin’s state courts to its two
federal district courts state election
law disputes involving its 1,850
separately-administered
voting
jurisdictions.
Imposing ISLT would work an additional harm
on Wisconsin law: it would transplant from
Wisconsin’s state to federal courts a legion of
technical, statutory election-law disputes. Wisconsin’s
recent experience is illustrative.
From its articulation in Chief Justice
Rehnquist’s Bush v. Gore concurrence, ISLT has
focused on whether state courts’ interpretation of
their own states’ election laws “impermissibly
distorted them beyond what a fair reading required”
and thereby “departed from the statutory meaning.”
531 U.S. 98, 115 (2000) (Rehnquist, C.J., concurring).
Current members of this Court have suggested that
the theory should pick up where Chief Justice
Rehnquist left off and require state courts to use
something like a strict textualist method of statutory
interpretation for state election laws: “The text of
Article II means that ‘the clearly expressed intent of
the legislature must prevail’ and that a state court
may not depart from the state election code enacted
12
by the legislature.” Democratic Nat’l Comm. v. Wis.
State Legislature, 141 S. Ct. 28, 34 n.1 (2020)
(Kavanaugh, J., concurring in denial of application to
vacate stay) (cleaned up).
But a version of ISLT that “requires federal
courts to ensure that state courts do not rewrite state
election laws,” id., would threaten to flood federal
courts with state-law voting disputes every election
cycle. Accord Conference of Chief Justices Amicus Br.
at 24 (ISLT would “invite litigation seeking federal
court supervision over every state court decision
reviewing the interpretation or application of a state
election law”). A brief sampling of recent election
litigation in Wisconsin illustrates the enormous task
that ISLT would force upon federal courts nationwide.
Take the last-minute recount litigation that
capped off the contentious 2020 general election in
Wisconsin, Trump v. Biden, 2020 WI 91, 394 Wis. 2d
629, 951 N.W.2d 568.5 Then-President Trump sought
a recount of election results in two Wisconsin counties
on the basis that local election officials wrongly
counted absentee ballots that were purportedly cast in
violation of state election law. The picayune details of
the alleged state-law violations are, paradoxically,
5 Mr. Trump filed a recount petition on November 18, 2020, and
the Wisconsin Supreme Court issued its decision less than month
later, on December 14, 2020.
13
both beside the point and the entire point.6
Traditionally, federal courts would not (and could not)
plunge into the finer points of state election law—
state courts would resolve the dispute, as they did in
Trump, and that would be that.
But a robust ISLT could have allowed Mr.
Trump a second bite at the apple in federal court. He
might have sought review of the Wisconsin Supreme
Court’s decision arguing that, by resolving the case on
laches grounds, the Wisconsin Supreme Court
“depart[ed] from the state election code enacted by the
legislature.” Democratic Nat’l Comm., 141 S. Ct. at 34
n.1 (Kavanaugh, Jr., concurring). And, in fact, he did
seek federal court review of his state law theories,
invoking the parallel Electors Clause. The Seventh
Circuit rightly rebuffed his effort in Trump v.
Wisconsin Elections Commission, recognizing that it,
as a federal court, was “not the ultimate authority on
Wisconsin law” and therefore that Mr. Trump’s state
law claims “belong[ed], then, in state courts.” 983 F.3d
919, 927 (7th Cir. 2020).
That deferential result was the right approach.
Mr. Trump’s request that federal courts intervene and
Generally speaking, they involved an absentee voting
designation called “indefinite confinement,” whether absentee
voters had to fill out an application form separate from the
absentee ballot itself, the sufficiency of addresses provided by
absentee ballot witnesses, and whether a municipality could
accept completed absentee ballots returned to election officials in
a city park. Trump v. Biden, 2020 WI 91, ¶2.
6
14
set aside the results of Wisconsin’s general election
based on state election law was unprecedented. Yet it
precisely illustrates ISLT’s problem. In defiance of
basic federalism principles, the theory would allow
litigants to force Wisconsin’s federal courts to resolve
eleventh-hour
disputes
over
hyper-technical,
previously unadjudicated questions of state election
law, all while staring down the highest possible
stakes.
Other consequential 2020 general election
state-law litigation in Wisconsin also may have
landed in a federal court’s lap. Consider the ballot
access dispute in Hawkins v. Wisconsin Elections
Commission, 2020 WI 75, 393 Wis. 2d 629, 948
N.W.2d 877 (per curiam). After Green Party
candidates filed nomination papers for the 2020
general election, the Wisconsin Elections Commission
did not approve enough petition signatures to qualify
the candidates for inclusion on the ballot. Id. ¶2.
When the candidates sued, the Wisconsin Supreme
Court held that there was no relief available due to
their delay in bringing suit. Id. ¶10.
Much like in Trump, the Green Party
candidates might instead have invoked ISLT by
arguing—as one Justice in Hawkins did—that the
Wisconsin Elections Commission “had a statutory
obligation to place [the candidates] on the ballot,
which the Commission violated.” Id. ¶48 (Ziegler, J.,
dissenting). Framing the issue as a state executive
body usurping a state legislature’s sole authority over
15
a federal election could have forced another difficult
case, strictly turning on Wisconsin law, into federal
court—and one that needed to resolved immediately,
given that the candidates filed their ballot access
challenge after ballots had been printed and many had
been mailed to voters.
Other recent election disputes arising in
Wisconsin state courts fit this pattern. In virtually all
of them, challengers alleged that some election official
or state election body failed to properly apply state
election law and thereby usurped the Legislature’s
primacy over election policy. See, e.g., Jefferson v.
Dane Cnty., 2020 WI 90, 394 Wis. 2d 602, 951 N.W.2d
556 (state-law dispute over “indefinitely confined
voter” designation); State ex rel. Zignego v. Wis.
Elections Comm’n, 2021 WI 32, 396 Wis. 2d 391, 957
N.W.2d 208 (state-law dispute over voter rolls);
Teigen, 2022 WI 64 (state-law dispute over absenteeballot drop boxes); Rise, Inc. v. Wis. Elections Comm’n,
No. 2022CV2446 (Dane Cnty. Cir. Ct.) (pending)
(state-law dispute over definition of “address” for
witnesses to absentee ballots); League of Women
Voters of Wis. v. Wis. Elections Comm’n, No.
2022CV2472 (state-law dispute over definition of
“missing” for witness addresses on absentee ballots).
Just like with Trump and Hawkins, a robust version
of ISLT could have transformed all these state
election cases into federal contests.
It is worth emphasizing the incredibly tight
timeframes in which these Wisconsin election cases
16
often arise. Because the cases frequently materialize
in the weeks leading up to an election, federal courts
would need to wrestle more often with the Purcell
principle, through which “this Court has regularly
cautioned that a federal court’s last-minute
interference with state election laws is ordinarily
inappropriate.” Democratic Nat’l Comm., 141 S. Ct. at
31 (Kavanaugh, J., concurring in denial of application
to vacate stay). As discussed in detail in Section II,
infra, preventing last-minute changes is particularly
important in Wisconsin due to the state’s uniquely
decentralized election system. By promoting
disruptive, eleventh-hour federal litigation, ISLT
could throw a monkey wrench into Wisconsin’s
delicate election machinery. That threat is
particularly acute in Wisconsin, where elections are
run not by state or even county-level officials, but by
municipal clerks. So not only would federal courts
need to wrestle with precise issues of Wisconsin law,
but they would have to address the application of
those laws across 1,850 jurisdictions.
As a final aside, the pattern of recent election
litigation in Wisconsin belies the picture painted by
certain amici, whereby ISLT could be wielded to
combat a rising tide of partisan election litigation
driven primarily by Democratic Party-aligned groups.
See America’s Future Amicus Br. at 17–31; Lawyers
Democracy Fund Amicus Br. at 16–25. Wisconsin has
indeed witnessed an avalanche of state-court
litigation over the last two years, but mostly initiated
by right-leaning organizations and plaintiffs targeting
17
common-sense and previously noncontroversial
election practices.7 By allowing these litigants to
forum-shop between federal and state courts
whenever they perceive a departure from the
Wisconsin Legislature’s enactments, ISLT would
likely lead to even greater judicial intervention in the
electoral process. That federal courts could soon find
themselves sucked into countless state-law election
disputes would be an ironic result of Petitioners’
purported effort to empower state legislatures.
C.
ISLT would create significant doubt
over
the
proper
method
of
interpreting Wisconsin’s election
statutes.
Finally, ISLT would threaten statutory
interpretation principles developed over decades by
the Wisconsin judiciary and that Wisconsin courts
have long applied to election statutes. Consider again
the notion that “[t]he text of Article II means that ‘the
clearly expressed intent of the legislature must
prevail’ and that ‘a state court may not depart from
the state election code enacted by the legislature.’”
Democratic Nat’l Comm., 141 S. Ct. at 34 n.1
(Kavanaugh, J., concurring).
7 Elizabeth Pierson & Nicole Safar, Who’s behind all the election
administration lawsuits?, Wisconsin Examiner (Oct. 17, 2022),
https://wisconsinexaminer.com/2022/10/17/whos-behind-all-theelection-administration-lawsuits/.
18
This rule would override Wisconsin’s express
adoption of a different interpretive method for most of
its election code. Under Wis. Stat. § 5.01(1), that code
“shall be construed to give effect to the will of the
electors, if that can be ascertained from the
proceedings, notwithstanding informality or failure to
fully comply with some of their provisions.”8 In other
words, state courts must largely interpret Wisconsin’s
election laws as “directory rather than mandatory,”
Logic v. City of S. Milwaukee Bd. of Canvassers, 2004
WI App 219, ¶5, 277 Wis. 2d 421, 689 N.W.2d 692,
which in practice turns on whether “substantial
compliance” with the Legislature’s enactments has
occurred. Clapp v. Joint Sch. Dist. No. 1 of Vills. of
Hammond & Roberts, 21 Wis. 2d 473, 479, 124 N.W.2d
678 (1963).
Unsurprisingly, this statute imposes on
Wisconsin courts not just a “difficult task of
construction” but also “the more difficult task of
applying the statute as construed to the
multitudinous situations which may arise under the
election laws.” State ex rel. Pelishek v. Washburn, 223
Wis. 595, 270 N.W. 541, 544 (1936). Wisconsin courts
have shouldered this “difficult” burden, resulting in a
“long history of construing [election statutes] to give
effect to the ascertainable will of the voter,
notwithstanding technical noncompliance with the
8 There is one prominent exception to this provision: Wisconsin’s
absentee voting laws, which the Legislature has provided “shall
be construed as mandatory.” Wis. Stat. § 6.84(1).
19
statutes.” Trump, 951 N.W.2d at 579 (Hagedorn, J.,
concurring); see also Roth v. Lafarge Sch. Dist. Bd. of
Canvassers, 2004 WI 6, ¶¶19-25, 268 Wis. 2d 335, 677
N.W.2d 599 (collecting cases).
A federal court considering an ISLT case could
thus be forced to choose between two competing
interpretive methods. Should it adopt a strict textual
reading of the election statute at issue, as Chief
Justice Rehnquist suggested would be appropriate?
Or should it grant the statute the more flexible
construction prescribed by Wis. Stat. § 5.01(1), in
which the same Legislature prescribed how those
statutes should be interpreted and applied? Although
ISLT might suggest that the Legislature’s chosen
interpretive method should be given effect, the answer
is not at all clear.
And, ultimately, that is the problem. In all
three areas discussed above, ISLT could devastate the
traditional division of federal- and state-court
authority in unpredictable ways. This Court should
keep Pandora’s Box shut, thereby “preserv[ing]
harmony in the exercise of the judicial power, in the
state and federal tribunals.” Green, 31 U.S. at 295.
20
II.
ISLT would render Wisconsin’s election
administration unworkable.
A.
Wisconsin’s election administration
is uniquely decentralized.
Petitioners’ ISLT proposal would also
fundamentally
disrupt
Wisconsin’s
election
administration, undermining the central role the
state plays in regulating federal elections within its
boundaries. U.S. Const. art. I, § 4, cl. 1; Arizona v.
Inter Tribal Council of Ariz., 570 U.S. 1, 15 (2013)
(describing the states’ role in regulating congressional
elections as “weighty and worthy of respect”); Burdick
v. Takushi, 504 U.S. 428, 433 (1992) (“the Court
therefore has recognized that States retain the power
to regulate their own elections.”). Not surprisingly,
therefore, this Court has warned federal courts
against diminishing “the integrity of the election
process.” Republican Nat’l Comm. v. Democratic Nat’l
Comm., 140 S. Ct. 1205, 1207 (2020) (per curiam).
Wisconsin has adopted, for all of its elections—
local, state, and federal—a decentralized electionadministration regime that invests municipal clerks
throughout the state with the “charge and supervision
of elections and registration within the municipality.”
Wis. Stat. § 7.15(1). There are approximately 1,850
municipal clerks9 in Wisconsin—the most of any
9 Jenny Peek, From Kitchen Tables to Town Halls, How
Municipal Clerks Power Wisconsin’s Elections, Wisconsin Public
21
state. 10 Some clerks work part-time, and some work
out of their homes.11 These clerks, with some
assistance from county clerks and the Wisconsin
Elections Commission, run 1,850 individual elections
every cycle—one for each city, village, and town.
The municipal clerks perform nearly all critical
election functions in Wisconsin, including but not
limited to: purchasing and maintaining election
equipment (Wis. Stat. § 7.15(1)(b)); processing inperson, by-mail, and certain aspects of electronic voter
registrations (id. § 6.30); preparing and sending
absentee ballots to absentee voters, including military
and overseas voters (id. §§ 6.87(1)–(3), 7.15(1)(cm));
operating in-person absentee voting (id. § 6.86(1)(ar));
training and supervising the poll workers and chief
inspectors who operate polling places in the
municipality (id. §§ 7.15(1)(e)–(g), (11)); and often
serving on the municipal board of canvass (id.
§ 7.53(2)(a)(1).
Wisconsin’s uniquely decentralized elections
administration permits municipalities, largely
through the clerks, to be more responsive to the
specific needs of the community in everything from
Radio (Oct. 29, 2018), https://www.wpr.org/kitchen-tables-townhalls-how-municipal-clerks-power-wisconsins-elections.
10 Jason Stein & Larry Sandler, 1,850 Municipal Clerks Another
Complication, Milwaukee Journal-Sentinel (Apr. 6, 2011),
https://archive.jsonline.com/news/statepolitics/119373789.html/.
11 Peek, supra.
22
polling locations (Wis. Stat. § 5.25) to the decision of
whether to canvass absentee ballots at a central
location (id. § 7.52). It means that chief inspectors are
members of the communities they serve, and that poll
workers live in the same county (and are hired by the
municipality). Wis. Stat. § 7.30(2)(a). Voters with
questions do not have to deal with large state or
county bureaucracies; instead, they can contact their
local clerks, who also assist with voter education. Wis.
Stat. § 7.15(9). This structure increases election
security, as it provides another layer of
administration, in addition to federal, state, and
county protections.12
Local election administration is also consistent
with, and inherent in, Wisconsin’s constitutional
order over the past 111 years and its adoption of
“home rule” by constitutional amendment. Wis. Const.
art. XI, § 3(1). So, while the Wisconsin Legislature has
passed much legislation setting statewide rules for
election processes, considerable residual authority
remains with municipal clerks. Under Wisconsin’s
constitutional order, the Legislature cannot act within
the “field of local affairs of cities and villages.” State
ex rel. Michalek v. LeGrand, 77 Wis. 2d 520, 253
N.W.2d 505, 506–07 (1977) (cleaned up).
12 See Wisconsin Elections Commission, 2021 Election Security
Report (Sept. 23, 2021) https://elections.wi.gov/resources/reports/
election-security-planning-reports.
23
Wisconsin’s
decentralized
election
administration adheres to this basic structure: the
Legislature—subject to gubernatorial veto—sets
statewide standards and procedures for, inter alia,
registration, voting, canvassing, and recounts. See
generally Wis. Stat. ch. 5–10, 12. A state
administrative agency, the Wisconsin Elections
Commission, enforces and administers those statutes.
Wis. Stat. § 5.05(1). Other actors, including the
counties and their clerks, play certain roles (see
generally Wis. Stat. §§ 7.10, 7.60), but the local
operation of elections is conducted by the
municipalities and, specifically, by the clerks.
Zignego, 2021 WI 32, ¶13 (“Rather than a top-down
arrangement with a central state entity or official
controlling local actors, Wisconsin gives some power
to its state election agency (the Commission) and
places significant responsibility on a small army of
local elections officials.”).
B.
Petitioners’ proposed adoption of
ISLT would fundamentally disrupt
Wisconsin election administration.
“Change is a constant in Wisconsin’s rules for
holding elections,” Luft v. Evers, 963 F.3d 665, 668
(7th Cir. 2020), a fact that already places significant
stress on Wisconsin’s decentralized election system.
Over the past decade, this change often has been
wrought through statutory changes, including the
replacement of the Government Accountability Board
with the Wisconsin Elections Commission. Id. at 668-
24
70 (listing statutory modifications to Wisconsin
election procedure). Other changes come through
federal litigation. Id. at 669-70 (listing federal cases
from 2014 through 2016); Dem. Nat’l Com. v.
Bostelmann, 451 F.Supp.3d 952, 982-83 (W.D. Wis.
Apr. 2, 2020), stayed in part, 2020 WL 3619499 (7th
Cir. Apr. 3, 2020), stayed in part sub nom., Rep. Nat’l
Com. v. Dem. Nat’l Com., 140 S.Ct. 1205 (2020); Carey
v. Wis. Elec. Comm., No. 22-cv-402, 2022 WL 3910457
at *9. And state courts continue to play a major role
in shaping Wisconsin’s election administration,
including redistricting. Johnson, 2022 WI 19; see also
Trump, 2020 WI 91; Teigen, 2022 WI 64; White, No.
2022CV1008; Kormanik v. Wis. Elec. Comm., No.
2022CV1395 (Waukesha Cnty. Cir. Ct.) (filed Sept. 23,
2022) (involving when electors may spoil their
absentee ballots). Not surprisingly, Wisconsin judges
and courts often look to the Wisconsin Constitution for
guidance in resolving election disputes. State ex rel.
Bond v. French, 2 Pin. 181, 182-83, 1 Chand. 130 (Wis.
1849); State v. Kohler, 200 Wis. 518, 228 N.W. 895,
905-06 (1930); State ex rel. Wettengel v. Zimmerman,
249 Wis. 237, 246-48, 24 N.W.2d 504 (1946) (dispute
over primary winner for U.S. Senate). Again, these
cases are often heard and decided in a matter of days
and weeks, given the need for clarity in the lead-up to
election day.13
13 Redistricting litigation, discussed in Section III, infra, likewise
must be conducted on a short timeline in Wisconsin that would
be unduly complicated and burdensome if congressional districts
were required to be litigated separately. Wis. Stat. §§ 10.01(2)(a),
25
Any application of ISLT that resulted in
different rules for state and federal elections would
stress Wisconsin’s system to the breaking point.
Under Petitioners’ formulation, Wisconsin courts can
apply the Wisconsin Constitution to the former, but
not the latter. (Pet. Br. I, 23) As a result, the rules may
differ for the election of a governor compared to a U.S.
Senator, though both positions serve the interests of
all Wisconsinites and are chosen by statewide
election, often on the same ballot, voted on in the same
election process. See Dem. Nat’l Comm., 451
F.Supp.3d at 959-60 (noting that the April 7 election
included a presidential primary, in addition to various
state and local elections, including for a justice of the
Wisconsin Supreme Court). This threat is particularly
acute for Wisconsin, since it would go from having
approximately 1,850 elections every cycle, to having
approximately 3,700 for any election for both state (or
local) and federal offices. If subsequent elections had
to be administered under separate rules, due to
differing state and federal interpretation of the same
statute, that bifurcated system would crush municipal
clerks. Ballots, voting procedures, counting
procedures, and post-election canvasses could all be
thrown into question by divergent rules.
10.06(1)(f) set the deadline for notices for primary and general
elections, which must specify where district boundary
information may be obtained (third Tuesday in March prior to
those elections). In 2022, this was March 15; cf. Johnson, 2022
WI 19 (opinion filed April 15, 2022).
26
Moreover, prompt resolution of election
disputes by Wisconsin’s state courts is critical to
clarify for the “small army of local election officials”
the ground rules for any given election. Wisconsin’s
decentralized system necessarily relies on municipal
clerks knowing and carrying out those rules. Many
clerks, particularly in smaller municipalities, operate
without the benefit of a law department or municipal
attorney, or otherwise have limited access to legal
counsel. They must rely on guidance, opinions, or
decisions from the Wisconsin Elections Commission
or, eventually, a decision from the courts. But by
shuttling myriad election disputes instead to federal
court on extremely tight timelines, and creating a risk
of inconsistent rulings by separate courts, applicable
to different elections on the same ballots, ISLT would
significantly compound the difficulty Wisconsin’s
1,850 clerks already face in determining how to
properly administer elections.
C.
ISLT would weaken Wisconsin’s
bipartisan election administration.
While municipal clerks generally run
Wisconsin elections, they do so with help and input
from other non-legislative actors. Wisconsin’s
Secretary of State is not involved in administering
elections. Instead, the state authority is the
bipartisan Wisconsin Elections Commission. It is the
successor agency to the Government Accountability
Board, which was acclaimed for its non-partisan
structure and performance during its existence from
27
2007 to 2016. Daniel P. Tokaji, America’s Top Model:
The Wisconsin Government Accountability Board, 3
U.C. Irvine L. Rev. 575, 577 (2013). Unlike the
Government Accountability Board, which was nonpartisan, the Commission is a bipartisan body with
members appointed by officials from both major
parties. Wis. Stat. § 15.61(1)(a). The Legislature,
through its leadership, is entitled to appoint four of
the six commissioners. Wis. Stat. § 15.61(1)(a)1–4
(commissioners are appointed by the state senate
majority leader, minority leader, the speaker of the
assembly, and the assembly minority leader).
The Commission has statewide authority for
the administration of Wisconsin’s election laws. Wis.
Stat. § 5.05(1). To that end, it is empowered to perform
certain functions under the Wisconsin statutes and
Constitution. The Commission adjudicates complaints
that election officials have violated the election code.
Wis. Stat. § 5.06(1). It can also investigate and make
determinations regarding certain election-related
crimes and civil violations. Wis. Stat. § 5.05(2m). It
prescribes election forms, including registration
forms, forms for hospitalized voters, and uniform
absentee instructions. Wis. Stat. §§ 6.33(1),
6.86(3)(a)1, 6.869. And it may promulgate
administrative rules and issue guidance documents
and advisory opinions about Wisconsin’s election
statutes. Wis. Stat. §§ 5.05(1)(f), (6a), 227.01(3m).
Here, too, Petitioners’ ISLT would endanger
Wisconsin’s system. Day-to-day statewide election
28
administration is not handled by the Secretary of
State or other purely executive official or agency.
Compare Mich. Comp. Laws § 168.31; 2022 Minn.
Stat. §§ 204B.071, 204B.146, 204B.27 (duties of the
Michigan and Minnesota Secretaries of State in
election administration). Wisconsin’s Legislature
already plays a significant role, both through the
appointment of most Commission members and
through various oversight mechanisms in Wisconsin
administrative law. See Wis. Stat. §§ 227.19, 227.26,
227.40(5).14 ISLT would upend this balance for federal
elections. The Commission performs critical functions
in interpreting, implementing, and enforcing
Wisconsin law. Under Petitioners’ view, it is not clear
that the Commission, part of Wisconsin’s executive
branch, could continue this work, resulting in uneven
(and poorer) election administration state-wide.
For example, the Commission is required to
establish and maintain a toll-free line at which
electors can “report possible voting fraud and voting
rights violations, to obtain general election
information, and to access information concerning
their registration status, current polling place
14 The Legislature also aggressively participates in litigation on
its own behalf, including litigation around elections. See
Johnson, 2022 WI 19; Dem. Nat’l Com. v. Bostelmann, 2020 WI
80, 394 Wis. 2d 33, 949 N.W.2d 423; League of Women Voters of
Wis. v. Evers, 2019 WI 75, 387 Wis. 2d 511, 929 N.W.2d 209;
Kormanik., No. 2022CV1395; Rise, No. 2022CV2446; League of
Women Voters of Wis., No. 2022CV2472.
29
locations, and other information relevant to voting in
elections.” Wis. Stat. § 5.05(13)(a). Could the
Commission continue to provide that type of
authoritative information? What if the Legislature
disagreed with its contents?15 On whose guidance
could voters rely, and would that change depending on
whether it was a state or federal election? This
additional layer of confusion would damage Wisconsin
elections. Wisconsin has opted to resolve these issues
through its bipartisan Commission, and this Court
should reject efforts to overturn this policy decision.
15 For example, in 2020, the City of Madison received absentee
ballots in parks throughout the City. The administrator of the
Commission indicated that such events did not violate Wisconsin
law. Legislative leaders disagreed. See JT Cestkowski, City of
Madison stands by ‘Democracy in the Park’ despite letter from
Republicans,
WKOW
(Oct.
1,
2020)
https://www.wkow.com/news/politics/city-of-madison-stands-bydemocracy-in-the-park-despite-letter-fromrepublicans/article_531e606c-b418-55d7-b68f388a89a2db0b.html.
30
III.
Adopting ISLT would eviscerate this
Court’s promise in Rucho v. Common
Cause that state remedies may exist to
address partisan gerrymandering and
contravene Wisconsin’s efforts to do so.
A.
State-law remedies are all that
stand between Wisconsin’s political
branches
and
irredeemable
partisan
gerrymandering
of
congressional districts.
While refusing to weigh the excesses of
partisan gerrymandering under the federal
constitution in Rucho v. Common Cause, this Court
assured the plaintiffs—and Wisconsin voters—that
all was not lost: “our conclusion [does not] condemn
complaints about districting to echo into a void.” 139
S. Ct. at 2507. Chief Justice Roberts expressly noted
that “[t]he States … are actively addressing the issue
on a number of fronts,” including under their own
constitutions. Id. at 2507–08. Now, petitioners ask
this Court to trample those initiatives and nullify
state-law protections against a practice the majority
acknowledged has long frustrated Americans.
Partisan
gerrymandering
remains
unaddressed in Wisconsin, four years after this Court
vacated and remanded Gill v. Whitford.16 Amici
16 Gill v. Whitford dealt with a challenge to state legislative, not
congressional districts. However, both types of districts are
31
include three of the original Wisconsin plaintiffs in
that suit: Helen Harris of Milwaukee, Mary Lynne
Donohue of Sheboygan, and William Whitford of
Madison (collectively, the “Whitford Amici”). While
their challenge to Wisconsin’s maps was pending in
the district court on remand, this Court issued Rucho,
which ended the Whitford Amici’s partisan
gerrymandering claim in federal court. The Whiford
Amici did not, however, abandon their work for fair
maps for Wisconsin and vindication of their rights.
They took this Court at its word when it pointed to
state-law-based remedies while foreclosing federal
claims.
Amici engaged in many activities aimed at
ending partisan gerrymandering via state law:
several amici participated in community organizing
and public education campaigns through the
Wisconsin Fair Maps Coalition and affiliated
groups—an effort that has generated 55 county
resolutions, 32 successful county referenda, and 21
successful municipal referenda in favor of fair maps. 17
created by the same actors in Wisconsin and have been
historically subject to the same state constitutional limitations.
Wisconsin is a politically divided state, and partisan incentives
to tip the balance of the state’s congressional delegation parallel
those at play in state assembly and state senate districting.
17 Matthew Rothschild, Fair Maps Movement in Wisconsin Rolls
On,
Wisc.
Democracy
Campaign
(Apr.
7,
2021),
https://www.wisdc.org/news/commentary/6791-fair-mapsmovement-in-wisconsin-rolls-on.
32
All amici also submitted public comments to the
Wisconsin Supreme Court when it considered a rulemaking proposal filed in 2020 concerning redistricting
litigation,18 and participated in Wisconsin’s most
recent cycle of redistricting litigation19 (discussed
further below).
ISLT, by putting congressional districts beyond
the reach of any relevant state constitutional
standard, would pull the rug out from under amici,
who have been actively pursuing state-law-based
solutions in the wake of Rucho. This result would
indelibly wound public trust in the judiciary and leave
Wisconsinites without the tools required to enforce
their state’s republican form of government.
18 William Whitford et al, Comment on Rules Petition 20-03 (Nov.
24,
2020),
https://www.wicourts.gov/supreme/docs/
2003commentsjohnson.pdf; Comments from Law Forward, Inc.
on Proposed Redistricting Procedures (Nov. 30, 2020),
https://www.wicourts.gov/supreme/docs/2003commentslawforwa
rd.pdf
Law Forward served as counsel in both state and federal
litigation, Ms. Donohue and Mr. Whitford were amici in Johnson,
and Ms. Harris was a plaintiff in the federal BLOC case.
Johnson, 2022 WI 19; Black Leaders Organizing for
Communities v. Spindell, 3:21-cv-00534-jdp-ajs-eec (May 5,
2022).
19
33
B.
While Wisconsin has not yet heard a
state-law partisan gerrymandering
claim, there is reason to believe its
courts will police the practice,
absent this Court adopting ISLT.
No litigant has yet challenged districts
(congressional or otherwise) as a partisan
gerrymander in Wisconsin under the state’s
constitution or statutes. This is explained by two
realities: the recency of Rucho’s deathblow to federal
claims (now only three years old), and Wisconsin’s
impasse litigation during the 2020 redistricting cycle
(which concluded only six months ago). The timing of
Rucho left essentially no opportunity to challenge
Wisconsin’s 2010-cycle legislative maps in state court
before new maps would be drawn as a matter of
course. During the 2020 cycle, Wisconsin’s
redistricting did go to court. But this litigation arose
out of the failure of the political branches to enact new
maps through the legislative process, not via a
challenge to a new enacted plan. Although some
justices on the Wisconsin Supreme Court opined on
partisanship and gerrymandering issues, they did so
at a preliminary stage of impasse litigation where the
court itself sat in the map-drawing seat. No Wisconsin
court has yet entertained, much less resolved, a
partisan gerrymandering challenge.
Leaving aside the recent impasse litigation,
there are significant indications that Wisconsin’s
courts would police partisan gerrymandering. Since
34
early statehood, Wisconsin’s Supreme Court has
recognized the role of the state judiciary in holding the
executive and legislative branches to the constraints
of the constitution, from which all branches’ powers
derive. “It must be apparent from this view of the
nature of the powers delegated to the various
departments of the government, that none of them
possess sovereignty; but, that they all have power
granted to them, the nature and extent of which must
be determined by the constitution which confers it.”
Attorney Gen. ex rel. Bashford v. Barstow, 4 Wis. 567,
661 (1855). The state judiciary’s duty, which the
Wisconsin Supreme Court shouldered in Barstow to
remove a usurper from the office of governor, is to
protect the rights of the people to be governed by the
constitution they adopted: “[R]ights are fixed by the
constitution, and the court … is the mere instrument
provided by the constitution to ascertain and enforce
their rights as fixed by that instrument.” Id. at 659.
The Wisconsin Supreme Court has already
embraced this rights-enforcing role against the
political branches in the redistricting realm. Sixty
years ago, that court stepped in to prevent an attempt
by the Legislature to redistrict state legislative seats
by joint resolution, without presentment to the
governor. State ex rel. Reynolds v. Zimmerman, 22
Wis. 2d 544, 126 N.W.2d 551 (1964). (Reynolds, much
like the present case, turned on the meaning of “the
legislature” in the state constitutional provision
directing reapportionment.) The court unanimously
concluded:
35
[W]e must construe sec. 3, art. IV, in the most
reasonable manner in relation to the
fundamental purpose of the constitution as a
whole, to wit: to create and define the
institutions whereby a representative
democratic form of government may
effectively function.
… Since the constitution itself places such
heavy emphasis on the requirement that the
legislative districts be apportioned ‘according
to the number of inhabitants’ it would be
unreasonable to hold that the framers of the
constitution intended to exclude from the
reapportionment process the one institution
guaranteed to represent the majority of the
voting inhabitants of the state, the Governor.
Both the governor and the legislature are
indispensable parts of the legislative process.
Id. at 55-57.
In the same seminal case, the court observed
the absurd consequences of withholding judicial
enforcement of rights in such situations: “the fallacy
of withdrawing affirmative judicial protection from
voting rights lies in the self-perpetuating nature of
the disenfranchisement. As recently noted: ‘We are
told ... that redress of the Colegrove wrong should be
sought in the electoral process, but is this a
36
practicable suggestion, when the wrong complained of
is the corruption of the electoral process.’” Id. at 562
(quoting C. L. Black, Inequities in Districting for
Congress: Baker v. Carr and Colegrove v. Green, 72
Yale L. J. 13, 14 (1962)).
Perhaps most importantly, unlike its federal
counterpart, Wisconsin’s Constitution guarantees a
judicial remedy for every wrong. Article I, section 9
proclaims: “Every person is entitled to a certain
remedy in the laws for all injuries, or wrongs which he
may receive in his person, property, or character….”
In
Rucho, the Court recognized
partisan
gerrymandering as wrong but denied the existence of
a federal remedy. 139 S. Ct. at 2509 (“For the first
time ever, this Court refuses to remedy a
constitutional violation because it thinks the task
beyond judicial capabilities.”) (Kagan, J. dissenting).
But Wisconsin courts are bound by the state
constitution to provide remedies in such cases. To
prohibit state courts from applying this mandate in
the partisan gerrymandering context would negate
that promise made in the Wisconsin Constitution.
While statutory revisions prohibiting partisan
gerrymandering are unlikely to pass Wisconsin’s
current Legislature (though over 15 bills and joint
resolution on the topic have been introduced in the
last seven legislative sessions, not one has received a
37
vote20), popular appetite for this type of reform is
strong. Fifty-six of Wisconsin’s 72 counties are on the
record as favoring non-partisan redistricting reform
and fair district maps.21 Should other changes to state
law (e.g., a statute or constitutional amendment
creating a vehicle for voter-initiated referendums)
open the doors to direct democracy legislation through
referenda on this issue, state courts could soon be
tasked with applying statutory limits on partisan
gerrymandering of congressional districts. The law is
developing in Wisconsin, and adopting ISLT now
would prematurely end this experiment in the
laboratory of democracy via federal overreach.
20 Wisconsin Fair Maps Coalition, Gerrymandering in Wisconsin,
Bills or Resolutions Introduced to Reform Redistricting in
Wisconsin in the Past Decade, (Accessed Oct. 25, 2022),
https://www.fairmapswi.com/wi-maps.
21 Rothschild, supra at n.17.
38
CONCLUSION
The Court should affirm the holding of the
North Carolina Supreme Court.
October 26, 2022. Respectfully submitted,
Mel Barnes*
Daniel S. Lenz
LAW FORWARD, INC.
222 West Washington Ave.,
#250
Madison, WI 53703
608.535.9808
mbarnes@lawforward.org
dlenz@lawforward.org
*Counsel of Record
Jeffrey A. Mandell
Douglas M. Poland
Colin T. Roth
STAFFORD ROSENBAUM LLP
222 West Washington Ave.
#900
P.O. Box 1784
Madison, WI 53701
608.256.0226
jmandell@staffordlaw.com
dpoland@staffordlaw.com
croth@staffordlaw.com
Counsel for Amici Curiae
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.