Petition for Writ of Certiorari — Glenn Grothman, United States Congressman, et al., Applicants v. Wisconsin Elections Commission, et al.

No. ______

In the Supreme Court of the United States

CONGRESSMAN GLENN GROTHMAN, CONGRESSMAN MIKE GALLAGHER, CONGRESSMAN

BRYAN STEIL, CONGRESSMAN TOM TIFFANY, CONGRESSMAN SCOTT FITZGERALD,

APPLICANTS,

v.

MARGE BOSTELMANN, in her official capacity as a

Member of the Wisconsin Elections Commission, ET AL.,

RESPONDENTS.

EMERGENCY APPLICATION FOR STAY PENDING PETITION FOR WRIT OF

CERTIORARI OR, IN THE ALTERNATIVE, A PETITION FOR A WRIT OF

CERTIORARI AND SUMMARY REVERSAL

On Application For Stay, Or, In The Alternative, On Petition

For A Writ Of Certiorari To The Wisconsin Supreme Court

To the Honorable Amy Coney Barrett

Associate Justice of the Supreme Court of the United States

and Circuit Justice for the Seventh Circuit

MISHA TSEYTLIN

Counsel of Record

KEVIN M. LEROY

SEAN T.H. DUTTON

EMILY A. O’BRIEN

MOSES M. TINCHER

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe,

Suite 3900

Chicago, Illinois 60606

(608) 999-1240 (MT)

(312) 759-1939 (fax)

misha.tseytlin@troutman.com

Attorneys for Applicants

PARTIES TO THE PROCEEDINGS AND RELATED PROCEEDINGS

Applicants are Congressman Glenn Grothman, Congressman Mike Gallagher,

Congressman Bryan Steil, Congressman Tom Tiffany, and Congressman Scott

Fitzgerald, who intervened as Petitioners before the Wisconsin Supreme Court below.

Respondents include Tony Evers, in his official capacity as Governor of

Wisconsin, who was a Respondent-Intervenor in the proceedings below.

Respondents also include the Wisconsin Elections Commission and Marge

Bostelmann, Julie Glancey, Ann Jacobs, Dean Knudson, Robert Spindell, Jr., and

Mark Thomsen, in their official capacities as members of the Wisconsin Elections

Commission. The Commission and its members were Respondents in the proceedings

below. And Respondents include Janet Bewley, in her official capacity as the Senate

Democratic Minority Leader, who was a Respondent-Intervenor in the proceedings

below.

Respondents also include Black Leaders Organizing for Communities, Voces

de la Frontera, League of Women Voters of Wisconsin, Cindy Fallona, Lauren

Stephenson, Rebecca Alwin, Lisa Hunter, Jacob Zabel, Jennifer Oh, John Persa,

Geraldine Schertz, Kathleen Qualheim, Gary Krenz, Sarah J. Hamilton, Stephen

Joseph Wright, Jean-Luc Thiffeault, and Somesh Jha, who were PetitionersIntervenors in the proceedings below.

Finally, Respondents include the Wisconsin Legislature, a RespondentIntervenor in the proceedings below, and individual voters Billie Johnson, Eric

O’Keefe, Ed Perkins, and Ronald Zahn, who were Petitioners in the proceedings

below.

The proceedings below were:

1. Johnson, et al. v. Wisconsin Elections Commission, et al., No.2021AP1450OA (Wis.), where the Wisconsin Supreme Court issued its final Opinion and Order on

March 3, 2022. Applicants moved for an emergency stay pending appeal on Monday,

March 7, 2022. Applicants informed the Wisconsin Supreme Court that they would

be filing this application for a stay with this Court on Wednesday, March 9, 2022,

given the emergency. The Wisconsin Supreme Court has not ruled on Applicants’

emergency stay motion as of the time of this filing.

Related proceedings are:

1. Hunter, et al. v. Bostelmann, et al., No. 3:21-cv-512 (W.D. Wis.), where the

District Court has deferred the proceedings for the state-court proceedings before the

Wisconsin Supreme Court.

2. Black Leaders Organizing for Communities, et al. v. Spindell, et al., No. 3:21cv-534 (W.D. Wis.), where the District Court has deferred the proceedings for the

state-court proceedings before the Wisconsin Supreme Court.

There are no other proceedings in state or federal trial or appellate courts

directly related to this case within the meaning of this Court’s Rule 14.1(b)(iii).

- ii -

RULE 29.6 STATEMENT

As required by this Court’s Rule 29.6, Applicants hereby state that they are

individuals and thus have no parent entities and do not issue stock.

Dated: March 9, 2022

Respectfully submitted,

/s/Misha Tseytlin

MISHA TSEYTLIN

Counsel of Record

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe,

Suite 3900

Chicago, Illinois 60606

(608) 999-1240 (MT)

(312) 759-1939 (fax)

misha.tseytlin@troutman.com

- iii -

TABLE OF CONTENTS

PARTIES TO THE PROCEEDINGS AND RELATED PROCEEDINGS .................... i

RULE 29.6 STATEMENT ............................................................................................ iii

DECISIONS BELOW .................................................................................................... 4

JURISDICTION............................................................................................................. 4

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 5

STATEMENT ................................................................................................................. 5

A. The Wisconsin Supreme Court Assumes The Duty To Redistrict

Wisconsin’s Congressional Districts .......................................................... 5

B. The Wisconsin Supreme Court Adopts A “Least-Change” Approach

That Takes Into Account Both Core Retention And Other WellEstablished Least-Change Criteria, As Every Party Understood ............ 6

C. All Parties Submit Maps Reflecting Their Shared Understanding

That The Court’s Least-Change Approach Requires Consideration

Of Core-Retention And Other Indicia of Least-Change ............................ 8

D. The Wisconsin Supreme Court Adopts A New Core-RetentionMaximization-Only Methodology, Without Warning, And Selects

The Governor’s Malapportioned Congressional Map .............................. 13

E. The Wisconsin Supreme Court Fails To Timely Stay Its Decision

Adopting The Governor’s Malapportioned Congressional Map .............. 17

REASONS FOR GRANTING THE APPLICATION .................................................. 18

I.

This Court Is Likely To Grant Review, And Then Reverse, On The Two

Constitutional Issues That Applicants Raise Here ....................................... 19

A. Applicants Are Likely To Prevail On The Merits Of Their Claim

That The Wisconsin Supreme Court’s “Bait And Switch” Adoption

Of A New Standard For Remedial Maps Without Allowing Parties

To Submit New Maps Violates The Due Process Clause ........................ 19

B. The Governor’s Congressional Map Violates Article I, Section 2

Because It Deviates From Perfect Population Equality ......................... 27

II. Applicants Will Suffer Irreparable Harm Absent A Stay, And The

Balance Of The Equities And The Public Interest Favor Such Relief .......... 33

III. In The Alternative, This Court Should Construe This Application As A

Petition For A Writ Of Certiorari, Grant, And Then Summarily Reverse ... 38

CONCLUSION............................................................................................................. 39

- iv -

TABLE OF AUTHORITIES

Cases

Ala. Ass’n of Realtors v. HHS,

141 S. Ct. 2485 (2021) ..................................................................... 33, 34, 35, 36

Alexander v. Taylor,

51 P.3d 1204 (Okla. 2002) ......................................................................... 7, 8, 22

Anderson v. Loertscher,

137 S. Ct. 2328 (2017) ....................................................................................... 19

Below v. Gardner,

963 A.2d 785 (N.H. 2002) .......................................................................... 7, 8, 22

Bodker v. Taylor,

No. 1:02-cv-999, 2002 WL 32587312 (N.D. Ga. June 5, 2002) ................ 7, 8, 22

Bouie v. City of Columbia,

378 U.S. 347 (1964) ................................................................................... passim

Crumly v. Cobb Cnty. Bd. of Elections & Voter Registration,

892 F. Supp. 2d 1333 (N.D. Ga. 2012) ...................................................... 7, 8, 22

Democratic Nat’l Comm. v. Wis. State Legislature,

141 S. Ct. 28 (2020) ........................................................................................... 36

Essex v. Kobach,

874 F. Supp. 2d 1069 (D. Kan. 2012)................................................................ 32

Evenwel v. Abbott,

578 U.S. 54 (2016) ..................................................................................... passim

Harper v. Virginia Department of Taxation,

509 U.S. 86 (1993) ............................................................................................. 21

Hollingsworth v. Perry,

558 U.S. 183 (2010) (per curiam) ...................................................................... 19

James v. City of Boise,

577 U.S. 306 (2016) ....................................................................................... 3, 38

Johnson v. Wis. Elections Comm’n,

399 Wis. 2d 623 (2021) .............................................................................. passim

Karcher v. Daggett,

462 U.S. 725 (1983) ................................................................................... passim

Lankford v. Idaho,

500 U.S. 110 (1991) ............................................................................................. 3

-v-

Lassiter v. Dep’t of Soc. Servs.,

452 U.S. 18 (1981) ....................................................................................... 19, 36

League of Women Voters of Mich. v. Johnson,

902 F.3d 572 (6th Cir. 2018) ............................................................................. 34

Mahan v. Howell,

410 U.S. 315 (1973) ................................................................................. 6, 14, 28

Markham v. Fulton Cnty. Bd. of Registrations & Elections,

No. 1:02-cv-1111, 2002 WL 32587313 (N.D. Ga. May 29, 2002) ............. 7, 8, 22

Martin v. Augusta-Richmond Cnty. Comm’n,

No. CV 112–058, 2012 WL 2339499 (S.D. Ga. June 19, 2012) ................ 7, 8, 22

Maryland v. King,

133 S. Ct. 1 (2012) (Roberts, C.J., in chambers) .............................................. 35

Merrill v. Milligan,

142 S. Ct. 879 (2022) ......................................................................................... 36

Mullane v. Cent. Hanover Bank & Tr. Co.,

339 U.S. 306 (1950) ............................................................................... 20, 21, 25

Nken v. Holder,

556 U.S. 418 (2009) ..................................................................................... 19, 35

Nken v. Mukasey,

555 U.S. 1042 (2008) ......................................................................................... 38

Ohio Citizens for Responsible Energy, Inc. v. Nuclear Regul. Comm’n,

479 U.S. 1312 (1986) (Scalia, J., in chambers) ................................................ 18

Reich v. Collins,

513 U.S. 106 (1994) ................................................................................... passim

Roman Cath. Diocese of Brooklyn v. Cuomo,

141 S. Ct. 63 (2020) (per curiam)................................................................ 33, 35

San Diegans for the Mt. Soledad Nat’l War Mem’l v. Paulson,

548 U.S. 1301 (2006) (Kennedy, J., in chambers) ............................................ 19

Saunders v. Shaw,

244 U.S. 317 (1917) ................................................................................... passim

Smith v. Hosemann,

852 F. Supp. 2d 757 (S.D. Miss. 2011) ............................................................. 32

Tennant v. Jefferson Cnty. Comm’n,

567 U.S. 758 (2012) ......................................................................... 17, 28, 30, 32

- vi -

Trump v. Mazars USA, LLP,

140 S. Ct. 660 (2019) ......................................................................................... 38

United States v. Texas,

142 S. Ct. 14 (2021) ........................................................................................... 38

Vieth v. Pennsylvania,

195 F. Supp. 2d 672 (M.D. Pa. 2002) ................................................................ 32

Wesberry v. Sanders,

376 U.S. 1 (1964) ................................................................................... 27, 34, 35

West Virginia v. EPA,

577 U.S. 1126 (2016) ......................................................................................... 19

Winter v. Nat. Res. Def. Council, Inc.,

555 U.S. 7 (2008) ............................................................................................... 33

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ........................................................................................... 35

Constitutional Provisions

U.S. Const. amend. XIV ................................................................................................. 5

U.S. Const. art. I, § 2 ..................................................................................................... 5

Statutes And Rules

28 U.S.C. § 1257 ............................................................................................................. 4

28 U.S.C. § 1651 ............................................................................................................. 4

28 U.S.C. § 2101 ....................................................................................................... 4, 18

Rule 10 ......................................................................................................................... 19

Rule 23.3 ...................................................................................................................... 18

Wis. Stat. § 5.02 ........................................................................................................... 36

Wis. Stat. § 8.15 ........................................................................................................... 36

Other Authorities

Dr. Seuss’s 1, 2, 3 (2019) .............................................................................................. 29

- vii -

TO THE HONORABLE AMY CONEY BARRETT, ASSOCIATE JUSTICE OF THE SUPREME

COURT OF THE UNITED STATES AND CIRCUIT JUSTICE FOR THE SEVENTH CIRCUIT:

Wisconsin, like all States, is undergoing the decennial redistricting process to

equally reapportion its congressional map in light of the population growth and shifts

that it saw since the last U.S. Census. After the Wisconsin Legislature and Wisconsin

Governor Tony Evers politically deadlocked over the drawing of a new congressional

map, the Wisconsin Supreme Court assumed the responsibility to adopt a remedial

map.

Acting in its original jurisdiction, the Court announced in an opinion on

November 30, 2021, the standard that it would use to choose among proposed

remedial maps to be submitted by the parties before it. As relevant here, the Court

explained that such maps must comply with “the paramount objective” of “[a]bsolute

population equality” in Article I, Section 2 of the Constitution, Johnson v. Wis.

Elections Comm’n, 399 Wis. 2d 623, 642 (2021) (quoting Abrams v. Johnson, 521 U.S.

74, 98 (1997)), and must follow a “least-change approach” that minimizes changes to

Wisconsin’s prior congressional map, id. at 661–70. In explaining this least-change

approach, the Court cited a number of least-change cases that, while correctly giving

significant weight to core retention, also considered other indicia of least change—

including avoiding the splitting of existing communities of interest—when deciding

to adopt a least-change map. Id. at 666–67. Then, in a single-Justice concurrence

that was essential to the Court’s forming a majority, Justice Hagedorn explained that

he would also consider compliance with “communities of interest” or “other traditional

redistricting criteria” to “choose the best alternative” map when necessary. Id. at 674

(Hagedorn, J., concurring). Following these instructions, every party before the Court

interested in the congressional districts took the Court at its word, submitting

proposed maps that focused on both core retention and community-of-interest

considerations, including limiting the splitting of counties and municipalities.

On March 3, 2022, the Wisconsin Supreme Court ignored bedrock

constitutional requirements—including basic tenets of procedural fairness—and

issued an Opinion and Order that adopted the unconstitutionally malapportioned

congressional map proposed by the Governor.

First, the Court’s Opinion violates the Due Process Clause, as it “bait[ed]” and

“switch[ed]” the parties as to the standard that it would use to adopt a map. Reich v.

Collins, 513 U.S. 106, 111 (1994). Specifically, in announcing the Governor’s Map as

its choice, the Court swapped its holistic least-change approach, which approach was

to take account of multiple factors, for a core-retention-maximization-only standard

that looked exclusively to the core-retention scores. While all the parties understood

from the Court’s November 30 opinion that core-retention would be an important

factor as part of a multifactored least-change approach, no one thought—or could

have thought—that this would be the only factor that the Court would consider. This

is why all parties submitting maps to the Court balanced their maps’ core-retention

with the need to keep communities of interest together, such as by avoiding of county

and municipal splits. Remarkably, after the Court adopted its new core-retentionmaximization-only standard, it refused to solicit or accept any new maps from the

parties drawn under this test—despite the trivial ease with which constitutional

maps could be drawn under a core-retention-maximization-only standard.

-2-

The

Court’s process to adopt the Governor’s Map subverts “the concept of fair notice” that

is “the bedrock of any constitutionally fair procedure,” in violation of the Due Process

Clause. Lankford v. Idaho, 500 U.S. 110, 120–21 (1991).

Second, the Governor’s Map violates Article I, Section 2 because it fails to

“draw congressional districts with populations as close to perfect equality as

possible.” Evenwel v. Abbott, 578 U.S. 54, 59 (2016). The Governor’s Map deviates

from perfect population equality solely because of the Governor’s mistake of law as to

what the Constitution demands.

So, even apart from the Court’s due-process

violation, the Court’s selection of the Governor’s Map is plainly unconstitutional.

The Wisconsin Supreme Court’s flouting of the Constitution and this Court’s

precedents justifies prompt, emergency relief from this Court. Indeed, the Wisconsin

Supreme Court’s two constitutional violations here are so straightforward that this

Court should construe this Application as a petition for certiorari and summarily

reverse. See, e.g., James v. City of Boise, 577 U.S. 306, 307 (2016) (per curiam).

And there are two clear paths forward for Wisconsin’s 2022 congressional

elections. First, this Court could (and should) remand to the Wisconsin Supreme

Court with instructions to permit all parties to submit proposed congressional maps

under

the

Wisconsin

Supreme

Court’s

newly

announced,

core-retention-

maximization-only methodology. Given that drawing a constitutional, congressional

map under that methodology is trivially easy, the Wisconsin Supreme Court could

both receive proposed maps and adopt the map that moves the fewest persons within

one week of this Court’s order, leaving ample time to conduct Wisconsin’s 2022

-3-

congressional election under that map. Alternatively, and consistent with the request

of the Wisconsin Legislature in its stay application from this same Order, see

Emergency Application For Stay And Injunctive Relief, No.21A471 (U.S. Mar. 7,

2022), this Court should order that Wisconsin hold its upcoming 2022 elections under

the congressional map passed by the Legislature in 2021, but vetoed by the

Governor—which is the same map that Applicants proposed to the Court below—on

a remedial basis, as all parties below conceded that this map is wholly constitutional.

DECISIONS BELOW

The Wisconsin Supreme Court’s Opinion and Order adopting the Governor’s

Congressional Map for Wisconsin is included in the Appendix to this Application at

App. 1–167. The Wisconsin Supreme Court has not ruled on Applicants’ emergency

motion to stay its Opinion and Order adopting the Governor’s Map for Wisconsin as

of the time of this filing.

JURISDICTION

The Wisconsin Supreme Court issued its Opinion and Order on March 3, 2022,

App. 1–167, adopting the Governor’s Congressional Map for Wisconsin. This Opinion

and Order is a final judgment from the Wisconsin Supreme Court with regard to

Wisconsin’s congressional maps and so is reviewable by this Court via a writ of

certiorari. 28 U.S.C. § 1257(a). This Court has the authority to stay the Wisconsin

Supreme Court’s Opinion and Order pending Applicants’ filing of a petition for a writ

of certiorari and this Court’s disposition of that petition. 28 U.S.C. §§ 1651(a), 2101(f).

-4-

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Article I, Section 2 of the Constitution provides, in relevant part, that “[t]he

House of Representatives shall be composed of Members chosen every second Year by

the People of the several States, and the Electors in each State shall have the

Qualifications requisite for Electors of the most numerous Branch of the State

Legislature.” U.S. Const. art. I, § 2.

The Due Process Clause of the Fourteenth Amendment to the Constitution

provides that no “State [shall] deprive any person of life, liberty, or property, without

due process of law.” U.S. Const. amend. XIV, § 1.

STATEMENT

A.

The Wisconsin Supreme Court Assumes The Duty To Redistrict

Wisconsin’s Congressional Districts

After the conclusion of the recent 2020 U.S. Census, Wisconsin’s 2011

congressional-district map was malapportioned, given population growths and shifts

across the State’s eight congressional districts. Johnson, 399 Wis. 2d at 632. On

November 11, 2021, the Wisconsin Legislature passed a new congressional map that

apportioned the State as equally as possible after the 2020 U.S. Census—thus curing

the 2011 map’s malapportionment—but the Governor vetoed that map shortly

thereafter. App. 6–7; Johnson, 399 Wis. 2d at 634, 638. Meanwhile, the Wisconsin

Supreme Court had granted a group of private citizens’ petition for an original action,

which asked the Court to adopt a remedial congressional map that equally apportions

the State’s congressional districts, as the Constitution demands, given the

Legislature’s and Governor’s political stalemate. App. 6–7; Johnson, 399 Wis. 2d at

-5-

634, 637–38. Applicants—who are all residents of Wisconsin who regularly vote in

federal elections, all duly elected Representatives to the U.S. House of

Representatives from five of Wisconsin’s eight congressional districts, and all intend

to run for reelection—intervened before the Wisconsin Supreme Court in this

original-action proceeding. See App. 2, 8–9 & n.3; Johnson, 399 Wis. 2d at 629.

B.

The Wisconsin Supreme Court Adopts A “Least-Change”

Approach That Takes Into Account Both Core Retention And

Other Well-Established Least-Change Criteria, As Every Party

Understood

In an opinion issued on November 30, 2021, a majority of the seven-member

Wisconsin Supreme Court announced the standard by which the Court would adjudge

and adopt a remedial congressional map for the State. Johnson, 399 Wis. 2d at 632–

34; see id. at 672–77 & n.4 (Hagedorn, J., concurring). Specifically, the Court—

Justice R.G. Bradley, joined by Chief Justice Ziegler, Justice Roggensack, and by

Justice Hagedorn in substantial part—announced that it would follow a “least-change

approach” to reapportion the State, id. at 666, meaning that it would only “mak[e]

the minimum changes necessary in order to conform” the State’s “existing” 2011

congressional map “to constitutional and statutory requirements.” Id. at 634. The

Court noted that it would accept “no excuse for the failure to meet the objective of

equal representation for equal numbers of people in congressional districting other

than the practical impossibility of drawing equal districts with mathematical

precision.” Id. at 642 (quoting Mahan v. Howell, 410 U.S. 315, 322 (1973)). In

explaining what it meant by its “least-change approach,” the Court cited a number of

least-change cases that, while giving properly significant weight to core retention,

-6-

also considered other indicia of least-change—including not splitting up existing

communities of interest—when deciding to adopt a least-change map. Id. at 666–67

(citing Crumly v. Cobb Cnty. Bd. of Elections & Voter Registration, 892 F. Supp. 2d

1333, 1344–45 (N.D. Ga. 2012); Martin v. Augusta-Richmond Cnty. Comm’n, No. CV

112–058, 2012 WL 2339499, at *3 (S.D. Ga. June 19, 2012); Below v. Gardner, 963

A.2d 785, 794 (N.H. 2002); Alexander v. Taylor, 51 P.3d 1204, 1211 (Okla. 2002);

Bodker v. Taylor, No. 1:02-cv-999, 2002 WL 32587312, at *5 (N.D. Ga. June 5, 2002);

Markham v. Fulton Cnty. Bd. of Registrations & Elections, No. 1:02-cv-1111, 2002

WL 32587313, at *6 (N.D. Ga. May 29, 2002)).

In a concurring opinion, Justice Hagedorn—whose vote was essential to the

Court’s forming a majority—agreed that the Court’s “remedy must be tailored to

curing legal violations” in Wisconsin’s 2011 congressional map, including oneperson/one-vote violations, and then noted that “a court is not necessarily limited to

considering legal rights and requirements alone when formulating” a new

congressional map as “a remedy.” Id. at 674 (Hagedorn, J., concurring). Justice

Hagedorn explained that if the Court were to “receive multiple proposed maps that

comply with all relevant legal requirements, and that have equally compelling

arguments for why the proposed map most aligns with current district boundaries,”

then the Court would consider compliance with “communities of interest” or “other

traditional redistricting criteria,” to “choose the best alternative” map for the State.

Id. at 673–74. Accordingly, Justice Hagedorn “invited” the parties to: (1) “submit

congressional . . . maps that comply with all relevant legal requirements, and that

-7-

endeavor to minimize deviation from [the] existing [map],” and (2) “discuss[ ]” how

their proposed maps comport with “other, traditional redistricting criteria.”

Id.

at 676–77.

Importantly, it was clear to all parties involved that both the majority opinion

and Justice Hagedorn’s concurrence agreed that the Court’s least-change approach

looked to both core retention and other established indicia of least change, like

limiting communities of interest splits.

See Id. at 666–67 (majority op.) (citing

Crumly, 892 F. Supp. 2d at 1345; Martin, 2012 WL 2339499, at *3; Below, 963 A.2d

at 794; Alexander, 51 P.3d at 1211; Bodker, 2002 WL 32587312, at *5, *7; Markham,

2002 WL 32587313, at *6); id. at 674, 676–77 (Hagedorn, J., concurring).

As

explained below, every party submitted maps that track this understanding of the

Court’s “least change” methodology, and no party came close to pursuing core

retention without regard to community-of-interest considerations, including limiting

county and municipal splits.

Justice Dallet, joined by Justice A.W. Bradley and Justice Karofsky, dissented

from the majority opinion’s adoption of the least-change approach to redistricting the

State’s congressional districts. Id. at 677–95 (Dallet, J., dissenting).

C.

All

Parties

Submit

Maps

Reflecting

Their

Shared

Understanding That The Court’s Least-Change Approach

Requires Consideration Of Core-Retention And Other Indicia of

Least-Change

The Wisconsin Supreme Court subsequently received proposed remedial

congressional maps from four parties: (1) a group of private citizens under the

moniker “the Citizen Mathematicians and Scientists”; (2) the Congressmen, who are

-8-

the Applicants here; (3) Wisconsin Governor Tony Evers; and (4) another group of

private citizens under the name “the Hunter intervenors-petitioners.” App. 8–9.

Each party’s proposed map focused—understandably, see infra pp. 22–23—on

both core retention and other least-changes criteria, such as community-of-interest

considerations, including avoiding the splitting of counties and municipalities. In

their brief supporting their proposed map, the Congressmen stressed their proposed

map’s core retention—retaining 93.5% of all persons and moving only 384,456 to new

districts—while also discussing how the map avoided splits of communities, including

municipalities and counties. App. 202–15. In his supporting brief, the Governor

explained that his map had high core retention—retaining 94.5% of all persons and

moving only 324,415—while taking into account other traditional redistricting

criteria, including by specifically citing his expert’s report that dealt with factors such

as the number of county and municipal splits.

App. 228, 235–37.

The Hunter

Intervenors also discussed their proposal’s core-retention numbers—93.0% retention,

with 411,777 persons moved—while also discussing that their map minimized localboundary splits, while uniting communities of interest. App. 14, 258–62. Finally, the

Citizen Mathematicians and Scientists Intervenors noted that their map respected

existing communities of interest, while respecting core retention—retaining 91.5%,

moving 500,785 persons—and meeting all other requirements. App. 290, 312–16. So,

while all parties clearly understood that core retention would be a key factor in the

Wisconsin Supreme Court’s analysis, no one believed that it would be the only factor

-9-

relevant to the Court’s ultimate least-change determination, and no party’s map came

close to applying a core-maximization-only methodology.

Notably, only the Congressmen’s Map and the Citizen Mathematicians’ Map

equally reapportioned the State by placing as equal a population as mathematically

possible into each of Wisconsin’s eight congressional districts, see App. 108–13

(Ziegler, C.J., dissenting); App. 17 (majority op.); App. 115 (Roggensack, J.,

dissenting), while the Governor’s Map and the Hunter-Intervenors’ Map did not, see

App. 16–19; App. 107 (Ziegler, C.J., dissenting); App. 129–31 (R.G. Bradley, J.,

dissenting). After the 2020 Census, “[t]he mathematically ideal” population for each

of Wisconsin’s eight congressional districts is “736,714.75 persons” see App. 17

(majority op.). So, the Congressmen’s Map and Citizen Mathematicians’ Map placed

either 736,714 or 736,715 people in each district, achieving as mathematically equal

an apportionment as possible. App. 199. The Governor’s Map and the Hunter

Intervenors’ Map, on the other hand, placed “either 736,714 people, 736,715 people,

or 736,716 people” in each district. App. 17.

After submitting their proposed remedial map to the Court, the Congressmen

moved the Court to submit a modified version of the Congressmen’s Map, in order to

explain to the Court that it was possible to move far fewer people than the Governor’s

Map, while still generally respecting many communities of interest and avoiding

county and municipal splits (although not respecting those least-change interests to

the same extent as their initial proposal). App. 322–29; App. 14 n.11. That is, the

Congressmen’s submission illustrated that it was possible to draw a remedial map

- 10 -

that complied with all legal requirements, including Article I, Section 2’s equal

population mandate, and that achieved a better core-retention score than the

Governor’s Map, moving over 97,000 fewer people. See App. 325–28. The modified

version of the Congressmen’s Map had a core-retention score of 96.16%, moving

97,692 fewer people than the Governor’s Map. See App. 327 (explaining that the

modified proposed remedial map moved only 226,723 people to a new district); App.

13–14; App. 106–07 (Ziegler, C.J., dissenting).

The modified version of the

Congressmen’s Map continued to reapportion the State as equally as possible across

its eight congressional districts, just like the original version of the Congressmen’s

Map. App. 327. And, to be clear, this was not a core-retention-maximization-only

map, as the Congressmen could have moved even fewer people still if they

disregarded community of interest considerations and focused, instead, only on

maximizing core retention and legal compliance.

The Wisconsin Supreme Court denied the Congressmen’s motion, App. 371,

although it did grant a motion from the Governor to submit a corrected version of his

proposed state-legislative map, App. 371; App. 337. The Court explained that its

prior order that had invited submissions of proposed maps allowed parties to “submit

only a single set of maps and provided a process by which parties could file a motion

to amend their maps.” App. 371. In the Court’s view, the Congressmen’s motion was

“different-in-kind” than the Governor’s motion, as it asked the Court to “consider an

alternative map while expressly standing by their initial map,” unlike the Governor’s.

App. 371. The Court reached that judgment despite the Governor’s modified map

- 11 -

incorporating corrections that were quite numerous and “very significant.” App. 372

(Roggensack, J., dissenting). Justice Roggensack, along with Chief Justice Ziegler

and Justice R.G. Bradley, dissented from the Court’s order denying the

Congressmen’s motion, explaining that she would have “treat[ed] all parties the

same” and “grant[ed]” both the Congressmen’s and the Governor’s motions. App. 372

(Roggensack, J., dissenting).

On January 19, 2022, the Court heard extensive oral argument from the

parties regarding the proposed congressional maps. See Oral Argument Recording,

Johnson v. Wis. Elections Comm’n, No. 2021AP1450-OA (Wis. Jan. 19, 2022)

(hereinafter “Oral Argument Recording”).* The Governor’s only explanation at oral

argument for his map’s malapportionment was his belief that “a lower population

deviation was [not] required under law.” App. 111–12 (Ziegler, C.J., dissenting)

(discussing oral argument). Further, the Governor “admitted” at oral argument “that

a lower deviation could be done” with his map “without issue,” App. 113 (Ziegler, C.J.,

dissenting) (discussing oral argument)—and that he could implement such a fix

“overnight,” Oral Argument Recording at 2:13:00–2:15:34.

Finally, in a filing

submitted to the Court shortly after oral argument, the Governor confirmed that his

continued mistake of law regarding the Article I, Section 2 standard was the only

reason that his map has a two-person deviation. See App. 375.

* Available at https://wiseye.org/2022/01/19/wisconsin-supreme-court-oralarguments-

johnson-v-wisconsin-elections-commission/ (last visited Mar. 8–9, 2022).

- 12 -

D.

The Wisconsin Supreme Court Adopts A New Core-RetentionMaximization-Only Methodology, Without Warning, And Selects

The Governor’s Malapportioned Congressional Map

1. On March 3, 2022, the Wisconsin Supreme Court—this time with a majority

comprising Justice Hagedorn, joined by Justice A.W. Bradley, Justice Dallet, and

Justice Karofsky—issued an Opinion and Order that adopted the Governor’s Map as

the State’s remedial congressional map. App. 8, 11, 16–19.

As an initial matter, this majority of the Court now explained that it would

adopt a proposed congressional map by considering only core-retention-maximization

and the map’s compliance with legal requirements. “[C]ore retention,” the majority

now explained, was the “best metric of least change” under the Court’s previously

announced least-change approach, meaning that it alone would dictate the Court’s

choice of the proposed remedial maps on offer, App. 8–9, assuming the map was

lawful, App. 12. At the expense of “any other measures of least change,” the Court

explained that it would now adopt the proposed map that had “superior core

retention,” App. 14, so long as that map complied with other legal requirements,

App. 12. Further, this majority of the Court explained that it had decided to adopt a

proposed remedial map wholesale, without ordering any particular changes, despite

its recognition that it was “not bound by any map proposal.” App. 8; contra App. 107

(Ziegler, C.J., dissenting). Although all of the parties’ proposed maps made “changes

that appear unnecessary to account for population changes or to otherwise comply

with the law”—including the Governor’s Map, which the Court ultimately adopted—

- 13 -

the Court “determine[d] that the best approach” was simply to adopt one of these

maps without modification, “imperfect though [it] may be.” App. 8 (majority op.).

Applying its new core-retention-maximization-only approach, the Court

adopted the Governor’s Map as the remedial congressional map for Wisconsin,

concluding that it had the best core-retention scores out of all of the proposed

congressional maps before it. App. 11, 14. Specifically, the Governor’s Map had a

core-retention score of 94.5%, which was one percent higher than the accepted

Congressmen’s Map’s score of 93.5%. App. 14. That said, the Governor’s Map’s coreretention score was far lower than the score of the Congressmen’s modified version of

the Congressmen’s Map. App. 106 (Ziegler, C.J., dissenting); see supra pp. 10–11.

And, of course, it is far lower still than scores the Court would have received from

multiple parties had it told them that it was interested in a core-retentionmaximization-only congressional map, without regard to any other least-change

considerations, such as not splitting communities of interest.

The Court then proceeded to conclude that the Governor’s Map complied with

Article I, Section 2’s equal population mandate, despite the map’s indisputable failure

to apportion the State’s population as equally as possible. App. 16–19. The Court

recognized that “there is ‘no excuse for the failure to meet the objective of equal

representation for equal numbers of people in congressional districting other than the

practical impossibility of drawing equal districts with mathematical precision.”

App. 17–18 (quoting Mahan, 410 U.S. at 322). Further, the Court understood that

the Governor’s Map has a “total deviation between the most and least populated

- 14 -

districts [of] two persons,” since “the Governor’s districts have either 736,714 people,

736,715 people, or 736,716 people” while “[t]he mathematically ideal district contains

736,714.75 persons.” App. 17. Yet, the Court nevertheless concluded that this twoperson deviation was constitutionally allowable, since it supposedly furthered a

“consistently applied legislative polic[y],” App. 17–18 (quoting Karcher v. Daggett, 462

U.S. 725, 740 (1983))—namely, the Court’s own “least change objective,” App. 18–19.

That is, the Court excused the malapportionment in the Governor’s Map only because

this map performed better on core-retention-maximization than the three other maps

that the Court decided it would consider. App. 18–19. The majority also noted that

“many states have adopted [congressional] districts with minor variations,” and “[i]f

the law is clear that a two-person deviation (or more) is unacceptable, then nearly a

third of states with more than one congressional district have apparently not gotten

the message.” App. 18.

Finally, the Court concluded that the Governor’s Map complies with “all other

applicable laws,” App. 9, including the Voting Rights Act. Indeed, “no one argue[d]

that any congressional submission [that the Court] received,” including the

Governor’s Map, ran “afoul of the VRA.” App. 17.

2. Chief Justice Ziegler, Justice Roggensack, and Justice R.G. Bradley each

wrote dissenting opinions, while joining each other’s dissents.

As relevant here, the dissents explained that “the majority implement[ed] a

previously unknown[ ] judicial test” to judge the proposed remedial maps before it:

“core retention.” App. 41 (Ziegler, C.J., dissenting); see also App. 90, 106; App. 126–

- 15 -

29 & n.1, 155–59 (R.G. Bradley, J., dissenting). “Nowhere” in the Court’s opinion

announcing the least-change approach did the Court “use the phrase ‘core retention’”;

thus the parties “were . . . not advised that core retention would be the decisive factor

in the court’s decision.” App. 44–45 (Ziegler, C.J., dissenting); see also App. 92; App.

126–28 & n.1 (R.G. Bradley, J., dissenting). Thus, “no one, neither among the parties

nor the court, understood core retention was the sole factor for determining least

change and further, for selecting maps.” App. 45 (Ziegler, C.J., dissenting).

Next, the dissents explained that “[t]he Governor’s map cannot be accepted

because he has an unnecessary and unexplained deviation from perfect population

equality.”

App. 107 (Ziegler, C.J., dissenting); App. 129–31 (R.G. Bradley, J.,

dissenting). Ignoring this Court’s explicit admonishment to make “a good-faith effort

to draw districts of equal population,” App. 108–09 (Ziegler, C.J., dissenting) (quoting

Karcher, 462 U.S. at 730–31, 734), the Governor failed to make such “good-faith effort

to achieve zero deviation” with his map—unlike the Congressmen’s Map, which has

“a mathematically precise population deviation,” App. 110 (Ziegler, C.J., dissenting).

Indeed, “[t]he Governor’s population deviation is two,” since “the Governor’s

maximum deviation above the ideal” is one person, his “minimum deviation below the

ideal” is one person, and “1 + 1 = 2.” App. 110–11 (Ziegler, C.J., dissenting).

Further, contrary to this Court’s observation that the State must demonstrate

that “each significant variance between districts was necessary to achieve some

legitimate goal,” App. 108 (Ziegler, C.J., dissenting) (quoting Karcher, 462 U.S. at

730–31), the Governor offered no reason why “his districts have greater than

- 16 -

necessary population inequality,” even though this is his “burden” under this Court’s

case law. App. 111–12 (Ziegler, C.J., dissenting). That is, the Governor provided

“[n]o explanation or details . . . as to why the deviation was necessary,” including as

to the need to “apply[ ] reasonable priorities such as . . . preserving the cores of prior

districts.’” App. 111–12 (Ziegler, C.J., dissenting) (quoting Karcher, 462 U.S. at 740).

Instead, “the Governor at oral argument stated a population deviation of two was

included because the Governor did not believe a lower population deviation was

required under law.” App. 111 (Ziegler, C.J., dissenting). And he “admitted that a

lower deviation could be done without issue.” App. 113 (Ziegler, C.J., dissenting);

accord Oral Argument Recording at 2:13:00–2:15:34 (Governor’s counsel explaining

that, “[i]f the Court thinks that’s a problem,” then “that could be fixed overnight”).

That is “carelessness,” which “cannot satisfy the Governor’s burden of proving ‘with

some specificity that the population differences were necessary to achieve some

legitimate state objective.’” App. 112 (Ziegler, C.J., dissenting) (quoting Tennant v.

Jefferson Cnty. Comm’n, 567 U.S. 758, 760, 763–65 (2012)).

And, again, the

Congressmen’s Map itself “showed a lower population deviation could be done, and

[it] too achieved high core retention.” App. 112 (Ziegler, C.J., dissenting).

E.

The Wisconsin Supreme Court Fails To Timely Stay Its Decision

Adopting The Governor’s Malapportioned Congressional Map

On Monday, March 7, 2022, the Congressmen moved the Wisconsin Supreme

Court to stay its decision adopting the Governor’s Map until they could petition this

Court for emergency injunctive relief.

App. 378–80.

Congressmen

Governor’s

explained

that

the

- 17 -

In that stay motion, the

Map

is

unconstitutionally

malapportioned, and that the imposition of this map would cause them and the entire

State irreparable harm. App. 385–87, 389–90. The Congressmen also explained that

the Court’s unexpected announcement of its new, core-retention-maximization-only

standard for redistricting maps, without allowing submission under that newly

announced standard, violated the Due Process Clause.

App. 387–90.

The

Congressmen also asked the Court to pair the grant of this stay relief with an order

allowing all parties to submit core-retention-maximization maps promptly. App. 390.

Given the exigencies of this case, the Congressmen respectfully requested that the

Wisconsin Supreme Court grant its stay motion by Wednesday, March 9, 2022; App.

380; Rule 23.3. As of the time of this filing, the Wisconsin Supreme Court has not

acted on the Congressmen’s stay request.

REASONS FOR GRANTING THE APPLICATION

This Court may stay “the execution and enforcement” of a “final judgment or

decree of any court . . . subject to review . . . on writ of certiorari,” including a state

court of last resort, under 28 U.S.C. § 2101(f). Under the All Writs Act, 28 U.S.C.

§ 1651(a), this Court or an individual Justice has the broad discretion to stay a lowercourt’s order in “exigent circumstances” where “the legal rights at issue are

indisputably clear.” Ohio Citizens for Responsible Energy, Inc. v. Nuclear Regul.

Comm’n, 479 U.S. 1312, 1312 (1986) (Scalia, J., in chambers) (citations omitted). This

Court will stay a lower court’s order if there is “(1) a reasonable probability that four

Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair

prospect that a majority of the Court will vote to reverse the judgment below; and

- 18 -

(3) a likelihood that irreparable harm will result from the denial of a stay.”

Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam); San Diegans for the

Mt. Soledad Nat’l War Mem’l v. Paulson, 548 U.S. 1301, 1302 (2006) (Kennedy, J., in

chambers); see also Nken v. Holder, 556 U.S. 418, 427–29 (2009); West Virginia v.

EPA, 577 U.S. 1126 (2016); Anderson v. Loertscher, 137 S. Ct. 2328 (2017). Applicants

have satisfied each of these standards here.

I.

This Court Is Likely To Grant Review, And Then Reverse, On The Two

Constitutional Issues That Applicants Raise Here

Given the Wisconsin Supreme Court’s clear conflict with this Court’s

precedents and the importance of this case, this Court is likely to grant review and

then reverse on two issues.

Rule 10(c).

First, the Wisconsin Supreme Court’s

adoption of an “unforeseeable” new standard for evaluating the remedial maps, Bouie

v. City of Columbia, 378 U.S. 347, 354 (1964), without affording the parties a chance

to submit maps under that standard, Saunders v. Shaw, 244 U.S. 317, 319–20 (1917),

violates the Due Process Clause, in a deeply important matter of decennial

redistricting. Infra Part I.A. Second, the Governor’s Map violates Article I, Section 2

because it does not apportion the State as equally as possible. Infra Part I.B.

A.

Applicants Are Likely To Prevail On The Merits Of Their Claim

That The Wisconsin Supreme Court’s “Bait And Switch”

Adoption Of A New Standard For Remedial Maps Without

Allowing Parties To Submit New Maps Violates The Due Process

Clause

1. The Fourteenth Amendment’s Due Process Clause “imposes on the States

the standards necessary to ensure that judicial proceedings are fundamentally fair,”

Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18, 33 (1981), requiring that litigants receive

- 19 -

“notice and opportunity for hearing appropriate to the nature of the case,” Mullane v.

Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 313 (1950). This Clause’s protections of

procedural fairness apply to state courts. See Reich, 513 U.S. at 110–14; Bouie, 378

U.S. at 353–55; Saunders, 244 U.S. at 319–20.

This Court has repeatedly recognized that a state supreme court cannot give

“retroactive effect” to an “unforeseeable” decision, if the application of that decision

would deny “a litigant a [fair] hearing.” Bouie, 378 U.S. at 354–55; Reich, 513 U.S.

at 110–14; Saunders, 244 U.S. at 319–20. In Saunders, for example, a defendant won

a judgment in a state trial court after that court concluded that the plaintiff’s key

factual claim “was not open to the plaintiff” under then-extant law. 244 U.S. at 319–

20. The state supreme court then reversed, concluding that a case decided after the

trial court’s judgment made the plaintiff’s factual claim legally relevant and—without

remanding to the trial court to afford the defendant “the proper opportunity to

present his evidence” on that now-relevant factual claim—dispositive. Id. at 319.

This Court reversed, holding that it is “contrary to the 14th Amendment” for a state

supreme court to reverse the favorable judgment obtained by a defendant based on

the application of a new judicial decision without also remanding to give the

defendant “a chance to put his evidence in” to respond to that new decision—at least

where the defendant never “had the proper opportunity to present his evidence”

before. Id. Similarly, in Reich, a plaintiff sought a tax refund for certain retirement

payments paid by the federal government after his military service. 513 U.S. at 108.

After this Court declared unconstitutional state laws that exempted from taxation

- 20 -

retirement benefits paid by the State, but not by the federal government, Georgia

repealed its version of such a statute. Id. The plaintiff sued to recoup those taxes

paid on his federal benefits under that now-repealed statute, but the Georgia

Supreme Court “constru[ed]” its “refund statute not to apply to the situation where

the law under which the taxes are assessed and collected is itself subsequently

declared to be unconstitutional or otherwise invalid.” Id. at 109 (citation omitted).

This Court remanded for reconsideration in light of an intervening, on-point decision

in Harper v. Virginia Department of Taxation, 509 U.S. 86 (1993), but the Georgia

Supreme Court denied the plaintiff’s tax-refund request by claiming, for the first

time, that its own predeprivation state-law remedies sufficed to remedy any Due

Process Clause violation, even though previously the State also offered

postdeprivation remedies. Reich, 513 U.S. at 110. This Court explained that this

was exactly “what a State may not do . . . reconfigur[ing] its scheme, unfairly, in

midcourse—to ‘bait and switch’” the plaintiff. Id. at 111. The Georgia Supreme

Court’s reliance on predeprivation procedures, this Court held, “was entirely beside

the point” because “no reasonable taxpayer would have thought that they represented

. . . the exclusive remedy for unlawful taxes.” Id. (emphasis omitted).

The reason for the due-process rule embodied in cases such as Saunders and

Reich is as obvious as it is vital. A state supreme court entering an “unforeseeable

and retroactive” judicial decision plainly causes “a deprivation” of both “the right of

fair warning,” Bouie, 378 U.S. at 352, and the right to an appropriate hearing,

Mullane, 339 U.S. at 313. So, while a state supreme court has broad “flexibility”

- 21 -

under the Due Process Clause to establish and “reconfigure” its precedent “over time,”

what it “may not do” is “reconfigure [a] scheme, unfairly, in midcourse” of litigation

without giving the parties an opportunity to submit evidence on that new standard.

Reich, 513 U.S. at 110–11. This Court put it pointedly in Reich: due process means

that state supreme courts cannot “bait and switch” litigants. Id. at 111.

2. A “bait and switch,” id., is exactly what the Wisconsin Supreme Court did

with regard to the congressional maps here, as the Court misled every party before it.

In its November 30, 2021 opinion—before any party submitted remedial maps

for the Court’s consideration—a majority of the Wisconsin Supreme Court announced

that it would follow a “least-change approach” to reapportion the State. Johnson, 399

Wis. 2d at 666. In announcing this test, the majority cited a number of least-change

precedents, all of which considered multiple other indicia of least changes beyond core

retention, such as not splitting communities of interest. Id. at 666–67 (citing Crumly,

892 F. Supp. 2d at 1344–45; Martin, 2012 WL 2339499, at *3; Below, 963 A.2d at 794;

Alexander, 51 P.3d at 1211; Bodker, 2002 WL 32587312, at *5; Markham, 2002 WL

32587313, at *6). In a separate concurrence, Justice Hagedorn—who provided the

critical fourth vote to the majority’s adoption of the least-change approach—agreed

with the majority that any remedy imposed “must be tailored to curing legal

violations” in Wisconsin’s 2011 congressional map. Johnson, 399 Wis. 2d at 674

(Hagedorn, J., concurring). He noted that the Court would consider more than just

“legal rights and requirements alone when formulating” the Wisconsin Supreme

Court’s map, and that respect for “communities of interest” and “other traditional

- 22 -

redistricting criteria” would affect the Court’s choice of the best alternative map, if

least-change criteria for competing maps were otherwise “equally compelling.” Id.

Thereafter, all parties submitted to the Wisconsin Supreme Court maps that focused

both on core-retention maximization and also other important least-change indicia,

such as communities of interest and limiting county and municipality splits,

consistent with the Court majority’s reasoning. See supra pp. 9–10.

Notably, the Congressmen also attempted to provide the Court with a modified

version of their map that further prioritized core retention, while still giving some

respect to community-of-interest considerations. App. 324–26, 328. That modified

map had a core-retention score of 96.16%, besting the Governor’s Map by more than

97,000 persons. Compare App. 14, with App. 327. In drawing this modified map, the

Congressmen still maintained to some extent a proper respect for communities of

interest, including county and municipality splits, although not as much as in their

initial submission.

See App. 324–38.

The Wisconsin Supreme Court, however,

rejected the Congressmen’s submission and ignored the Congressmen’s modified

map, despite this map being objectively better on the very standard that the Court

later unexpectedly imposed in the litigation. App. 371.

In all and importantly, none of the maps submitted to the Wisconsin Supreme

Court approached the core-retention scores of the Congressmen’s modified map, let

alone a map that actually followed the core-retention-maximization-only approach

that the Court eventually adopted, as the below table shows:

- 23 -

Map

Persons Moved

% Retained

Governor

324,415

94.5%

Congressmen

384,456

93.5%

Hunter Intervenors

411,777

93.0%

Citizen Mathematicians & Scientists

500,785

91.5%

Modified Congressmen

226,723

96.16%

App. 14, 327 (listing figures for all maps on record). And, of course, if one follows the

Supreme Court’s core-maximization-only methodology, it would be trivially easy to

move the core retention figure significantly above the 96.16% mark that the

Congressmen achieved in their modified proposal.

Having “bait[ed]” the parties—including the Congressmen—to submit their

map to comply with its holistic least-change approach, the Wisconsin Supreme Court

ultimately “switch[ed]” the standard, Reich, 513 U.S. at 111, by announcing that it

would instead employ a core-retention-maximization-only standard to select the

remedial map, App. 12. “[N]o reasonable [litigant]” would have considered this coreretention-maximization-only standard to be the “exclusive” test under the leastchange approach. Reich, 513 U.S. at 111. This was “a previously unknown” and now

exclusively applied “judicial test” that was surprisingly imposed by the Court to judge

the proposed remedial maps before it. App. 41 (Ziegler, C.J., dissenting); see also App.

90, 106; App. 126–29 & n.1, 155–59 (R.G. Bradley, J., dissenting). “Nowhere” in the

Court’s opinion announcing the least-change approach did the Court “use the phrase

‘core retention,’” so while the parties understood this as an important factor in any

least-changes approach, they “were . . . not advised that core retention would be the

- 24 -

decisive factor in the court’s decision.”

App. 44–45 (Ziegler, C.J., dissenting)

(emphasis added); see also App. 92; App. 126–28 & n.1 (R.G. Bradley, J., dissenting).

Thus, “no one, neither among the parties nor the court, understood core retention was

the sole factor for determining least change and further, for selecting maps.”

App. 44–45 (Ziegler, C.J., dissenting). To be clear: had the Court adequately

advised the parties, rather than merely “bait and switch[ing]” them, Reich,

513 U.S. at 111, the submissions to the Wisconsin Supreme Court would have

looked entirely different, with all parties submitting maps with coreretention figures north of 96%.

The Wisconsin Supreme Court’s decision to hide the ball until after all parties

had submitted maps clearly violates the Due Process Clause, under this Court’s case

law. The Court deprived the parties of “notice and opportunity for hearing” on the

pertinent question of core retention and whether the interplay of other traditional

redistricting criteria would have any effect on the Court’s determination, Mullane,

339 U.S. at 313, denying them any “[fair] hearing” on the proper criteria the Court

would consider for a least-change approach, while giving “retroactive effect” to its

later adopted, core-retention-maximization-only criterion, see Bouie, 378 U.S. at 354.

Thus, the Wisconsin Supreme Court’s decision to “reconfigure its scheme, unfairly, in

midcourse,” Reich, 513 U.S. at 111, from a consideration of core retention along with

other least-changes factors to one in which pure core retention is all that matters,

violated the Due Process Clause.

- 25 -

This “bait and switch,” Reich, 513 U.S. at 111, is deeply prejudicial to the

Congressmen, depriving them of basic fairness in the proceedings. The Congressmen

had no “fair warning” about the Wisconsin Supreme Court’s intention to change

fundamentally its criteria for least-changes, and this “unforeseeable and retroactive”

change amounted to a “deprivation” of due process in the proceedings. Bouie, 378

U.S. at 352. Under these circumstances and this Court’s due-process precedents, this

is a clear violation of the Congressmen’s rights, as they absolutely would have

submitted a core-maximization-only map had the Court requested such a map.

3. The Wisconsin Supreme Court’s abbreviated attempt to rationalization why

its new, core-retention-maximization-only standard was not a bait-and-switch is,

with respect, unpersuasive. The Court majority observed that “[c]ore retention is, as

multiple parties contended from the beginning of this litigation, central to a least

change review,” App. 13, and that “every party understood that [the Court’s] adoption

of a least change approach would place core retention at the center of the analysis,”

App. 13 n.9. With all respect, not a single party before the Court understood (or could

have understood) the Court’s November 30 opinion to mean that the Court would only

consider core retention in applying a least-changes methodology. Rather, all parties

understood that core retention would be important to the Wisconsin Supreme Court’s

least-change determination, but no one thought it would be the only factor the Court

considered in the least-change approach, see supra pp. 9–10—consistent with the

Court’s November 30 opinion that itself concluded that core retention was the

primary, but hardly the exclusive, measure of least changes, Johnson, 399 Wis. 2d at

- 26 -

666; id. at 674 (Hagedorn, J., concurring). For that reason, none of the parties’

submissions focused solely on core retention, supra pp. 9–10, further underscoring

the complete and utter surprise that the Wisconsin Supreme Court’s new,

“unforeseeable and unsupported” test engendered, Bouie, 378 U.S. at 355. Again, had

the parties been adequately advised about the Court’s core-retention-maximizationonly approach, all maps submitted to the Court would have had much, much better

core-retention scores—well north of 96%. Supra p. 25.

B.

The Governor’s Congressional Map Violates Article I, Section 2

Because It Deviates From Perfect Population Equality

1. Article I, Section 2 requires the States to apportion equally their

congressional districts so “that as nearly as is practicable one man’s vote in a

congressional election is . . . worth as much as another’s.” Wesberry v. Sanders, 376

U.S. 1, 7–8 (1964). The Constitution’s “one-person, one-vote principle” applies to

congressional districts, meaning that “congressional districts [must] be drawn with

equal populations.” Evenwel, 578 U.S. at 59.

The one-person/one-vote principle for congressional districts is of “unusual

rigor,” as “has been noted several times.” Karcher, 462 U.S. at 732. Indeed, this

Court’s most recent discussion of the one-person/one-vote principle in Evenwel

indicates that it is a bright-line rule for congressional districts, requiring States to

“draw congressional districts with populations as close to perfect equality as

possible”—without any noted exception. Id. at 59 (emphasis added). Before Evenwel,

this Court in Karcher explained that Article I, Section 2 places “absolute population

equality” as “the paramount objective” in congressional redistricting. Karcher, 462

- 27 -

U.S. at 732. Thus, this Court condoned only deviations from “[p]recise mathematical

equality” that are “impossible” to eliminate or that are “necessary to achieve some

legitimate state objective.” Karcher, 462 U.S. at 730–31; accord Mahan, 410 U.S. at

322. Under Karcher, every failure of perfect population equality in a congressional

map, no matter how small, must fall within one of those two categories to be

constitutionally tolerable; “there are no de minimis population variations, which

could practically be avoided, but which nonetheless meet the standard of Art. I, § 2

without justification.” Karcher, 462 U.S. at 734.

Karcher “set[s] out a two-prong test to determine” whether a State’s failure to

achieve absolute population equality in its congressional redistricting map is

nevertheless constitutionally excusable. Tennant, 567 U.S. at 760. First, this Court

“must consider whether the population differences among districts could have been

reduced or eliminated altogether by a good-faith effort to draw districts of equal

population.” Karcher, 462 U.S. at 730. Second, if “the population differences were

not the result of a good-faith effort to achieve equality,” then those differences are

unconstitutional unless the State shows that they were “necessary to achieve some

legitimate goal,” like “preserving the cores of prior districts.”

Id. at 731, 740.

Importantly, under this second step, “the State must justify each variance, no matter

how small,” id. at 730 (citation omitted), since even “de minimis population

variations” demand “justification,” id. at 734.

2. Here, the Governor’s Map violates Article I, Section 2.

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The Governor’s Map deviates from perfect population equality more than is

necessary. After the 2020 U.S. Census, the most “[p]recise mathematical equality”

that could possibly be achieved by a congressional map in Wisconsin is one that places

either 736,714 people or 736,715 people in each of Wisconsin’s eight districts,

Karcher, 462 U.S. at 730—resulting in a one-person deviation between the largest

and smallest district, see Evenwel, 578 U.S. at 59; App. 17; App. 110–11 (Ziegler, C.J.,

dissenting). The Governor’s Map, however, has a two-person deviation between the

largest and smallest district, which is undisputedly bigger than one person. App. 110

(Ziegler, C.J., dissenting); App. 17 (majority op.). Simply put, “1 + 1 = 2,” which is

“>1.” App. 111 (Ziegler, C.J., dissenting); see generally Dr. Seuss’s 1, 2, 3 (2019).

The Governor’s Map violates Evenwel’s bright-line rule, since the Governor has

failed to “draw congressional districts with populations as close to perfect equality as

possible,” 578 U.S. at 59 (emphasis added), given that his map includes a two-person

deviation when a one-person deviation is possible, App. 110 (Ziegler, C.J., dissenting);

App. 17 (majority op.). Further, under the pre-Evenwel, Karcher test, the Governor’s

Map is unconstitutional, as it fails Karcher’s two prongs.

First, “a good-faith effort to draw districts of equal population” could have

“reduced” the Governor’s two-person deviation to a one-person deviation. Karcher,

462 U.S. at 730. The Governor admitted at oral argument before the Wisconsin

Supreme Court that he was fully capable of drawing a map to his liking that achieved

a single-person deviation “without issue,” App. 113 (Ziegler, C.J., dissenting), and

“overnight,” Oral Argument Recording at 2:13:00–2:15:34. The only reason that the

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Governor did not draw a map with a single-person deviation was because he believed,

wrongly, that this “lower population deviation was [not] required under law.”

App. 112 (Ziegler, C.J., dissenting); see also App. 375 (claiming that “a range of two”

for a population deviation is not “unlawful”); accord Tennant, 567 U.S. at 763

(explaining that “the State’s concession that it could achieve smaller population

variations” necessarily moved the inquiry to step two of the Karcher framework).

Second, the Governor did not even attempt to carry his “burden” to show that

his map’s deviation from the ideal population “was necessary to achieve some

legitimate goal”—like “preserving the cores of prior districts”—a failure that alone

dooms the Governor’s Map. See Karcher, 462 U.S. at 731, 740; App. 111–12 (Ziegler,

C.J., dissenting).

Instead, he admitted at oral argument before the Wisconsin

Supreme Court below that he drew his map with a two-person deviation because of

his own mistake of law, not because of any legitimate state objective, Karcher, 462

U.S. at 731, 740—that is, “the Governor did not believe a lower population deviation

was required under law,” App. 111 (Ziegler, C.J., dissenting); Oral Argument

Recording at 2:13:00–2:15:34.

This is “carelessness,” which “cannot satisfy the

Governor’s burden of proving ‘with some specificity that the population differences

were necessary to achieve some legitimate state objective.’” App. 112 (Ziegler, C.J.,

dissenting) (quoting Tennant, 567 U.S. at 760).

The Wisconsin Supreme Court’s independent conclusion that it would be

administratively convenient to adopt the Governor’s Map, despite its unnecessary

population deviation, App. 18–19, is not a “legitimate state objective” justifying that

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deviation either, Karcher, 462 U.S. at 740–41. To begin, this rationale is categorically

unavailable here, as the Governor himself conceded that he could have achieved a

lower deviation with no suggestion that this would have somehow compromised core

retention.

App. 111–12 (Ziegler, C.J., dissenting); Oral Argument Recording at

2:13:00–2:15:34. Regardless, the Wisconsin Supreme Court had before it the modified

version of the Congressmen’s Map, which achieved a higher core-retention score than

the Governor’s Map, complied with all legal requirements, and still achieved as equal

an apportionment as possible. See App. 327. It thus is demonstrably incorrect to

conclude that the Governor’s Map, with its two-person deviation from the ideal

population was somehow necessary or even helpful to achieving the Court’s coreretention goals. See Karcher, 462 U.S. at 731, 740.

Finally, while the Wisconsin Supreme Court also explained that some other

“states have adopted districts with minor variations” in population equality, that

provides the Governor’s Map no cover. App. 18. As an initial matter, all of the state

examples that the Court cited were enacted before this Court’s clarification in

Evenwel that the one-person/one-vote principle is a bright-line rule requiring States

to “draw congressional districts with populations as close to perfect equality as

possible.” 578 U.S. at 59 (emphasis added). And to the extent that any State not

cited by the majority below is drawing such malapportioned maps after Evenwel,

without justification—such as Pennsylvania, see Emergency Application at 2, Toth v.

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Champan, No.21A457 (Feb. 28, 2022)†—that just highlights the need for this Court

to grant this Application to make clear to all States that this Court’s Article I, Section

2 caselaw means what it says. In any event, the States that the Wisconsin Supreme

Court cites do not excuse the constitutional infirmity of the Governor’s Map, even

under Karcher. App. 18 (citing as examples the 2010 maps from Kansas, Mississippi,

and West Virginia, as well as from Arkansas, Georgia, Hawaii, Idaho, Iowa,

Kentucky, Louisiana, New Hampshire, Oregon, Texas, and Washington). As for the

Kansas, Mississippi, and West Virginia congressional maps, those maps’ proponents

justified the maps’ population deviations with reference to “some legitimate state

objective,” unlike the Governor with his map here.

Tennant, 567 U.S. at 763

(reviewing West Virginia’s 2010 map); Essex v. Kobach, 874 F. Supp. 2d 1069, 1088–

89 (D. Kan. 2012) (reviewing Kansas’ 2010 map); Smith v. Hosemann, 852 F. Supp.

2d 757, 765 (S.D. Miss. 2011) (justifying the deviation the district court drew into

Mississippi’s 2010 court-drawn map); see generally Vieth v. Pennsylvania, 195 F.

Supp. 2d 672 (M.D. Pa. 2002) (concluding that the population deviation in

Pennsylvania’s congressional map violated Karcher). As for the remaining maps that

the majority references, Appellants were unable to find any decision from any court

adjudicating Article I, Section 2 claims against them, thus it appears that no court

This Court denied an application for relief in Toth that had challenged

Pennsylvania’s malapportioned map. Order, Toth v. Chapman, No. 21A457 (Mar. 7, 2022).

However, Toth came to this Court in an entirely difference procedural posture, since

applicants had sought relief from an order of a one-judge federal court, despite the case

having “now been referred to a three-judge court,” where “the parties [could] exercise their

right to appeal from an order of that court granting or denying interlocutory injunctive

relief.” Id.

†

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has decided whether those pre-Evenwel maps’ population deviations were “necessary

to achieve some legitimate state objective,” as Karcher demands. 462 U.S. at 731.

II.

Applicants Will Suffer Irreparable Harm Absent A Stay, And The

Balance Of The Equities And The Public Interest Favor Such Relief

A. The Congressmen are “likely to suffer irreparable harm” absent this Court’s

stay and ultimate reversal of the Wisconsin Supreme Court’s Opinion and Order. See

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

First, the Wisconsin Supreme Court deprived the Congressmen of their

constitutional due-process rights to a fair judicial process in the proceedings before

the Court, which is a per se irreparable harm. See Roman Cath. Diocese of Brooklyn

v. Cuomo, 141 S. Ct. 63, 67 (2020) (per curiam); accord Ala. Ass’n of Realtors v. HHS,

141 S. Ct. 2485, 2489 (2021). As a party in this case, the Congressmen have a right

to “put [their] evidence in” on the issues that the Wisconsin Supreme Court was

considering when adopting new maps, so as to “protect[ ]” the Congressmen’s “rights”

in these proceedings. Saunders, 244 U.S. at 319. By springing a new and unforeseen

core-retention-maximization-only standard, without affording the Congressmen any

opportunity to submit a map under that standard, the Wisconsin Supreme Court

deprived them of their constitutional due-process rights to participate fully and fairly

in the proceedings.

See id.

Had the Wisconsin Supreme Court given the

Congressmen a fair opportunity to submit a map knowing the Court’s core-retentionmaximization-only standard, the Congressmen would have submitted a map with

north of 96% core retention. See App. 327; supra p. 25.

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Second, the Court’s adoption of the Governor’s Map forces Congressman Bryan

Steil to expend additional, significant, and unrecoverable resources campaigning for

the 2022 election in a significantly altered district. Such loss of significant resources

“with no guarantee of eventual recovery” constitutes irreparable harm. Ala. Ass’n of

Realtors, 141 S. Ct. at 2489. Congressman Steil has invested substantial time and

resources in District 1, so that he can campaign effectively, develop and maintain

close relationships with his constituents, and better represent their interests in the

House.

App. 393–95.

As Congressman Steil explained in his Affidavit, he has

“invested substantial time and resources to understand the[ ] needs” of his

constituents, but the Governor’s new, unconstitutional map adds to the

Congressman’s district “significant new communities” with which he has no prior

relationships, which imposes substantial costs for his campaign. See, e.g., App. 394–

95; accord League of Women Voters of Mich. v. Johnson, 902 F.3d 572, 579 (6th Cir.

2018). Congressman Steil has no practical means of recovering these vital resources

from any adverse party, including because of sovereign immunity, even if this Court

were to invalidate the Governor’s Map after this Court’s plenary review. Therefore,

this loss of funds is irreparable. See Ala. Ass’n of Realtors, 141 S. Ct. at 2489.

Finally, the Congressmen will suffer irreparable harms from the adoption of

the Governor’s Map, absent a stay from this Court, because that map fails to equally

apportion the State, as the Constitution demands. Wesberry, 376 U.S. at 7–8. To

begin, the Governor’s Map permanently deprives the Congressmen and the citizens

of Wisconsin of their constitutional right to have their “vote in [the 2022]

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congressional election” be “worth as much as another’s,” unless implementation of the

map is stayed. Id. Further, the map doubly harms the Congressmen, as they also

must run for reelection and vote in these same malapportioned districts. See, e.g.,

App. 395. As with the Congressmen’s due-process harms, supra p. 33, this oneperson/one-vote harm is of constitutional dimensions, Wesberry, 376 U.S. at 7–8, and

so its loss too is per se irreparable, Cuomo, 141 S. Ct. at 67.

B. The balance of the equities weighs decisively in the Congressmen’s favor, as

Respondents will suffer no meaningful harm from a prompt stay of the Governor’s

unconstitutional map, and such a stay would further the public interest. See Nken v.

Holder, 556 U.S. 418, 435 (2009). Respondents do not have any legitimate interest in

enforcing the Governor’s unconstitutional map, so they would suffer no harm from a

prompt stay of that map by this Court. See Ala. Ass’n of Realtors, 141 S. Ct. at 2490.

That is, the Governor’s Map violates Article I, Section 2, supra Part I.B, and was

adopted through an unconstitutional process, supra Part I.A, and no party has a

legitimate interest in enforcing an unconstitutional law, Ala. Ass’n of Realtors, 141 S.

Ct. at 2490 (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582, 585–

86 (1952)); accord Wesberry, 376 U.S. at 7–8; Nken, 556 U.S. at 435; Maryland v.

King, 133 S. Ct. 1, 3 (2012) (Roberts, C.J., in chambers). Therefore, Respondents

cannot claim any cognizable harm that could, on balance, outweigh the

Congressmen’s significant irreparable harms.

Further, no party would suffer any harm from the Congressmen’s lead

requested remedy in particular, ordering a remand to allow the parties to submit new

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maps under the Court’s core-retention-maximization-only methodology. Under that

remedy, every party would have the same procedural right—consistent with the Due

Process Clause, see, e.g., Saunders, 244 U.S. at 320—to submit new maps under the

Wisconsin Supreme Court’s core-retention-maximization-only methodology. Placing

the parties on equal footing is the hallmark of the “fundamentally fair” proceedings

to which all parties are entitled, not an irreparable harm. Lassiter, 452 U.S. at 33.

And no party would suffer any harm from the Congressmen’s alternative remedy, as

the congressional map the Legislature adopted is unquestionably constitutional.

Finally, Respondents cannot claim any harm to themselves or the public from

the short delay that would obtain between this Court staying the Governor’s Map and

the Wisconsin Supreme Court adopting a new, constitutional remedial map in its

place, if this Court were to select the Congressmen’s first proposed remedy or second

proposed remedy. See Merrill v. Milligan, 142 S. Ct. 879, 880–81 (2022) (Kavanaugh,

J., concurring) (discussing the principle from Purcell v. Gonzalez, 549 U.S. 1 (2006)

(per curiam)); Democratic Nat’l Comm. v. Wis. State Legislature, 141 S. Ct. 28, 30

(2020) (Kavanaugh, J., concurring) (same).

Wisconsin’s primary election for its

congressional districts does not occur until August 9, 2022, Wis. Stat. § 5.02(12s),

with the nomination period for that election running from April 15, 2022, to June 1,

2022, Wis. Stat. § 8.15(1). While Wisconsin must have a remedial map in place prior

to this mid-April nomination period in order for candidates and voters to conduct

meaningful electioneering activities, see generally Merrill, 142 S. Ct. at 880–81

(Kavanaugh, J., concurring); Democratic Nat’l Comm., 141 S. Ct. at 30 (Kavanaugh,

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J., concurring), the process for drawing and adopting a new remedial map after this

Court issues a stay could be completed well in advance of that time—even in a matter

of days. Given the “advanced computer technology” utilized by the parties here,

App. 113 (Ziegler, J., dissenting), drawing a map that maximizes core retention while

complying with all other legal requirements is a trivially easy, mathematical exercise

that takes minimal time and effort. Indeed, all parties could submit new proposals

to the Wisconsin Supreme Court consistent with these criteria within a 24-hour

period, while reviewing each other’s core-retention and population-equality math

taking only another 24 hours, providing the Wisconsin Supreme Court with complete

briefing on its preferred criteria.

Further, the Wisconsin Supreme Court’s own

analysis of those maps would likewise proceed expeditiously, given the ease with

which the Court can compare maps’ core-retention scores and equal-population

figures, which is all the Court now says matters, and there are no possible Voting

Rights Act or racial gerrymandering issues with a map drawn using that

mathematical methodology. See App. 13–19. And, alternatively, if this Court follows

the remedial approach that the Legislature requested in its Application earlier this

week, and simply orders the 2022 congressional election run under the congressional

map the Legislature adopted, but the Governor vetoed, that map could be put into

place quicker than even the Congressmen’s first remedial proposal.

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III.

In The Alternative, This Court Should Construe This Application As A

Petition For A Writ Of Certiorari, Grant, And Then Summarily

Reverse

This Court may construe this Application itself as a petition for a writ of

certiorari, Trump v. Mazars USA, LLP, 140 S. Ct. 660 (2019); Nken v. Mukasey, 555

U.S. 1042 (2008); accord United States v. Texas, 142 S. Ct. 14 (2021), and then

summarily reverse, see, e.g., James, 577 U.S. at 307, given the Wisconsin Supreme

Court’s indisputable violations of the Due Process Clause and Article I, Section 2, as

described above. Further, if this Court were to summarily reverse, it could then order

one of two straightforward paths for Wisconsin’s 2022 congressional elections. It

could remand to the Wisconsin Supreme Court with instructions to permit all parties

to submit new proposed maps under the that Court’s core-retention-maximizationonly methodology. Alternatively, this Court could order that Wisconsin hold these

elections under the map passed by the Legislature in 2021—the same map that the

Congressmen proposed to the Wisconsin Supreme Court below as the Congressmen’s

Map—since that map is unquestionably constitutional, was adopted by the

Legislature, and moves fewer people under the Wisconsin Supreme Court’s new

methodology than any constitutional map that the Court considered.

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CONCLUSION

This Court should stay the Opinion and Order of the Wisconsin Supreme

Court—or, alternatively, construe this Application as a petition for certiorari and

summarily reverse—and then either: (1) remand to the Wisconsin Supreme Court

with instructions to permit all parties to submit new proposed maps under the

Wisconsin Supreme Court’s newly announced, core-retention-maximization-only

methodology; or (2) order that Wisconsin hold its upcoming 2022 congressional

elections under the map passed by the Legislature in 2021, on a remedial basis.

Respectfully submitted,

MISHA TSEYTLIN

Counsel of Record

KEVIN M. LEROY

SEAN T.H. DUTTON

EMILY A. O’BRIEN

MOSES M. TINCHER

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe,

Suite 3900

Chicago, Illinois 60606

(608) 999-1240 (MT)

(312) 759-1939 (fax)

misha.tseytlin@troutman.com

March 9, 2022

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