Response to application from Hunter Respondents — Glenn Grothman, United States Congressman, et al., Applicants v. Wisconsin Elections Commission, et al.
Supreme Court briefMar 15, 2022
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No. 21A490
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 Member of
the Wisconsin Elections Commission, et al.,
Respondents.
On Emergency Application for Stay, Or In The Alternative,
On Petition for Writ of Certiorari to the Wisconsin Supreme
Court
APPENDIX II OF II
TO HUNTER RESPONDENTS’ RESPONSE IN
OPPOSITION TO EMERGENCY APPLICATION
John M. Devaney
PERKINS COIE LLP
700 Thirteenth St., NW
Washington, D.C. 20005
(202) 654-6200
JDevaney@perkinscoie.com
Charles G. Curtis, Jr.
PERKINS COIE LLP
33 E. Main St.,
Suite 201
Madison, WI 53703
(608) 663-7460
CCurtis@perkinscoie.com
Abha Khanna
Counsel of Record
ELIAS LAW GROUP LLP
1700 Seventh Avenue,
Suite 2100
Seattle, WA 98101
(206) 656-0177
AKhanna@elias.law
Christina A. Ford
William K. Hancock
Jacob D. Shelly
ELIAS LAW GROUP LLP
10 G. Street NE, Suite 600
Washington, D.C. 200002
(202) 968-4490
CFord@elias.law
WHancock@elias.law
JShelly@elias.law
Counsel for Hunter Respondents
CORPORATE DISCLOSURE STATEMENT
Per Supreme Court Rule 29.6, no Hunter Respondent has a parent company or
is a publicly held company with a 10 percent or greater ownership interest in it.
i
TABLE OF CONTENTS
Page(s)
Volume I
Supreme Court of Wisconsin Criteria Order (Filed Nov. 30, 2021) ....... Hunter App. 1
Petition to the Supreme Court of Wisconsin to Take Jurisdiction of an Original
Action (Filed Aug. 23, 2021) .................................................................. Hunter App. 76
Congressmen’s Nonparty Brief In Support of Petitioners (Filed Sept. 8, 2021)…….
................................................................................................................ Hunter App. 96
Congressmen’s Letter Brief (Filed Oct. 6, 2021) ...........................................................
......................................................... ………………………………………Hunter App. 116
Wisconsin Elections Commission’s Letter Brief (Filed Oct. 6, 2021)…… .............. ……
.......................................................................................................... ….Hunter App. 118
Petitioners’ Opening Brief Addressing Court’s Four Questions (Filed Oct. 25, 2021)..
.............................................................................................................. Hunter App. 123
Congressmen’s Opening Brief Addressing Court’s Four Questions (Filed Oct. 25,
2021)………………………………………………………………………… . Hunter App. 158
Volume II
Wisconsin Legislature’s Opening Brief Addressing Court’s Four Questions (Filed
Oct. 25, 2021)……….. ………………………………………………………Hunter App. 197
Congressmen’s Response Brief Addressing Court’s Four Questions (Filed Oct. 25,
2021)…………………………………………………………… . ……………Hunter App. 246
Hunter Response Brief Addressing Court’s Four Questions (Filed Oct. 25,
2021) …………………………………………………………………… ....... Hunter App. 282
Hunter Response Brief Regarding Proposed Maps (Filed Dec. 30, 2021)…..................
.............................................................................................................. Hunter App. 315
Supreme Court of Pennsylvania, Opinion, J. Wecht concurring (Filed Mar. 9,
2022) ….. .............................................................................................. Hunter App. 340
Declaration of Stephen Ansolabehere (Filed Mar. 14, 2022) ............. Hunter App. 360
Congressmen’s Proposed Petition for Original Action (Filed Oct. 6, 2021) ...................
.............................................................................................................. Hunter App. 363
ii
DATED: March 15, 2022
Respectfully submitted,
s/ Abha Khanna
Abha Khanna
Counsel of Record
ELIAS LAW GROUP LLP
1700 Seventh Avenue,
Suite 2100
Seattle, WA 98101
(206) 656-0177
AKhanna@elias.law
John M. Devaney
PERKINS COIE LLP
700 Thirteenth St., NW
Washington, D.C. 20005
(202) 654-6200
JDevaney@perkinscoie.com
Charles G. Curtis, Jr.
PERKINS COIE LLP
33 E. Main St.,
Suite 201
Madison, WI 53703
(608) 663-7460
CCurtis@perkinscoie.com
Christina A. Ford
William K. Hancock
Jacob D. Shelly
ELIAS LAW GROUP LLP
10 G Street N.E., Suite 600
Washington, D.C. 20002
(202) 968-4490
CFord@elias.law
WHancock@elias.law
JShelly@elias.law
Counsel for Hunter Respondents
iii
Case 2021AP001450
Brief per CTO of 10/14/2021 (Wisconsin Legislature)
Filed 10-25-2021
No. 2021AP1450-OA
IN THE SUPREME COURT OF WISCONSIN
BILLIE JOHNSON, ERIC O’KEEFE,
ED PERKINS, AND RONALD ZAHN,
Petitioners,
BLACK LEADERS ORGANIZING FOR COMMUNITIES,
VOCES DE LA FRONTERA, LEAGUE OF WOMEN VOTERS OF WISCONSIN,
CINDY FALLONA, LAUREN STEPHENSON, REBECCA ALWIN, CONGRESSMAN
GLENN GROTHMAN, CONGRESSMAN MIKE GALLAGHER, CONGRESSMAN
BRYAN STEIL, CONGRESSMAN TOM TIFFANY, CONGRESSMAN SCOTT FITZGERALD, 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,
Intervenors-Petitioners,
v.
WISCONSIN ELECTIONS COMMISSION, MARGE BOSTELMANN, in her official
capacity as a member of the Wisconsin Elections Commission, JULIE
GLANCEY, in her official capacity as a member of the Wisconsin Elections
Commission, ANN JACOBS, in her official capacity as a member of the
Wisconsin Elections Commission, DEAN KNUDSON, in his official capacity as
a member of the Wisconsin Elections Commission, ROBERT SPINDELL, JR.,
in his official capacity as a member of the Wisconsin Elections
Commission, AND MARK THOMSEN, in his official capacity as a member of
the Wisconsin Elections Commission,
Respondents,
THE WISCONSIN LEGISLATURE, GOVERNOR TONY EVERS, in his
official capacity, AND JANET BEWLEY SENATE DEMOCRATIC MINORITY
LEADER, on behalf of the Senate Democratic Caucus,
Intervenors-Respondents.
BRIEF BY THE WISCONSIN LEGISLATURE
1
Hunter App. 197
Page 1 of 49
Case 2021AP001450
Brief per CTO of 10/14/2021 (Wisconsin Legislature)
BELL GIFTOS ST. JOHN LLC
KEVIN M. ST. JOHN
SBN 1054815
5325 Wall Street, Suite 2200
Madison, WI 53718
608.216.7995
kstjohn@bellgiftos.com
Filed 10-25-2021
LAWFAIR LLC
ADAM K. MORTARA
SBN 1038391
125 South Wacker, Suite 300
Chicago, IL 60606
773.750.7154
mortara@lawfairllc.com
CONSOVOY MCCARTHY PLLC
JEFFREY M. HARRIS*
TAYLOR A.R. MEEHAN*
JAMES P. MCGLONE*
1600 Wilson Blvd., Suite 700
Arlington, VA 22209
703.243.9423
jeff@consovoymccarthy.com
* Admitted pro hac vice.
Counsel for Intervenor-Respondent,
The Wisconsin Legislature
2
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Case 2021AP001450
Brief per CTO of 10/14/2021 (Wisconsin Legislature)
Filed 10-25-2021
TABLE OF CONTENTS
INTRODUCTION........................................................................... 10
STATEMENT OF ISSUES FOR REVIEW ................................... 10
STATEMENTS ON ORAL ARGUMENT & PUBLICATION ...... 11
STATEMENT OF THE CASE ....................................................... 11
A. The Power to Reapportion .................................................... 11
B. Procedural History ............................................................... 14
ARGUMENT .................................................................................. 15
I.
Factors the Court should consider in evaluating or
creating new maps begin with the Legislature’s role
and end with compliance with state and federal law .... 16
A. The Legislature must have an adequate
opportunity to reapportion ........................................ 16
B. The Legislature’s redistricting plans are the
presumptive remedial plans ...................................... 18
C. The remaining factors to consider with respect
to the Legislature’s presumptive redistricting
plans are whether they comply with state and
federal law .................................................................. 22
II.
In the alternative, the presumptive remedial map
is the existing map, adjusted as necessary for
population shifts .............................................................. 32
A. A “least changes” map is an appropriate
judicial remedy in a redistricting case ...................... 32
B. A “least changes” map is necessary to mitigate
temporal vote dilution ................................................ 36
C. A “least changes” map appropriately prioritizes
continuity of representation ...................................... 37
III.
The Court cannot consider partisanship when
evaluating proposed remedies ........................................ 41
3
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Case 2021AP001450
Brief per CTO of 10/14/2021 (Wisconsin Legislature)
IV.
Filed 10-25-2021
Nature of the proceedings ............................................... 43
A. Timing of proceedings ................................................ 43
B. Form of proceedings ................................................... 43
CONCLUSION ............................................................................... 46
CERTIFICATION REGARDING FORM AND LENGTH ........... 48
CERTIFICATION OF FILING AND SERVICE........................... 49
4
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Case 2021AP001450
Brief per CTO of 10/14/2021 (Wisconsin Legislature)
Filed 10-25-2021
TABLE OF AUTHORITIES
CASES
Abbott v. Perez, 138 S. Ct. 2305 (2018) ......................................... 17
Abrams v. Johnson, 521 U.S. 74 (1997) .................................. 18, 40
Ala. Leg. Black Caucus v. Alabama,
575 U.S. 254 (2015) ..................................................................... 28
Alexander v. Taylor,
2002 OK 59, 51 P.3d 1204 (2002) ......................................... 36, 40
Arizonans for Fair Representation v. Symington,
828 F. Supp. 684 (D. Ariz. 1992) .......................................... 20, 40
Ayotte v. Planned Parenthood of N. New England,
546 U.S. 320 (2006) ..................................................................... 33
Baker v. Carr, 369 U.S. 186 (1962) ......................................... 17, 42
Baldus v. Members of the Wis. Gov’t Accountability Bd.,
849 F. Supp. 2d 840 (E.D. Wis. 2012) ........................................ 25
Baldus v. Members of the Wis. Gov’t Accountability Bd.,
862 F. Supp. 2d 860, 863 (E.D. Wis. 2012) ................................ 39
Baumgart v. Wendelberger, Nos. 01-C-1021, 02-C-0366,
2002 WL 34127471 (E.D. Wis. May 30, 2002) ......... 31, 35, 37, 40
Below v. Gardner, 148 N.H. 1, 963 A.2d 785 (2002) ..................... 35
Bodker v. Taylor, No. 1:02-cv-999,
2002 WL 32587312 (N.D. Ga. June 5, 2002) ............................. 35
Brnovich v. Democratic Nat’l Comm.,
141 S. Ct. 2321 (2021) ................................................................. 27
Bubolz v. Dane Cty.,
159 Wis. 2d 284, 464 N.W.2d 67 (Ct. App. 1990) ...................... 33
Burns v. Richardson, 384 U.S. 73 (1966) ...................................... 20
Chapman v. Meier, 420 U.S. 1 (1975) ..................................... 26, 27
Colleton Cty. Council v. McConnell,
201 F. Supp. 2d 618 (D.S.C. 2002) ................................. 35, 39, 40
Connor v. Finch, 431 U.S. 407 (1977) ........................................... 26
Cooper v. Harris, 137 S. Ct. 1455 (2017)........................... 27, 28, 33
5
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Case 2021AP001450
Brief per CTO of 10/14/2021 (Wisconsin Legislature)
Filed 10-25-2021
Crumly v. Cobb Cty. Bd. of Elections & Voter Registration,
892 F. Supp. 2d 1333 (N.D. Ga. 2012) ....................................... 35
Davis v. Bandemer, 478 U.S. 109 (1986)....................................... 42
Evenwel v. Abbott, 136 S. Ct. 1120 (2016) .................................... 24
F.C.C. v. Beach Comms., Inc., 508 U.S. 307 (1993) ...................... 41
Fortson v. Dorsey, 379 U.S. 433 (1965) ......................................... 41
Gaffney v. Cummings, 412 U.S. 735 (1973) ................ 16, 24, 34, 43
Gill v. Whitford, 138 S. Ct. 1916 (2018) .................................. 41, 42
Growe v. Emison, 507 U.S. 25 (1993) ...................................... 14, 15
Henderson v. Perry,
399 F. Supp. 2d 756 (E.D. Tex. 2005) ........................................ 19
Hippert v. Ritchie, 813 N.W.2d 374 (Minn. 2012) ........................ 35
Holmes v. Burns, No. C.A. 82-1727,
1982 WL 609171 (R.I. Super. Aug. 29, 1982) ............................ 36
Jensen v. Wis. Elections Bd.,
2002 WI 13, 249 Wis. 2d 706, 639 N.W.2d 537 ......................... 18
Johnson v. Miller, 922 F. Supp. 1556 (S.D. Ga. 1995) ........... 34, 36
Karcher v. Daggett, 462 U.S. 725 (1983) ..................... 19, 24, 26, 38
LaComb v. Growe, 541 F. Supp. 145 (D. Minn. 1982) .................. 36
League of United Latin American Citizens v. Perry,
548 U.S. 399 (2006) ..................................................................... 19
Legislature v. Reinecke,
10 Cal. 3d 396, 516 P.2d 6 (1973) ............................................... 40
Markham v. Fulton Cty. Bd. of Registrations & Elections,
No. 1:02-cv-1111, 2002 WL 32587313
(N.D. Ga. May 29, 2002) ............................................................. 35
Martin v. Augusta-Richmond Cty., Ga., Comm’n,
No. CV 112-058, 2012 WL 2339499
(S.D. Ga. June 19, 2012) ....................................................... 35, 38
Mayo v. Wis. Injured Patients & Families Compensation Fund,
2018 WI 78, 383 Wis. 2d 1, 914 N.W.2d 678 ............................. 42
Md. Citizens Comm. for Fair Cong. Redistricting, Inc. v. Tawes,
253 F. Supp. 731 (D. Md. 1966) .................................................. 36
6
Hunter App. 202
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Case 2021AP001450
Brief per CTO of 10/14/2021 (Wisconsin Legislature)
Filed 10-25-2021
Milwaukee Branch of NAACP v. Walker,
2014 WI 98, ¶64, 357 Wis. 2d 469, 851 N.W.2d 262 ................. 20
North Carolina v. Covington, 138 S. Ct. 2548 (2018) ....... 10, 34, 41
Perry v. Perez, 565 U.S. 388 (2012) ................................... 18, 20, 32
Prosser v. Elections Bd.,
793 F. Supp. 859 (W.D. Wis. 1992) ...................................... 30, 37
Reynolds v. Sims, 377 U.S. 533 (1964) ........................ 17, 18, 23, 24
Rucho v. Common Cause, 139 S. Ct. 2484 (2019) ................. passim
Russello v. United States, 464 U.S. 16 (1983) ............................... 21
See State ex rel. Reynolds v. Zimmerman,
22 Wis. 2d 544, 126 N.W.2d 551 (1964) ............................. passim
SEIU, Local 1 v. Vos,
2020 WI 67, 393 Wis. 2d 38, 946 N.W.2d 35 ............................. 20
Sexson v. Servaas, 33 F.3d 799 (7th Cir. 1994) ............................ 19
Shaw v. Reno, 509 U.S. 630 (1993) ............................................... 28
State ex rel. Att’y Gen. v. Cunningham,
81 Wis. 440, 51 N.W. 724 (Wis. 1892) ...................... 18, 23, 25, 33
State ex rel. Bowman v. Dammann,
209 Wis. 21, 243 N.W. 481 (1932) ........................................ 25, 29
State ex rel. Kalal v. Cir. Ct. for Dane Cty.,
2004 WI 58, 271 Wis. 2d 633, 681 N.W.2d 110 ......................... 21
State ex rel. Lamb v. Cunningham,
83 Wis. 90, 53 N.W. 35 (Wis. 1892) ...................................... 18, 29
State ex rel. Reynolds v. Zimmerman,
23 Wis. 2d 606, 128 N.W.2d 16 (1964) ........................... 25, 29, 30
State v. Halverson,
2021 WI 7, 395 Wis. 2d 385, 953 N.W.2d 847 ........................... 21
State v. Seigel,
163 Wis. 2d 871, 472 N.W.2d 584 (Ct. App. 1991) .................... 33
Stenger v. Kellett, No. 4:11-cv-2230,
2012 WL 601017 (E.D. Mo. Feb. 23, 2012) .......................... 35, 40
Thornburg v. Gingles, 478 U.S. 30 (1986) ..................................... 27
Upham v. Seamon, 456 U.S. 37 (1982) ................................. passim
7
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Case 2021AP001450
Brief per CTO of 10/14/2021 (Wisconsin Legislature)
Filed 10-25-2021
Vieth v. Jubelirer, 541 U.S. 267 (2004) ............................. 39, 41, 42
Wesberry v. Sanders, 376 U.S. 1 (1964) ........................................ 26
Whitcomb v. Chavis, 403 U.S. 124 (1971) ..................................... 19
White v. Regester, 412 U.S. 755 (1973) .......................................... 24
White v. Weiser, 412 U.S. 783 (1973) ..................................... passim
Wis. State AFL-CIO v. Elections Bd.,
543 F. Supp. 630 (E.D. Wis. 1982) ............................................. 31
Wise v. Lipscomb, 434 U.S. 1329 (1977)........................................ 14
Wise v. Lipscomb, 437 U.S. 535 (1978).................................... 19, 22
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. XIV ................................................................. 23
U.S. Const. art. I, §2................................................................. 23, 26
U.S. Const. art. I, §4, cl. 1 ........................................................ 11, 18
Wis. Const. art. IV, § 5 ............................................................. 29, 30
Wis. Const. art. IV, §1 .............................................................. 11, 21
Wis. Const. art. IV, §11 .................................................................. 22
Wis. Const. art. IV, §17 .................................................................. 21
Wis. Const. art. IV, §3 ............................................................ passim
Wis. Const. art. IV, §4 .............................................................. 29, 30
Wis. Const. art. V, §10 ................................................................... 21
Wis. Const. art. V, §3 ..................................................................... 22
Wis. Const. art. V, §6 ..................................................................... 22
Wis. Const. art. VI, §2 .................................................................... 22
Wis. Const. art. VII, §12(1) ............................................................ 22
Wis. Const. art. VII, §8 .................................................................. 22
Wis. Const. art. XIII, §12(4)........................................................... 22
Wis. Const. art. XIV, §10 (1848) .................................................... 21
8
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Case 2021AP001450
Brief per CTO of 10/14/2021 (Wisconsin Legislature)
Filed 10-25-2021
STATUTES
2 U.S.C. §2a(b) ................................................................................ 29
2 U.S.C. §2c .................................................................................... 29
52 U.S.C. §10301(b) ........................................................................ 27
Wis. Stat. §3.001 ............................................................................ 29
Wis. Stat. §4.001 ................................................................ 25, 29, 30
Wis. Stat. §4.001(1) (1972) ............................................................. 25
Wis. Stat. §4.001(3) (1983) ............................................................. 25
Wis. Stat. §5.02(12s) ...................................................................... 15
Wis. Stat. §5.15 .............................................................................. 30
Wis. Stat. §751.09 .......................................................................... 44
Wis. Stat. §8.15(1) .......................................................................... 15
Wis. Stat. §805.06 .......................................................................... 44
2021 Wis. Senate Joint Res. 63 ................................... 13, 31, 37, 40
OTHER AUTHORITIES
58 Wis. Op. Att’y Gen. 88 (1969) ................................................... 31
60 Wis. Op. Att’y Gen. 101 (1971) ................................................. 31
Nathaniel Persily, In Defense of Foxes Guarding Henhouses: The
Case for Judicial Acquiescence to Incumbent-Protecting
Gerrymanders, 116 Harv. L. Rev. 649 (2002) ............................ 39
Nathaniel Persily, When Judges Carve Democracies: A Primer on
Court-Drawn Redistricting Plans, 73 Geo. Wash. L. Rev. 1131
(2005) ........................................................................................... 39
Ronald Keith Gaddie & Charles S. Bullock, III, From Ashcroft to
Larios: Recent Redistricting Lessons from Georgia, 34 Fordham
Urb. L.J. 997 (2007) .................................................................... 38
9
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Case 2021AP001450
Brief per CTO of 10/14/2021 (Wisconsin Legislature)
Filed 10-25-2021
INTRODUCTION
This case challenges the constitutionality of Wisconsin’s existing congressional and legislative districts. The Legislature is actively redrawing those districts based on 2020 census data. The
Legislature’s redistricting plans are nearly done. They have not
been vetoed by the Governor. There is not yet any impasse. Even
so, redistricting litigation began in state and federal courts days
after the new census data was delivered.
For the reasons that follow, this Court’s first task is a simple
one: wait for an impasse to occur. In the event of an impasse, the
Court must remedy Petitioners’ malapportionment claims. That
does not mean drafting new redistricting plans on a blank slate.
The Court’s role is more limited. The Court must “reconcil[e] the
requirements of the Constitution with the goals of state political
policy.” Upham v. Seamon, 456 U.S. 37, 43 (1982). Such “reconciliation” can be achieved only if “modifications of a state plan are
limited to those necessary to cure any constitutional or statutory
defect.” Id. Redistricting decisions made by the state legislature
cannot merely be cast aside. See White v. Weiser, 412 U.S. 783, 796
(1973). Once any existing malapportionment is remedied, the
proper role of this Court is at its end. See North Carolina v. Covington, 138 S. Ct. 2548, 2555 (2018).
STATEMENT OF ISSUES FOR REVIEW
1. Under the relevant state and federal laws, what factors
should the Court consider in evaluating or creating new maps?
2. The petitioners ask the Court to modify existing maps using a “least-change” approach. Should the Court do so, and if not,
what approach should the Court use?
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Filed 10-25-2021
3. Is the partisan makeup of districts a valid factor for the
Court to consider in evaluating or creating new maps?
4. As the Court evaluates or creates new maps, what litigation process should the Court use to determine a constitutionally
sufficient map?
STATEMENTS ON ORAL ARGUMENT & PUBLICATION
Given the nascency of the proceedings in this original action,
the Legislature does not believe oral argument is necessary at this
time. The Legislature requests that this Court publish an order
deciding the issues briefed herein, which will guide any future proceedings in the event of an impasse. The Legislature requests publication of this Court’s final decision in this original action.
STATEMENT OF THE CASE
A. The Power to Reapportion
1. The Wisconsin Constitution vests the Wisconsin Legislature with the power to reapportion legislative districts: “At its first
session after each enumeration made by the authority of the
United States, the legislature shall apportion and district anew
the members of the senate and assembly, according to the number
of inhabitants.” Wis. Const. art. IV, §3. Likewise, the federal Constitution vests “the Legislature” with the power to determine “the
manner” of elections, which necessarily includes reapportionment
of electoral districts. U.S. Const. art. I, §4, cl. 1.
That power to reapportion is distinct from the Legislature’s
general lawmaking power. See Wis. Const. art. IV, §1 (“The legislative power shall be vested in a senate and assembly.”). When
Wisconsin was a territory, for example, the apportionment power
was vested in the executive. Act of Apr. 20, 1836, ch. 54, §4, 5 Stat.
11
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10, 12 (vesting Governor with power to “declare the number of
members of the [territory’s] Council and House of Representatives
to which each of the counties is entitled”). Wisconsin’s first constitution as a State shifted that power to the Legislature. See Wis.
Const. art. IV, §3 (1848).
2. The time to “district anew” began again in August 2021
when new 2020 U.S. Census data arrived. Since then, the Legislature has solicited public comment on redistricting and worked to
create new district lines to accommodate shifting populations.
As part of the redistricting process, the Legislature passed a
joint resolution identifying the considerations important to the ongoing redistricting process. 2021 Wis. Senate Joint Res. 63. The
resolution announced that “it is the public policy of this state that
plans establishing legislative districts should:
1.
2.
3.
4.
5.
6.
7.
Comply with federal and state law;
Give effect to the principle that every citizen’s
vote should count the same by creating districts
with nearly equal population, having population deviations that are well below that which
is required by the U.S. Constitution;
Retain as much as possible the core of existing
districts, thus maintaining existing communities of interest, and promoting the equal opportunity to vote by minimizing disenfranchisement due to staggered Senate terms;
Contain districts that are compact;
Contain districts that are legally contiguous;
Respect and maintain whole communities of interest where practicable;
Avoid municipal splits unless unavoidable or
necessary to further another principle stated
12
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8.
9.
Filed 10-25-2021
above, and when splitting municipalities, respect current municipal ward boundaries;
Promote continuity of representation by avoiding incumbent pairing unless necessary to further another principle stated above; and
Contain districts that follow natural boundaries where practicable and consistent with
other principles, including geographic features
such as rivers and lakes, manufactured boundaries such as major highways, and political
boundaries such as county lines.”
2021 Wis. Senate Joint Res. 63.
The Legislature’s redistricting plans are nearly finished.
Legislators have introduced the new redistricting bills into legislative committees. See Wis. Senate Bill Nos. 621, 622. Hearings
will occur on those bills this week.1 And legislative leadership expects that the redistricting plans will be brought to a floor vote
early next month.
The Governor has the opportunity to approve or veto the redistricting plans passed by the Legislature under the Court’s precedent. See State ex rel. Reynolds v. Zimmerman, 22 Wis. 2d 544,
126 N.W.2d 551 (1964). If the Governor vetoes the Legislature’s
redistricting plans, there will be what’s known as an “impasse.”
1 Meanwhile, the Governor has created his own redistricting com-
mission. Wis. Executive Order No. 66 (Jan. 27, 2020). The Governor’s
commission has expressed its intent to share proposed maps with the
Legislature, but the maps are not yet complete. See “Commission’s Work
& Records,” govstatus.egov.com/peoplesmaps/work-records; “The People’s Maps Commission Criteria for Drawing Districts,” People’s Maps
Commission, bit.ly/3C6BvrV.
13
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Filed 10-25-2021
The Governor has not vetoed the Legislature’s redistricting plans,
and there is no “impasse” at this time.
B. Procedural History
One day after census data was delivered in Wisconsin, federal plaintiffs sued for a declaration that Wisconsin’s existing districts were unconstitutionally malapportioned and asked the federal court to prepare itself to redraw Wisconsin’s electoral districts. Another set of federal plaintiffs filed a similar suit days
later. See Hunter v. Bostelmann, No. 21-cv-512 (W.D. Wis.); Black
Leaders Organizing for Communities (BLOC) v. Bostelmann, No.
21-cv-534 (W.D. Wis.). The Legislature immediately intervened in
the federal suits and filed motions to dismiss for lack of federal
jurisdiction. The Legislature’s dismissal motions explained, inter
alia, that redistricting is primarily the responsibility of the Legislature, not the federal court. See, e.g., Growe v. Emison, 507 U.S.
25, 34 (1993) (“[R]eapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court.”); Wise v. Lipscomb, 434 U.S. 1329,
1332 (1977) (same). The federal court denied the Legislature’s motion to dismiss. The Legislature has since petitioned for a writ of
mandamus or prohibition ordering that the federal suits be dismissed. In re Wisconsin Legislature, No. 21-474 (Sept. 24, 2021).
And the federal court has stayed the federal proceedings until November 5. See Order, Hunter, No. 3:21-cv-512 (W.D. Wis. Oct. 6,
2021), ECF No. 103.
Around the same time, four Wisconsin voters filed this original action. They asked this Court to declare the existing districts
malapportioned. Johnson Pet. ¶1(a). They asked this Court to enjoin the Wisconsin Elections Commission “from administering any
[future] election” until a new apportionment plan is in place. Id.
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¶1(b). And they asked this Court to establish a “judicial plan of
apportionment” in the event there is no “amended state law with
a lawful apportionment plan.” Id. ¶1(c).
The Court granted the petition for an original action. See Order of Sept. 22, 2021, as amended, Sept. 24, 2021. As part of its
order, the Court declined to immediately declare that the districts
were malapportioned or to enjoin the elections commission from
conducting elections until a new plan is in place. Id. at 3. The Court
stated it was “mindful that judicial relief becomes appropriate in
reapportionment cases only when the legislature fails to reapportion according to constitutional requisites in a timely fashion after
having an adequate opportunity to do so.” Id. at 2.
The Legislature and other parties have since intervened and
filed letter briefs regarding when redistricting plans must be complete in advance of next year’s elections. See First Order of Oct. 14,
2021.2 The Legislature’s brief indicated that the Legislature
needed until at least November to have an adequate opportunity
to complete its redistricting process. Legislature Letter Br. 2. The
Legislature also explained that, in the event of an impasse, this
Court is the proper forum to resolve all redistricting-related issues.
Legislature Response Letter Br. 3-7. The State can have only one
set of redistricting plans, so the time to raise any such issues will
be in this forum. Growe, 507 U.S. at 35.
ARGUMENT
If the Legislature cannot resolve Petitioners’ malapportionment claims, then this Court will need to order a remedy. In doing
so, the Court’s role is still that of a Court, not a Legislature. The
The next scheduled primary is August 9, 2021. Wis. Stat.
§5.02(12s). The nominations period for the primary begins on April 15,
2021, and ends on June 1, 2021. Wis. Stat. §8.15(1).
2
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Court can avoid the “political thicket” of redistricting in three
ways. Gaffney v. Cummings, 412 U.S. 735, 750 (1973). First, and
in all events, the Court will not start from a blank slate. Instead,
in recognition of the Legislature’s constitutionally assigned power
to redistrict, the Court can decide that the Legislature’s forthcoming redistricting plans are the presumptive remedy, adjusting only
if necessary to comply with state and federal law. Second, and alternatively, the Court can begin with the existing districts and ask
the parties for proposed remedies that adjust those districts as necessary to accommodate shifting populations and to comply with
state and federal law. Third, whatever the Court’s baseline, the
Court must reject any adjustments intended to achieve partisan
“fairness” or otherwise consider for itself whether there is “too
much” partisanship in a redistricting plan. The attempt to achieve
“fairness” is a partisan choice in and of itself. Questions of what is
“fair” in light of the naturally occurring partisan makeup of the
State are not the sort of questions any Court is equipped to answer.
See Rucho v. Common Cause, 139 S. Ct. 2484, 2500 (2019). Finally,
the form of the proceedings should require the parties to propose
possible remedies for the Court’s consideration, supported by briefing and evidence about why the parties’ submissions are in furtherance of the Court’s guidelines for an appropriate remedy.
I.
Factors the Court should consider in evaluating or
creating new maps begin with the Legislature’s role
and end with compliance with state and federal law.
A.
The Legislature must have an adequate
opportunity to reapportion.
The first factor that this Court must consider in this action
is whether there has been an “adequate opportunity” for the Legislature to reapportion the existing districts. Order of Sept. 22,
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2021, at 2. For two reasons, the Court cannot presume a future
impasse is bound to occur and take over the reapportionment process now before the political branches have completed their task.
As an initial matter, no party can fully know the form that
this action should take until the Legislature has had an opportunity to put its redistricting plans before the Governor (as required by this Court’s existing precedent). See Zimmerman, 22
Wis. 2d at 554-55. If the Governor signs the Legislature’s redistricting plans, and if Petitioners were permitted to amend, then
the Court would not draw a new plan or adjust the existing plan,
except to adjudicate any malapportionment in excess of state or
federal limits or any other alleged violation of law. See, e.g., Baker
v. Carr, 369 U.S. 186, 237 (1962); Reynolds v. Sims, 377 U.S. 533,
568 (1964); Abbott v. Perez, 138 S. Ct. 2305, 2315 (2018).
The Legislature, moreover, cannot fully participate in this
original action until its redistricting plans are final and passed by
both houses of the Legislature. Nor should this Court entertain
proposed remedies without the Legislature’s full participation. Explained more fully below, the Legislature’s redistricting plans are
the presumptive remedy, Part I.B, infra, or at least must be a proposed remedy from which to choose, Part II.A-B, infra. So first, the
Legislature needs to finish that starting point.
Applied here, there has not been adequate time for the redistricting process to run its course in the Legislature. The Legislature received new census data little more than two months ago.
And while the Legislative process is nearly finished, it is not complete. Importantly, “judicial relief becomes appropriate in reapportionment cases only when the legislature fails to reapportion according to constitutional requisites in a timely fashion after having
had an adequate opportunity to do so.” Order of Sept. 22, 2021, at
2. As explained in the Legislature’s previously submitted letter
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brief, legislative leadership intends to take up redistricting plans
before the floor period ending on November 11, 2021.
The Court should not order the parties to submit plans unless there is an impasse, as determined by a gubernatorial veto or
the failure of a plan to pass both houses after an adequate time for
legislative consideration.
B.
The Legislature’s redistricting plans are the
presumptive remedial plans.
If an impasse results after the Legislature has had adequate
time to reapportion, then the next prevailing factor that this Court
should consider in evaluating new redistricting plans is deference
to the Legislature. See Upham, 456 U.S. 37; Abrams v. Johnson,
521 U.S. 74 (1997); Perry v. Perez, 565 U.S. 388 (2012); Jensen v.
Wis. Elections Bd., 2002 WI 13, ¶17, 249 Wis. 2d 706, 639 N.W.2d
537 (Legislature is “ideally and most properly” the architect of any
redistricting plans). Both the state and federal constitutions vest
the Legislature specifically with the power to apportion. See Wis.
Const. art. IV, §3; U.S. Const. art. I, §4, cl. 1. “[R]eapportionment
is primarily a matter for legislative consideration and determination,” Reynolds, 377 U.S. at 586, and “state legislatures have primary jurisdiction over legislative reapportionment,” White, 412
U.S. at 795.
1. Ordinarily, a court faced with a redistricting dispute
would allow the Legislature to remedy the alleged constitutional
violation. See, e.g., State ex rel. Att’y Gen. v. Cunningham, 81 Wis.
440, 51 N.W. 724 (Wis. 1892); State ex rel. Lamb v. Cunningham,
83 Wis. 90, 53 N.W. 35 (Wis. 1892). When a court “declares an existing apportionment scheme unconstitutional,” it is “appropriate,
whenever practicable, to afford a reasonable opportunity for the
legislature to meet constitutional requirements by adopting a
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substitute measure rather than for the federal court to devise and
order into effect its own plan.” Wise v. Lipscomb, 437 U.S. 535, 540
(1978) (op. of White, J.). A “legislatively enacted plan should be
preferable to one drawn by the courts.” League of United Latin
American Citizens v. Perry (LULAC), 548 U.S. 399, 416 (2006) (op.
of Kennedy, J.). And even if the Court finds itself “fashioning a
reapportionment plan or … choosing among plans,” it “should not
pre-empt the legislative task or ‘intrude upon state policy any more
than necessary.’” White, 412 U.S. at 795 (quoting Whitcomb v.
Chavis, 403 U.S. 124, 160 (1971)).
Applied here, the Legislature’s redistricting plans—passed
by both houses comprising the 132 elected representatives for the
people of the State of Wisconsin—should be treated as the presumptive remedial plans for Petitioners’ malapportionment
claims. The Legislature’s redistricting plans are an expression of
“the policies and preferences of the State” voted upon by the duly
elected representatives of the State. White, 412 U.S. at 795; see
Henderson v. Perry, 399 F. Supp. 2d 756, 768 (E.D. Tex. 2005)
(“Simply undoing the work of one political party for the benefit of
another would have forced this court to make decisions that could
not be defended against charges of partisan decision-making … for
the lack of a substantive standard.”), rev’d in part on other grounds
sub nom., LULAC, 548 U.S. 399. For example, legislative redistricting plans will reflect policy choices weighing whether to maximize compactness or sacrifice some compactness to follow natural
boundaries, or to maximize continuity of representation and avoid
pairing incumbents in the same district.3 The Court cannot
3 See, e.g., Sexson v. Servaas, 33 F.3d 799, 800 (7th Cir. 1994)
(consideration of geographical factors may justify drawing less mathematically compact districts); Karcher v. Daggett, 462 U.S. 725, 740
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“unnecessarily put aside” those legislative choices about how the
forthcoming, reapportioned districts ought to be reconfigured, or
otherwise “displac[e] legitimate state policy judgments with the
court’s own preferences.” White, 412 U.S. at 796; Perry, 565 U.S. at
394. Instead, the only question is whether the Legislature’s proposed reapportionment solution complies with state and federal
law. Cf. Perry, 565 U.S. at 393-94. If so, it should be adopted as
this Court’s remedy for malapportionment.
2. The doctrine of constitutional avoidance is yet another
reason why the Court should adopt the Legislature’s state legislative districts as the presumptive remedial maps for the State Senate and Assembly if the Court concludes that the plan complies
with all legal requirements. See, e.g., Milwaukee Branch of NAACP
v. Walker, 2014 WI 98, ¶64, 357 Wis. 2d 469, 851 N.W.2d 262.
Here, there is a lurking constitutional question about whether the
Legislature’s reapportionment plans are sufficient to effectuate redistricting for the state legislative districts. This Court held in
Zimmerman that the state legislative districts must also be signed
by the Governor because both are “indispensable parts of th[at]
legislative process.” 22 Wis. 2d at 556-57. But Zimmerman is on
shaky ground in light of the language of the Article IV, §3 and historical context. See SEIU, Local 1 v. Vos, 2020 WI 67, ¶28, 393 Wis.
2d 38, 946 N.W.2d 35 (the “text of the constitution reflects the
(1983); see also White, 412 U.S. at 792 (approving “policy frankly aimed
at maintaining existing relationships between incumbent congressmen
and their constituents and preserving the seniority the members of the
State’s delegation have achieved in the United States House of Representatives”); Burns v. Richardson, 384 U.S. 73, 89 n.16 (1966); Arizonans for Fair Representation v. Symington, 828 F. Supp. 684, 688 (D.
Ariz. 1992) (“maintenance of incumbents provides the electorate with
some continuity”), aff’d sub nom. Hispanic Chamber of Commerce v. Arizonans for Fair Representation, 507 U.S. 981 (1993).
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policy choices of the people, and therefore constitutional interpretation … focuses primarily on the language of the constitution”);
see also State v. Halverson, 2021 WI 7, ¶22, 395 Wis. 2d 385, 953
N.W.2d 847 (“[W]e focus 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.”).
The Legislature’s power to reapportion its districts is specifically enumerated in the state constitution, distinct from its lawmaking power. And while the Constitution makes the legislative
power of Article IV, §1 subject to presentment and possible veto by
the Governor, see Wis. Const. art. V, §10, the Legislature’s reapportionment power does not have the same limitation. Compare
Wis. Const. art IV, §3, with id. §§1, 17. The text regarding that
reapportionment power states that “the legislature shall apportion
and district anew the members of the senate and assembly….” Id.
§3. It does not provide that “the legislature should enact legislation
to apportion anew” or “the legislature shall by law apportion
anew.”4
4 The absence of “by law” is especially significant since such lan-
guage is used elsewhere in Wisconsin’s constitution, including for the
Legislature’s separate power to reapportion congressional districts in
Wisconsin’s constitution when it was first ratified. See Wis. Const. art.
XIV, §10 (1848) (“Two members of congress shall also be elected … and
until otherwise provided by law, the counties … shall constitute the first
congressional district”); State ex rel. Kalal v. Cir. Ct. for Dane Cty., 2004
WI 58, ¶46, 271 Wis. 2d 633, 681 N.W.2d 110 (“statutory language is
interpreted in the context in which it is used; not in isolation but as part
of a whole; in relation to the language of surrounding or closely-related
statutes”); Russello v. United States, 464 U.S. 16, 23 (1983) (“‘[W]here
Congress includes particular language in one section of a statute but
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The Court can avoid revisiting Zimmerman and the question
of whether the Legislature has already reapportioned if the Court
instead adopts the Legislature’s remedial plans as the presumptive remedy for Petitioners’ malapportionment claims.
C.
The remaining factors to consider with respect
to the Legislature’s presumptive redistricting
plans are whether they comply with state
and federal law.
If the Court agrees that the Legislature’s redistricting plans
are the presumptive remedial maps, then compliance with federal
and state law are the only additional factors that this Court needs
to consider in adopting a remedy. Cf. Wise, 437 U.S. at 540 (op. of
White, J.) (explaining that a new legislative plan to remedy malapportionment claim “if forthcoming, will then be the governing
law unless it, too, is challenged and found to violate the Constitution”).
1. Equally apportioned. The Court will have to confirm
that redistricting plans are properly apportioned, in accordance
with federal and state law. The federal and state constitutions
omits it in another section of the same Act, it is generally presumed that
Congress acts intentionally and purposely in the disparate inclusion or
exclusion.’”); see also, e.g., Wis. Const. art. IV, §11 (legislative sessions
to be held “at such time as shall be provided by law”); art. VII, §8 (describing circuit court original jurisdiction “[e]xcept as otherwise provided by law”); art. V, §3 (describing returns of election for governor and
lieutenant governor to “be made in such manner as shall be provided by
law”); art. V, §6 (gubernatorial pardoning power “subject to such regulations as may be provided by law”); art. VI, §2 (describing secretary of
state compensation as “provided by law”); art. VII, §12(1) (describing
circuit court clerk as “subject to removal as provided by law”); art. XIII,
§12(4) (describing candidate filings for special elections “in the manner
provided by law”).
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require reapportionment based on population. U.S. Const. art. I,
§2, cl. 1; U.S. Const. amend. XIV; Wis. Const. art. IV, §3; see Reynolds, 377 U.S. at 562 (“if a State should provide that the votes of
citizens in one part of the State should be given two times, or five
times, or 10 times the weight of votes of citizens in another part of
the State, it could hardly be contended that the right to vote of
those residing in the disfavored areas had not been effectively diluted”); Wesberry v. Sanders, 376 U.S. 1, 18 (1964) (describing
“equal representation for equal numbers of people [as] the fundamental goal for the House of Representatives”); Cunningham, 51
N.W. at 729 (“one of the highest and most sacred rights and privileges of the people of the state, guaranteed to them by ordinance
of 1787 and the constitution” is “equal representation in the legislature”); Zimmerman, 22 Wis. 2d at 564 (“sec. 3, art. IV, Wis.
Const., contains a precise standard of apportionment—the legislature shall apportion districts according to the number of inhabitants”).
In Wisconsin, districts are drawn based on total population
as reflected by the most recent census. See Wis. Const. art. IV, §3
(reapportionment based on “enumeration” and “number of inhabitants”).5 Each district will have an ideal population (taking total
population divided by the number of districts).6 Determining
5 There are different ways to measure equality. See Evenwel v.
Abbott, 136 S. Ct. 1120, 1132 (2016). Wisconsin uses total population,
i.e., “the number of inhabitants.” A State could theoretically redistrict
based on voting-age population to better ensure that voters are not diluted vis a vis other voters, but the federal constitution does not command it. Id.
Wisconsin’s population based on the 2020 U.S. Census is
5,893,718 people. The ideal population for a State Assembly district
based on total population is 59,533; for State Senate, 178,598; for congressional, 736,715. See legis.wisconsin.gov/ltsb/gis/data/.
6
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population deviation from that ideal is determined in the aggregate: “Maximum population deviation is the sum of the percentage
deviations from perfect population equality of the most- and leastpopulated districts. For example, if the largest district is 4.5%
overpopulated, and the smallest district is 2.3% underpopulated,
the map’s maximum population deviation is 6.8%.” Evenwel, 136
S. Ct. at 1124 n.2.
a. With respect to the state legislative districts, the federal
Equal Protection Clause of the Fourteenth Amendment requires
apportionment “on a population basis”—meaning districts must be
constructed “as nearly of equal population as is practical.” Reynolds, 377 U.S. at 577; see also Evenwel, 136 S. Ct. at 1131. In Reynolds, the Supreme Court explained that it was “a practical impossibility” at the time to achieve “an identical number of residents,
or citizens, or voters” in each district. 377 U.S. at 577. But the resulting districting plan must be “based substantially on population” so that Reynolds’s “equal-population principle” is “not diluted
in any significant way.” Id. at 578. Whether and what amount of
population deviation is acceptable will “depen[d] on the particular
circumstances of the case.” Id. In practice, population deviations
require an explanation that traditional redistricting criteria (e.g.
compactness) required some deviation. See Karcher, 462 U.S. at
740.
Today, there is a rebuttable presumption that a state legislative map with a total deviation of 10% or less is constitutional,
but the goal is always population equality. See, e.g., Gaffney, 412
at 750-51 (state legislative map approved with maximum deviation
of 7.83% for house districts and 1.81% for senate districts); White
v. Regester, 412 U.S. 755, 763-64 (1973) (no justification required
when total deviation was 9.9%).
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b. Likewise, the Wisconsin Constitution demands that districts be as close to equal as possible. Senate and Assembly districts must be “apportion[ed]” by the Legislature “according to the
number of inhabitants.” Wis. Const. art. IV, §3. This provision
guarantees the people “equal representation in the legislature”
Cunningham, 51 N.W. at 729.
The Wisconsin Constitution does not require mathematical
exactness but “as close an approximation to exactness as possible.”
Id. at 730.7 After Reynolds v. Sims, Wisconsin policy was to equalize districts well below the “ten percent” rule of presumptive constitutionality under the federal equal protection clause. This was
not accidental. In the wake of Reynolds, state law for the 1972
maps stated that “[a]ll senate districts, and all assembly districts,
are as equal in the number of inhabitants as practicable” and “no
district deviates from the state-wide average for districts of its type
by more than one per cent.” Wis. Stat. §4.001(1) (1972); see also
Wis. Stat. §4.001(3) (1983) (articulating 1.72% and 1.05% population deviation benchmark); Baldus v. Members of the Wis. Gov’t
Accountability Bd., 849 F. Supp. 2d 840, 851 (E.D. Wis. 2012) (finding the maximum population deviation for Assembly districts was
0.76% and for Senate districts was 0.62%).
c. With respect to congressional districts, Article I of the U.S.
Constitution commands that Representatives shall be chosen “by
Prior to Reynolds v. Sims, this Court approved redistricting
plans with significant population deviations. See, e.g., State ex rel. Reynolds v. Zimmerman, 23 Wis. 2d 606, 607, 128 N.W.2d 16 (1964); State ex
rel. Bowman v. Dammann, 209 Wis. 21, 243 N.W. 481, 485 (1932). These
substantial deviations were largely the result of the Court’s understanding that county lines were “held inviolable”—meaning districts had to
be bounded by county lines. Zimmerman, 23 Wis. 2d at 606; see also
Cunningham, 51 N.W. at 730. Courts abandoned that notion that after
Reynolds v. Sims.
7
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the People of the several States.” U.S. Const. art I, §2, cl. 1 (emphasis added). The phrase “by the People” means “that as nearly as is
practicable one man’s vote in a congressional election is to be worth
as much as another’s.” Wesberry v. Sanders, 376 U.S. 1, 7-8, 17
(1964). Under the “as nearly as is practicable” standard, States
must “make a good-faith effort to achieve precise mathematical
equality” when drawing congressional districts. Karcher, 462 U.S.
at 730 (citation omitted). For congressional redistricting, there is
no maximum deviation percentage that can be considered de minimis. See White, 412 U.S. at 790 n.8. Absolute population equality
is the “paramount objective” of congressional reapportionment.
Karcher, 462 U.S. at 732-33.
Unavoidable population variances are permitted but there
must be a “justification” for it. Kirkpatrick v. Preisler, 394 U.S. 526,
531 (1969). Such justifications include nondiscriminatory application of traditional redistricting criteria, such as “making districts
compact, respecting municipal boundaries, preserving the cores of
prior districts, and avoiding contests between incumbent Representatives.” Karcher, 462 U.S. at 740.
***
The Court’s remedy must comply with these equal population principles. Indeed, federal courts have required population
equality with more exactness for court-drawn maps. See Chapman
v. Meier, 420 U.S. 1, 27 & n.19 (1975) (requiring “population equality with little more than de minimis variation,” “unless there are
persuasive justifications”). The reasons for doing so apply equally
here. That higher standard “reflect[s] the unusual position of federal courts as draftsmen of reapportionment plans,” Connor v.
Finch, 431 U.S. 407, 414-15 (1977), even though Legislatures have
primary responsibility for reapportionment. When a court prioritizes population equality, that avoids the “taint of arbitrariness or
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discrimination” in crafting a malapportionment remedy. Id. at 415
(quoting Roman v. Sincock, 377 U.S. 695, 710 (1964)). For such
court-drawn maps, “any deviation from approximate population
equality must be supported by enunciation of historically significant state policy or unique features.” Chapman, 420 U.S. at 26. So
too here—any map drawn by this Court should prioritize equal
population without arbitrarily overriding other “goals of state political policy” embodied in a legislative redistricting plan. Upham,
456 U.S. at 43.
2. Fourteenth Amendment and the Voting Rights Act.
The Court will also have to confirm that any remedy complies with
the Fourteenth Amendment and the Voting Rights Act.
The Fourteenth Amendment of the U.S. Constitution prohibits a redistricting plan from subordinating traditional redistricting
factors—“compactness, respect for political subdivisions, partisan
advantage, what have you”—to racial considerations. Cooper v.
Harris, 137 S. Ct. 1455, 1464 (2017). If “racial considerations predominated over others, the design of the district must withstand
strict scrutiny”—serving a “compelling interest” and “narrowly tailored” to that end. Id. at 1464. One such compelling interest under
current U.S. Supreme Court precedent “is complying with operative provisions of the Voting Rights Act of 1965.” Id.
Section 2 of the Voting Rights Act requires that the political
processes are “equally open to participation” for all citizens. 52
U.S.C. §10301(b); see Brnovich v. Democratic Nat’l Comm., 141 S.
Ct. 2321, 2337-38 (2021). The Court has applied that rule to singlemember voting districts where there has been a “dispersal of a
group’s members into districts” leaving them as “an ineffective minority of voters.” Cooper, 137 S. Ct. at 1464 (brackets omitted)
(quoting Thornburg v. Gingles, 478 U.S. 30, 46 n.11 (1986)). Proving vote dilution starts with three threshold preconditions: (1) a
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minority group must be sufficiently large and geographically compact to constitute a majority in some reasonably configured legislative district; (2) the minority group must be politically cohesive;
(3) a district’s white majority must vote sufficiently as a bloc to
usually defeat the minority’s preferred candidate. Cooper, 137 S.
Ct. at 1470 (citing Gingles, 478 U.S. at 50-51). If there are “good
reason[s]” to think that these preconditions are met, then there is
also “good reason to believe that §2 requires drawing a majorityminority district” under current Supreme Court precedent. Id. (citing Bush v. Vera, 517 U.S. 952, 978 (1996) (plurality opinion)).
But the VRA does not give carte blanche authority to redistrict based on race. See id. at 1469-70. There must be a compelling
reason for doing so, and any use of race in a reapportionment plan
must be narrowly tailored to that end. See id.; Ala. Leg. Black Caucus v. Alabama, 575 U.S. 254, 279 (2015); Shaw v. Reno, 509 U.S.
630, 647 (1993) (race-predominant redistricting “reinforces the
perception that members of the same racial group—regardless of
their age, education, economic status, or the community in which
they live—think alike, share the same political interests, and will
prefer the same candidates at the polls”).
In these proceedings, as part of ensuring that any judicial
order or reapportionment complies with both the Fourteenth
Amendment and the Voting Rights Act, the Legislature (and any
other party wishing to submit any alternative remedial map) will
establish, with support from an expert in the field, that their proposed remedial map complies with both.
3. Number of districts. State and federal law currently
provides for 8 congressional districts, 99 State Assembly districts
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and 33 State Senate districts. Wis. Stat. §§3.001, 4.001; see also 2
U.S.C. §2a(b).8
4. “Nested” assembly districts. The Wisconsin Constitution requires State Senate districts to wholly encompass Assembly
districts. Wis. Const. art. IV, § 5 (providing that “no assembly district shall be divided in the formation of a senate district”). Because equal apportionment applies to both Senate and Assembly
districts and because of the number of Senate and Assembly districts established by law, each Senate district must comprise three
Assembly districts.
5. Single-member districts. The Wisconsin Constitution
requires single-member legislative districts. Wis. Const. art. IV,
§§4, 5. State and federal law both require that each congressional
district belongs to a single representative. 2 U.S.C. §2c; Wis. Stat.
§3.001.
6. Compactness. The Wisconsin Constitution requires Assembly districts to be “in as compact form as practicable.” Wis.
Const. art. IV, §4. This Court has not adopted a particular measure
of compactness and has observed that compactness is one measure
“of securing a nearer approach to equality of representation.” Cunningham, 53 N.W. at 58. At the same time, in certain areas, achieving a more compact district could also justify the drawing of districts that have slight population deviations. See Zimmerman, 23
Wis. 2d at 606-07; see also Dammann, 243 N.W. at 484 (perfect
population equality is not possible in light of other considerations,
including compactness).
8 U.S. Department of Commerce, U.S. Census Bureau, “Appor-
tionment Population and Number of Representatives By State: 2020
Census,” www2.census.gov/programs-surveys/decennial/2020/data/apportionment/apportionment-2020-table01.pdf.
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7. Contiguity. The Wisconsin Constitution requires Assembly and Senate districts to be contiguous. Wis. Const. art. IV, §4
(requiring Assembly districts to “consist of contiguous territory”);
id. at §5 (requiring Senate districts to be of a “convenient contiguous territory”). Contiguity means political contiguity. If annexation by municipalities creates a municipal “island,” the district
containing detached portions of the municipality is legally contiguous even if the geography around the municipal island is part of
a different district. See, e.g., Prosser v. Elections Bd., 793 F. Supp.
859, 866 (W.D. Wis. 1992) (rejecting argument that Wisconsin’s
constitution requires “literal” contiguity, and noting “that it has
been the practice of the Wisconsin legislature to treat [municipal]
islands as contiguous with the cities or villages to which they belong”); see also Wis. Stat. §5.15(1)(b), (2)(f)(3); Wis. Stat. §4.001(2)
(1972) (“Island territory (territory belonging to a city, town or village but not contiguous to the main part thereof) is considered a
contiguous part of its municipality.”).
8. County, municipal, or ward boundaries. Last, the
Wisconsin Constitution requires Assembly districts to be “bounded
by county, precinct, town or ward lines.” Wis. Const. art. IV, §4.
Before the U.S. Supreme Court in Reynolds announced the
one-person-one-vote principle for state legislative districts, this
Court interpreted section 4 of article IV of the Wisconsin Constitution to prohibit districts from crossing county boundaries unless
the district comprised multiple whole counties. See, e.g., Zimmerman, 22 Wis. 2d at 565-66. This resulted in significant and unavoidable population deviations. See Zimmerman, 23 Wis. 2d at 623
(largest Assembly district in court drawn plan included more than
twice as many inhabitants as smallest district).
After Reynolds, Wisconsin Attorney General Robert Warren
concluded in a formal opinion that “the Wisconsin Constitution no
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longer may be considered as prohibiting assembly districts from
crossing county lines, in view of the emphasis the United States
Supreme Court has placed upon population equality in electoral
districts.” 58 Wis. Op. Att’y Gen. 88, 91 (1969). In practice, courts
that have subsequently remedied Wisconsin reapportionment disputes have observed that “avoiding the division of counties is no
longer an inviolable principle.” Baumgart v. Wendelberger, Nos.
01-C-1021, 02-C-0366, 2002 WL 34127471, at *3 (E.D. Wis. May
30, 2002); see also Wis. State AFL-CIO v. Elections Bd., 543 F.
Supp. 630, 635 (E.D. Wis. 1982) (calling the maintenance of county
boundaries “incompatib[le] with population equality” and thus “of
secondary importance”).
Nevertheless, respecting municipal boundaries remains a
consideration in redistricting plans. As the Baumgart court observed, “respect for the prerogatives of the Wisconsin Constitution
dictate that wards and municipalities be kept whole where possible.” 2002 WL 34127471, at *3; see also 60 Wis. Op. Att’y Gen. 101,
106 (1971) (concluding that “insofar as may be consistent with population equality, town and ward lines should be followed”). Accordingly, every judicial map drawn post-Reynolds v. Sims has followed
ward boundaries. Baumgart, 2002 WL 34127471, at *3.
***
Each of these requirements have guided the Legislature’s redistricting process. 2021 Wis. Senate Joint Res. 63. That is all the
more reason that the Legislature’s redistricting plans—the manifestation of state policy—ought to be the presumptive remedial
plans and accepted as the remedy for Petitioners’ malapportionment claims so long as they comply with state and federal law.
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II.
Filed 10-25-2021
In the alternative, the presumptive remedial map is
the existing map, adjusted as necessary for population shifts.
Alternatively, the Court could begin with the existing congressional and legislative districts. The Court would then invite
the parties to propose remedial plans that adjust the existing districts as necessary to account for shifting populations and to otherwise ensure that new districts comply with state and federal law.
The Court would then accept the remedial plan that is the “least
changes” from the existing map. That approach would comport
with the Court’s limited role in redistricting, respect the traditional redistricting principle of core retention, and mitigate temporal vote dilution.
A. A “least changes” map is an appropriate judicial
remedy in a redistricting case.
Judicial restraint must guide any redistricting-related remedy. Remedying Petitioner’s malapportionment claims is not a policymaking exercise. Reapportionment—as the term suggests—ordinarily begins with the existing map. Cf. Perry, 565 U.S. at 393
(“To avoid being compelled to make such otherwise standardless
decisions, a district court should take guidance from the State’s
recently enacted plan in drafting an interim plan.”). Parties then
propose modifications to districts as necessary to accommodate
shifting population, for a “least changes” or “minimum changes”
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redistricting plan to remedy Petitioners’ malapportionment
claims.9
Remedying Petitioners’ malapportionment claims with a
“least changes” map is consistent with traditional remedial principles. For any court in any case, it is a fundamental tenant of remedies that “[i]njunctive relief should be tailored to the necessities
of the particular case.” Bubolz v. Dane Cty., 159 Wis. 2d 284, 296,
464 N.W.2d 67 (Ct. App. 1990); State v. Seigel, 163 Wis. 2d 871,
890, 472 N.W.2d 584 (Ct. App. 1991) (“because injunctive relief is
preventive, not punitive, the relief ordered may not be broader
than equitably necessary”). Courts must “limit the solution to the
problem.” Ayotte v. Planned Parenthood of N. New England, 546
U.S. 320, 328 (2006); see also Cunningham, 51 N.W. at 736 (Pinney, J., concurring) (“it is to be borne in mind that the writ of injunction under our constitution is … of a strictly judicial nature”
ensuring that the Court’s equitable power does not become “the
exercise of political power”). If a plaintiff brought a First Amendment challenge to a state law, for example, a court would not rewrite the law to remedy the plaintiff’s First Amendment harm. So
too here: “In fashioning a remedy in redistricting cases, courts are
9 Justice Alito summarized the minimum changes approach in his
separate opinion in Cooper v. Harris:
When a new census requires redistricting, it is a
common practice to start with the plan used in the prior
map and to change the boundaries of the prior districts only
as needed to comply with the one-person, one-vote mandate
and to achieve other desired ends. This approach honors
settled expectations and, if the prior plan survived legal
challenge, minimizes the risk that the new plan will be
overturned.
137 S. Ct. at 1492 (Alito, J., concurring in the judgment in part
and dissenting in part).
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generally limited to correcting only those unconstitutional aspects
of a state’s plan.” Johnson v. Miller, 922 F. Supp. 1556, 1559 (S.D.
Ga. 1995), aff’d sub nom. Abrams v. Johnson, 521 U.S. 74 (1997);
see also Upham, 456 U.S. at 42 (“The remedial powers of an equity
court must be adequate to the task, but they are not unlimited.”
(quotation marks omitted)).
Those remedial principles are at their zenith here. Redistricting is a “political thicket.” Gaffney, 412 U.S. at 750. It is “one
of the most intensely partisan aspects of American political life,”
entailing inherently political decisions. Rucho, 139 S. Ct. at 2507.
Courts must be especially careful when ordering a redistricting
remedy—lest their task be transformed from a judicial one to a
legislative one. Cf. White, 412 U.S. at 795 (when adherence to
“plans proposed by the state legislature ... does not detract from
the requirements of the Federal Constitution,” courts “should not
pre-empt the legislative task nor intrude upon state policy any
more than necessary” (quotation marks omitted)); see, e.g., North
Carolina v. Covington, 138 S. Ct. 2548, 2554 (2018) (“The District
Court’s remedial authority was accordingly limited to ensuring
that the plaintiffs were relieved of the burden of voting in racially
gerrymandered legislative districts.”). By utilizing the existing
map as a starting point, “[a] minimum change plan acts as a surrogate for the intent of the state’s legislative body,” which courts
cannot override even in redistricting disputes. Johnson, 922 F.
Supp. at 1559; see White, 412 U.S. at 796 (legislature’s “decisions
should not be unnecessarily put aside in the course of fashioning
relief appropriate to remedy” map’s legal defects); Covington, 138
S. Ct. at 2555 (“Once the District Court had ensured that the racial
gerrymanders at issue in this case were remedied, its proper role
in North Carolina’s legislative districting process was at an end.”).
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Choosing among plans and remedying Petitioners’ malapportionment claims with a “least changes” plan is not novel. Courts
have long used the existing map and then made only those changes
“necessary” to remedy constitutional infirmities. See, e.g., Baumgart, 2002 WL 34127471, at *7 (describing process as “taking the
1992 reapportionment plan as a template and adjusting it for population deviations”); Hippert v. Ritchie, 813 N.W.2d 374, 380
(Minn. 2012) (“Because courts engaged in redistricting lack the authority to make the political decisions that the Legislature and the
Governor can make through their enactment of redistricting legislation, the panel utilizes a least-change strategy where feasible.”);
Martin v. Augusta-Richmond Cty., Ga., Comm’n, No. CV 112-058,
2012 WL 2339499, at *3 (S.D. Ga. June 19, 2012) (“chang[ing] only
the faulty portions of the benchmark plan, as subtly as possible, in
order to make the new plan constitutional”); Crumly v. Cobb Cty.
Bd. of Elections & Voter Registration, 892 F. Supp. 2d 1333, 1345
(N.D. Ga. 2012) (noting “Court followed the doctrine of minimum
change”); Stenger v. Kellett, No. 4:11-cv-2230, 2012 WL 601017, at
*3 (E.D. Mo. Feb. 23, 2012) (“A frequently used model in reapportioning districts is to begin with the current boundaries and
change them as little as possible while making equal the population of the districts.”); Colleton Cty. Council v. McConnell, 201 F.
Supp. 2d 618, 647 (D.S.C. 2002) (“altering old plans only as necessary to achieve the requisite goals of the new plan”); Markham v.
Fulton Cty. Bd. of Registrations & Elections, No. 1:02-cv-1111,
2002 WL 32587313, at *6 (N.D. Ga. May 29, 2002) (“Keeping the
minimum change doctrine in mind, the Court made only the
changes it deemed necessary to guarantee substantial equality
and to honor traditional redistricting concerns.”); Bodker v. Taylor,
No. 1:02-cv-999, 2002 WL 32587312, at *5 (N.D. Ga. June 5, 2002)
(“The court notes ... that its plan represents only a small, though
constitutionally necessary, change in the district lines in
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accordance with the minimum change doctrine.”); Below v. Gardner, 148 N.H. 1, 963 A.2d 785, 794 (2002) (“[W]e use as our benchmark the existing senate districts because the senate districting
plan enacted in 1992 is the last validly enacted plan and is the
‘clearest expression of the legislature’s intent.’”); Alexander v. Taylor, 2002 OK 59, ¶23, 51 P.3d 1204 (2002) (“A court, as a general
rule, should be guided by the legislative policies underlying the existing plan. The starting point for analysis, therefore, is the 1991
Plan.”); Johnson, 922 F. Supp. at 1559; LaComb v. Growe, 541 F.
Supp. 145, 151 (D. Minn. 1982) (“[T]he Court ... takes as the starting point the last configuration of congressional districts. The districts are modified only to serve State policy and satisfy the constitutional mandate that one person’s vote shall equal another’s.”),
aff’d sub nom. Orwoll v. LaComb, 456 U.S. 966 (1982); Holmes v.
Burns, No. C.A. 82-1727, 1982 WL 609171, at *20 (R.I. Super. Aug.
29, 1982); Md. Citizens Comm. for Fair Cong. Redistricting, Inc. v.
Tawes, 253 F. Supp. 731, 734 (D. Md. 1966) (“A basic goal has been
to achieve the requirements of equality laid down in the Supreme
Court decisions without doing unnecessary violence to the heart of
existing districts, county lines, and district lines within the counties and ward lines in the city.”).
B. A “least changes” map is necessary to mitigate
temporal vote dilution.
Wisconsin’s system of staggered State Senate elections is another reason for a “least changes” map for the state legislative districts in particular. The 17 odd-numbered Senate districts will be
up for election in 2022 (having last been up for election in 2018),
and the 16 even-numbered Senate districts will be up for election
in 2024 (having last been up for election in 2020). If a redistricting
plan keeps Wisconsin voters in their same districts, they stay on
schedule and vote for State Senate every four years. But if a
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Wisconsin voter is moved from an odd-numbered district up for
election in 2022 and into an even-numbered district up for election
in 2024, that voter faces a six-year gap between State Senate elections. Her vote has been diluted as compared to other Wisconsin
voters who remain in their Senate districts. A “least changes” map
mitigates the harm of such temporal vote dilution. Starting from
scratch exacerbates it.
Federal courts have referred to this temporal vote dilution
as “‘disenfranchisement.’” Prosser, 793 F. Supp. at 864. The risk of
disenfranchisement is a “special consideration[]” that must be kept
in mind in Wisconsin redistricting and “is not something to be encouraged.” Baumgart, 2002 WL 34127471, at *7; Prosser, 793 F.
Supp. at 866. Because of shifting populations and the one-personone-vote requirement, some amount of disenfranchisement is inevitable when districts are reapportioned. But this disenfranchisement should be mitigated. One way to do so is to adopt a “least
changes” map. See Baumgart, 2002 WL 34127471, at *3 (noting
that its plan, which took the existing map as the “template,” produced the lowest “number of voters disenfranchised with respect
to Senate elections”).10
C. A “least changes” map appropriately prioritizes
continuity of representation.
More broadly, a “least changes” map maximizes all Wisconsin voters’ continuity of existing representation in the Legislature
and in Congress. Continuity of representation, or “core retention,”
10 Likewise, the Legislature’s prioritizing core retention as a re-
districting principle will mitigate Senate disenfranchisement. 2021 Wis.
Senate Joint Res. 63.
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is a long-held and undisputed traditional redistricting criteria.11
Core retention aims to keep voters in their existing districts to allow for those voters to be represented by the same elected officials
over a longer period of time. In a judicial setting, it is “the most
significant” of the traditional redistricting criteria. Martin, 2012
WL 2339499, at *3 (citing Upham, 456 U.S. at 43). In Karcher, for
example, the U.S. Supreme Court endorsed States’ interest in “preserving the cores of prior districts, and avoiding contests between
incumbent Representatives.” 462 U.S. at 740. Similarly in White v.
Weiser, the Court explained that States have a legitimate interest
in “promot[ing] ‘constituency-representative relations,’ a policy
frankly aimed at maintaining existing relationships between incumbent congressmen and their constituents,” among other benefits. 412 U.S. at 791-92.
Courts and social scientists have recognized that there is a
societal advantage to being represented by the same individual
over a period of time. This advantage is most obvious in the constituent services context:
Voters develop relationships with their representatives. Long-term representatives have a chance to
learn about and understand the unique problems of
their districts and to pursue legislation that remedies
those problems….the “quality” of at least one political
product—namely, representation—is not necessarily
improved by competition. On the contrary, novice representatives are likely to be systematically inferior to
11 See Nat’l Conf. of State Legislatures, “Redistricting Criteria”
(July 16, 2021), https://bit.ly/2Xv0INC (describing core retention as traditional redistricting criteria); see also Ronald Keith Gaddie & Charles
S. Bullock, III, From Ashcroft to Larios: Recent Redistricting Lessons
from Georgia, 34 Fordham Urb. L.J. 997, 1002 (2007).
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“entrenched” representatives when it comes to the effective representation of their constituents’ views.
Nathaniel Persily, In Defense of Foxes Guarding Henhouses: The
Case for Judicial Acquiescence to Incumbent-Protecting Gerrymanders, 116 Harv. L. Rev. 649, 671 (2002); see also Nathaniel Persily,
When Judges Carve Democracies: A Primer on Court-Drawn Redistricting Plans, 73 Geo. Wash. L. Rev. 1131, 1136 (2005) (“[C]ourts
that take account of incumbency do so in order to preserve the constituency-representative relationship that existed under the enjoined plan.”). By allowing for “close representation of voter views”
and “ease of identifying ‘government’ and ‘opposition’ parties,” long
term representation both promotes “stability in government” and
democratic accountability by “mak[ing] it easier for voters to identify which party is responsible for government decisionmaking.”
Vieth v. Jubelirer, 541 U.S. 267, 357-358 (2004) (Breyer, J., dissenting) (collecting sources).
Finally, in an impasse suit, core retention best preserves the
Legislature’s constitutionally prescribed role in redistricting in a
judicial setting. The “cores in existing districts are the clearest expression of the legislature’s intent to group persons on a ‘community of interest’ basis.” Colleton Cty. Council, 201 F. Supp. 2d at
649. Those legislative prerogatives cannot be overridden merely by
initiating a malapportionment suit and placing redistricting into
the hands of the courts. See White, 412 U.S. at 796; Upham, 456
U.S. at 43. For this reason, in past redistricting cycles, courts have
recognized and employed core retention as a traditional redistricting criteria to be considered when remedying redistricting-related
claims. See Baldus v. Members of the Wis. Gov’t Accountability Bd.,
862 F. Supp. 2d 860, 863 (E.D. Wis. 2012) (recognizing “core
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retention” as a “traditional redistricting criteria”); Baumgart, 2002
WL 34127471, at *3 (same).12
A “least changes” approach here simultaneously maximizes
core retention and minimizes the Court’s involvement in the “political thicket” of redistricting by preferring a map that keeps voters in their current districts. See, e.g., Stenger, 2012 WL 601017,
at *3 (“The ‘least change’ method is advantageous because it maintains the continuity in representation for each district and is by far
the simplest way to reapportion the county council districts.”).
***
There will inevitably be multiple ways to adjust the existing
maps to accommodate shifting populations. All other things equal,
the Court should defer to the Legislature’s plan. See White, 412
U.S. at 796. If not, then the Court itself would be rebalancing the
redistricting criteria—compactness, contiguity, communities of interest, protection of incumbents, and so forth—that the Legislature already balanced as part of the redistricting process both now
and ten years ago. See 2021 Wis. Senate Joint Res. 63; but see
12 For other examples of courts considering core retention, see,
e.g., Abrams, 521 U.S. at 99-100 (affirming interest in “maintaining core
districts”); Stenger, 2012 WL 601017, at *3; Colleton Cty. Council, 201
F. Supp. 2d at 647 (affirming importance of “protecting the core constituency’s interest in reelecting, if they choose, an incumbent representative in whom they have placed their trust”); Alexander, 2002 OK 59, ¶23;
Arizonans for Fair Representation, 828 F. Supp. at 688 (“[T]he maintenance of incumbents provides the electorate with some continuity. The
voting population within a particular district is able to maintain its relationship with its particular representative and avoids accusations of
political gerrymandering.”); Legislature v. Reinecke, 10 Cal. 3d 396, 516
P.2d 6, 12 (1973) (“The state may rationally consider stability and continuity in the Senate as a desirable goal which is reasonably promoted
by providing for four-year staggered terms.”).
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White, 412 U.S. at 796; Covington, 138 S. Ct. at 2554-55; Upham,
456 U.S. at 43.
III. The Court cannot consider partisanship when
evaluating proposed remedies.
The partisan makeup of redistricting plans is not a valid factor for the Court to apply in evaluating or creating new maps.
There is no judicially manageable standard for rejecting a map as
overly partisan or approving a map as more “fair” or “balanced.”
See Rucho, 139 S. Ct. at 2498-2501. If there is no judicially manageable way for a court to evaluate existing redistricting plans on
these partisan measures (as Rucho explained), then it necessarily
follows that this Court cannot craft a remedy for Petitioners’ malapportionment claim based on partisan measures.
Time and again, courts have refused to referee lawsuits challenging the use of political considerations as unlawful. There are
“no legal standards to limit and direct” judicial decisionmaking in
this “most intensely partisan aspect[] of American political life.”
Id. at 2507; see Gill v. Whitford, 138 S. Ct. 1916, 1926-29 (2018).
Considerations of partisanship in redistricting has been “lawful
and common practice” dating back to the Founding. Vieth, 541 U.S.
at 286 (plurality op.); see Rucho, 139 S. Ct. at 2494-96. Even if it
weren’t, whether a redistricting map is “too partisan” or “fair
enough” cannot be “judged in terms of simple arithmetic.” Fortson
v. Dorsey, 379 U.S. 433, 440 (1965) (Harlan, J., concurring). Courts
cannot “even begin to answer the determinative question”: “How
much” partisan influence “is too much?” Rucho, 139 S. Ct. at 2501.
Importantly, “fairness” is not a component of any state or
federal equal protection analysis. See F.C.C. v. Beach Comms.,
Inc., 508 U.S. 307, 313 (1993) (“equal protection is not a license for
courts to judge the wisdom, fairness, or logic of legislative
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choices”); Mayo v. Wis. Injured Patients & Families Compensation
Fund, 2018 WI 78, ¶41, 383 Wis. 2d 1, 914 N.W.2d 678. The equal
protection clause does not, for example, “require[] proportional representation” or require “district lines to come as near as possible
to allocating seats to the contending parties in proportion to what
their anticipated statewide vote would be.” Rucho, 139 S. Ct. at
2499 (quoting Davis v. Bandemer, 478 U.S. 109, 130 (1986) (plurality op.)). Numerous other standards for evaluating partisan
“unfairness” have been rejected as well. See id. at 2496-98, 250204; Gill, 138 S. Ct. at 1926-29 (cataloguing rejected standards).
Moreover, “political fairness” is an impossible standard by
which to evaluate redistricting maps because “it is not even clear
what fairness looks like” in the context of reapportionment. Rucho,
139 S. Ct. at 2500. A “large measure of ‘unfairness’” is baked into
single-member, winner-take-all districts. Id. Voters tend to live
around like-minded voters, meaning individual districts will not
necessarily replicate the partisan makeup of Wisconsin state-wide.
See Bandemer, 478 U.S. at 130 (plurality op.); Vieth, 541 U.S. at
289-90 (plurality op.).
Without a legal standard to evaluate “fairness,” there is no
principal to apply that would “meaningfully constrain the discretion of courts.” Rucho, 139 S. Ct. at 2500 (quoting Vieth, 541 U.S.
at 291 (plurality op.)). Evaluating remedial plans for partisan fairness requires the court to make a policy determination reserved
exclusively for legislatures, see id. at 2494-97, and one that is “of a
kind clearly for nonjudicial discretion.” Baker, 369 U.S. at 217.
There is simply no constitutional standard authorizing “courts to
make their own political judgment about how much representation
particular political parties deserve—based on the votes of their
supporters—and to rearrange the challenged districts to achieve
that end.” Rucho, 139 S. Ct. at 2499.
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Applied here, there no reason for this Court to consider partisanship in remedying a malapportionment claim. White, 412 U.S.
at 795 (cautioning courts not to “pre-empt” or “intrude” upon state
policy). Nor would there be any judicially manageable way for this
Court to do so. Rucho, 139 S. Ct. at 2500-01. If this Court were to
attempt to consider partisanship—even “fairness”—it would be
plunging unnecessarily into the political thicket of redistricting.
See Gaffney, 412 U.S. at 749 (cautioning against removing redistricting from “legislative hands,” such that it is recurringly “performed by federal courts which themselves must make the political
decisions necessary to formulate a plan or accept those made by
reapportionment plaintiffs who may have wholly different goals
from those embodied in the official plan”). It should not be a factor
considered by this Court in remedying Petitioners’ claims.
IV. Nature of the proceedings.
A.
Timing of proceedings
For the reasons stated in the Legislature’s letter brief regarding timing, there is ample time remaining for this court to review and approve redistricting plans. Right now, the Legislature
needs time for the redistricting process—which is near completion—to finish. Once the Legislature’s redistricting process is complete, and if there is an impasse, the Legislature and the other
parties will need time to prepare their remedial submissions, a
proposal for which is detailed more fully below.
B.
Form of proceedings
As in most redistricting disputes, the Court can choose
among remedies proposed by the parties. That will entail remedial
submissions by the parties. It could also necessitate a short hearing limited to any disputed facts regarding the proposed remedial
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plans. That hearing could be overseen by this Court or a special
master. See Wis. Stat. §§751.09, 805.06; see also Non-Party Br. of
Daniel Suhr at 8 (Sept. 7, 2021) (collecting examples). Depending
on the Court’s resolution of the questions presented here, those
submissions could take one two forms—
If the Court agrees that the Legislature’s redistricting plans
are the presumptive remedy, then the submissions will entail (A)
the Legislature’s redistricting plans, supported by briefing and expert declarations or reports that detail their compliance with state
and federal law; (B) other parties’ responses, supported by briefing
and expert declarations or reports detailing why adjustments are
necessary to comply with state and federal law.
If the Court instead begins with the existing redistricting
plans, then the submissions will entail (A) any party’s proposed
“least changes” map, supported by briefing and expert declarations
or reports detailing adherence to a “least changes” remedy and
compliance with state and federal law; (B) any party’s responsive
submissions addressing other proposed plans’ adherence to a “least
changes” remedy and compliance with state and federal law. The
Court would then choose between the proposed “least changes”
remedies.
With respect to the timing of those submissions and any potential hearing, the Legislature proposes the following:
1.
November 4: Parties submit joint stipulation of facts
and law and identify anticipated disputed facts.
2.
By December 1, and only in the event of an impasse:
This Court issues an interim order providing guidance
on the questions briefed herein. That order will give the
parties a framework for their subsequent submissions.
44
Hunter App. 240
Page 44 of 49
Case 2021AP001450
Brief per CTO of 10/14/2021 (Wisconsin Legislature)
Filed 10-25-2021
3.
December 21: Parties’ opening submission. The opening submission shall comprise: (a) short pre-hearing
brief (< 3,300 words), (b) remedial map (if applicable),
(c) expert witness declarations or reports in support of
any remedial map. Any party who proposes a remedial
map (or any alternative to the Legislature’s map) must
support that proposed remedy with argument and expert declaration(s) or report(s) explaining the proposed
plans’ compliance with state and federal law.13
4.
January 12: Parties’ responsive submission. The responsive submission shall comprise: (a) short pre-hearing response brief (< 5,000 words), (b) responsive expert
declaration(s) or report(s) regarding other proposed remedial maps.
5.
January 14: Parties submit supplemental joint stipulation of facts and law and disputed facts.
6.
January 21: Parties submit written direct examination
of any expert witness or other fact witness to testify at
hearing before the Court or a referee, if any. Any witness would then be made available for live cross-examination and re-direct at hearing.
7.
January 25 to 28: Hearing limited to disputed issues of
fact, if any.
13 If the Court agrees that the Legislature’s map is the presump-
tive remedial map, then any alternative districting proposals must be
supported by evidence and argument that a deviation from the Legislature’s presumptive plans is necessary to comply with state or federal
law.
45
Hunter App. 241
Page 45 of 49
Case 2021AP001450
Brief per CTO of 10/14/2021 (Wisconsin Legislature)
Filed 10-25-2021
8.
February 1: Short post-hearing briefs (simultaneous)
on disputed issues of fact, if any.
9.
February 8: Closing arguments regarding disputed issues of fact, if any.
10.
February 18: Decision resolving disputed issues of fact,
if any.
11.
February 25: Supplemental briefs (simultaneous), if
necessary.
12.
Week of March 7: Argument, if necessary.
13.
Week of April 4 or earlier: Final order and decision.
CONCLUSION
For the foregoing reasons, the Legislature should be permitted to complete the redistricting process to determine whether
there will be an impasse. Once that occurs, and if there is an impasse, then the Legislature’s redistricting plans should be the presumptive remedial plan for any malapportionment claim, so long
as those redistricting plans comply with state and federal law. In
the alternative, the existing districts should be the starting point
for any remedial map, to be adjusted as necessary to accommodate
the shifting population and to comply with state and federal law.
46
Hunter App. 242
Page 46 of 49
Case 2021AP001450
Brief per CTO of 10/14/2021 (Wisconsin Legislature)
Filed 10-25-2021
Dated this 25th day of October, 2021.
Respectfully submitted,
Electronically Signed By
Kevin M. St. John
CONSOVOY MCCARTHY PLLC
Jeffrey M. Harris*
Taylor A.R. Meehan**
James P. McGlone***
1600 Wilson Boulevard, Ste. 700
Arlington, Virginia 22209
703.243.9423
jeff@consovoymccarthy.com
taylor@consovoymccarthy.com
jim@consovoymccarthy.com
* Admitted pro hac vice
** Admitted pro hac vice;
licensed to practice in Ill.
& D.C.
*** Admitted pro hac vice;
licensed to practice in Mass.
BELL GIFTOS ST. JOHN LLC
Kevin M. St. John, SBN 1054815
5325 Wall Street, Ste. 2200
Madison, Wisconsin 53718
608.216.7990
kstjohn@bellgiftos.com
LAWFAIR LLC
Adam K. Mortara, SBN 1038391
125 South Wacker, Ste. 300
Chicago, Illinois 60606
773.750.7154
mortara@lawfairllc.com
Attorneys for Intervenor-Respondent,
The Wisconsin Legislature
47
Hunter App. 243
Page 47 of 49
Case 2021AP001450
Brief per CTO of 10/14/2021 (Wisconsin Legislature)
Filed 10-25-2021
CERTIFICATION REGARDING FORM AND LENGTH
I hereby certify that this brief conforms to the rules
contained in Wis. Stat. §809.19(8)(b), (bm), and (c) for a brief. This
brief uses a proportionally spaced serif font, with margins and line
spacing greater than or equal to that specified by rule. Excluding
the caption, table of contents, table of authorities, signatures, and
these certifications, the length of this brief is 10,285 words as
calculated by Microsoft Word.
Dated this 25th day of October, 2021.
Respectfully submitted,
Electronically Signed by
Kevin M. St. John
BELL GIFTOS ST. JOHN LLC
KEVIN M. ST. JOHN, SBN 1054815
5325 Wall Street, Suite 2200
Madison, Wisconsin 53718
608.216.7990
kstjohn@bellgiftos.com
Attorney for the
Wisconsin Legislature
48
Hunter App. 244
Page 48 of 49
Case 2021AP001450
Brief per CTO of 10/14/2021 (Wisconsin Legislature)
Filed 10-25-2021
CERTIFICATION OF FILING AND SERVICE
I certify that I caused the foregoing brief to be filed with the
Court as attachments to an email to clerk@wicourts.gov, sent on
or before 12:00 noon and dated this day. I further certify that I will
cause a paper original and 10 copies of these materials with a
notation that “This document was previously filed via email” to be
filed with the clerk no later than 12:00 noon on Tuesday, October
26, 2021.
I further certify that on this day, I caused service copies of
these documents to be sent by email to all counsel of record who
have consented to service by email. I caused service copies to be
sent by U.S. mail and email to all counsel of record who have not
consented to service by email.
Dated this 25th day of October, 2021.
Respectfully submitted,
Electronically Signed by
Kevin M. St. John
BELL GIFTOS ST. JOHN LLC
KEVIN M. ST. JOHN, SBN 1054815
5325 Wall Street, Suite 2200
Madison, Wisconsin 53718
608.216.7990
kstjohn@bellgiftos.com
Attorney for the
Wisconsin Legislature
49
Hunter App. 245
Page 49 of 49
Case 2021AP001450
Response Brief (Congressmen)
Filed 11-01-2021
No. 2021AP1450-OA
In the Supreme Court of Wisconsin
BILLIE JOHNSON, ERIC O'KEEFE, ED PERKINS and RONALD ZAHN,
PETITIONERS,
BLACK LEADERS ORGANIZING FOR COMMUNITIES, VOCES DE LA
FRONTERA, LEAGUE OF WOMEN VOTERS OF WISCONSIN, CINDY FALLONA,
LAUREN STEPHENSON, REBECCA ALWIN, CONGRESSMAN GLENN
GROTHMAN, CONGRESSMAN MIKE GALLAGHER, CONGRESSMAN BRYAN
STEIL, CONGRESSMAN TOM TIFFANY, CONGRESSMAN SCOTT FITZGERALD,
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,
INTERVENORS-PETITIONERS,
v.
WISCONSIN ELECTIONS COMMISSION, MARGE BOSTELMANN IN HER
OFFICIAL CAPACITY AS A MEMBER OF THE WISCONSIN ELECTIONS
COMMISSION, JULIE GLANCEY IN HER OFFICIAL CAPACITY AS A MEMBER OF
THE WISCONSIN ELECTIONS COMMISSION, ANN JACOBS IN HER OFFICIAL
CAPACITY AS A MEMBER OF THE WISCONSIN ELECTIONS COMMISSION,
DEAN KNUDSON IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE
WISCONSIN ELECTIONS COMMISSION, ROBERT SPINDELL, JR. IN HIS
OFFICIAL CAPACITY AS A MEMBER OF THE WISCONSIN ELECTIONS
COMMISSION and MARK THOMSEN IN HIS OFFICIAL CAPACITY AS A MEMBER
OF THE WISCONSIN ELECTIONS COMMISSION,
RESPONDENTS,
THE WISCONSIN LEGISLATURE, GOVERNOR TONY EVERS, IN HIS
OFFICIAL CAPACITY, and JANET BEWLEY SENATE DEMOCRATIC
MINORITY LEADER, ON BEHALF OF THE SENATE DEMOCRATIC CAUCUS,
INTERVENORS-RESPONDENTS.
On Petition To The Supreme Court To
Take Jurisdiction Of An Original Action
RESPONSE BRIEF OF THE CONGRESSMEN, PER
THIS COURT’S OCTOBER 14, 2021 ORDER,
ADDRESSING FOUR QUESTIONS
(Counsel for the Congressmen listed on the following page)
Hunter App. 246
Page 1 of 36
Case 2021AP001450
Response Brief (Congressmen)
Filed 11-01-2021
Page 2 of 36
MISHA TSEYTLIN
Counsel of Record
State Bar No. 1102199
KEVIN M. LEROY
State Bar No. 1105053
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
Counsel for Congressmen Glenn
Grothman, Mike Gallagher, Bryan Steil,
Tom Tiffany, and Scott Fitzgerald
Hunter App. 247
Case 2021AP001450
Response Brief (Congressmen)
Filed 11-01-2021
TABLE OF CONTENTS
INTRODUCTION ............................................................................ 1
ARGUMENT .................................................................................... 2
I. The Parties Generally Agree On The State- And
Federal-Law Requirements Governing This Court’s
Adoption Of A Remedial Map, Although Some Parties
Misunderstand The Scope Of The Voting Rights Act .......... 2
II. The “Least-Change” Approach Follows From This
Court’s Remedial And Equitable Authority, And The
Parties Opposing This Approach Fail To Refute That ........ 3
A. The Parties Challenging The “Least-Change”
Approach Offer Only Unpersuasive Arguments ............ 5
1. The “Least-Change” Approach Is Legally
Sound .......................................................................... 5
2. The “Least-Change” Approach Is Easily
Administrable ............................................................. 9
3. Whether The Legislature Used The “LeastChange” Approach In Prior Redistricting
Cycles Does Not Alter This Court’s Remedial
Authority................................................................... 12
4. The “Least-Change” Approach Does Not
Undermine Political Incentives ............................... 13
B. The Parties Challenging The “Least-Change”
Approach Only Offer Their Preferred Policy
Preferences As Alternatives .......................................... 14
III. This Court Should Not Consider Partisan Makeup
When Adopting A Remedial Map ....................................... 17
IV. The “Least-Change” Approach May Well Allow This
Court To Adopt A Remedial Map Based Solely On
Submissions To This Court, Without Need For
Factfinding Or Discovery Proceedings Proposed By
Some Of The Parties ........................................................... 26
CONCLUSION............................................................................... 28
Hunter App. 248
Page 3 of 36
Case 2021AP001450
Response Brief (Congressmen)
Filed 11-01-2021
TABLE OF AUTHORITIES
Cases
Baldus v. Members of Wisconsin Gov’t Accountability Bd.,
849 F. Supp. 2d 840 (E.D. Wis. 2012) ..................... 20, 25, 26
Bartlett v. Strickland,
556 U.S. 1 (2009) ................................................................... 3
Baumgart v. Wendelberger,
No. 01-C-0121, 2002 WL 34127471 (E.D. Wis. May
30, 2002) (per curiam) ......................................................... 10
Chapman v. Meier,
420 U.S. 1 (1975) ................................................................. 23
Chicago & N.W. Ry. Co. v. La Follette,
43 Wis. 2d 631, 169 N.W.2d 441 (1969).............................. 21
Connor v. Finch,
431 U.S. 407 (1977) ............................................................. 23
Cooper v. Harris,
137 S. Ct. 1455 (2017) ........................................................... 2
Gaffney v. Cummings,
412 U.S. 735 (1973) ............................................................. 22
Gill v. Whitford,
138 S. Ct. 1916 (2018) ................................................... 25, 26
Horst v. Deere & Co.,
2009 WI 75, 319 Wis. 2d 147, 769 N.W.2d 536 ............ 24, 25
Jensen v. Wis. Elections Bd.,
2002 WI 13, 249 Wis. 2d 706, 639 N.W.2d 537 (per
curiam)......................................................................... passim
League of United Latin American Citizens v. Perry
(LULAC),
548 U.S. 399 (2006) ......................................................... 3, 10
North Carolina v. Covington,
137 S. Ct. 1624 (2017) (per curiam)...................................... 6
Perry v. Perez,
565 U.S. 388 (2012) ............................................................... 9
Prosser v. Elections Board,
793 F. Supp. 859 (W.D. Wis. 1992) ............................... 19, 20
- ii Hunter App. 249
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Case 2021AP001450
Response Brief (Congressmen)
Filed 11-01-2021
Rucho v. Common Cause,
139 S. Ct. 2484 (2019) ................................................. passim
Serv. Emps. Int’l Union, Loc. 1 (“SEIU”) v. Vos,
2020 WI 67, 393 Wis. 2d 38, 946 N.W.2d 35 ........................ 6
State ex rel Att’y Gen. v. Cunningham,
81 Wis. 440, 51 N.W. 724 (1892)......................................... 19
State ex rel. Bowman v. Dammann,
209 Wis. 21, 243 N.W. 481 (1932)....................................... 12
State ex rel. Lamb v. Cunningham,
83 Wis. 90, 53 N.W. 35 (1892)............................................. 19
State ex rel. Reynolds v. Zimmerman,
22 Wis. 2d 544, 126 N.W.2d 551 (1964).................... 4, 12, 19
Thornburg v. Gingles,
478 U.S. 30 (1986) ................................................................. 2
Upham v. Seamon,
456 U.S. 37 (1982) ............................................................... 10
White v. Weiser,
412 U.S. 783 (1973) ............................................................. 10
Whitford v. Gill,
218 F. Supp. 3d 837 (W.D. Wis. 2016) .......................... 25, 26
Whitford v. Gill,
402 F. Supp. 3d 529 (W.D. Wis. 2019) ................................ 26
Constitutional Provisions
Wis. Const. Art. I, § 22................................................................... 21
Wis. Const. art. IV, § 3..................................................................... 7
Wis. Const. art. IV, § 4................................................................. 5, 6
Other Authorities
2021 Wis. Senate Joint Res. 63 ....................................................... 5
Honorable Neil M. Gorsuch, Of Lions and Bears, Judges
and Legislators, and the Legacy of Justice Scalia, 66
Case W. Reserve L. Rev. 905 (2016) ................................... 14
Oxford English Dictionary (Sept. 2021) ...................................... 7, 8
- iii Hunter App. 250
Page 5 of 36
Case 2021AP001450
Response Brief (Congressmen)
Filed 11-01-2021
INTRODUCTION1
The Congressmen’s Initial Brief explained that this
Court should adopt a “least-change” approach to drawing a
remedial map, consistent with bedrock remedial and
equitable principles. Certain other parties now oppose this
approach, offering a grab-bag of objections, while proposing
their own approaches. These parties are wrong as a matter of
law, especially because they do not purport to explain what
source of equitable authority permits a wholesale judicial
rewriting of a congressional map that was enacted by the
Legislature and signed by the Governor in 2011, when the
only violation alleged is due to population changes in the last
decennial. In any event, all of these alternative approaches
are nonstarters because they would require this Court to
adopt a map according to these parties’ policy preference.
1 Given that this Court ordered the parties to file their Initial Briefs
simultaneously, see Order, Johnson v. Wis. Elections Comm’n,
No.2021AP1450-OA (Wis. Oct. 14, 2021), the Congressmen present this
Response Brief in a typical reply-brief format, for the benefit of this
Court, so that they may more closely respond to the parties’ various
positions on the four Issues Presented.
Hunter App. 251
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Case 2021AP001450
Response Brief (Congressmen)
Filed 11-01-2021
ARGUMENT
I.
The Parties Generally Agree On The State- And
Federal-Law Requirements Governing This
Court’s Adoption Of A Remedial Map, Although
Some Parties Misunderstand The Scope Of The
Voting Rights Act
As all parties appear to agree, see generally Johnson
Br.8–21; BLOC Br.3–22; Hunter Br.1–13; Citizen Math. Br.4–
19; Leg. Br.16–31; Gov. Br.5–8; Bewley Br.9–14, any remedial
congressional map must comply with the following legal
mandates: (A) the one-person/one-vote rule found in Article I,
Section 1 and Article IV of the Wisconsin Constitution, as well
as in Article I, Section 2 of the U.S. Constitution and the
Fourteenth Amendment’s Equal Protection Clause, see
Congressmen Br.8–11; (B) the anti-racial-gerrymandering
principle in the U.S. Constitution and the Wisconsin
Constitution, see Congressmen Br.11–12; and (C) Section 2 of
the Voting Rights Act (“VRA”), see Congressman Br.13–14.
Some parties erroneously suggest that the VRA either
requires or permits drawing district lines according to race
even where this would not produce a majority-minority
district under Thornburg v. Gingles, 478 U.S. 30, 46 n.11
(1986). See Hunter Br.21–22; BLOC Br.8–9; Citizen Math.
Br.10–11. This is legally wrong. The VRA prohibits minority
“vote dilution” through the “dispersal of a group’s members
into districts in which they constitute an ineffective minority
of voters.” Cooper v. Harris, 137 S. Ct. 1455, 1464 (2017)
(quoting Gingles, 478 U.S. at 46 n.11) (alteration omitted).
-2Hunter App. 252
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Case 2021AP001450
Response Brief (Congressmen)
Filed 11-01-2021
Accordingly, a necessary “threshold condition[ ]” for a
Section 2 vote-dilution claim is the presence of a politically
cohesive minority group that could form a majority “in some
reasonably configured legislative district.” Id. at 1470. Thus,
Section 2 does not extend to situations where a politically
cohesive minority group cannot form a voting majority. See
League of United Latin American Citizens v. Perry (LULAC),
548 U.S. 399, 445–46 (2006) (controlling op. of Kennedy, J.);
Bartlett v. Strickland, 556 U.S. 1, 12–17, 23 (2009)
(controlling op. of Kennedy, J.). Any other conclusion “would
unnecessarily infuse race into virtually every redistricting,
raising serious constitutional questions.” LULAC, 548 U.S.
at 445–46 (controlling op. of Kennedy, J.); accord Bartlett, 556
U.S. at 22 (controlling op. of Kennedy, J.).
II.
The “Least-Change” Approach Follows From This
Court’s Remedial And Equitable Authority, And
The Parties Opposing This Approach Fail To
Refute That
As the Congressmen explained, bedrock remedial and
equitable principles compel the “least-change” approach to
drawing any remedial congressional maps.
Congressmen
Br.15–19. The “least-change” approach also comports with
this Court’s role in our constitutional order, as it is a neutral
rule guiding the completion of the redistricting process.
Congressmen Br.19–22.
This would also minimize voter
confusion and maximize core retention. Congressmen Br.22–
-3Hunter App. 253
Page 8 of 36
Case 2021AP001450
Response Brief (Congressmen)
Filed 11-01-2021
23. Finally, the “least-change” approach will allow this Court
to adopt a remedial map efficiently. Congressmen Br.23.
The Hunter Petitioners, the BLOC Petitioners, the
Governor,
Minority
Leader
Bewley,
and
the
Citizen
Mathematicians all oppose the “least-change” approach.
Hunter Br.20; BLOC Br.22; Bewley Br.14; Citizen Math.
Br.20. However, none of these parties refute the fundamental
argument: that core remedial and equitable principles compel
this Court to follow the “least-change” approach, given the
nature of the alleged legal violation.
In any event, the
arguments that these parties make against the “least-change”
approach are all unpersuasive, infra Part II.A.1–4, and they
offer only their preferred policy preferences as an alternative
to guide this Court, infra Part II.B.2
2 While the Legislature supports the “least-change” approach, its
primary position is that this Court should defer to the maps that it
adopts, if vetoed by the Governor. Leg. Br.12, 16, 18–20. The
Legislature’s position has substantial merit given that redistricting is
“an inherently . . . legislative” task, “entrusted . . . to the legislative
branch,” Jensen v. Wis. Elections Bd., 2002 WI 13, ¶ 10, 249 Wis. 2d 706,
639 N.W.2d 537 (per curiam), and that this Court should defer to the
Legislature’s choices when considering alternative “least-change”
remedies for congressional district lines. Having said that, so long as
this Court retains its decision in State ex rel. Reynolds v. Zimmerman, 22
Wis. 2d 544, 126 N.W.2d 551 (1964), the Congressmen could imagine a
situation where a future Legislature could adopt a congressional map
entirely different from the existing map, which map the Governor may
veto. See id. at 557, 570 (holding that the Governor may exercise his veto
power over the Legislature’s approved maps). In that hypothetical
circumstance, the Congressmen doubt that this Court’s remedial and
equitable authority would allow it to adopt such a wildly different map,
as a remedy for a one-person/one-vote violation in the existing map. This
Court need not deal with this hypothetical in this case, however, given
-4Hunter App. 254
Page 9 of 36
Case 2021AP001450
Response Brief (Congressmen)
A.
Filed 11-01-2021
Page 10 of 36
The Parties Challenging The “LeastChange” Approach Offer Only Unpersuasive
Arguments
1.
Various
The “Least-Change”
Legally Sound
parties
challenging
the
Approach
Is
“least-change”
approach raise meritless constitutional arguments against it
and/or baseless claims that it will trigger other statutory
violations. None of these arguments has merit.
The BLOC Petitioners argue that the Wisconsin
Constitution precludes the least-change approach under the
expressio unius canon, since Article IV, Section 4 explicitly
lists compactness, contiguity, and respect for political
boundaries as mandatory redistricting criteria that the
Legislature must follow with respect to the state legislative
districts. See BLOC Br.27–28 & n.6 (citing Wis. Const. art.
IV, § 4 and State v. Lickes, 2021 WI 60, ¶ 24, 960 N.W.2d 855,
among other authorities); accord Whitford Am.Br.4–5. This
argument is fundamentally confused because the question
here is how this Court should remedy a one-person/one-vote
violation. Congressmen Br.7, 15–16. That is, this Court’s role
is to adopt a remedy that is “appropriately tailored to” the
equal-population
“violation.”
Congressmen
Br.16–19
(quoting Serv. Emps. Int’l Union, Loc. 1 (“SEIU”) v. Vos, 2020
that the Legislature has already committed to adopting a “least-change”
congressional map, meaning that both the “least-change” approach and
the Legislature’s primary approach will likely converge in their entirety
here. See Leg. Br.12 (discussing 2021 Wis. Senate Joint Res. 63).
-5Hunter App. 255
Case 2021AP001450
Response Brief (Congressmen)
Filed 11-01-2021
Page 11 of 36
WI 67, ¶ 47, 393 Wis. 2d 38, 946 N.W.2d 35)). The “leastchange” approach is the most “fitting remedy” for that
constitutional violation, as it adjusts the existing district lines
only to account for population changes. Congressmen Br.16–
19 (quoting North Carolina v. Covington, 137 S. Ct. 1624,
1625 (2017) (per curiam)).
Regardless, even if these parties were correct that this
Court should essentially sit as the Legislature in drawing the
remedial congressional map, Article IV, Section 4 does not
limit what the Legislature may consider when completing the
redistricting process. Article IV, Section 4 simply lists the
minimum requirements for the State’s legislative districts, see
Wis. Const. art. IV, § 4, leaving the Legislature to make other
“political and policy decisions” once those requirements are
met, Jensen v. Wis. Elections Bd., 2002 WI 13, ¶ 10, 249 Wis.
2d 706, 639 N.W.2d 537 (per curiam). Indeed, each of the
parties criticizing the “least-change” approach—including the
BLOC Petitioners—recognize this, since each of them urge
this Court to follow one redistricting principle or another not
specifically enumerated in Article IV, Section 4. See, e.g.,
BLOC
Br.15–19
(advocating
for
consideration
of
“preservation of communities of interest,” “[i]ncumbents’
[r]esidences,” and “partisan makeup of districts”); Hunter
Br.11–13
(“measures
of
partisan
bias”);
Gov.
Br.7
(“maintaining traditional communities of interest”; “avoiding
unnecessary pairing of incumbents”); Bewley Br.13–14
(“preserving
identifiable
communities
-6Hunter App. 256
of
interest”;
Case 2021AP001450
Response Brief (Congressmen)
Filed 11-01-2021
“account[ing] for . . . partisan influence”); Citizen Math. Br.4
(“partisan fairness”; “competitiveness or responsiveness”).
The
BLOC
Petitioners’
additional
constitutional
argument—that Article IV, Section 3 prohibits the “leastchange” approach because it states that “the legislature shall
apportion and district anew”—makes no sense. Wis. Const.
art. IV, § 3 (emphasis added); see BLOC Br.30–36; see also
Whitford Am. Br.5–6. According to the BLOC Petitioners,
Article IV, Section 3’s use of “anew” means that the State
cannot use the “least-change” approach because that
approach “enshrine[s] the old” redistricting map for the State,
rather than redistricting the State “anew.” BLOC Br.32. To
begin, this argument suffers from the same fundamental flaw
as the argument just discussed above, as the question here is
how this Court should adopt a remedial map, following
applicable remedial and equitable principles.
pp. 3–4.
See supra
In any event, this argument ignores the full
constitutional text of Article IV, Section 3, which requires the
Legislature to “apportion and district anew,” Wis. Const. art.
IV, § 3 (emphases added).
“Anew” modifies the verbs
“apportion” and “district,” meaning that the Legislature need
only readjust existing district lines as needed to rebalance the
districts’ populations.
See Apportion, Oxford English
Dictionary (Sept. 2021) (“[t]o assign in proper portions or
-7Hunter App. 257
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Case 2021AP001450
Response Brief (Congressmen)
Filed 11-01-2021
shares”);3 District, Oxford English Dictionary (Sept. 2021)
(“[t]o divide or organize into districts”).4
The Governor, for his part, claims that the “leastchange” approach would impermissibly elevate the retention
of the existing district lines over other binding constitutional
and statutory requirements. Gov.Br.8–10. Here again, this
confuses the issue before this Court: how this Court should
remedy a one-person/one-vote violation. Congressmen Br.7,
15–16; supra pp. 3–4. Foundational remedial and equitable
principles
directly
support
following
the
least-change
approach here, as it narrowly remedies the only legal
violation at issue, the malapportionment of the existing
districts. Congressmen Br.16–19; supra pp. 3–4.
Finally, the Hunter Petitioners claim that the “leastchange” approach would “expand the scope of this litigation”
by requiring
this Court to
adjudicate
“other [legal]
deficiencies in the existing maps,” including “violations of
article I of the Wisconsin Constitution and Section 2 of the
Voting Rights Act.” Hunter Br.14. But again, this Court’s
task is only to remedy a one-person/one-vote violation.
Congressmen Br.7, 15–18.
This Court would not further
concern itself with any other alleged legal “deficiencies in the
existing
maps,”
contrary
to
the
3
Hunter
Petitioners’
Accessed at www.oed.com/view/Entry/9748 (all websites last
accessed Oct. 31, 2021).
4 Accessed at www.oed.com/view/Entry/55797.
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suggestion. Hunter Br.14. While this Court must ensure that
this remedial map complies with all state and federal
requirements, see Congressmen Br.7, that same inquiry is
required for any remedial map that this Court adopts under
any of the parties’ proposed approaches, including under the
“least-change” approach.
The only difference is that the
“least-change” map is less likely to contravene state or federal
requirements as compared to a map generated under any
other approach, since it largely carries forward the existing
congressional boundaries, which boundaries have withstood a
decade of litigation. Congressmen Br.15–16, 27–29.
2.
The “Least-Change”
Easily Administrable
Approach
Is
Multiple parties argue that this Court should not follow
the “least-change” approach because it is too “abstract,”
BLOC Br.23, or “nebulous,” Bewley Br.14–15, leaving this
Court “only to guess” how to apply it here, Hunter Br.13–14.
These parties’ criticisms are incorrect.
As the Congressmen explained, the “least-change”
approach requires this Court to adopt a remedial map by
making “minor or obvious adjustments” to the existing map
to account for “shifts in [Wisconsin’s] population,” as
expressed in the 2020 Census.
Congressmen Br.15–16
(quoting Perry v. Perez, 565 U.S. 388, 392 (2012)). This is a
simple, concrete approach providing specific guidance for this
Court to follow, contra BLOC Br.23; Bewley Br.14–15; Hunter
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Br.13–14, which is why courts across the country, including
the U.S. Supreme Court, have endorsed it, see Congressmen
Br.15–23 (citing four cases endorsing the “least-change”
approach, including Upham v. Seamon, 456 U.S. 37, 43
(1982), and White v. Weiser, 412 U.S. 783, 795 (1973)); see also
Leg. Br.35–36 (collecting over ten additional cases using the
“least-change” approach).5 And while Professor Whitford’s
amicus argues that the U.S. Supreme Court “rebuked a court”
for following the “least-change” approach in LULAC, 548 U.S.
399, that is incorrect. Whitford Am. Br.15. LULAC reviewed
a mid-decade redistricting map drawn by a legislature, and it
merely described in its background section (without rebuke)
that a district court had previously adopted a “least-change”
map for the State. LULAC, 548 U.S. at 412–13; compare
Upham, 456 U.S. at 43 (endorsing the “least-change”
approach); White, 412 U.S. at 795 (same).
Of course, this Court must exercise some limited
discretion under a “least-change” approach when determining
precisely how to adjust existing district lines to achieve
population equality, since there is no one way to accomplish
5 The BLOC Petitioners argue that this Court should not follow the
“least-change” approach because no previous court has “applied such an
approach” when adopting a remedial map for Wisconsin. BLOC Br.36–
37. That is wrong, since Baumgart v. Wendelberger, No. 01-C-0121, 2002
WL 34127471 (E.D. Wis. May 30, 2002) (per curiam), followed precisely
this approach—“taking the [existing] reapportionment plan as a
template and adjusting it for population deviations” to create a remedial
map. Id. at *7 (describing this approach as “the most neutral way [the
court] could conceive”); contra BLOC Br.36–37.
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this goal. As the Congressmen have explained, traditional
redistricting principles would guide the exercise of that
limited discretion. See Congressmen Br.14–15, 27. Thus, if a
given district were underpopulated—such that the “leastchange” remedial map needed to add more people to that
district—traditional redistricting principles would counsel in
favor of adjusting the district’s lines in a manner that
eliminates county or municipal splits and/or makes the
district
more
compact.
See
Congressmen
Br.14–15
(identifying these as traditional redistricting principles). And
within this narrow band of discretion under the “leastchange” approach, this Court should defer to the Legislature’s
reasonable judgments on how to adjust the existing lines,
consistent with this Court’s recognition that redistricting is
an “inherently . . . legislative task.” Jensen, 2002 WI 13, ¶ 10;
see supra p. 4 n.2.
The BLOC Petitioners’, the Hunter Petitioners’, and
Minority Leader Bewley’s criticisms of the “least-change”
approach as giving insufficient clarity to this Court are deeply
ironic, as each of these parties offer only opaque alternatives
in its place, as explained below. Infra Part II.B. Further, the
Hunter Petitioners in particular must understand that the
“least-change” approach does provide sufficiently clear
guidance.
They ask this Court to follow this exact same
approach when adjusting the existing boundaries of certain
Assembly Districts that fall within the scope of Section 2 of
the VRA.
Hunter Br.21 (asking this Court to make only
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“minor adjustments . . . to account for population change” with
respect to Assembly Districts 8 and 9).
The Hunter
Petitioners do not attempt to explain why this Court could
follow this approach with respect to those particular
Assembly Districts, but not with respect to each of the
congressional districts, as it adopts a remedial map for the
entire State. See generally Hunter Br.13–14, 21.
3.
Whether The Legislature Used The
“Least-Change” Approach In Prior
Redistricting Cycles Does Not Alter
This Court’s Remedial Authority
Multiple parties argue that this Court should not follow
the “least-change” approach because, they claim, the
Legislature did not adhere to it when adopting Wisconsin’s
existing congressional map in 2011. Hunter Br.15–16; Gov.
Br.9–10; Bewley Br.16–17; Whitford Am. Br.8. This criticism
reflects a fundamental misunderstanding of this Court’s role
vis-à-vis that of the Legislature.
When the Legislature
exercises its constitutional redistricting power, it has the
authority to redraw districts based on “political and policy
decisions,” given that redistricting is an “inherently political
and legislative task.” Jensen, 2002 WI 13, ¶ 10; Zimmerman,
22 Wis. 2d at 570; State ex rel. Bowman v. Dammann, 209
Wis. 21, 243 N.W. 481, 485 (1932); see Congressmen Br.24.
The only “limits” on the Legislature’s discretionary “choices”
in this sphere are those found in federal and state
constitutional and statutory requirements. Zimmerman, 22
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Wis. 2d at 570; see Congressmen Br.7–15, 20. Thus the
Legislature has the authority to choose to adopt wholly new
maps, as it pursues the public policy that it thinks best for the
State. This Court’s role in redistricting is decidedly different,
as it is only remedying an equal-population violation.
Congressmen Br.15–19, 21.
4.
The “Least-Change” Approach Does
Not Undermine Political Incentives
Multiple parties argue that this Court following the
“least-change” approach would incentivize the Legislature
and the Governor not to adopt a compromise redistricting
map in the future. BLOC Br.43–45; Hunter Br.17; Citizen
Math. Br.27. This misses the mark. As noted immediately
above, the Legislature may desire to make substantial
changes to the map to achieve political or policy objectives
apart from mere re-equalizing the districts.
II.A.3; Jensen, 2002 WI 13, ¶ 10.
Supra Part
If the Legislature and
Governor do not reach a compromise and end up deadlocking,
their ability to achieve those political or policy goals through
a redistricting action would be frustrated. This is because,
under the “least-change” approach, this Court would only
make those minor adjustments to the existing map necessary
to correct a malapportionment. Thus, if the Legislature and
Governor wish to achieve any portion of their political- or
policy-based redistricting goals by substantially altering the
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existing map, the only way would be to complete the
redistricting task themselves, through a political compromise.
B.
The Parties Challenging The “LeastChange” Approach Only Offer Their
Preferred
Policy
Preferences
As
Alternatives
All of the parties who reject the “least-change” approach
fail to offer a satisfactory alternative to guide this Court’s
remedial-map-drawing efforts. Instead, each would simply
have this Court redistrict the State according to these parties’
own preferred policies. See generally Hunter Br.13–18, 26;
BLOC Br.23–24, 46, 49; Gov. Br.8–13; Citizen Math. Br.19–
29; Bewley Br.14–19. Thus, even if these parties’ critiques of
the “least-change” approach had some merit, which they
plainly do not, see Part II.A, their failure to offer a viable
alternative counsels in favor of following the “least-change”
approach here, see Rucho v. Common Cause, 139 S. Ct. 2484,
2502–06 (2019) (considering and rejecting plaintiffs’ multiple
proposed
standards
for
adjudicating
their
partisan-
gerrymandering claims); Honorable Neil M. Gorsuch, Of
Lions and Bears, Judges and Legislators, and the Legacy of
Justice Scalia, 66 Case W. Reserve L. Rev. 905, 918–19 (2016).
The Congressmen briefly address each of the proposed
approaches of the Hunter Petitioners, the BLOC Petitioners,
the Governor, Minority Leader Bewley, and the Citizen
Mathematicians immediately below, explaining how each
approach invites this Court to adopt a map according to
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unguided policy preferences, which are incompatible with this
Court’s role in our constitutional order.
Beginning with the Hunter Petitioners, they propose
that this Court adopt a remedial map by “examin[ing]”
proposed maps submitted by the parties/amici, “analyz[ing]
how they serve relevant redistricting criteria,” and then
choosing “a redistricting plan that best serves the myriad of
competing considerations that go into redistricting.” Hunter
Br.18 (emphasis added).
The Hunter Petitioners offer no
principled rule for how this Court may balance these “myriad
of competing considerations,” id., only that such balancing
must also “consider[ ] . . . partisan performance” and “create
neutral, fair maps”—an additional balancing act for which
they offer no further legal guidance. Hunter Br.7, 18.
The BLOC Petitioners’ approach is equally unbounded.
They propose that this Court adopt a remedial map by
following the criteria that it “must consider,” then “sometimes
also weighing factors [it] may consider,” while “avoiding the
criteria [it] must not consider.”
BLOC Br.23–24.
And
somewhere in this unbounded framework, this Court “must
[also] consider the partisan effects of the maps it imposes”—
“analyz[ing] that question in light of justice, moderation,
temperance, and respect for democratic principles.” BLOC
Br.46, 49. This too reduces only to policy preference, as the
BLOC Petitioners offer no coherent rule for how this Court
should “sometimes” weigh the “may-consider” factors or
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sufficiently pursue their lofty (and lengthy) list of values that
a remedial map must also somehow embody.
As for the Governor, he proposes that this Court adopt
a remedial map that, in addition to “comply[ing] with federal
and state constitutional and statutory requirements,” also
“include[s] other considerations, if appropriate under the
circumstances
and
not
in
conflict
with
the
binding
requirements.” Gov. Br.8. And “[p]artisan makeup . . . can
be, and should be,” one of those other considerations, so as “to
help ensure maps are fair and balanced.” Gov. Br.8, 14. Here
again, the Governor offers no principled rule for applying the
largely unnamed “considerations” and “circumstances” that
he champions, let alone a discernible standard for when a map
would be “fair and balanced.” Gov. Br.8, 14.
Minority Leader Bewley recommends that this Court
adopt a remedial plan “designed to do ‘best possible’ service to
principles of fair representation embodied in the governing
federal and state law, and as supported by traditional
redistricting principles.” Bewley Br.19. This approach lacks
coherent legal principles for its application, and it is
admittedly driven by judicial policy preferences, as Minority
Leader Bewley wants this Court to “apply its own values and
put its own thumb on the scale.” Bewley Br.18 (emphasis
added).
Finally, the Citizen Mathematicians argue that this
Court “should adopt a ‘best map’ approach,” which requires
balancing “at least eleven traditional, neutral redistricting
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principles,” such as “partisan fairness,” “competitiveness or
responsiveness,” and “stability.” Citizen Math. Br.4, 18, 20.
The Citizen Mathematicians admit that these factors may be
“hard to measure,” will “inevitably” raise questions of “how
much is enough,” and—“[p]erhaps hardest of all”—require
“tradeoffs” between one factor as opposed to another. Citizen
Math. Br.18. This approach is composed of policy choices from
beginning to end—starting with deciding which factors are
the relevant considerations; moving to how those factors are
measured, weighed, and prioritized; and ending with the
selection of the “best map.”
And while the Citizen
Mathematicians do elaborate on their own ranking of the
factors, they simply assume that their ranking is normatively
correct, see Citizen Math. Br.24–26, rather than grounding
the ranking in any coherent, predictable legal principles.
III.
This Court Should Not Consider Partisan
Makeup When Adopting A Remedial Map
A. The Congressmen explained that this Court should
not consider a remedial map’s partisan makeup here for two
fundamental reasons.
First, this Court considering such
political concerns would exceed its remedial and equitable
authority to adopt a remedial map. Congressmen Br.23–24.
Second, nothing in either the Wisconsin Constitution or the
U.S. Constitution makes partisan considerations relevant to
a redistricting map’s legality, including because redistricting
is an “inherently political . . . task” that requires the
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Legislature to make “political and policy decisions.” Jensen,
2002 WI 13, ¶ 10 (emphasis added); Congressmen Br.23–24.
B. While the Hunter Petitioners, the BLOC Petitioners,
the Governor, Minority Leader Bewley, and the Citizen
Mathematicians all argue that this Court should consider
partisan makeup in its remedial map, none of these parties
even attempt to explain how such considerations could fall
within this Court’s equitable authority to remedy the
malapportionment violation at issue here, which should be
the end of the issue. See generally BLOC Br.46–57; Hunter
Br.1–13; Citizen Math. Br.29–36; Gov. Br.14–15; Bewley
Br.19–21. In any event, as explained below, the arguments
that these parties muster fail to show how either the state or
the federal constitutions allow this Court to consider
partisanship in its remedial-map-drawing process.
Infra
Part III.B.1. Nor do these parties’ arguments provide any
judicially administrable standard for deciding when a map’s
partisan makeup is “too much.” Infra Part III.B.2.
1. None of the parties advocating for consideration of
partisan makeup shows that the Wisconsin Constitution or
the U.S. Constitution would support such considerations.
That failure is not surprising, given this Court’s decision in
Jensen, 2002 WI 13, and the U.S. Supreme Court’s decision in
Rucho, 139 S. Ct. 2484. See Congressmen Br.24–25.
a. Beginning with the Wisconsin Constitution, the
BLOC Petitioners argue that this Court recognized partisangerrymandering claims in the Cunningham cases. See BLOC
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Br.50–51 (discussing State ex rel Att’y Gen. v. Cunningham,
81 Wis. 440, 51 N.W. 724 (1892), and State ex rel. Lamb v.
Cunningham, 83 Wis. 90, 53 N.W. 35 (1892)).
But the
Cunningham cases rested on the equal-population principle,
not on a rule against partisan gerrymandering, as this Court
was adjudicating only claims that the “disparity in the
number of inhabitants in the legislative districts” drawn by
the Legislature was “so great” as to be “a direct and palpable
violation of the constitution.” Cunningham, 53 N.W. at 55.
Or, as this Court explained in Zimmerman, 22 Wis. 2d 544,
“the malapportionment present in [Cunningham] was not
found to be a ‘gerrymander’ as that term is generally
understood”; instead, Cunningham considered a map with a
“substantial
deviation
from
per
capita
equality
of
representation.” Id. at 566–67.
Next, the Citizen Mathematicians claim that Jensen
requires this Court to consider partisan makeup, since Jensen
quoted favorably from Prosser v. Elections Board, 793 F.
Supp. 859 (W.D. Wis. 1992). See Citizen Math. Br.31–32;
accord Hunter Br.8–9 (favorably citing Prosser); Gov. Br.14–
15 (same). The Citizen Mathematicians overread Jensen’s
reliance on Prosser. While this Court in Jensen quoted some
passages from Prosser, it did so only to explain that it was “in
a position similar to that in which [Prosser] found itself”—
specifically, it was called upon to adopt a remedial
redistricting map without the benefit of “an enacted plan,”
just like the Prosser court. Jensen, 2002 WI 13, ¶ 12 (quoting
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Prosser, 793 F. Supp. at 867). Jensen did not rely on Prosser
for the proposition that this Court’s role when adopting a
remedial map is to balance the partisan makeup, contrary to
the Citizen Mathematician’s claim. Compare id., with Citizen
Math. Br.31–32. Indeed, such a leap would put Jensen in
tension with itself, given that this Court recognized in that
case that redistricting is “inherently political” and raises
“critical legal and political issues.” 2002 WI 13, ¶¶ 10, 18.
In any event, both Jensen and Prosser are factually
distinguishable here. In both those cases, this Court and the
federal court dealt with a redistricting challenge to thenexisting, court-drawn maps.
See Jensen, 2002 WI 13,
¶ 12 (considering challenge to 1992 court-drawn map);
Prosser, 793 F. Supp. at 861–62 (considering challenge to
1982 court-drawn map); see generally Baldus v. Members of
Wisconsin Gov’t Accountability Bd., 849 F. Supp. 2d 840, 844
(E.D. Wis. 2012) (“In 1982, 1992, and 2002, Wisconsin’s
legislative districts were drawn by a three-judge court.”).
Here, the Petitioners and Intervenor-Petitioners challenge
the legislatively enacted map from 2011, Omnibus Amended
Original Action Pet. ¶ 72—a map that has, in Prosser’s words,
“the virtue of political legitimacy,” 793 F. Supp. at 867.
The BLOC Petitioners briefly argue that Article I,
Section 22 of the Wisconsin Constitution independently
requires this Court to consider partisan makeup.
BLOC
Br.46–50. This argument goes nowhere. Article I, Section 22
provides that “[t]he blessings of a free government can only be
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maintained by a firm adherence to justice, moderation,
temperance, frugality and virtue, and by frequent recurrence
to fundamental principles.” Wis. Const. Art. I, § 22. This
Court interprets this provision to offer the same protections
as the Fourteenth Amendment. See Chicago & N.W. Ry. Co.
v. La Follette, 43 Wis. 2d 631, 642–43, 169 N.W.2d 441 (1969).
The Fourteenth Amendment, however, does not permit
federal courts to engage in partisan balancing during the
redistricting process, see Rucho, 139 S. Ct. at 2491, 2499;
thus, Article I, Section 22 would not permit this Court to
engage in such balancing either, contra BLOC Br.46–50.
The Hunter Petitioners assert that the Wisconsin
Constitution “embodies a respect for political equality,” from
which they conclude, apparently, that this Court must
balance the partisan makeup of a remedial congressional
map.
Hunter Br.13; see Bewley Br.19 (arguing that
“principles of fair representation [are] embodied in the
governing federal and state law,” without identifying a
specific source of such law); Citizen Math. Br.33 (asserting
that “logic suggests” that a map should embody proportional
representation).
This is mere ipse dixit, as the Hunter
Petitioners cite no constitutional text establishing this
redistricting principle, let alone translating that principle
into a requirement that binds this Court’s remedial-mapdrawing efforts.
See Hunter Br.13; accord Bewley Br.19;
Citizen Math. Br.33.
This lack of support in our State’s
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Constitution is understandable, given that redistricting is an
“inherently political . . . task,” Jensen, 2002 WI 13, ¶ 10.
b. Moving to the U.S. Constitution, multiple parties
simply refuse to accept that Rucho expressly held that the
U.S. Constitution permits state legislatures to employ
political considerations in redistricting and prohibits federal
courts from “reallocat[ing] political power” by adjusting
district lines based on partisan concerns. Congressmen Br.25
(quoting Rucho, 139 S. Ct. at 2498, 2506–07).
The Governor argues that the U.S. Constitution
empowers this Court to consider partisan makeup in a
remedial map by relying on Gaffney v. Cummings, 412 U.S.
735 (1973), while ignoring Rucho.
Gov. Br.14–15.
But
Gaffney only explained that such considerations could be
proper for a State’s redistricting body tasked with drawing
new maps, not for a court tasked with adopting a remedial
map in the event of a political gridlock. See Gaffney, 412 U.S.
at 736, 754 (considering map drawn by “a three-man
bipartisan Board”). And, of course, Rucho removes all doubt
that the U.S. Constitution could support a court taking such
partisan-balancing concerns into account when selecting a
remedial map. See Rucho, 139 S. Ct. at 2498, 2506–07.
Similarly, Minority Leader Bewley argues that this
Court must consider the partisan makeup of the districts in a
remedial map in order to “vindicat[e]” the “First Amendment
rights of the citizens of Wisconsin.” Yet, she too only cites preRucho precedent for that claim, Bewley Br.21, which
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precedent obviously cannot override Rucho’s more-recent,
express holdings to the contrary.
Finally, the Citizen Mathematicians argue that
Chapman v. Meier, 420 U.S. 1 (1975), imposes “higher
standards” on courts than on state legislatures when
completing the redistricting process, which they interpret to
mean that courts must ensure that their remedial maps are
politically balanced, as a matter of federal constitutional law.
See Citizen Math. Br.33 (citing Chapman, 420 U.S. at 26).
Again, that argument cannot possibly survive Rucho, which
was decided far more recently than Chapman. In any event,
Chapman’s “higher standards” holding relates only to the oneperson/one-vote rule, requiring court-drawn maps to limit
“deviation[s] from approximate population equality” to a
greater extent than legislature-drawn plans. Chapman, 420
U.S. at 26; accord Hunter Br.19 (explaining that Chapman’s
“higher standards” apply to apportionment).
And, if
anything, Chapman supports this Court not considering
partisan makeup in a redial map, since Chapman imposed its
more stringent equal-population standard on court-drawn
maps
precisely
because
courts
“lack[ ]
the
political
authoritativeness” to “compromise sometimes conflicting
state apportionment policies in the people’s name.” Connor v.
Finch, 431 U.S. 407, 415 (1977); Chapman, 420 U.S. at 26–27.
2. These parties have also failed to identify a judicially
manageable
standard
with
which
to
reliably
judge
partisanship in a redistricting map, which is why Rucho
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rejected any partisan gerrymandering claim at the federal
level. 139 S. Ct. at 2499–502, 2508.
While the Hunter Petitioners, the BLOC Petitioners,
the Governor, Minority Leader Bewley, and the Citizen
Mathematicians all want this Court to consider whether a
map is “too partisan,” none of these parties put forward an
objective, judicially administrable standard for when a map
exceeds permissible partisanship thresholds.
See Hunter
Br.1–13; BLOC Br.46–57; Gov. Br.14–15; Bewley Br.19–21;
Citizen Math. Br.29–36. Instead, these parties just assert
that this Court’s remedial map must not have “excessively
partisan effects,” Citizen Math. Br.29 (capitalization altered),
or must not be a “severe partisan gerrymander,” BLOC Br.56,
“aggressive[ly]” partisan, Hunter Br.10, or “improperly
promote unfair partisan advantage,” Gov. Br.14. That is,
none of these parties identify any “coherent legal test” to
judge with any “measure of predictability,” Horst v. Deere &
Co., 2009 WI 75, ¶ 71, 319 Wis. 2d 147, 769 N.W.2d 536, when
a map has “too much” partisanship, see Gov. Br.14–15 (failing
to discuss an administrable test); BLOC Br.46–57 (same);
Bewley Br.19–21 (same); Citizen Math. Br.29–36 (same);
accord Hunter Br.11–12 (claiming that it is “premature at
this stage to recommend how the Court should measure and
analyze partisan bias”). And while some of the parties cite a
grab bag of social-science metrics that would purportedly
quantify partisanship, see Hunter Br.12; accord BLOC Br.43–
44, those metrics do not identify the tolerable limits of
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partisanship, accord Rucho, 130 S. Ct. at 2501; Gill v.
Whitford, 138 S. Ct. 1916, 1932–33 (2018).
The parties’ failure to put forward a coherent standard
for measuring excessive partisanship is the same fatal flaw
that doomed partisan gerrymandering claims in Rucho. As
Rucho explained, for a court to declare that a map is
impermissibly partisan, it must first have “a standard for
deciding how much partisan dominance is too much.” 139
S. Ct. at 2498 (citation omitted). Otherwise, the court would
issue its judgment “with uncertain limits,” thus “risk[ing]
assuming political, not legal, responsibility” over the
redistricting process. Id. (citations omitted). So, unless the
parties here present this Court with a coherent standard to
measure excess partisanship, this Court cannot “even begin
to
answer
the
determinative
question:
‘How
much
[partisanship] is too much?’” Id. at 2501.
With no coherent legal test to judge whether
Wisconsin’s existing maps are impermissibly partisan, Horst,
2009 WI 75, ¶ 71, the various parties simply assert that this
is so, heavily relying on the district-court decisions in Baldus
v. Members of Wisconsin Government Accountability Board,
849 F. Supp. 2d 840 (E.D. Wis. 2012), and Whitford v. Gill,
218 F. Supp. 3d 837 (W.D. Wis. 2016), vacated and remanded,
138 S. Ct. 1916 (2018). See Hunter Br.3–5; Gov. Br.10–11;
Bewley Br.17; accord BLOC Br.21, 39, 53–54. Yet Whitford
involved no challenge to congressional districts, and the
partisan-gerrymandering claims against the congressional
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districts in Baldus went nowhere, as the court observed that
these districts resulted from a bipartisan process. Whitford,
218 F. Supp. 3d at 843–44; Baldus, 849 F. Supp. 2d at 854
(ultimately dismissing claim for plaintiffs’ failure to present
judicially manageable standard).
And while these parties
focus on the state legislative districts, the U.S. Supreme
Court vacated the Whitford district-court decision in whole,
Gill, 138 S. Ct. at 1934, and then the parties dismissed the
case after Rucho, see Whitford v. Gill, 402 F. Supp. 3d 529,
531 (W.D. Wis. 2019).
IV.
The “Least-Change” Approach May Well Allow
This Court To Adopt A Remedial Map Based
Solely On Submissions To This Court, Without
Need For Factfinding Or Discovery Proceedings
Proposed By Some Of The Parties
Finally, as the Congressmen previously explained, the
“least-change” approach may well allow this Court to adopt a
remedial congressional map based solely on submissions from
the parties/amici. Congressmen Br.25–29. Specifically, if this
Court were to follow the “least-change” approach, the
parties/amici would submit their proposed maps to this Court,
along with all necessary population data and explanations for
the adjustments to the existing district lines. Congressmen
Br.26–27. Based on these submissions, this Court may well
be able to choose a “least-change” remedial congressional map
without need for further factfinding—including as to the
map’s compliance with the other state and federal-law
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requirements—using the traditional redistricting criteria to
guide the selection of the most fitting changes, while deferring
to the Legislature’s reasonable judgments as appropriate.
Congressmen Br.26–29; supra p. 4 n.2. This is notably unlike
many of the other approaches put forward by some of the
parties,
which
procedures.
depend
upon
factfinding
or
discovery
See BLOC Br.57–66; Gov. Br.15–16; Bewley
Br.21–22; see also Hunter Br.32–33.
The “least-change” approach would also empower this
Court to adopt a remedial map expeditiously, as the
Congressmen previous explained in their letter briefs to this
Court. Congressmen Letter Br., Johnson v. Wis. Elections
Comm’n,
No.2021AP1450-OA
(Wis.
Oct.
6,
2021)
(“Congressmen Oct. 6 Letter”); Congressmen Resp. Letter Br.,
Johnson v. Wis. Elections Comm’n, No.2021AP1450-OA (Wis.
Oct. 13, 2021) (“Congressmen Oct. 13 Letter”). Specifically,
the Congressmen’s approach would allow this Court to adopt
a remedial plan by February 28, 2022, one day in advance of
March 1, 2022 deadline that the federal court in Hunter v.
Bostelmann, Dkt. 75, Nos. 3:21-cv-512, et al. (W.D. Wis.), has
apparently set, see Congressmen Oct. 6 Letter at 1–2;
Congressmen Oct. 13 Letter at 1–2. Below is an example
schedule that this Court could follow to adopt a remedial map
by the Congressmen’s proposed February 28 date:
• If the Legislature approves new redistricting maps
by the close of its next available floor period,
November 11, 2021, the Governor will have until
- 27 Hunter App. 277
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November 18, 2021 to approve or veto the maps.
Wis. Const. art. V, § 10(1)(b), (3);
• Then, if the Governor were to veto the proposed
maps on November 18, this Court could
immediately declare that Wisconsin’s existing
congressional and state-legislative maps are
malapportioned, in violation of the Wisconsin
Constitution;
• Next, this Court could order all parties/amici to
simultaneously submit their proposed “leastchange” maps and accompanying briefs/materials by
December 24, 2021, with simultaneous response
briefs due by January 7, 2022;
• Finally, after the Court reviews those submissions,
it could either enter its decision adopting
redistricting maps for the State based on the parties’
submissions or order limited fact-finding procedures,
if necessary, and then order all parties/amici to
submit simultaneous supplemental memoranda by
January 28, 2022, with the Court entering its final
relief by February 28, 2022.
Congressmen Oct. 13 Letter at 2–3; see Congressmen Oct. 6
Letter at 2.
CONCLUSION
The Congressmen respectfully submit that this Court
should approach this matter as described above and, in the
Congressmen’s Initial Brief.
- 28 Hunter App. 278
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Filed 11-01-2021
IN THE SUPREME COURT OF WISCONSIN
No. 2021AP1450-OA
BILLIE JOHNSON, ERIC O’KEEFE, ED PERKINS, AND RONALD ZAHN,
Petitioners,
BLACK LEADERS ORGANIZING FOR COMMUNITIES, VOCES DE LA
FRONTERA, LEAGUE OF WOMEN VOTERS OF WISCONSIN, CINDY FALLONA,
LAUREN STEPHENSON, REBECCA ALWIN, CONGRESSMAN GLENN
GROTHMAN, CONGRESSMAN MIKE GALLAGHER, CONGRESSMAN BRYAN
STEIL, CONGRESSMAN TOM TIFFANY, CONGRESSMAN SCOTT FITZGERALD,
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,
Intervenors-Petitioners,
v.
WISCONSIN ELECTIONS COMMISSION, MARGE BOSTELMANN IN HER
OFFICIAL CAPACITY AS A MEMBER OF THE WISCONSIN ELECTIONS
COMMISSION, JULIE GLANCEY IN HER OFFICIAL CAPACITY AS A MEMBER OF
THE WISCONSIN ELECTIONS COMMISSION, ANN JACOBS IN HER OFFICIAL
CAPACITY AS A MEMBER OF THE WISCONSIN ELECTIONS COMMISSION,
DEAN KNUDSON IN HIS OFFICIAL CAPACITY AS A MEMBER OF THE
WISCONSIN ELECTIONS COMMISSION, ROBERT SPINDELL, JR. IN HIS
OFFICIAL CAPACITY AS A MEMBER OF THE WISCONSIN ELECTIONS
COMMISSION, AND MARK THOMSEN IN HIS OFFICIAL CAPACITY AS A
MEMBER OF THE WISCONSIN ELECTIONS COMMISSION,
Respondents,
THE WISCONSIN LEGISLATURE, GOVERNOR TONY EVERS, IN HIS
OFFICIAL CAPACITY, AND JANET BEWLEY SENATE DEMOCRATIC
MINORITY LEADER, ON BEHALF OF THE SENATE DEMOCRATIC CAUCUS,
Intervenors-Respondents.
1
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HUNTER INTERVENOR-PETITIONERS’ RESPONSE BRIEF
ADDRESSING PARTIES’ OCTOBER 25, 2021 BRIEFS
Charles G. Curtis, Jr.
Bar No. 1013075
PERKINS COIE LLP
33 E Main St, Ste 201
Madison, Wisconsin 53703-3095
(608) 663-7460
CCurtis@perkinscoie.com
Attorney for Hunter Intervenor-Petitioners
Aria C. Branch*
Jacob D. Shelly*
Christina A. Ford*
William K. Hancock*
ELIAS LAW GROUP LLP
10 G St., NE, Suite 600
Washington, D.C. 20002
(202) 968-4490
ABranch@elias.law
JShelly@elias.law
CFord@elias.law
WHancock@elias.law
Attorneys for Hunter Intervenor-Petitioners
*Admitted Pro Hac Vice
2
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TABLE OF CONTENTS
INTRODUCTION ...................................................................................... 7
ARGUMENT .............................................................................................. 9
I. There is no legal basis for the Court to pursue a least-change
approach. ........................................................................................... 9
A. The Court’s remedial powers are not limited to a least-change
approach. ..................................................................................... 9
B. There is no rule of deference to a decade-old map. ................. 13
C. There is no basis for deference to a vetoed bill. ...................... 19
II. A least-change approach entrenches extreme partisan advantage.
......................................................................................................... 21
A. Rucho does not require this Court to be willfully blind to the
partisan impact of a map. ......................................................... 21
B. No court in Wisconsin’s history has used a least-change
approach to lock in an extreme gerrymander. ........................ 25
C. The Court should not prioritize redistricting factors that will
have the effect of locking in a gerrymandered map. ............... 27
3
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TABLE OF AUTHORITIES
Page(s)
Cases
Abrams v. Johnson,
521 U.S. 74 (1997) ............................................................................... 15
State ex rel. Att’y Gen. v. Cunningham,
81 Wis. 440, 51 N.W. 724 (1892) ........................................................ 21
Balderas v. Texas,
2001 WL 36403750 (E.D. Tex. Nov 14, 2001), summarily
aff’d, 536 U.S. 919 (2002) ............................................................ passim
Baldus v. Members of Wis. Gov't Accountability Bd.,
849 F. Supp. 2d 840 (E.D. Wis. 2012) ................................................ 30
Baumgart v. Wendelberger,
No. 01-C-0121, 2002 WL 34127471 (E.D. Wis. May 30,
2002) .............................................................................................. 25, 26
Carstens v. Lamm,
543 F. Supp. 68 (D. Colo. 1982) .......................................................... 15
Chapman v. Meier,
420 U.S. 1 (1975) ................................................................................. 24
In Interest of E.C.,
130 Wis. 2d 376, 387 N.W.2d 72 (1986) ....................................... 11, 12
Favors v. Cuomo,
No. 11-CV-5632, 2012 WL 928223 (E.D.N.Y. Mar. 19,
2012) ................................................................................................... 29
Growe v. Emison,
507 U.S. 25 (1993) ......................................................................... 12, 13
Hippert v. Ritchie,
813 N.W.2d 374 (Minn. 2012) ................................................ 18, 26, 29
4
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Jensen v. Wis. Elections Bd.,
2002 WI 13, 249 Wis. 2d 706, 639 N.W.2d 537 ................................. 12
North Carolina v. Covington,
138 S. Ct. 2548 (2018) ................................................................... 14, 15
O'Sullivan v. Brier,
540 F. Supp. 1200 (D. Kan. 1982) ................................................ 15, 19
Perez v. Perry,
565 U.S. 388 (2012) ....................................................................... 15, 16
Prosser v. Elections Board,
793 F. Supp. 859 (W.D. Wis. 1992) .............................................. 25, 26
State ex rel. Reynolds v. Zimmerman,
22 Wis. 2d 544, 126 N.W.2d 551 (1964) ....................................... 20, 21
Rucho v. Common Cause,
139 S. Ct. 2484 (2019) .................................................................. passim
Sixty-Seventh Minn. State Senate v. Beens,
406 U.S. 187 (1972) ............................................................................. 20
Smith v. Clark,
189 F. Supp. 2d 529 (S.D. Miss. 2002) ............................................... 15
State v. Grimm,
208 Wis. 366, 243 N.W. 763 (1932) .................................................... 12
United States v. Raines,
362 U.S. 17 (1960) ............................................................................... 11
Upham v. Seaman,
456 U.S. 37 (1982) ............................................................................... 14
Vera v. Richards,
861 F. Supp. 1304 (S.D. Tex. 1994), aff’d sub nom. Bush
v. Vera, 517 U.S. 952 (1996) ............................................................... 17
White v. Weiser,
412 U.S. 783 (1973) ............................................................................. 14
5
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Whitford v. Gill,
218 F. Supp. 3d 837 (W.D. Wis. 2016), vacated for lack of
standing, 138 S. Ct. 1916 (2018) ........................................................ 23
Wis. State AFL-CIO v. Elections Bd.,
543 F. Supp. 630 (E.D. Wis. 1982) ......................................... 19, 26, 29
Wyche v. Madison Par. Police Jury,
769 F.2d 265 (5th Cir. 1985)............................................................... 29
Zachman v. Kiffmeyer,
No. C0-01-160 (Minn. Special Redistricting Panel Mar.
19, 2002) .............................................................................................. 27
Other Authorities
U.S. Const. art. I, § 2, cl. 3....................................................................... 10
Wis. Const. art. IV, § 3............................................................................. 10
Wis. Const. art. V, § 10 ............................................................................ 21
Wis. Const. art. VII, § 3 ........................................................................... 12
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INTRODUCTION
This Court has a choice to make: Affirmatively perpetuate one of
the country’s most extreme gerrymanders, or adopt a neutral map
befitting an impartial judiciary. Rhetoric from the Legislature aside, this
Court is not required to maintain the existing gerrymander; if it does so,
it is only by choice.
This Court owes no special deference to a now outdated and
unconstitutional map from the 2010 redistricting cycle. Unlike other
redistricting cases in which courts are called upon to remedy one or two
districts in a contemporaneously enacted map, impasse litigation, by
definition, means there is no enacted plan that this Court could defer to
that reflects the elected branches’ policy choices in light of the 2020
Census.
Nor should the Court give into the Legislature’s brazen request
that it directly implement the Legislature’s preferred map even if that
map does not survive a gubernatorial veto. This entire litigation is
premised on the expectation that the Republican-controlled Legislature
will be unwilling and unable to pass redistricting plans that will be
acceptable to Wisconsin’s Democratic Governor. Doing as the Legislature
requests would be deeply antidemocratic. It also has no basis in law or
7
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precedent: this Court owes no deference to the Legislature’s preferred
redistricting plan after impasse.
In refashioning Wisconsin’s reapportionment plans for the next
decade, this Court should strive to draw districts that return Wisconsin
to a place where Wisconsin’s voters have a fair shot at influencing the
composition of their legislature. This is what Wisconsin voters
themselves have clearly indicated they want. And Rucho v. Common
Cause does not require otherwise. While several parties lean on Rucho
to argue this Court should not consider the partisan implications of any
remedial map, Rucho does not require courts to be willfully blind to the
existence of partisan gerrymanders, and it most certainly does not
encourage courts to actively perpetuate them. To the contrary, Rucho
recognizes partisan gerrymanders as ‘“incompatible with democratic
principles.” 139 S. Ct. 2484, 2506 (2019). Rucho simply found that a
partisan gerrymandering challenge under the federal Constitution to an
enacted map exceeded the jurisdictional reach of federal courts. Notably,
state courts are not so bound. But, in any event, this case does not ask
this Court to decide whether a duly enacted map is an unconstitutional
partisan gerrymander; instead, where the political branches have been
unable to agree on a map, the Court is required to choose one. As many
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courts have recognized, in this role, the judiciary should strive for fair
and neutral maps.
For all of these reasons, as well as those set forth below, this Court
should not adopt a “least-change” approach to Wisconsin’s new district
This text is long and has been trimmed here. Open the source document for the complete record.
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