Billie Johnson v. Wisconsin Elections Commission

2021 WI 87

• Court: Wisconsin Supreme Court
• Decided: November 30, 2021
• Docket: 2021AP001450-OA
• Status: Published

Opinion

2021 WI 87

SUPREME COURT OF WISCONSIN CASE NO.: 2021AP1450-OA

COMPLETE TITLE: 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.

ORIGINAL ACTION

OPINION FILED: November 30, 2021 SUBMITTED ON BRIEFS: ORAL ARGUMENT:

SOURCE OF APPEAL: COURT: COUNTY: JUDGE:

JUSTICES: REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the Court with respect to all parts except ¶¶8, 69-72, and 81, in which ZIEGLER, C.J., and ROGGENSACK, and HAGEDORN, JJ., joined, and an opinion with respect to ¶¶8, 69–72, and 81, in which ZIEGLER, C.J., and ROGGENSACK, J., joined. HAGEDORN, J., filed a concurring opinion. DALLET, J., filed a dissenting opinion in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined. NOT PARTICIPATING:

ATTORNEYS:

For the petitioners, there were briefs filed by Richard M. Esenberg, Anthony F. LoCoco, Lucas T. Vebber and Wisconsin Institute for Law & Liberty, Milwaukee.

For the intervenors-petitioners Black Leaders Organizing for Communities, Voces de la Frontera, League of Women Voters of Wisconsin, Cindy Fallona, Lauren Stephenson and Rebecca Alwin, briefs, including amicus briefs, were filed by Douglas M. Poland, Jeffrey A. Mandell, Rachel E. Snyder, Richard A. Manthe, Carly Gerads and Stafford Rosenbaum LLP, Madison; Mel Barnes and Law Forward, Inc., Madison; Mark P. Gaber (pro hac vice), Christopher Lamar (pro hac vice)and Campaign Legal Center, Washington, D.C.; Annabelle Harless (pro hac vice) and Campaign Legal Center, Chicago.

For the intervenors-petitioners Congressmen Glenn Grothman, Mike Gallagher, Bryan Steil, Tom Tiffany and Scott Fitzgerald there were briefs, including amicus briefs, filed by Misha Tseytlin, Kevin M. LeRoy, and Troutman Pepper Hamilton Sanders LLP, Chicago.

For the intervenors-petitioners Lisa Hunter, Jacob Zabel, Jennifer Oh, John Persa, Geraldine Schertz and Kathleen Qualheim, there were briefs, including amicus briefs filed by Charles G.

2 Curtis, Jr. and Perkins Coie LLP, Madison; Marc Erik Elias (pro hac vice), Aria C. Branch (pro hac vice), Daniel C. Osher (pro hac vice), Jacob D. Shelly (pro hac vice), Christina A. Ford (pro hac vice), William K. Hancock (pro hac vice) and Elias Law Group LLP, Washington, D.C.

For the intervenors-petitioners Citizens Mathematicians and Scientists Gary Krenz, Sarah J. Hamilton, Stephen Joseph Wright, Jean-Luc Thiffeault and Somesh Jha, briefs were filed by Michael P. May, Sarah A. Zylstra, Tanner G. Jean-Louis and Boardman & Clark LLP, Madison, and David J. Bradford (pro hac vice) and Jenner & Block LLP, Chicago.

For the respondents Wisconsin Elections Commission, Marge Bostelmann, Julie Glancey, Ann Jacobs, Dean Knudson, Robert Spindell, Jr. and Mark Thomsen there were letter-briefs filed by Steven C. Kilpatrick, assistant attorney general, Karla Z. Keckhaver, assistant attorney general, Thomas C. Bellavia, assistant attorney general.

For the intervenors-respondents the Wisconsin Legislature there were briefs filed by Kevin M. St. John and Bell Giftos St. John LLC, Madison; Jeffrey M. Harris (pro hac vice), Taylor A.R. Meehan (pro hac vice), James P. McGlone and Consovoy McCarthy PLLC, Arlington, Virginia and Adam K. Mortara and Lawfair LLC, Chicago.

For the intervenor-respondent Governor Tony Evers there were briefs filed by Joshua L. Kaul, attorney general, Anthony D. Russomanno, assistant attorney general and Brian P. Keenan, assistant attorney general.

For the intervenor-respondent Janet Bewley, State Senate Democratic Minority Leader on behalf of the State Senate Democratic

3 Caucus there were briefs filed by Tamara B. Packard, Aaron G. Dumas and Pines Bach LLP, Madison.

There was an amicus brief filed by Daniel R. Suhr, Thiensville.

4 2021 WI 87 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2021AP1450-OA

STATE OF WISCONSIN : IN SUPREME COURT

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, FILED Intervenors-Petitioners, NOV 30, 2021 v. Sheila T. Reiff Clerk of Supreme Court 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.

REBECCA GRASSL BRADLEY, J., delivered the majority opinion of the Court with respect to all parts except ¶¶8, 69-72, and 81, in which ZIEGLER, C.J., and ROGGENSACK, and HAGEDORN, JJ., joined, and an opinion with respect to ¶¶8, 69–72, and 81, in which ZIEGLER, C.J., and ROGGENSACK, J., joined. HAGEDORN, J., filed a concurring opinion. DALLET, J., filed a dissenting opinion in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.

ORIGINAL ACTION. Rights declared.

¶1 REBECCA GRASSL BRADLEY, J. The Wisconsin Constitution

requires the legislature "to apportion and district anew the

members of the senate and assembly, according to the number of

inhabitants" after each census conducted under the United States

Constitution every ten years. Wis. Const. art. IV, § 3. In

fulfilling this responsibility, the legislature draws maps

reflecting the legislative districts across the state. Every

census invariably reveals population changes within legislative

districts, and the legislature must thereafter satisfy the

constitutional requirement that each district contain

approximately equal numbers of people by developing new maps, which

are subject to veto by the governor. When this occurs, courts are often asked to step in and draw the maps.

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¶2 This year, the legislature drew maps, the governor

vetoed them, and all parties agree the existing maps, enacted into

law in 2011, are now unconstitutional because shifts in Wisconsin's

population around the state have disturbed the constitutionally

guaranteed equality of the people's representation in the state

legislature and in the United States House of Representatives. We

have been asked to provide a remedy for that inequality. Some

parties to this action further complain that the 2011 maps reflect

a partisan gerrymander favoring Republican Party candidates at the

expense of Democrat Party candidates, and ask us to redraw the

maps to allocate districts equally between these dominant parties,

although no one asks us to assign districts to any minor parties

in proportion to their share of Wisconsin's electoral vote.

¶3 The United States Supreme Court recently declared there

are no legal standards by which judges may decide whether maps are

politically "fair." Rucho v. Common Cause, 139 S. Ct. 2484, 2499-

500 (2019). We agree. The Wisconsin Constitution requires the

legislature——a political body——to establish the legislative districts in this state. Just as the laws enacted by the

legislature reflect policy choices, so will the maps drawn by that

political body. Nothing in the constitution empowers this court

to second-guess those policy choices, and nothing in the

constitution vests this court with the power of the legislature to

enact new maps. Our role in redistricting remains a purely

judicial one, which limits us to declaring what the law is and

affording the parties a remedy for its violation. ¶4 In this case, the maps drawn in 2011 were enacted by the

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legislature and signed into law by the governor. Their lawfulness

was challenged in a federal court, which upheld them (subject to

a slight adjustment to Assembly Districts 8 and 9 in order to

comply with federal law). Baldus v. Members of Wis. Gov't

Accountability Bd., 862 F. Supp. 2d 860, 863 (E.D. Wis. 2012). In

2021, those maps no longer comply with the constitutional

requirement of an equal number of citizens in each legislative

district, due to shifts in population across the state. This court

will remedy that malapportionment, while ensuring the maps satisfy

all other constitutional and statutory requirements. Claims of

political unfairness in the maps present political questions, not

legal ones. Such claims have no basis in the constitution or any

other law and therefore must be resolved through the political

process and not by the judiciary.

I. PROCEDURAL HISTORY AND HOLDING

¶5 Billie Johnson et al., four Wisconsin voters ("Wisconsin

voters"), filed a petition for leave to commence an original action

in this court following the release of the results of the 2020 census. Claiming to live in malapportioned congressional and state

legislative districts, they have asked us to declare the existing

maps——codified in Chapters 3 and 4 of the Wisconsin Statutes——

violate the "one person, one vote" principle embodied in Article

IV, Section 3 of the Wisconsin Constitution. They also have asked

us to enjoin the respondents, the Wisconsin Elections Commission

(WEC) and its members in their official capacity, from

administering congressional and state legislative elections until the political branches adopt redistricting plans meeting the

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requirements of Article IV. Because the legislature and the

governor reached an impasse, the Wisconsin voters request a

mandatory injunction,1 remedying what all parties agree are

unconstitutional plans by making only those changes necessary for

the maps to comport with the one person, one vote principle while

satisfying other constitutional and statutory mandates (a "least-

change" approach).

¶6 We granted the petition and permitted the legislature,

the governor, and several other parties to intervene. The

intervenors raised numerous issues of federal and state law. In

addition to the requirements of Article IV of the Wisconsin

Constitution, we have been asked to consider the following laws in

shaping any judicial remedy for the malapportioned congressional

and state legislative districts: (1) Article I, Section 2 of the

United States Constitution; (2) the Equal Protection Clause of the

Fourteenth Amendment of the United States Constitution; (3) the

Voting Rights Act (VRA) of 1965;2 and (4) multiple provisions of

the Wisconsin Constitution's Declaration of Rights. ¶7 In anticipation of implementing a judicial remedy upon

1A "mandatory injunction" is "[a]n injunction that orders an affirmative act or mandates a specified course of conduct." Mandatory injunction, Black's Law Dictionary (11th ed. 2019). When a court orders elections be conducted pursuant to modified maps, it is effectively ordering a mandatory injunction. See Reynolds v. Sims, 377 U.S. 533, 541 (1964). 2One intervenor invoked the Fifteenth Amendment of the United States Constitution, but did not develop an argument distinguishable from the intervenor's VRA argument. See Hunter et al. Br. at 20, 30. Accordingly, we do not address the Fifteenth Amendment further.

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the expected impasse the political branches have now reached, we

ordered the parties to address four issues:

(1) Under the relevant state and federal laws, what factors should we consider in evaluating or creating new maps?

(2) Is the partisan makeup of districts a valid factor for us to consider in evaluating or creating new maps?

(3) The petitioners ask us to modify existing maps using a "least-change" approach. Should we do so, and if not, what approach should we use?

(4) As we evaluate or create new maps, what litigation process should we use to determine a constitutionally sufficient map?[3] We addressed the fourth question, at least preliminarily, in a

prior order.

¶8 We hold: (1) redistricting disputes may be judicially

resolved only to the extent necessary to remedy the violation of

a justiciable and cognizable right protected under the United

States Constitution, the VRA, or Article IV, Sections 3, 4, or 5

of the Wisconsin Constitution; (2) the partisan makeup of districts does not implicate any justiciable or cognizable right; and

(3) this court will confine any judicial remedy to making the

minimum changes necessary in order to conform the existing

congressional and state legislative redistricting plans to

constitutional and statutory requirements. The existing maps were

passed by the legislature and signed by the governor. They

Johnson v. WEC, No. 2021AP1450-OA, unpublished order (Wis. 3

Oct. 14, 2021) (per curiam) (ordering supplemental briefing).

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survived judicial review in federal court. Revisions are now

necessary only to remedy malapportionment produced by population

shifts made apparent by the decennial census. Because the

judiciary lacks the lawmaking power constitutionally conferred on

the legislature, we will limit our remedy to achieving compliance

with the law rather than imposing policy choices.

II. BACKGROUND

A. Legal Context

¶9 Historical context helps frame the Petitioners' claims

by illustrating the one person, one vote principle. The phrase

"one person, one vote" is a relatively modern expression, but the

concept of equal representation by population, as well as its

alternatives, were familiar at the founding. In eighteenth-

century England, over half of the members of the House of Commons

were elected from sparsely populated districts, later branded the

"rotten boroughs." Such a system of representation undermined

popular sovereignty. 5 T.H.B. Oldfield, The Representative

History of Great Britain and Ireland 219 (1816) ("The great Earl of Chatham called these boroughs the excrescences, the rotten part

of the constitution, which must be amputated to save the body from

a mortification.").

¶10 In contrast, representation by population gives an area

with a larger population more influence in the legislative body

than an area with a smaller population. Our nation's founders

enshrined this principle in Article I, Section 2 of the United

States Constitution. Its third clause specifies that the House of Representatives, unlike its predecessor, the House of Commons,

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must be apportioned "among the several States . . . according to

their respective Numbers[.]" To account for population shifts, it

requires the federal government to conduct a census every ten years

and then reapportion representatives. U.S. Const. art. I, § 2,

cl. 3.

¶11 The Framers established a bicameral legislature. They

viewed per capita representation in the House of Representatives

as essential to the preservation of the people's liberty. The

Federalist No. 52, at 327 (James Madison) (Clinton Rossiter ed.,

1961). With respect to the Senate, the Framers enshrined the

concept of state sovereignty by allocating senators equally among

the states, regardless of population size. See U.S. Const. art.

I, § 3, cl. 1 ("The Senate of the United States shall be composed

of two Senators from each State."). Accordingly, Senate seats are

unaffected by redistricting.

¶12 Redistricting involves many political choices, and the

United States Constitution does not substantially constrain state

legislatures' discretion to decide how congressional elections are conducted. See U.S. Const. art. I, § 4. Nevertheless,

redistricting must comply with the one person, one vote principle.

Wesberry v. Sanders, 376 U.S. 1, 7–8 (1964). Even if a state does

not gain or lose congressional seats, redistricting is often a

constitutional imperative after each census due to geographic

population shifts.

¶13 Wisconsin's founders also guaranteed equal

representation by population in our state constitution, which places an affirmative duty on the legislature to implement

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redistricting plans for the state legislature every ten years,

after the federal census, to account for population shifts. Wis.

Const. art. IV, § 3. No provision of the Wisconsin Constitution

requires the legislature to apportion or district anew the state's

congressional districts.4 Other federal and state laws, discussed

in more detail in the remainder of this opinion, place further

limitations on the legislature's discretion when implementing

redistricting plans.

B. The 2020 Census

¶14 The legislature enacted the current maps in 2011. 2011

Wis. Act 44; 2011 Wis. Act 43. Wisconsin's eight congressional

districts are mapped in Wis. Stat. §§ 3.11 to 3.18 (2019–20).5 See

also Wis. Stat. § 3.001 ("This state is divided into 8

congressional districts."). The state's 99 assembly districts are

mapped in Wis. Stat. §§ 4.01 to 4.99, although a federal district

court made a slight adjustment to Assembly Districts 8 and 9 after

concluding the map violated the VRA. Baldus, 862 F. Supp. 2d at

863. The state's 33 senate districts are mapped in Wis. Stat. § 4.009. See also Wis. Stat. § 4.001 ("This state is divided into

33 senate districts, each composed of 3 assembly districts.").

¶15 In August 2021, the United States Census Bureau

delivered redistricting data to the State of Wisconsin based upon

The Petitioners agree this court has never held any 4

provision of the Wisconsin Constitution imposes a one person, one vote requirement on congressional districts. Omnibus Am. Pet., ¶1 n.2.

All subsequent references to the Wisconsin Statutes are to 5

the 2019–20 version.

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the 2020 census. According to census data, the population of

Wisconsin grew from 5,686,986 to 5,893,718. In order to realize

equal legislative representation across districts, the ideal

congressional district should have 736,715 people, the ideal

assembly district should have 59,533, and the ideal senate district

should have 178,598. While the ideal size of each district has

changed, the number of districts remains the same. Wisconsin has

not lost or gained any congressional seats, and the number of

assembly and senate districts is set by Wisconsin statutes. Wis.

Stat. §§ 3.001, 4.001.

¶16 The Wisconsin voters and many intervenors live in

malapportioned districts, meaning they live in districts that are

overpopulated. For example, one Wisconsin voter, Johnson, lives

in Assembly District 78, which has a population of 66,838——7,305

more than ideal. If the districts are not reapportioned, Johnson's

vote will be diluted in the ensuing elections.

C. The Impasse

¶17 On November 11, 2021, the legislature passed redistricting plans. One week later, the governor vetoed the

legislation. The legislature has failed to override his veto.

¶18 At this point, the political branches have reached an

impasse, and our involvement in redistricting has become

appropriate. See Johnson v. WEC, No. 2021AP1450-OA, unpublished

order, at 2 (Wis. Sept. 22, 2021, amended Sept. 24) (per curiam)

(granting the petition for leave to commence an original action)

("[J]udicial relief becomes appropriate in reapportionment cases only when a legislature fails to reapportion according to

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constitutional requisites in a timely fashion after having had an

adequate opportunity to do so." (citation omitted)). The parties

present diametrically opposed views regarding the manner in which

this court should remedy what all parties agree is an

unconstitutional malapportionment of congressional and state

legislative districts.

¶19 Notwithstanding a history of judicial involvement in

redistricting, in our constitutional order it remains the

legislature's duty. State ex rel. Reynolds v. Zimmerman (Zimmerman

I), 22 Wis. 2d 544, 569–70, 126 N.W.2d 551 (1964). Article IV,

Section 3 of the Wisconsin Constitution commands, "[a]t 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." "The Framers in their wisdom entrusted this

decennial exercise to the legislative branch because the give-and-

take of the legislative process, involving as it does

representatives elected by the people to make precisely these sorts of political and policy decisions, is preferable to any other."

Jensen v. Wis. Elections Bd., 2002 WI 13, ¶10, 249 Wis. 2d 706,

639 N.W.2d 537 (per curiam). The political process failed this

year, necessitating our involvement. As should be self-evident

from this court's lack of legislative power, any remedy we may

impose would be in effect only "until such time as the legislature

and governor have enacted a valid legislative apportionment plan."

State ex rel. Reynolds v. Zimmerman (Zimmerman II), 23 Wis. 2d 606, 606, 128 N.W.2d 16 (1964) (per curiam).

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III. OUR REVIEW

A. Exercising Our Original Jurisdiction

¶20 We review this case under our original jurisdiction

conferred by Article VII, Section 3(2) of the Wisconsin

Constitution, pursuant to which "[t]he supreme court . . . may

hear original actions and proceedings." Generally, we exercise

our original jurisdiction when the case concerns "the sovereignty

of the state, its franchises or prerogatives, or the liberties of

its people." Petition of Heil, 230 Wis. 428, 436, 284 N.W. 42

(1938) (per curiam) (quoting Att'y Gen. v. Chi. & N.W. Ry., 35

Wis. 425, 518 (1874)). We granted the petition in this case

because "[t]here is no question . . . that this matter warrants

this court's original jurisdiction; any reapportionment or

redistricting case is, by definition publici juris, implicating

the sovereign rights of the people of this state." Jensen, 249

Wis. 2d 706, ¶17 (citing Heil, 230 Wis. at 443).

B. Principles of Interpretation

¶21 This case requires us to interpret the United States Constitution and the Wisconsin Constitution. "Issues of

constitutional interpretation . . . are questions of law." James

v. Heinrich, 2021 WI 58, ¶15, __ Wis. 2d __, 960 N.W.2d 350

(citation omitted). We are bound by United States Supreme Court

precedent interpreting the United States Constitution. State v.

Jennings, 2002 WI 44, ¶18, 252 Wis. 2d 228, 647 N.W.2d 142

(citation omitted). As the state's highest court, we are "the

final arbiter of questions arising under the Wisconsin Constitution[.]" Jensen, 249 Wis. 2d 706, ¶25.

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¶22 Our goal when we interpret the Wisconsin Constitution is

"to give effect to the intent of the framers and of the people who

adopted it[.]" State v. Cole, 2003 WI 112, ¶10, 264 Wis. 2d 520,

665 N.W.2d 328 (quotation marks and citations omitted). "[W]e

focus on the language of the adopted text and historical evidence

[of its meaning] 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.'" State v.

Halverson, 2021 WI 7, ¶22, 395 Wis. 2d 385, 953 N.W.2d 847 (quoting

Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶28 n.10, 393

Wis. 2d 38, 946 N.W.2d 35).

¶23 This case also requires interpretation of statutory

provisions governing redistricting. "Issues of statutory

interpretation and application present questions of law." James,

__ Wis. 2d __, ¶15 (citation omitted).

IV. DISCUSSION

A. Relevant Considerations Under Federal and State Law 1. Federal Constitutional Requirements

¶24 Both federal and state laws regulate redistricting.

Article I, Section 2 of the United States Constitution requires

members of the House of Representatives to be chosen "by the People

of the several states." The United States Supreme Court construed

this section to mean "that as nearly as is practicable one man's

vote in a congressional election is to be worth as much as

another's." Wesberry, 376 U.S. at 7–8. Similarly, the United States Supreme Court held, "the Equal Protection Clause requires

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that a State make an honest and good faith effort to construct

districts, in both houses of its legislature, as nearly of equal

population as practicable." Reynolds v. Sims, 377 U.S. 533, 577

(1964); see also Maryland Comm. for Fair Representation v. Tawes,

377 U.S. 656, 674–75 (1964) (holding even state senate districts

must comply with the one person, one vote principle).

¶25 As a matter of federal constitutional law, the one

person, one vote principle applies more forcefully to

congressional districts than to state legislative districts. The

United States Supreme Court declared: "[There is] no excuse for

the failure to meet the objective of equal representation for equal

numbers of people in congressional districting other than the

practical impossibility of drawing equal districts with

mathematical precision." Mahan v. Howell, 410 U.S. 315, 322

(1973). "[P]opulation alone" is the "sole criterion of

constitutionality in congressional redistricting under Art. I,

§ 2[.]" Id. For congressional districts, even less than a one

percent difference between the population of the largest and smallest districts is constitutionally suspect. Karcher v.

Dagget, 462 U.S. 725, 727 (1983). "[A]bsolute population

equality" is "the paramount objective." Abrams v. Johnson, 521

U.S. 74, 98 (1997) (quoting Karcher, 462 U.S. at 732).

¶26 In contrast, the Equal Protection Clause, as applied to

state legislative districts, imposes a less exacting one person,

one vote principle. Mahan, 410 U.S. at 322. Consistent with

principles of federalism, states have limited flexibility to pursue other legitimate policy objectives, such as "maintain[ing]

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the integrity of various political subdivisions" and "provid[ing]

for compact districts of contiguous territory." Brown v. Thomson,

462 U.S. 835, 842 (1983) (quoting Reynolds, 377 U.S. at 578)

(modifications in the original).

2. Federal Statutes

¶27 Federal statutes also govern redistricting. 2 U.S.C.

§ 2c prohibits multimember congressional districts. See also Wis.

Stat. § 3.001 (same). The VRA prohibits the denial or abridgment

of the right to vote on account of race, color, or membership in

a language minority group, which implicates redistricting

practices. It provides, in relevant part:

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 10303(f)(2)[, which protects language minority groups,] of this title, as provided in subsection (b).

(b) A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population. 52 U.S.C. § 10301. The "dispersal" of a minority group among

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several districts can render the group an "ineffective" voting

bloc. Cooper v. Harris, 137 S. Ct. 1455, 1464 (2017) (quoting

Thornburg v. Gingles, 478 U.S. 30, 46 n.11 (1986)). Such a result

may violate the VRA, even if the map drawers lacked discriminatory

intent. Thornburg, 478 U.S. at 71. All parties in this case agree

we should ensure any remedy we impose satisfies the requirements

of the VRA.

3. Wisconsin Constitutional Requirements

¶28 Via the Wisconsin Constitution, the people of Wisconsin

have imposed additional requirements on redistricting. Article

IV, Section 3 of the Wisconsin Constitution provides, "[a]t its

first session after each enumeration made by the authority of the

United States," i.e., the census, "the legislature shall apportion

and district anew the members of the senate and assembly, according

to the number of inhabitants." (Emphasis added.) As we stated in

our seminal decision in State ex rel. Attorney General v.

Cunningham:

It is proper to say that perfect exactness in the apportionment, according to the number of inhabitants, is neither required nor possible. But there should be as close an approximation to exactness as possible, and this is the utmost limit for the exercise of legislative discretion. 81 Wis. 440, 484, 51 N.W. 724 (1892). Our decision in Cunningham

comports with the provision's original meaning.

¶29 The one person, one vote principle had been

"germinating" since the nation's founding——although the phrase is

a twentieth-century invention. James A. Gazell, One Man, One Vote: Its Long Germination, 23 W. Pol. Q. 445, 462 (1970). As a delegate

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to the federal constitutional convention, founding father James

Wilson was an outspoken advocate for equal representation by

population: "[E]qual numbers of people ought to have an equal no.

of representatives. . . . Representatives of different districts

ought clearly to hold the same proportion to each other, as their

respective constituents hold to each other." 1 The Records of the

Federal Convention of 1787 179–80 (Max Farrand ed., 1911)

(statement of James Wilson, Penn.); see also James Wilson, Of the

Constitutions of the United States and of Pennsylvania——Of the

Legislative Department (1790–91), in 2 The Works of the Honourable

James Wilson, L.L.D., 117, 129 (1804) ("Elections are equal, when

a given number of citizens, in one part of the state, choose as

many representatives, as are chosen by the same number of citizens,

in any other part of the state.").

¶30 In choosing per capita representation for the House of

Representatives, the founders rejected England's infamous rotten

boroughs:

The number of inhabitants in the two kingdoms of England and Scotland cannot be stated at less than eight million. The representatives of these eight millions in the House of Commons amount to five hundred and fifty-eight. Of this number, one ninth are elected by three hundred and sixty-four persons, and one half, by five thousand seven hundred and twenty-three persons. It cannot be supposed that the half thus elected . . . can add any thing either to the security of the people against the government, or to the knowledge of their circumstances and interests in the legislative councils. The Federalist No. 56, at 349 (James Madison). In contrast, the

equal proportion of representation prescribed by the Constitution "will render the [House of Representatives] both a safe and

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competent guardian of the interests which will be confined to it."

Id. at 350.

¶31 The Northwest Ordinance of 1787 further evidences the

founders' regard for equal representation by population. It

states, in relevant part, "[t]he inhabitants of the said territory

shall always be entitled to . . . a proportionate representation

of the people in the legislature[.]" Northwest Ordinance § 14,

art. 2 (1787). Its enactment guaranteed the equality of

representation for newly admitted states.

¶32 In the first redistricting case this court decided, a

concurring justice referenced the Northwest Ordinance.

Cunningham, 81 Wis. at 512 (Pinney, J., concurring). He explained

the phrase "according to the number of inhabitants" in Article IV,

Section 3 of the Wisconsin Constitution was "intended to secure in

the future" a pre-existing right of the people, specifically,

"'proportionate representation,' and apportionment 'as nearly

equal as practicable among the several counties for the election

of members' of the legislature[.]" Id. ¶33 Early legislative redistricting practices confirm this

original meaning. Id. In 1851, the state's first governor, Nelson

Dewey, vetoed the legislature's first redistricting plan,

explaining in his veto message:

I object to the provisions of this bill, because the apportionment in many cases, is not made upon the constitutional basis. A comparison of some of the senatorial districts with the ratio and with each other, will clearly present its unconstitutional features. 1851 Wis. Assemb. J. 810. Consistent with its federal counterpart,

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Article IV, Section 3 of the Wisconsin Constitution gives the

legislature the duty to enact a redistricting plan after each

federal census to prevent one person's vote——in an underpopulated

district——from having more weight than another's in an overly

populated district. Zimmerman I, 22 Wis. 2d at 564–69.

¶34 In addition to proportional representation by

population, the Wisconsin Constitution establishes principles of

"secondary importance" that circumscribe legislative discretion

when redistricting. Wis. State AFL-CIO v. Elections Bd., 543

F. Supp. 630, 635 (E.D. Wis. 1982). In this case, the parties

raise only malapportionment claims; no one claims the current maps

violate one of these secondary principles. Nevertheless, in

remedying the alleged harm, we must be mindful of these secondary

principles so as not to inadvertently choose a remedy that solves

one constitutional harm while creating another.

¶35 Article IV, Section 4 of the Wisconsin Constitution

directs assembly districts "be bounded by county, precinct, town

or ward lines[.]" Applying the one person, one vote principle may make bounding districts by county lines nearly impossible. See

Wis. State AFL-CIO, F. Supp. at 635 (stating the maintenance of

county lines is "incompatib[le] with population equality"); see

also 58 Wis. Att'y Gen. Op. 88, 91 (1969) ("[T]he Wisconsin

Constitution no 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."). Nonetheless, the smaller the political subdivision, the easier it may be to preserve its boundaries. See

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Baumgart v. Wendelberger, No. 01-C-0121, 2002 WL 34127471, at *3

(E.D. Wis. May 30, 2002) ("Although avoiding the division of

counties is no longer an inviolable principle, respect for the

prerogatives of the Wisconsin Constitution dictate that wards and

municipalities be kept whole where possible.").

¶36 Article IV, Section 4 of the Wisconsin Constitution

further commands assembly districts be "contiguous," which

generally means a district "cannot be made up of two or more pieces

of detached territory." State ex rel. Lamb v. Cunningham, 83

Wis. 90, 148, 53 N.W. 35 (1892). If annexation by municipalities

creates a municipal "island," however, the district containing

detached portions of the municipality is legally contiguous even

if the area around the island is part of a different district.

Prosser v. Elections Bd., 793 F. Supp. 859, 866 (W.D. Wis. 1992).

¶37 Article IV, Section 4 of the Wisconsin Constitution also

requires assembly districts to be "in as compact form as

practicable[.]" We have never adopted a particular measure of

compactness, but the constitutional text furnishes some latitude in meeting this requirement. Additionally, Article IV, Section 4

prohibits multi-member assembly districts; therefore, each

district may have only a single representative. Finally, Article

IV, Section 5 states no assembly district can be "divided in the

formation of a senate district," and senate districts must consist

of "convenient contiguous territory" with each senate district

served by only a single senator.

¶38 In summary, the Wisconsin Constitution "commits the state to the principle of per capita equality of representation

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subject only to some geographical limitations in the execution and

administration of this principle." Zimmerman I, 22 Wis. 2d at

556. In determining a judicial remedy for malapportionment, we

will ensure preservation of these justiciable and cognizable

rights explicitly protected under the United States Constitution,

the VRA, or Article IV, Sections 3, 4, or 5 of the Wisconsin

Constitution.

B. This Court Will Not Consider the Partisan Makeup of Districts ¶39 The simplicity of the one person, one vote principle,

its textual basis in our constitution, and its long history stand

in sharp contrast with claims that courts should judge maps for

partisan fairness, a concept untethered to legal rights. The

parties have failed to identify any judicially manageable

standards by which we could determine the fairness of the partisan

makeup of districts, nor have they identified a right under the

Wisconsin Constitution to a particular partisan configuration.

Because partisan fairness presents a purely political question, we will not consider it.

1. Partisan Fairness Is a Political Question ¶40 "Sometimes, . . . 'the law is that the judicial

department has no business entertaining [a] claim of unlawfulness—

—because the question is entrusted to one of the political branches

or involves no judicially enforceable rights.'" Rucho, 139 S. Ct.

at 2494 (quoting Vieth v. Jubelirer, 541 U.S. 267, 277 (2004)

(plurality)). For this reason, "political questions" are non- justiciable, that is, "outside the courts' competence[.]" Id.

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(quoting Baker v. Carr, 369 U.S. 186, 217 (1962)). Whether a map

is "fair" to the two major political parties is quintessentially

a political question because: (1) there are no "judicially

discoverable and manageable standards" by which to judge partisan

fairness; and (2) the Wisconsin Constitution explicitly assigns

the task of redistricting to the legislature——a political body.

See Baker, 369 U.S. at 217.

¶41 The lack of standards by which to judge partisan fairness

is obvious from even a cursory review of partisan gerrymandering

jurisprudence. Partisan "gerrymandering" is "[t]he practice of

dividing a geographical area into electoral districts, often of

highly irregular shape, to give one political party an unfair

advantage by diluting the opposition's voting strength."

Gerrymandering, Black's Law Dictionary (11th ed. 2019). The United

States Supreme Court declared partisan gerrymandering claims to be

non-justiciable under the United States Constitution, and the very

existence of such claims is doubtful. Rucho, 139 S. Ct. 2484;

Vieth, 541 U.S. 267. See generally Daniel H. Lowenstein, Vieth's Gap: Has the Supreme Court Gone from Bad to Worse on Partisan

Gerrymandering, 14 Cornell J.L. & Pub. Pol'y 367 (2005). Writing

for the Court in Rucho v. Common Cause, Chief Justice Roberts noted

at the outset the Court has never struck down a map as an

unconstitutional partisan gerrymander and acknowledged that

several decades of searching for a judicially manageable standard

by which to judge maps' partisan fairness had been in vain. 139

S. Ct. at 2491.

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¶42 "Partisan gerrymandering claims invariably sound in a

desire for 'proportional representation.'" Id. at 2499. Advocated

by several parties in this case, proportional representation is

the political theory that a party should win a percentage of seats,

on a statewide basis, that is roughly equal to the percentage of

votes it receives. See Proportional representation, Black's Law

Dictionary. This theory has no grounding in American or Wisconsin

law or history, and it directly conflicts with traditional

redistricting criteria. Davis v. Bandemer, 478 U.S. 109, 145

(1986) (O'Connor, J., concurring in judgment), abrogated on other

grounds by Rucho, 139 S. Ct. 2484. "It hardly follows from the

principle that each person must have an equal say in the election

of representatives that a person is entitled to have his political

party achieve representation in some way commensurate to its share

of statewide support." Rucho, 139 S. Ct. at 2501.

¶43 To begin with, measuring a state's partisan divide is

difficult. Wisconsin does not have party registration, so voters

never formally disclose their party membership at any point in the electoral process. Democratic Party v. Wisconsin, 450 U.S. 107,

110–11 (1981). According to one recent survey, more than one-

third of Wisconsinites self-identify as independents, affiliating

themselves with no party at all. Marquette Law School Poll (Aug.

3–8, 2021), https://law.marquette.edu/poll/wp-

content/uploads/2021/10/MLSP66Toplines.html.

¶44 Even if a state's partisan divide could be accurately

ascertained, what constitutes a "fair" map poses an entirely subjective question with no governing standards grounded in law.

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"Deciding among . . . different visions of fairness . . . poses

basic questions that are political, not legal. There are no legal

standards discernable in the Constitution for making such

judgements[.]" Rucho, 139 S. Ct. at 2500. Nor does the Wisconsin

Constitution provide any such standards.

¶45 The people have never consented to the Wisconsin

judiciary deciding what constitutes a "fair" partisan divide;

seizing such power would encroach on the constitutional

prerogatives of the political branches. Vieth, 541 U.S. at 291.

In contrast to legislative or executive action, "'judicial action

must be governed by standard, by rule,' and must be 'principled,

rational, and based upon reasoned distinctions' found in the

Constitution or laws." Rucho, 139 S. Ct. at 2507 (quoting Vieth,

541 U.S. at 278–79). Nothing in the Wisconsin Constitution

authorizes this court to recast itself as a redistricting

commission in order "to make [its] 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." Id. at 2499.

¶ 46 Nothing in the United States Constitution or the

Wisconsin Constitution commands "that farmers or urban dwellers,

Christian fundamentalists or Jews, Republicans or Democrats, must

be accorded political strength proportionate to their numbers[.]"

Vieth, 541 U.S. at 288; see also id. at 308 (Kennedy, J.,

concurring in judgment) (stating there is "no authority" for the

notion that a Democrat majority of voters in Pennsylvania should be able to elect a Democrat majority of Pennsylvania's

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congressional delegation); Nathaniel Persily, In Defense of Foxes

Guarding Henhouses: The Case for Judicial Acquiescence to

Incumbent-Protecting Gerrymanders, 116 Harv. L. Rev. 649, 672–73

(2002) ("So long as the state's majority has its advocate in the

executive, is it necessarily true that the state's majority should

control the legislature as well?").

¶47 Not only is a right to proportional party representation

nonexistent in either constitution but the theory conflicts with

principles that are constitutionally protected. The theory is

irreconcilable with the requirement that congressional and state

legislative districts be single-member districts. See 2 U.S.C.

§ 2c; Wis. Const. art. IV, §§ 4–5. For state legislative

districts, the theory is particularly ill suited because Article

IV of the Wisconsin Constitution specifies requirements that favor

the preservation of communities of interest, irrespective of

individual partisan alignment. See Wis. Const. art. IV, §§ 4–5

(explaining state assembly districts must be compact, contiguous,

and respect political boundary lines and state senate districts must be contiguous and not divide assembly districts in their

formation); Prosser, 793 F. Supp. at 863 (stating there is a

"correlation between geographical propinquity and community of

interest, and therefore compactness and contiguity are desirable

features in a redistricting plan").

¶48 A proportional party representation requirement would

effectively force the two dominant parties to create a "bipartisan"

gerrymander to ensure the "right" outcome——obliterating many traditional redistricting criteria mandated by federal law and

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Article IV of the Wisconsin Constitution. See 2 U.S.C. § 2c; Wis.

Const. art. IV, §§ 4–5. Democrats tend to live close together in

urban areas, whereas Republicans tend to disperse into suburban

and rural areas. See Baumgart, 2002 WL 34127471, at *6 ("Wisconsin

Democrats tend to be found in high concentrations in certain

areas[.]"). As a result, drawing contiguous and compact single-

member districts of approximately equal population often leads to

grouping large numbers of Democrats in a few districts and

dispersing rural Republicans among several. These requirements

tend to preserve communities of interest, but the resulting

districts may not be politically competitive——at least if the

competition is defined as an inter- rather than intra-party

contest. Davis, 478 U.S. at 159; see also Larry Alexander &

Saikrishna B. Prakash, Tempest in an Empty Teapot: Why the

Constitution Does Not Regulate Gerrymandering, 50 Wm. & Mary L.

Rev. 1, 42 n.117 (2008) (explaining "competitive primaries" often

produce "responsiveness, accountability, and 'ritual cleansing'").

Democrats in urban cities may win by large margins, thereby skewing the proportion of Democrat votes statewide relative to the

proportion of Democrat victories.

¶49 Perhaps the easiest way to see the flaw in proportional

party representation is to consider third party candidates.

Constitutional law does not privilege the "major" parties; if

Democrats and Republicans are entitled to proportional

representation, so are numerous minor parties. If Libertarian

Party candidates receive approximately five percent of the statewide vote, they will likely lose every election; no one deems

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this result unconstitutional. The populace that voted for

Libertarians is scattered throughout the state, thereby depriving

them of any real voting power as a bloc, regardless of how lines

are drawn. See Robert Redwine, Comment, Constitutional Law:

Racial and Political Gerrymandering——Different Problems Require

Different Solutions, 51 Okla. L. Rev. 373, 396–97 (1998). Only

meandering lines, which could be considered a gerrymander in their

own right, could give the Libertarians (or any other minor party)

a chance. Proportional partisan representation would require

assigning each third party a "fair" share of representatives (while

denying independents any allocation whatsoever), but doing so

would in turn require ignoring redistricting principles explicitly

codified in the Wisconsin Constitution.

¶50 To sacrifice textually grounded requirements designed to

safeguard communities of interest in favor of proportional

representation between dominant political parties mandated nowhere

in the constitution would ignore not only the text but its history.

"The roots of Anglo-American political representation lie in the representation of communities[.]" James A. Gardner, One Person,

One Vote and the Possibility of Political Community, 80 N.C. L.

Rev. 1237, 1243 (2002). "The idea that the political interests of

communal groups of individuals correlated strongly with territory

served, for example, as an axiom in Madison's famous defense of

the large republic in The Federalist No. 10." James A. Gardner,

Foreword, Representation Without Party: Lessons from State

Constitutional Attempts to Control Gerrymandering, 37 Rutgers L.J. 881, 935 (2006). Proportional party representation is simply

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incompatible with the constitutionally prescribed form of

representative government chosen by the people of Wisconsin.

¶51 The Wisconsin Constitution's "textually demonstrable

constitutional commitment" to confer the duty of redistricting on

the state legislature evidences the non-justiciability of partisan

gerrymandering claims. Baker, 369 U.S. at 217. Article IV,

Section 3 of the Wisconsin Constitution unequivocally assigns the

task of redistricting to the legislature, leaving no basis for

claiming that partisanship in redistricting raises constitutional

concerns. "[P]artisan intent is not illegal, but is simply the

consequence of assigning the task of redistricting to the political

branches of government." Whitford v. Gill, 218 F. Supp. 3d 837,

939 (W.D. Wis. 2016) (Griesbach, J., dissenting), rev'd sub nom.,

Gill v. Whitford, 138 S. Ct. 1916 (2018). "[P]oliticians pass

many statutes with an eye toward securing their elections and

giving their party a leg up on the competition. Gerrymandered

districts are no different in kind." Alexander & Prakash, Tempest

in an Empty Teapot, at 7. ¶52 The Wisconsin Constitution, like its federal

counterpart, "clearly contemplates districting by political

entities, . . . and unsurprisingly . . . [districting] turns out

to be root-and-branch a matter of politics." Vieth, 541 U.S. at

285 (citations omitted). For the same reasons cited by the United

States Supreme Court, we "have no license to reallocate political

power between the two major political parties," because "no legal

standards [exist] to limit and direct [our] decisions." Rucho, 139 S. Ct. at 2507. The Wisconsin Constitution contains "no

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plausible grant of authority" to the judiciary to determine whether

maps are fair to the major parties and the task of redistricting

is expressly assigned to the legislature. Id. Adjudicating claims

of "too much" partisanship in the redistricting process would

recast this court as a policymaking body rather than a law-

declaring one.

2. The Wisconsin Constitution Says Nothing About Partisan Gerrymandering ¶53 The United States Supreme Court has been unable to

identify "what it is in the Constitution that . . . might be

offended by partisan gerrymandering." Lowenstein, Vieth's Gap, at

369. We are told if we look hard enough, we will find a right to

partisan fairness in Article I, Sections 1, 3, 4, or 22 of the

Wisconsin Constitution. Having searched in earnest, we conclude

the right does not exist. As the United States Supreme Court

explained when it considered a partisan gerrymandering challenge

to Wisconsin's current state legislative maps, courts are "not

responsible for vindicating generalized partisan preferences." Gill, 138 S. Ct. at 1933.

¶54 The first section in the Wisconsin Constitution's

Declaration of Rights states: "All people are born equally free

and independent, and have certain inherent rights; among these are

life, liberty and the pursuit of happiness; to secure these rights,

governments are instituted, deriving their just powers from the

consent of the governed." Wis. Const. art. I, § 1. This section

enshrines a first principle of our nation's founding: "[T]he only source of political power is in the people; . . . they are

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sovereign, that is to say, the aggregate community, the accumulated

will of the people, is sovereign[.]" Cunningham, 81 Wis. at 497.

¶55 Article I, Section 1 of the Wisconsin Constitution has

nothing to say about partisan gerrymanders. "The idea that

partisan gerrymandering undermines popular sovereignty because the

legislature rather than the people selects representatives is

rhetorical hyperbole masked as constitutional argument. When

legislatures draw districts, they in no way select who will occupy

the resulting seats." Alexander & Prakash, Tempest in an Empty

Teapot, at 43. Voters retain their freedom to choose among

candidates irrespective of how district lines are drawn. Id.

¶56 Contriving a partisan gerrymandering claim from the text

of the Wisconsin Constitution (aside from overstepping our

judicial role) would require us to indulge a fiction——that partisan

affiliation is permanent and invariably dictates how a voter casts

every ballot. Of course, political affiliation "is not an

immutable characteristic, but may shift from one election to the

next[.]" Vieth, 541 U.S. at 287. "[V]oters can——and often do—— move from one party to the other[.]" Davis, 478 U.S. at 156. Not

only is political affiliation changeable, but self-identified

partisans can——and do——vote for a different party's candidates.

¶57 If the constitution were misinterpreted to make

changeable characteristics relevant factors in evaluating

redistricting plans, "we fail to see why it demands only a partisan

political mix." Alexander & Prakash, Tempest in an Empty Teapot,

at 21. "[W]hy would a Constitution that never mentions political parties, much less Republicans[] [and] Democrats . . . grant

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special status to partisan identity?" Id. If we opened the

floodgates, what would stop claims seeking proportional

representation for "gun owners" or "vegetarians"? Id. Nothing

distinguishes partisan affiliation from hundreds——perhaps

thousands——of other variables. Id. at 22. Dispositively, none of

these factors are mentioned in the text of the constitution.

¶58 Nothing supports the notion that Article I, Section 1 of

the Wisconsin Constitution was originally understood——or has ever

been interpreted——to regulate partisanship in redistricting.

After discussing the concept of popular sovereignty in Cunningham,

Justice Pinney declared: "The rules of apportionment and the

restrictions upon the power of the legislature are very simple and

brief." 81 Wis. at 511. He then proceeded to discuss only those

requirements found in Article IV of the Wisconsin Constitution.

Id. Regulation of partisanship is not among them.

¶59 Likewise, Article I, Sections 3 and 4 of the Wisconsin

Constitution do not inform redistricting challenges. These

sections state:

Section 3. Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions or indictments for libel, the truth may be given in evidence, and if it shall appear to the jury that the matter charged as libelous be true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.

Section 4. The right of the people peaceably to assemble, to consult for the common good, and to petition

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the government, or any department thereof, shall never be abridged. Collectively, these sections protect four related freedoms:

(1) freedom of speech; (2) freedom of the press; (3) freedom of

assembly; and (4) freedom of petition. The First Amendment of the

United States Constitution also secures these rights.

¶60 Nothing about the shape of a district infringes anyone's

ability to speak, publish, assemble, or petition. Even after the

most severe partisan gerrymanders, citizens remain free to "run

for office, express their political views, endorse and campaign

for their favorite candidates, vote, and otherwise influence the

political process through their expression." Radogno v. Ill. State

Bd. of Elections, No. 11-CV-04884, 2011 WL 5025251 at *7 (N.D.

Ill. Oct. 21, 2011) (quoted source omitted).

¶61 Parties urging us to consider partisan fairness appear

to desire districts drawn in a manner ensuring their political

speech will find a receptive audience; however, nothing in either

constitution gives rise to such a claim. "The first amendment's

protection of the freedom of association and of the rights to run for office, have one's name on the ballot, and present one's views

to the electorate do not also include entitlement to success in

those endeavors. The carefully guarded right to expression does

not carry with it any right to be listened to, believed or

supported in one's views." Washington v. Finlay, 664 F.2d 913,

927–28 (4th Cir. 1981). Associational rights guarantee the freedom

to participate in the political process; they do not guarantee a favorable outcome. See Badham v. Eu, 694 F. Supp. 664, 675 (N.D.

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Cal. 1988). As the United States Supreme Court has explained,

"[n]one of our cases establishes an individual's right to have a

'fair shot' at winning[.]" New York State Bd. of Elections V.

Torres, 552 U.S. 196, 205 (2008). Nor does the constitution.

¶62 Article I, Section 22 of the Wisconsin Constitution

provides: "[t]he blessings of a free government can only be

maintained by a firm adherence to justice, moderation, temperance,

frugality and virtue, and by frequent recurrence to fundamental

principles." Wis. Const. art. I, § 22. To fabricate a legal

standard of partisan "fairness"——§ 22 does not supply one——would

represent anything but "moderation" or "temperance[.]" Whatever

operative effect Section 22 may have, it cannot constitute an open

invitation to the judiciary to rewrite duly enacted law by imposing

our subjective policy preferences in the name of "justice[.]"

¶63 Unlike the Declaration of Rights, Article IV,

Sections 3, 4, and 5 of the Wisconsin Constitution express a series

of discrete requirements governing redistricting. These are the

only Wisconsin constitutional limits we have ever recognized on the legislature's discretion to redistrict. The last time we

implemented a judicial remedy for an unconstitutional

redistricting plan, we acknowledged Article IV as the exclusive

repository of state constitutional limits on redistricting:

[T]he Wisconsin constitution itself provides a standard of reapportionment 'meet [sic] for judicial judgment.' The legislature shall reapportion 'according to the number of inhabitants' subject to some geographical and political unit limitations in execution of this standard. We need not descend into the 'thicket' to fashion standards whole-cloth.

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Zimmerman I, 22 Wis. 2d at 562 (emphasis added) (quoted sources

omitted). In other words, the standards under the Wisconsin

Constitution that govern redistricting are delineated in Article

IV. To construe Article I, Sections 1, 3, 4, or 22 as a reservoir

of additional requirements would violate axiomatic principles of

interpretation, see James, __ Wis. 2d __, ¶¶21–22, while plunging

this court into the political thicket lurking beyond its

constitutional boundaries. Zimmerman I, 22 Wis. 2d at 562.

C. We Will Utilize a "Least-Change" Approach

¶64 The constitutional confines of our judicial authority

must guide our exercise of power in affording the Petitioners a

remedy for their claims. The existing maps were adopted by the

legislature, signed by the governor, and survived judicial review

by the federal courts. See Gill, 138 S. Ct. 1916; Baldus, 862

F. Supp. 2d 860. Treading further than necessary to remedy their

current legal deficiencies, as many parties urge us to do, would

intrude upon the constitutional prerogatives of the political

branches and unsettle the constitutional allocation of power. ¶65 For the paramount purpose of preserving liberty, the

Wisconsin Constitution embodies a structural separation of powers

among the three branches of government, restraining this court

from exercising anything but judicial power. "No political truth

is certainly of greater intrinsic value, or is stamped with the

authority of more enlightened patrons of liberty" than the

separation of powers. The Federalist No. 47, at 301 (James

Madison); see also The Federalist No. 51, at 321–22 (James Madison) ("[The] separate and distinct exercise of the different

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powers of government . . . is admitted on all hands to be essential

to the preservation of liberty."). "While the separation of powers

may prevent us from righting every wrong, it does so in order to

ensure that we do not lose liberty." Morrison v. Olson, 487 U.S.

654, 710 (1988) (Scalia, J., dissenting).

¶66 This court's precedent declares that the legislature's

enactment of a redistricting plan is subject to presentment and a

gubernatorial veto. Zimmerman I, 22 Wis. 2d at 559. If the

legislature and the governor reach an impasse, the judiciary has

a duty to remedy the constitutional defects in the existing plan.

See Zimmerman II, 23 Wis. 2d 606 (implementing a judicially-created

plan). But a duty to remedy a constitutional deficiency is not a

prerogative to make law. See Cunningham, 81 Wis. at 482–83

(majority opinion) (describing the lawmaking prerogative).

¶67 While courts sometimes declare statutes unconstitutional

and may enjoin their enforcement, typically the judiciary does not

order government officials to enforce a modified, constitutional

version of the statute. See generally Gimbel Bros. v. Milwaukee Boston Store, 161 Wis. 489, 496, 154 N.W. 998 (1915) (citing 1

James High, A Treatise on the Law of Injunctions § 2 (edition and

year not specified in the citation)) ("While the power to issue

mandatory injunctions is vested in courts of equity, it is a power

which is sparingly used."). Courts issue mandatory injunctions,

an equitable remedy, "with extreme caution" and "only in cases of

equitable cognizance[.]" 1 James High, A Treatise on the Law of

Injunctions § 2 (4th ed. 1905) (emphasis added). ¶68 Redistricting litigation presents a unique problem.

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Unlike the constitutional monarchies of old England, which could

exist in the absence of Parliament, our republican form of

government presupposes the existence of a legislature. U.S. Const.

art. IV, § 4 ("The United States shall guarantee to every State in

this Union a Republican Form of Government[.]"). If the

legislature and the governor reach an impasse, merely declaring

the maps unconstitutional and enjoining elections pursuant to them

creates an intractable impediment to conducting elections,

imperiling our republican form of government. Judicial action

becomes appropriate to prevent a constitutional crisis. But we

must "limit the solution to the problem." See Ayotte v. Planned

Parenthood of N. New England, 546 U.S. 320, 328 (2006).

¶69 Court involvement in redistricting, as in any other

case, is judicial in nature. In Jensen v. Wisconsin Elections

Board, we stated: "Courts called upon to perform redistricting

are, of course, judicially legislating, that is, writing the law

rather than interpreting it, which is not their usual——and usually

not their proper——role." 249 Wis. 2d 706, ¶10. With few exceptions confined to the judicial sphere——none of which are

relevant to this case——we have no power to "judicially legislate."6

"Safeguarding constitutional limitations on the exercise of

legislative power is particularly important in light of its awesome

sweep." Fabick v. Evers, 2021 WI 28, ¶55, 396 Wis. 2d 231, 956

N.W.2d 856 (Rebecca Grassl Bradley, J., concurring). The people

We have limited legislative power to regulate certain 6

subject matter related to the court system. See, e.g., Rao v. WMA Sec., Inc., 2008 WI 73, ¶35, 310 Wis. 2d 623, 752 N.W.2d 220.

36 No. 2021AP1450-OA2021AP1450-OA

vested the power in the legislature——not the executive and

certainly not the judiciary. Id. "Because the people gave the

legislature its power to make laws, the legislature alone must

exercise it." Id., ¶56.

¶70 "From the very nature of things, the judicial power

cannot legislate nor supervise the making of laws." League of

Women Voters of Wis. v. Evers, 2019 WI 75, ¶35, 387 Wis. 2d 511,

929 N.W.2d 209 (quoting State ex rel. Rose v. Sup. Ct. of Milwaukee

Cnty., 105 Wis. 651, 675, 81 N.W. 1046 (1900)). By design, the

judicial power has long been kept distinct from the legislative

power. See Neil Gorsuch, A Republic, If You Can Keep It 52–53

(Forum Trade Paperback ed., 2020) (2019) ("To the founders, the

legislative and judicial powers were distinct by nature and their

separation was among the most important liberty-protecting devices

of the constitutional design, an independent right of the people

essential to the preservation of all other rights later enumerated

in the Bill of Rights.").

¶71 We have the power to provide a judicial remedy but not to legislate. We have no authority to act as a "super-legislature"

by inserting ourselves into the actual lawmaking function. Flynn

v. Dep't of Admin., 216 Wis. 2d 521, 528–29, 576 N.W.2d 245 (1998)

("If we are to maintain the public's confidence in the integrity

and independence of the judiciary, we must exercise that power

with great restraint, always resting on constitutional principles,

not judicial will. We may differ with the legislature's choices,

as we did and do here, but must never rest our decision on that basis lest we become no more than a super-legislature."). Courts

37 No. 2021AP1450-OA2021AP1450-OA

"lack the authority to make the political decisions that the

Legislature and the Governor can make through their enactment of

redistricting legislation[.]" Hippert v. Ritchie, 813 N.W.2d 374,

380 (Minn. Spec. Redistricting Panel 2012) (citing LaComb v. Growe,

541 F. Supp. 145, 151 (D. Minn. 1982), aff'd sub nom. Orwoll v.

LaComb, 456 U.S. 966). Stated otherwise, "[o]ur only guideposts

are the strict legal requirements."7 In re Legislative Districting

of the State, 805 A.2d 292, 298 (Md. 2002) (emphasis added).

¶72 Because our power to issue a mandatory injunction does

not encompass rewriting duly enacted law, our judicial remedy

"should reflect the least change" necessary for the maps to comport

with relevant legal requirements. See Wright v. City of Albany,

306 F. Supp. 2d 1228, 1237 (M.D. Ga. 2003) (citations omitted).

Using the existing maps "as a template" and implementing only those

remedies necessary to resolve constitutional or statutory

deficiencies confines our role to its proper adjudicative

7 The judiciary lacks the institutional competency to make the kind of factual determinations necessary to properly consider various extra-legal factors. In re Legislative Districting of the State, 805 A.2d 292, 298 (Md. 2002) ("When the Court drafts the plan, it may not take into account the same political considerations as the Governor and the Legislature. Judges are forbidden to be partisan politicians. Nor can the Court stretch the constitutional criteria in order to give effect to broader political judgments, such as . . . the preservation of communities of interest. More basic, it is not for the Court to define what a community of interest is and where its boundaries are, and it is not for the Court to determine which regions deserve special consideration and which do not. . . . Our instruction to the consultants was to prepare for our consideration a redistricting plan that conformed to federal constitutional requirements, the Federal Voting Rights Act, and the requirements of Article III, § 4 of the Maryland Constitution.").

38 No. 2021AP1450-OA2021AP1450-OA

function, ensuring we fulfill our role as apolitical and neutral

arbiters of the law.8 See Baumgart, 2002 WL 34127471, at *7 ("The

court undertook its redistricting endeavor in the most neutral way

it could conceive——by taking the 1992 reapportionment plan as a

template and adjusting it for population deviations."); see also

Robert H. Bork, The Tempting of America: The Political Seduction

of the Law 88–89 (First Touchstone ed. 1991) (1990) (describing

how Robert H. Bork, as special master in a redistricting case,

drew lines without any consideration of the partisan effect of his

remedy). A least-change approach is nothing more than a convenient

way to describe the judiciary's properly limited role in

redistricting.

¶73 The least-change approach is far from a novel idea; many

courts call it the "minimum change doctrine," reflecting its

general acceptance among reasonable jurists. It was applied in

numerous cases during the last two redistricting cycles. See,

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

892 F. Supp. 2d 1333, 1345 (N.D. Ga. 2012) ("In preparing the draft map, the Court began with the existing map drawn by Judge Carnes

in 2002. The Court followed the doctrine of minimum change[.]");

Martin v. Augusta-Richmond Cnty., Ga., Comm'n, No. CV 112-058,

8The legislature asks us to use the maps it passed during this redistricting cycle as a starting point, characterizing them as an expression of "the policies and preferences of the State[.]" Legislature Br. at 16 (quoting White v. Weiser, 412 U.S. 783, 795 (1973)). The legislature's argument fails because the recent legislation did not survive the political process. The existing plans are codified as statutes, without a sunset provision, and have not been supplanted by new law.

39 No. 2021AP1450-OA2021AP1450-OA

2012 WL 2339499, at *3 (S.D. Ga. June 19, 2012) ("Essentially, the

Court is required to change only the faulty portions of the

benchmark plan, as subtly as possible, in order to make the new

plan constitutional. Keeping the minimum change doctrine in mind,

the Court only made changes it deemed necessary to guarantee

substantial equality and to honor traditional redistricting

concerns." (Internal citation omitted)); Stenger v. Kellet, 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. This is called the

'least change' or 'minimal change' method . . . . The 'least

change' method is advantageous because it maintains the continuity

of representation for each district and is by far the simplest way

to reapportion[.]"); Below v. Gardner, 963 A.2d 785, 794 (N.H.

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." (Quotation marks and quoted source

omitted)); Alexander v. Taylor, 51 P.3d 1204, 1211 (Okla. 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."); 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 accordance with the minimum change doctrine."); Markham v. Fulton

40 No. 2021AP1450-OA2021AP1450-OA

Cnty. 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.").

¶74 In declaring this court's role in resolving

redistricting cases, we are mindful that "Wisconsin adheres to the

concept of a nonpartisan judiciary." SCR 60.06(2)(a). "In the

debate over the Wisconsin Constitution, objections to an elected

judiciary had centered upon the dangers of partisanship. The

debate was resolved with the mandate that elections for state

courts be distinctly non-partisan in character." Ellen Langill,

Levi Hubbell and the Wisconsin Judiciary: A Dilemma in Legal

Ethics and Non-Partisan Judicial Elections, 81 Marq. L. Rev. 985,

985 (1998). The Wisconsin Constitution discourages judicial

partisanship. Wis. Const. art. IV, § 9 ("There shall be no

election for a justice or judge at the partisan general election

for state or county officer, nor within 30 days either before or after such election."). Similarly, the Judicial Code of Conduct

prohibits judges from "be[ing] swayed by partisan interests[.]"

SCR 60.04(1)(b).

¶75 To dive into the deepest of "political thicket[s],"9 as

redistricting has been described, with the intention of doing

9Colegrove v. Green, 328 U.S. 549, 556 (1946) (plurality), abrogation recognized by Evenwel v. Abbott, 577 U.S. 937 (2016) ("Courts ought not to enter this political thicket. The remedy for unfairness in districting is to secure State legislatures that will apportion properly, or to invoke the ample powers of 41 No. 2021AP1450-OA2021AP1450-OA

anything more than securing legal rights would be profoundly

incompatible with Wisconsin's commitment to a nonpartisan

judiciary. If a simple majority of this court opted to draw maps

from scratch, thereby fundamentally altering Wisconsin's political

landscape for years, it would significantly "increase the

political pressures on this court in a partisan way that is totally

inconsistent with our jobs as [a] nonpartisan judiciary."

Wisconsin Supreme Court Open Administrative Conference (Open

Administrative Conference), at 33:36 (Jan. 22, 2009) (statements

of Roggensack, J.), https://wiseye.org/2009/01/22/supreme-court-

open-administrative-conference-3/.

¶76 Many intervenors have argued the 2011 maps entrenched a

Republican Party advantage, so using them as a starting point

perpetuates a partisan gerrymander. In other words, these

intervenors argue we must tip the partisan balance to benefit one

party in order to avoid accusations of partisanship. We reject

this demand to "[s]imply undo[] the work of one political party

for the benefit of another[.]" Henderson v. Perry, 399 F. Supp. 2d 756, 768 (E.D. Tex. 2005), rev'd in part on other grounds sub nom.,

League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 420

(2006) (plurality). Endeavoring to rebalance the allocation of

districts between the two major parties would be a decidedly

nonjudicial exercise of partisanship by the court. Instead, we

adopt a neutral standard. While the application of neutral

standards inevitably benefits one side or the other in any case,

Congress.").

42 No. 2021AP1450-OA2021AP1450-OA

it does not place our thumb on any partisan scale, as some

intervenors urge us to do.

¶77 "Putting courts into politics, and compelling judges to

become politicians, in many jurisdictions has almost destroyed the

traditional respect for the Bench." Roscoe Pound, The Causes of

Popular Dissatisfaction with the Administration of Justice (1906),

as reprinted in Roscoe Pound Kindles the Spark of Reform, 57 A.B.A.

J. 348, 351 (1971). A least-change approach safeguards the long-

term institutional legitimacy of this court by removing us from

the political fray and ensuring we act as judges rather than

political actors.

¶78 The judiciary has been repeatedly subject to "purely

political attacks" by people who "did not get the result from the

court . . . [they] wanted." Patience Drake Roggensack, Tough Talk

and the Institutional Legitimacy of Our Courts, Hallows Lecture

(Mar. 7, 2017), in Marq. Law., Fall 2017, at 45, 46. These often

partisan onslaughts threaten the "[i]nstitutional legitimacy" of

the judiciary, which, in turn, threatens the "rule of law" itself. Id. By utilizing the least-change approach, we do not endorse the

policy choices of the political branches; rather, we simply remedy

the malapportionment claims. Attempting to redress the criticisms

of the current maps advanced by multiple intervenors would amount

to a judicial replacement of the law enacted by the people's

elected representatives with the policy preferences of unelected

interest groups, an act totally inconsistent with our republican

form of democracy. ¶79 We close by addressing Article IV, Section 3 of the

43 No. 2021AP1450-OA2021AP1450-OA

Wisconsin Constitution, which says, in each redistricting cycle,

"the legislature shall apportion and district anew[.]" (Emphasis

added.) Focusing on the word "anew," an intervenor and an amicus

curiae argue the court must make maps from scratch.10 Although the

proponents of this interpretation attempt to ground their argument

in the provision's text, they miss the forest for the trees. Read

as a whole, the provision means the legislature must implement a

redistricting plan each cycle and the language cannot reasonably

be read to require the court to make maps at all, let alone from

scratch.

V. CONCLUSION

¶80 This case illustrates the extraordinary danger of asking

the judiciary to exercise "FORCE" and "WILL" instead of legal

"judgment." The Federalist No. 78, at 465 (Alexander Hamilton).

Manufacturing a standard of political "fairness" by which to draw

legislative maps in accordance with the subjective preferences of

judges would refashion this court as a committee of oligarchs with

political power superior to both the legislature and the governor. See In re Review of the Code of Judicial Ethics, SCR Chapter 60,

169 Wis. 2d xv, xxv (1992) (Day, J., concurring, joined by a

majority) ("Tyranny need not be dressed in a military uniform, it

can also wear a black robe!"). Judges must refuse to become

"philosopher kings empowered to 'fix' things according to the

dictates of what we fancy is our superior insight[.]" Tyler v.

Hillsdale Cnty. Sheriff's Dep't, 837 F.3d 678, 707 (6th Cir. 2016)

10 BLOC Br. at 31–36; Whitford Amicus Br. at 5–6.

44 No. 2021AP1450-OA2021AP1450-OA

(Batchelder, J., concurring in part).

¶81 In this case, we will implement judicial remedies only

to the extent necessary to remedy the violation of a justiciable

and cognizable right found in the United States Constitution, the

VRA, or Article IV, Sections 3, 4, or 5 of the Wisconsin

Constitution. We will not consider the partisan makeup of

districts because it does not implicate any justiciable or

cognizable right. We adopt the least-change approach to remedying

any constitutional or statutory infirmities in the existing maps

because the constitution precludes the judiciary from interfering

with the lawful policy choices of the legislature.

By the court.——Rights declared.

45 No. 2021AP1450-OA.bh

¶82 BRIAN HAGEDORN, J. (concurring). To the extent

feasible, a court's role in redistricting should be modest and

restrained. We are not the branch of government assigned the

constitutional responsibility to "apportion and district anew"

after each decennial census; the legislature is.1 The job of the

judiciary is to decide cases based on the law.2 Here, the laws

passed in 2011 establishing legislative and congressional

districts cannot govern future elections as written due to

population shifts. Accordingly, our role is appropriately limited

to altering current district boundaries only as needed to comply

with legal requirements.3 The majority opinion so concludes, and

I join it in almost all respects.4

1 Wis. Const. art. IV, § 3; Jensen v. Wis. Elections Bd., 2002 WI 13, ¶6, 249 Wis. 2d 706, 639 N.W.2d 537. 2 Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶1, 393 Wis. 2d 38, 946 N.W.2d 35. 3 Upham v. Seamon, 456 U.S. 37, 43 (1982) ("Whenever a district court is faced with entering an interim reapportionment order that will allow elections to go forward it is faced with the problem of 'reconciling the requirements of the Constitution with the goals of state political policy.' An appropriate reconciliation of these two goals can only be reached if the district court's modifications of a state plan are limited to those necessary to cure any constitutional or statutory defect." (citation omitted)); White v. Weiser, 412 U.S. 783, 795 (1973) ("In fashioning a reapportionment plan or in choosing among plans, a district court should not pre-empt the legislative task nor 'intrude upon state policy any more than necessary.'" (quoting another source)). 4 I concur in the majority's conclusions that: (1) remedial maps must comply with the United States Constitution; the Voting Rights Act; and Article IV, Sections 3, 4, and 5 of the Wisconsin Constitution; (2) we should not consider the partisan makeup of districts; and (3) our relief should modify existing maps under a least-change approach. I join the entirety of the majority opinion except ¶¶8, 69-72, and 81. The paragraphs I do not join contain 1 No. 2021AP1450-OA.bh

¶83 Where the political process has failed and modified maps

are needed before the next election, the court's function is to

formulate a remedy——one tailored toward fixing the legal

deficiencies.5 The majority opinion asserts that only legal

requirements may be considered in constructing a fitting remedy.

That is not quite correct. Legal standards establish the need for

a remedy and constrain the remedies we may impose, but they are

not the only permissible judicial considerations when constructing

a proper remedy.6 For example, one universally recognized

redistricting criterion is communities of interest.7 It is not a

legal requirement, but it may nonetheless be an appropriate,

language that would foreclose considerations that could be entirely proper in light of the equitable nature of a judicial remedy in redistricting. I address this below.

The dissent uses the term "majority/lead opinion" to reflect that not all paragraphs of the court's opinion reflect the opinion of four justices. While this is true, I use "majority opinion" for ease of use and to convey that the opinion is a majority except in the limited area of disagreement with the paragraphs I do not join. 5North Carolina v. Covington, 137 S. Ct. 1624, 1625 (2017) (per curiam) ("Relief in redistricting cases is 'fashioned in the light of well-known principles of equity.'" (quoting Reynolds v. Sims, 377 U.S. 533, 585 (1964))); New York v. Cathedral Acad., 434 U.S. 125, 129 (1977) ("[I]n constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary, what is fair, and what is workable." (quoting another source)). 6Covington, 137 S. Ct. at 1625 (explaining that a court in a redistricting action "must undertake an 'equitable weighing process' to select a fitting remedy for the legal violations it has identified" and noting "there is much for a court to weigh" (quoting another source)). 7 See Abrams v. Johnson, 521 U.S. 74, 99-100 (1997).

2 No. 2021AP1450-OA.bh

useful, and neutral factor to weigh.8 Suppose we receive multiple

proposed maps that comply with all relevant legal requirements,

and that have equally compelling arguments for why the proposed

map most aligns with current district boundaries. In that

circumstance, we still must exercise judgment to choose the best

alternative. Considering communities of interest (or other

traditional redistricting criteria) may assist us in doing so.9

In other words, while a remedy must be tailored to curing legal

violations, a court is not necessarily limited to considering legal

rights and requirements alone when formulating a remedy.

¶84 This does not mean our remedial powers are without

guardrails.10 And this is where the dissent errs. The dissent

argues we can take over the responsibility of the legislature

entirely, discard policy judgments we don't like, and craft a new

law from scratch consistent with our own policy concerns. The

reader should look past pleas for fairness and see this for what

it is: a claim of dangerously broad judicial power to fashion

8Id. (noting with approval that a federal district court properly considered traditional redistricting criteria "includ[ing] maintaining core districts and communities of interest" when adopting a redistricting plan). 9Another example of a traditional and neutral redistricting criterion that may assist us, but does not implicate a legal right per se, is the goal of minimizing the number of voters who must wait six years between voting for their state senator. See Prosser v. Elections Bd., 793 F. Supp. 859, 864 (W.D. Wis. 1992). 10Schroeder v. Richardson, 101 Wis. 529, 531, 78 N.W. 178 (1899) ("[W]hile the power of a court of equity is quite broad where a remedy is called for and legal remedies do not meet the situation, it does not extend so far as to clothe the court with power to substitute judicial notions of justice for the written law.").

3 No. 2021AP1450-OA.bh

state policy. According to the dissent, this court should simply

ignore the law on the books——one the dissent makes clear it is not

fond of——and draft a new one more to its liking.

¶85 The majority opinion aptly explains that our judicial

role forecloses this; our remedial powers are not so unbounded.11

It is appropriate for us to start with the laws currently on the

books because they were passed in accordance with the

constitutional process and reflect the policy choices the people

made through their elected representatives.12 Our task is

therefore rightly focused on making only necessary modifications

to accord with legal requirements.13 A least-change approach is

the most consistent, neutral, and appropriate use of our limited

Whitcomb v. Chavis, 403 U.S. 124, 161 (1971) ("The remedial 11

powers of an equity court must be adequate to the task, but they are not unlimited.").

Laws do not become any less authoritative simply because 12

newly-elected politicians disapprove of them. This court has no license to ignore laws based on our own personal policy disagreements or those of today's elected officials. The law changes by legislation, not by elections. See Vos, 393 Wis. 2d 38, ¶1.

It appears that we also used the pre-existing statutory 13

maps as our starting point in State ex rel. Reynolds v. Zimmerman, 23 Wis. 2d 606, 128 N.W.2d 16 (1964). While we did not expressly adopt a least-change approach, the similarities between the remedial maps and the pre-existing statutory maps are striking. For example, of the 33 senate districts the court drew, 31 consisted of some or all of the same counties as the parallel predecessor districts. Compare Reynolds, 23 Wis. 2d at 617-18 with Wis. Stat. § 4.02 (1963-64). In contrast, only two districts— —the 28th and the 31st——contained none of the same counties as they did under the prior maps. Id.

4 No. 2021AP1450-OA.bh

judicial power to remedy the constitutional violations in this

case.14

¶86 We asked the parties to brief whether we should use a

least-change approach, and if not, what approach we should use.

The main alternative we received15 was an entreaty to use this as

an opportunity to rearrange district boundaries with the goal of

reversing what the dissent calls "an obsolete partisan agenda."16

As the majority opinion explains, the Wisconsin Constitution does

not preclude the legislature from drawing districts with partisan

interests in mind.17 In reality, we are being asked to make a

political judgment cloaked in the veneer of neutrality. Namely,

we are being asked to conclude that the current maps are likely to

result in the election of too many representatives of one party,

so we should affirmatively and aggressively redesign maps that are

likely to result in the election of more members of a different

political party. The petition here——that we should use our

equitable authority to reallocate political power in Wisconsin——

14The legislature, on the other hand, may decide for itself whether to defer to prior maps when enacting new districts into law. The Wisconsin Constitution gives the legislature wide discretion to draft new maps from scratch based on the policy considerations it chooses. Wis. Const. art. IV, §§ 1, 3. 15The Legislature suggested we start with their proposed maps. But those maps, if not enacted into law, are mere proposals deserving no special weight. 16 Dissent, ¶114. 17The majority opinion concludes a claim for partisan gerrymandering is neither cognizable nor justiciable under the Wisconsin Constitution. I agree and join the majority's holdings and analysis explaining why this is so.

5 No. 2021AP1450-OA.bh

is not a neutral undertaking. It stretches far beyond a proper,

focused, and impartial exercise of our limited judicial power.

¶87 With this in view, parties are invited to submit

congressional and state legislative maps that comply with all

relevant legal requirements, and that endeavor to minimize

deviation from existing law.18 Parties should explain in their

proposals why their maps comply with the law, and how their maps

are the most consistent with existing boundaries. Parties should

not present arguments regarding the partisan makeup of proposed

districts. While other, traditional redistricting criteria may

prove helpful and may be discussed, our primary concern is

modifying only what we must to ensure the 2022 elections are

conducted under districts that comply with all relevant state and

federal laws.

18 The Wisconsin Constitution explicitly requires the legislature to draw new state assembly and state senate districts after each census. Wis. Const. art. IV, § 3. This section does not refer to congressional districts. The parties dispute whether other provisions of the Wisconsin Constitution have anything to say about congressional districts. Regardless of the answer to that question, we have explained that "congressional reapportionment and state legislative redistricting are primarily state, not federal, prerogatives," and that "the United States Constitution and principles of federalism and comity dictate that the states' role is primary." Jensen, 249 Wis. 2d 706, ¶5. Where judicial action is necessary, this includes the primary role of state supreme courts. Id., ¶11. Accordingly, it is fitting for us to address congressional malapportionment claims as well, whether under state or federal law.

6 No. 2021AP1450-OA.rfd

¶88 REBECCA FRANK DALLET, J. (dissenting). Redistricting

is an "inherently political and legislative——not judicial——task,"

even when judges do it. See Jensen v. Wis. Elections Bd., 2002 WI

13, ¶10, 249 Wis. 2d 706, 639 N.W.2d 537 (per curiam). That is

one reason why I said that the federal courts, comprised of judges

insulated from partisan politics by lifetime appointments, are

best suited to handle redistricting cases. See Johnson v. WEC,

No. 2021AP1450-OA, unpublished order, at 15-16 (Wis. Sept. 22,

2021) (Dallet, J., dissenting). But now that we have stepped out

of our traditional judicial role and into the "the political

thicket" of redistricting, it is vital that this court remain

neutral and nonpartisan. See Evenwel v. Abbott, 136 S. Ct. 1120,

1123 (2016). The majority1 all but guarantees that we cannot.

First, the majority adopts 2011's "sharply partisan" maps as the

template for its "least-change" approach. See Baldus v. Members

of Wis. Gov't Accountability Bd., 849 F. Supp. 2d 840, 844 (E.D.

Wis. 2012). And second, it effectively insulates future maps from

being challenged as extreme partisan gerrymanders. The upshot of those two decisions, neither of which is politically neutral, is

to elevate outdated partisan choices over neutral redistricting

criteria. That outcome has potentially devastating consequences

for representative government in Wisconsin. I therefore dissent.

1 I refer to Justice Rebecca Grassl Bradley's opinion as the "majority/lead opinion," because a majority of the court does not join it in its entirety. I refer to the "majority" only when discussing conclusions in the majority/lead opinion that garnered four votes.

1 No. 2021AP1450-OA.rfd I

¶89 The majority/lead opinion's adoption of a "least-change"

approach to evaluating or crafting remedial maps does not "remov[e]

us from the political fray and ensur[e] we act as judges rather

than political actors." Majority/lead op., ¶77. It does the

opposite, inserting the court directly into politics by ratifying

outdated partisan political choices. In effect, a least-change

approach that starts with the 2011 maps nullifies voters' electoral

decisions since then. In that way, adopting a least-change

approach is an inherently political choice. Try as it might, the

majority is fooling no one by proclaiming its decision is neutral

and apolitical.

¶90 Although no court in Wisconsin, state or federal, has

ever adopted a least-change approach, the majority/lead opinion

would have you believe that other jurisdictions commonly use such

an approach when starting from legislatively drawn maps. But the

cases it cites provide virtually no support for this approach.

One simply involves a state's supreme court approving the trial

court's selection of a congressional map. Alexander v. Taylor, 51

P.3d 1204, 1211 (Okla. 2002). All but one of the remaining cases

began with court-drawn maps or involved local maps drawn for county

boards and commissions. See Below v. Gardner, 963 A.2d 785, 794

(N.H. 2002). The bottom line is that the least-change approach

has no "general acceptance among reasonable jurists" when the

court's starting point is a legislatively drawn map. See

majority/lead op., ¶73. ¶91 To be sure, there may be limited circumstances in which

a least-change approach is appropriate. For example, when a court 2 No. 2021AP1450-OA.rfd

is redrawing maps based on a prior court-drawn plan, it may make

sense to make fewer changes since the existing maps should already

reflect neutral redistricting principles. See, e.g., Hippert v.

Ritchie, 813 N.W.2d 374, 380 (Minn. Special Redistricting Panel

2012) (explaining that the panel utilizes a least-change strategy

"where feasible"); see also Zachman v. Kiffmeyer, No. C0-01-160,

unpublished order, at 6 (Minn. Special Redistricting Panel Mar.

19, 2002) (adopting the plan that the Hippert court used as its

template). Another situation where minimizing changes may be

appropriate is when a court finds localized problems with a plan

validly enacted through the political process. See Baldus, 849 F.

Supp. 2d at 859-60 (E.D. Wis. 2012) (holding that two Milwaukee-

area assembly districts violated the Voting Rights Act, but

emphasizing that "the re-drawing of lines for [those districts]

must occur within the combined outer boundaries of those two

districts" to avoid disrupting the otherwise valid state map).

¶92 Here, however, we are dealing with neither of those

situations. We are adopting statewide maps to replace a 2011 plan

that the parties all agree is now unconstitutional. More to the point, however, the 2011 map was enacted using a "sharply partisan

methodology" by a legislature no longer in power and a governor

who the voters have since rejected. See id. at 844, 851 (adding

that it was "almost laughable" that anyone would assert that those

maps "were not influenced by partisan factors"). The partisan

character of the 2011 maps is evident both in the process by which

they were drawn——"under a cloak of secrecy," totally excluding the

3 No. 2021AP1450-OA.rfd

minority political party2——and in their departure from neutral

traditional redistricting criteria. See id. at 850 (explaining

that the court shared "in many respects" plaintiffs' expert's

concerns that the 2011 maps contained "excessive shifts in

population, disregard for core district populations, arbitrary

partisan motivations related to compactness, and unnecessary

disenfranchisement").

2 At the outset of the 2011 redistricting process, "the Republican legislative leadership announced to members of the Democratic minority that the Republicans would be provided unlimited funds to hire counsel and consultants" to assist in redistricting, while "Democrats . . . would not receive any funding." Baldus, 849 F. Supp. 2d at 844-45. One of the drafters met with "every single Republican member of the State Assembly," but "[h]e did not meet with any Democrats." Id. at 845. Before each meeting, the participants were required to sign confidentiality agreements. Id. Another drafter held meetings "with the Republican members [of Congress]," who "expressed their desire to draw districts that would maximize the chances for Republicans to be elected." Id. at 846. In addition to keeping the plan secret from Democratic legislators, "[e]very effort was made to keep this work out of the public eye." Id. at 845.

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¶93 It is one thing for the current legislature to entrench

a past legislature's partisan choices for another decade.3 It is

another thing entirely for this court to do the same. For

starters, the least-change approach is not the "neutral standard"

the majority/lead opinion portrays it as. Rather, applying that

approach to 2011's maps affirmatively perpetuates the partisan

agenda of politicians no longer in power. It doesn't matter which

political party benefits from the 2011 maps, only that we cannot

start with them and maintain judicial neutrality. Moreover, a

least-change approach risks entrenching 2011's partisan agenda in

future redistricting cycles. If the party that benefits from the

maps adopted in this case controls only the legislature for the

next redistricting cycle, it has every incentive to ensure an

impasse. After all, an impasse will result in the court changing

the maps as little as possible——thus preserving that party's hold

3 The majority/lead opinion hints that a least-change approach is appropriate because the 2011 maps were "codified as statutes, without a sunset provision, and have not been supplanted by new law." Majority/lead op., ¶72 n.8. But both the Wisconsin and U.S. Constitutions require that all maps be redrawn every ten years to account for population shifts since the prior census. See Wis. Const. art. IV, § 3 (requiring the legislature to "apportion and district anew the members of the senate and assembly" in the first session after each census); see also Reynolds v. Sims, 377 U.S. 533 (1964); Baker v. Carr, 369 U.S. 186 (1962). These are the sunset provisions. In this respect, the 2011 maps are unlike an ordinary unconstitutional statute, since they were enacted without any expectation of longevity. Indeed, at this point they are a practical nullity. Accordingly, the majority/lead opinion's comparisons to the typical remedies when a court finds a statute unconstitutional are inapt. See id., ¶¶67, 72 & n.8. And the fact that the maps have "not been supplanted by new law," id., ¶72 n.8, is precisely the reason why the court is redistricting at all. It is hardly a reason to treat the prior maps as a valid template.

5 No. 2021AP1450-OA.rfd

on power. The point is, the least-change approach is anything but

a "neutral standard." Majority/lead op., ¶76.

¶94 True neutrality could be achieved by instead adhering to

the neutral factors supplied by the state and federal

constitutions, the Voting Rights Act, and traditional

redistricting criteria. The population equality (i.e., "one

person, one vote") principles in the state and federal

constitutions and the federal Voting Rights Act, 52

U.S.C. § 10301(a), are universally acknowledged as politically

neutral and central to any redistricting plan. Likewise for the

remaining requirements of the Wisconsin Constitution, compactness,

contiguity, and respect for political subdivision boundaries.

Wis. Const. art. IV, §§ 3, 4. In addition to these constitutional

and statutory baselines, neutral factors include other

"traditional redistricting criteria" such as compactness,4

preserving communities of interest, and minimizing "senate

disenfranchisement."5 E.g., Baumgart v. Wendelberger,

No. 01-C-0121, 2002 WL 34127471, at *3 (E.D. Wis. May 30, 2002).

4Unlike the Wisconsin Constitution, the U.S. Constitution does not impose a compactness requirement on congressional districts. Nonetheless, compactness is one of the traditional redistricting criteria applied by courts drawing congressional maps or reviewing legislatively-drawn ones. See, e.g., Baldus, 849 F. Supp. 2d at 850; Prosser v. Elections Bd., 793 F. Supp. 859, 863 (W.D. Wis. 1992). 5Senate disenfranchisement occurs when a voter is shifted from an odd-numbered senate district (which votes only in midterm election years) to an even-numbered senate district (which votes only in presidential election years), thereby delaying for two years the voter's ability to vote for her state senator. See Baumgart v. Wendelberger, No. 01-C-0121, 2002 WL 34127471, at *3 (E.D. Wis. May 30, 2002).

¶95 The traditional redistricting criteria, however, are

glaringly absent from the majority/lead opinion. A charitable

read of the majority/lead opinion is that whatever factors it

doesn't discuss——preserving communities of interest and minimizing

senate disenfranchisement, for example——are sufficiently baked

into the 2011 maps such that we can simply rebalance the

populations of existing districts and call it a day. But, as

mentioned previously, there is good reason to doubt that the 2011

maps meaningfully balanced any of the traditional redistricting

criteria.

¶96 For one thing, while the 2011 maps were attacked in

federal court for failing to satisfy some of the traditional

redistricting criteria, the federal court examined those criteria

only to the extent needed to justify constitutionally suspect

population deviations between districts. See Baldus, 849 F. Supp.

2d at 849-52. As a result, the federal court made no finding, for

example, that the prior maps adequately accounted for communities

of interest. In fact, the federal court noted that it shared many

of plaintiffs' expert's concerns that the maps did not do so. See id. at 851.

¶97 For another thing, even if the 2011 maps reflected the

traditional redistricting criteria when they were adopted, we

cannot assume that they still reflect those criteria today.

Population shifts over the last ten years may have expanded or

altered existing communities of interest, and various ways of

equalizing the populations of state legislative districts may

result in unnecessary senate disenfranchisement. This is why even when other courts use a least-change approach, they acknowledge

7 No. 2021AP1450-OA.rfd

that traditional redistricting criteria might still require more

substantial changes. See, e.g., Alexander, 51 P.3d at 1211

(starting with the prior legislatively enacted map but considering

"[w]idely recognized neutral redistricting criteria" including

core retention, communities of interest, and avoiding incumbent

pairing); Hippert, 813 N.W.2d at 380-82, 385-86 (using "a least-

change strategy where feasible" alongside considerations of

communities of interest and incumbent residences).

¶98 In this case we are adopting new maps, not reviewing

legislatively enacted ones. We should therefore ensure that the

maps we adopt are the "best that c[an] be managed" under all

relevant criteria, especially since we know that there is no single

dispositive factor in crafting districts. See Prosser v. Elections

Bd., 793 F. Supp. 859, 863 (W.D. Wis. 1992); see also Baldus, 849

F. Supp. 2d at 850 (explaining that "factors like homogeneity of

needs and interests, compactness, contiguity, and avoidance of

breaking up counties, towns, villages, wards, and neighborhoods,"

not just population equality, "are all necessary to achieve" a

representative democracy). Adopting the best maps possible based on all the relevant criteria protects our neutrality and ensures

that the resulting districts foster a representative democracy.

That is, in part, why the last three federal courts to draw

Wisconsin's districts took a similar tack. See Baumgart, 2002 WL

34127471, at *2 ("The reapportionment of state legislative

districts requires balancing of several disparate goals.");

Prosser, 793 F. Supp. at 865 ("The issue for us is therefore

remedy: not, [i]s some enacted plan constitutional? But, [w]hat plan shall we as a court of equity promulgate in order to rectify

8 No. 2021AP1450-OA.rfd

the admitted constitutional violation? What is the best plan?");

Wis. State AFL-CIO v. Elections Bd., 543 F. Supp. 630, 637 (E.D.

Wis. 1982) (discussing the traditional redistricting criteria

before adopting the court's own plan, without deference to the

last set of maps adopted by the legislature). Along the way, we

may have to make fewer changes in some places, and more changes in

others. See Robert Yablon, Gerrylaundering, 97 N.Y.U. L. Rev.

(forthcoming 2022) (explaining that in redistricting "we should

not reflexively embrace the past for the sake of stability," but

"we also should not reflexively embrace change above all else").

But resorting to a least-change approach does not help us balance

the relevant factors.

¶99 More concerning than its silence regarding the

traditional redistricting criteria is the possibility that the

majority/lead opinion will prioritize its atextual least-change

approach over the text of the Wisconsin Constitution. The

Wisconsin Constitution imposes several substantive requirements on

assembly districts, including that they be in "as compact form as

practicable." Wis. Const. art. IV, § 4. The majority/lead opinion's reasoning suggests that, despite that constitutional

directive and even if a more compact set of population-equalizing

assembly maps is "practicable," the court is free to adopt a less

compact set of maps simply because they make fewer changes to the

2011 plan. That cannot be right. The least-change principle is

found nowhere in the Wisconsin or U.S. Constitutions.

Constitutionally mandated criteria do not take a back seat to

extra-constitutional methods like least-change. See Yablon, supra (explaining that nothing would "license the legislature to adopt

9 No. 2021AP1450-OA.rfd

a map that subordinates the[] criteria [of the Wisconsin

Constitution] to an extra-legal preference" for minimal changes to

the previous maps).

¶100 Likewise, the text of the Wisconsin Constitution

provides no support for the majority's hierarchical distinctions

between its various criteria. Nowhere does the Constitution

relegate to "secondary importance" the requirements of

compactness, contiguity, and respect for political subdivision

boundaries found in Article IV, § 4. Contra majority/lead op., ¶34

(citing Wis. State AFL-CIO, 543 F. Supp. at 635). And the

majority offers no legitimate explanation for why some

constitutional requirements are more important than others. The

source it cites for this supposed primary/secondary distinction—

—Wisconsin State AFL-CIO——is of no help because that case found

the distinction in an Illinois case citing the Illinois

Constitution. See Wis. Stat. AFL-CIO, 543 F. Supp. at 635 (citing

People ex rel. Scott v. Grivetti, 277 N.E.2d 881 (Ill. 1971)).

Just as we cannot allow an atextual approach, such as least-change,

to supersede the Constitution's text, we cannot pretend that some constitutional provisions are more important than others.

¶101 Finally, the majority fails to flesh out exactly what a

least-change approach entails, thus leaving the parties with

little actual guidance. What exactly, should the parties change

the least? Does "least change" refer to the fewest changes to

districts' boundary lines? The fewest number of people moved from

one district to the next? Moreover, based on recent population

shifts, what is the feasibility of a least-change approach? Hippert, 813 N.W.2d at 381 ("[P]opulation shifts within the state,

10 No. 2021AP1450-OA.rfd

however, sometimes [render] a least-change approach . . . not

feasible."). For example, Dane County has gained more than 73,000

residents since the last census——more than the optimal population

of an entire assembly district.6 Meanwhile, Milwaukee County and

many of the state's rural areas have seen slow growth or outright

declines in population.7 These population shifts suggest that the

2011 district lines, particularly on a legislative level, may not

provide a very useful template for crafting a remedial plan.

II

¶102 In an unnecessary and sweeping overreach, the majority

effectively insulates future maps from constitutional attack by

holding that excessive partisan gerrymandering claims are not

viable under the Wisconsin Constitution. It gets there by

answering a constitutional question that we never asked, that the

parties did not brief, and that is immaterial to this case.8 The

majority seems to think that, because it fails to "find a right to

partisan fairness in . . . the Wisconsin Constitution," the court

cannot consider, for any reason, the partisan effects of remedial

maps. Majority/lead op., ¶53. But there is no logical connection

between these conclusions. In fact, willfully blinding the court

6 See https://www.census.gov/quickfacts/fact/table/milwaukee countywisconsin,danecountywisconsin,marinettecountywisconsin/PST 045219. 7 See id. 8 The question we actually asked was whether the "partisan makeup of districts [is] a valid factor for us to consider in evaluating or creating new maps." Johnson v. WEC, No. 2021AP1450- OA, unpublished order, at 2 (Wis. Oct. 14, 2021).

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to the partisan makeup of districts increases the risk that we

will adopt a partisan gerrymander.

A

¶103 The majority's gratuitous discussion of whether claims

of extreme partisan gerrymandering are cognizable under the

Wisconsin Constitution starts with a flawed reading of the United

States Supreme Court's decision in Rucho v. Common Cause, 139 S.

Ct. 2484 (2019). There, the Court held that excessive partisan-

gerrymandering claims were not justiciable under the federal

constitution because there were no judicially manageable standards

by which federal courts could determine that gerrymandering had

gone too far. Id. at 2498-2502 (clarifying that the Court does

"not condone excessive partisan gerrymandering"). The Court

observed, however, that this remained an open question under state

constitutions. Id. at 2507-08. It should be obvious that here,

because we have no partisan gerrymandering claim before us, Rucho

is irrelevant. Several parties have urged us not to adopt a map

tantamount to a partisan gerrymander, and some have pointed out

that Wisconsin's current legislative and congressional districts

are the result of a "sharply partisan methodology."9 See Baldus,

849 F. Supp. 2d at 844. But nobody argues that we should strike

The majority mischaracterizes this argument as advocating a 9

"proportional party representation" requirement. See majority/lead op., ¶¶42, 47. No party has suggested that the court should radically reform our system of government to ensure the political parties are represented in proportion to their percentage of the statewide vote. In fact, the only party that argues for a constitutional requirement that the court consider partisan metrics acknowledges that proportional representation by political party is unattainable given single-member districts and the political geography of Wisconsin.

12 No. 2021AP1450-OA.rfd

down any existing map on the basis that it is an extreme partisan

gerrymander. Without an excessive partisan-gerrymandering claim

before us, there is no reason for the majority to issue an advisory

opinion about whether such claims are cognizable under the

Wisconsin Constitution.

¶104 That said, even if someone had brought such a claim, the

majority is wrong that determining when partisan gerrymandering

has gone too far is a non-justiciable political question under the

Wisconsin Constitution. It is not, as the majority claims,

"obvious[ly]" impossible to develop judicially manageable

standards for judging when partisan gerrymandering is excessive.

Indeed, other state courts have done it. See League of Women

Voters of Pa. v. Pennsylvania, 178 A.3d 737, 814, 821 (Pa. 2018)

(holding that claims of extreme partisan gerrymandering are

cognizable under the Pennsylvania Constitution and striking down

the state's congressional map on that basis); Common Cause v.

Lewis, No. 18CVS014001, 2019 WL 4569584, at *2-3 (N.C. Super. Ct.

Sept. 3, 2019) (striking down state legislative maps as "extreme

partisan gerrymandering"). And the federal courts had done it before Rucho. See, e.g., Ohio A. Philip Randolph Inst. v.

Householder, 373 F. Supp. 3d 978, 1078 (S.D. Ohio 2019) (concluding

that "workable standards, which contain limiting principles, exist

so that courts can adjudicate [partisan] gerrymandering claims

just as they have adjudicated other types of gerrymandering

claims"), vacated and remanded sub nom. Chabot v. Ohio A. Philip

Randolph Inst., 140 S. Ct. 102 (2019); League of Women Voters of

Mich. v. Benson, 373 F. Supp. 3d 867, 911-12 (E.D. Mich. 2019) (explaining that "lower federal courts have formulated judicially-

13 No. 2021AP1450-OA.rfd

manageable standards for adjudicating partisan gerrymandering

claims"), vacated and remanded sub nom. Chatfield v. League of

Women Voters of Mich., 140 S. Ct. 429 (2019). There is no reason

why we could not develop similar standards to judge such claims in

Wisconsin.

¶105 In any case, there is no need for us to decide this

question now. We have no claim of excessive partisan

gerrymandering before us. We should wait until we do and then

decide——with the benefit of full briefing from the parties——

whether our Constitution protects a practice that is "incompatible

with democratic principles." See Ariz. State Legis. v. Ariz. Ind.

Redistricting Comm'n, 135 S. Ct. 2652, 2658 (2015).

B

¶106 Although the majority's rejection of extreme partisan-

gerrymandering claims has no effect on the outcome of this case,

it likely has far-reaching consequences for future redistricting

cycles. Discarding a potential limitation on partisan

gerrymandering gives future legislators and governors a green

light to engage in a practice that robs the people of their most

important power——to select their elected leaders. See The

Federalist No. 37, at 4 (James Madison) ("The genius of republican

liberty seems to demand on one side, not only that all power should

be derived from the people, but that those [e]ntrusted with it

should be kept in independence on the people.").

¶107 Extreme partisan gerrymandering strikes at the

foundation of that power. Representative government demands "that the voters should choose their representatives, not the other way

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around." Ariz. State Legis., 135 S. Ct. at 2677 (internal

quotation marks omitted). Extreme partisan gerrymandering turns

that on its head. It allows a party in power to draw district

lines that guarantee its hold on power for a decade or more, no

matter what the voters choose.

¶108 No problem, the majority says, "[e]ven after the most

severe partisan gerrymanders, citizens remain free" to run for

office, express their views, and vote for the candidates of their

choice. Majority/lead op., ¶60. But the problem with extreme

partisan gerrymandering isn't that it literally denies people the

right to vote or run for office. It's that extreme gerrymandering

distorts the political process so thoroughly that those rights can

become meaningless. No matter how warped the process becomes,

post-Rucho, the federal courts cannot intervene. Now, the majority

all but guarantees that we won't either.

C

¶109 The majority's misapplication of Rucho leads it to

conflate how the court might analyze legislatively drawn maps with

how it should select or draw remedial ones. That error is evident

from the start, as the majority frames the analysis around the

question of whether we "should judge maps for partisan fairness,"

regardless of who draws them. Majority/lead op., ¶39. But "who

draws them" makes all the difference. There is a significant

difference between second-guessing the partisan fairness of a map

drawn by an inherently partisan legislature, which "would have the

virtue of political legitimacy," and our task here, which is to "pick[] the [plan] (or devis[e] our own) most consistent with

15 No. 2021AP1450-OA.rfd

judicial neutrality." See Prosser, 793 F. Supp. at 867. We are

not asked to determine if maps enacted by the legislature through

the normal legislative process amount to an unconstitutional

partisan gerrymander. Cf. Rucho, 139 S. Ct. at 2507. Rather, we

are adopting maps because that process has failed. In doing so,

we must act consistent with our role as a non-partisan institution

and avoid choosing maps designed to benefit one political party

over all others. See Prosser, 793 F. Supp. at 867. The people

rightly expect courts to redistrict in neutral ways.

¶110 The majority claims that considering partisanship for

any reason is inconsistent with judicial neutrality. That all-

or-nothing position distorts the nuanced reality of the court's

role in redistricting. Other courts' redistricting experience

shows that partisanship is just another one of the many factors a

court must balance when enacting remedial maps.

¶111 The last three courts to tackle redistricting in

Wisconsin all considered partisan effects alongside other

generally accepted neutral factors when evaluating and choosing

remedial maps. See Baumgart, 2002 WL 34127471, at *3-4 (rejecting maps proposed by the parties on the grounds that they were drawn

to preserve or obtain partisan advantage); Prosser, 793 F. Supp.

at 867-68, 870-71 (analyzing the partisan effects of several

proposals before ultimately adopting a court-drawn plan that was

"the least partisan"); Wis. State AFL-CIO, 543 F. Supp. at 634.

Those courts considered the partisan effects of their decisions

not to enact their subjective view of what is politically fair but

because courts, unlike legislatures, should not behave like political entities:

16 No. 2021AP1450-OA.rfd Judges should not select a plan that seeks partisan advantage——that seeks to change the ground rules so that one party can do better than it would do under a plan drawn up by persons having no political agenda——even if they would not be entitled to invalidate an enacted plan that did so. Prosser, 793 F. Supp. at 867; see also Baumgart, 2002 WL 34127471,

at *3 (following Prosser); Jensen, 249 Wis. 2d 706, ¶12 (quoting

Prosser). The Indiana Supreme Court likewise declined to enact "a

plan that represents one political party's ideas of how district

boundaries should be drawn [because doing so] does not conform to

the principle of judicial independence and neutrality." Peterson

v. Borst, 786 N.E.2d 668, 675 (Ind. 2003).

¶112 Indeed, although it sounds contradictory, the only way

for the court to avoid unintentionally selecting maps designed to

benefit one political party over others is by considering the maps'

likely partisan effects. The United States Supreme Court has

suggested as much, explaining that taking a "politically mindless

approach" to redistricting may lead to "grossly gerrymandered

results," "whether intended or not." Gaffney v. Cummings, 412

U.S. 735, 753 (1973). Refusing to consider partisan effects only

increases the risk that the court will be used, intentionally or

not, to achieve partisan ends. This is especially true when our

starting point is 2011's indisputably partisan maps.

III

¶113 I close with a lingering question that the majority/lead

opinion surprisingly leaves unaddressed: Exactly what maps are we

talking about——congressional and state legislative maps or only

the latter? There is evidence in the majority/lead opinion to support both answers. On the one hand, the majority/lead opinion

17 No. 2021AP1450-OA.rfd

begins by discussing the legislature's duty under Article IV, § 3

of the Wisconsin Constitution "to apportion and district anew the

members of the senate and assembly," and later explains that this

requirement does not apply to congressional districts. See

majority/lead op., ¶¶1, 13 & n.4. That suggests only state

legislative maps are at play. On the other hand, the majority/lead

opinion identifies redistricting principles applicable to

congressional maps under the federal constitution, but without

stating that it intends to draw new congressional maps. See

id. ¶¶24-25. Similarly, the majority/lead opinion states at

different times that it intends to remedy the "malapportionment"

of "each legislative district," id., ¶4 (emphasis added), but also

that "any judicial remedy" in this case will be confined "to making

the minimum changes necessary in order to conform the existing

constitutional and statutory requirements." Id., ¶8 (emphasis

added). At least two parties, the Hunter Plaintiffs and the

Congressmen, have suggested that they intend to litigate what, if

anything, the Wisconsin Constitution has to say about congressional redistricting, but so far the court has no motion or

other briefing on that question. So it is unclear from the start

what the majority/lead opinion is even addressing.

IV

¶114 The majority repeatedly protests that any approach other

than its preferred one would undermine our non-partisan role and

imperil the legitimacy and independence of the judiciary. But the neutral principles supplied by the U.S. and Wisconsin

18 No. 2021AP1450-OA.rfd

Constitutions, the Voting Rights Act, and the traditional

redistricting criteria can preserve our independence while still

guiding the parties and the court towards resolving this case.

The majority deals a striking blow to representative government in

Wisconsin by ignoring those neutral principles and committing the

court to an approach that prioritizes an obsolete partisan agenda.

I therefore dissent.

¶115 I am authorized to state that Justices ANN WALSH BRADLEY

and JILL J. KAROFSKY join this dissent.

19 No. 2021AP1450-OA.rfd