Rebecca Clarke v. Wisconsin Elections Commission

2023 WI 79

Opinion

2023 WI 79

SUPREME COURT OF WISCONSIN CASE NO.: 2023AP1399-OA

COMPLETE TITLE: Rebecca Clarke, Ruben Anthony, Terry Dawson, Dana Glasstein, Ann Groves-Lloyd, Carl Hujet, Jerry Iverson, Tia Johnson, Angie Kirst, Selika Lawton, Fabian Maldonado, Annemarie McClellan, James McNett, Brittany Muriello, Ela Joosten (Pari) Schils, Nathaniel Slack, Mary Smith-Johnson, Denise Sweet and Gabrielle Young, Petitioners, Governor Tony Evers in his official capacity, Nathan Atkinson, Stephen Joseph Wright, Gary Krenz, Sarah J. Hamilton, Jean-Luc Thiffeault, Somesh Jha, Joanne Kane and Leah Dudley, Intervenors-Petitioners, v. Wisconsin Elections Commission, Don Millis, Robert F. Spindell, Jr., Mark L. Thomsen, Ann S. Jacobs, Marge Bostelmann, Carrie Riepl, in their official capacities as Members of the Wisconsin Election Commission;, Meagan Wolfe in her official capacity as the Administrator of the Wisconsin Elections Commission;, Andre Jacque, Tim Carpenter, Rob Hutton, Chris Larson, Devin LeMahieu, Stephen L. Nass, John Jagler, Mark Spreitzer, Howard Marklein, Rachael Cabral-Guevara, Van H. Wanggaard, Jesse L. James, Romaine Robert Quinn, Dianne H. Hesselbein, Cory Tomczyk, Jeff Smith and Chris Kapenga in their official capacities as Members of the Wisconsin Senate, Respondents, Wisconsin Legislature, Billie Johnson, Chris Goebel, Ed Perkins, Eric O'Keefe, Joe Sanfelippo, Terry Moulton, Robert Jensen, Ron Zahn, Ruth Elmer and Ruth Streck, Intervenors-Respondents.

ORIGINAL ACTION OPINION FILED: December 22, 2023 SUBMITTED ON BRIEFS: ORAL ARGUMENT: November 21, 2023

SOURCE OF APPEAL: COURT: COUNTY: JUDGE:

JUSTICES: KAROFSKY, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, DALLET and PROTASIEWICZ, JJ., joined. ZIEGLER, C.J., filed a dissenting opinion. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion. HAGEDORN, J., filed a dissenting opinion. NOT PARTICIPATING:

ATTORNEYS:

For the petitioners, there were briefs filed by Daniel S. Lenz, T.R. Edwards, Elizabeth M. Pierson, Scott B. Thompson, and Law Forward, Inc., Madison; Douglas M. Poland, Jeffrey A. Mandell, Rachel E. Snyder, and Stafford Rosenbaum LLP, Madison; Elisabeth S. Theodore (pro hac vice), John A. Freedman (pro hac vice), and Arnold & Porter Kaye Scholer LLP, D.C.; Mark P. Gaber (pro hac vice), Brent Ferguson (pro hac vice), Hayden Johnson (pro hac vice), Benjamin Phillips (pro hac vice), and Campaign Legal Center, D.C.; Annabelle E. Harless (pro hac vice), and Campaign Legal Center, Chicago; Ruth M. Greenwood (pro hac vice), Nicholas O. Stephanopoulos (pro hac vice), and Election Law Clinic at Harvard Law School, Cambridge. There was an oral argument by Mark Gaber.

For the intervenor-petitioner, Governor Tony Evers in his official capacity, there were briefs filed by Anthony D. Russomanno, assistant attorney general, Faye B. Hipsman, assistant attorney general, Brian P. Keenan, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney 2 general; Mel Banes, and Office of Governor Tony Evers, Madison; Christine P. Sun (pro hac vice), Dax L. Goldstein (pro hac vice), and States United Democracy Center, Los Angeles; John Hill (pro hac vice), and States United Democracy Center, DuBois. There was an oral argument by Anthony D. Russomanno, assistant attorney general.

For the intervenor-petitioner, Nathan Atkinson, Stephen Joseph Wright, Gary Krenz, Sarah J. Hamilton, Jean-Luc Thiffeault, Somesh Jha, Joanne Kane and Leah Dudley, there were briefs filed by Sarah A. Zylstra, Tanner G. Jean-Louis, and Boardman Clark LLP, Madison; Sam Hirsch (pro hac vice), Jessica Ring Amunson (pro hac vice), Elizabeth B. Deutsch (pro hac vice), Arjun R. Ramamurti, (pro hac vice), and Jenner & Block LLP, D.C. There was an oral argument by Sam Hirsch.

For the respondents, Tim Carpenter, Chris Larson, Mark Spreitzer, Dianne H. Hesselbein, and Jeff Smith, in there official capacities as Members of the Wisconsin Senate, there were briefs filed by Tamara B. Packard, Eduardo E. Castro, and Pines Bach LLP, Madison. There was an oral argument by Tamara B. Packard.

For the intervenors-respondents, Wisconsin Legislature, and respondents, Andre Jacque, Rob Hutton, Devin LeMahieu, Stephen L. Nass, Howard Marklein, John Jagler, Rachael Cabral-Guevara, Van H. Wanggaard, Jesse L. James, Romaine Robert Quinn, Cory Tomczyk, and Chris Kapenga, in there official capacities as Members of the Wisconsin Senate, there were briefs filed by Kevin M. St. John, and Bell Giftos St. John LLC, Madison; Jessie Augustyn, and Augustyn Law LLC, Appleton; Adam K. Mortara, and Lawfair LLC, Nashville; Taylor A.R. Meehan (pro hac vice), Rachael C. Tucker (pro hac vice), Daniel M. Vitagliano (pro hac vice), C’Zar D. Bernstein (pro hac vice), and Consovoy McCarthy 3 PLLC, Arlington; Scott A. Keller (pro hac vice), Shannon Grammel (pro hac vice), Gabriela Gonzalez-Araiza (pro hac vice), and Lehotsky Keller Cohn LLP, D.C.; Matthew H. Frederick (pro hac vice), and Lehotsky Keller Cohn, LLP, Austin. There was an oral argument by Taylor A.R. Meehan.

For the intervenors-respondents, Billie Johnson, Chris Goebel, Ed Perkins, Eric O’Keefe, Joe Sanfelippo, Terry Moulton, Robert Jensen, Ron Zahn, Ruth Elmer and Ruth Streck, there were briefs filed by Richard M. Esenberg, Luke N. Berg, Nathalie E. Burmeister, and Wisconsin Institute for Law & Liberty, Inc., Milwaukee. There was an oral argument by Richard M. Esenberg.

An amicus curiae brief was filed by Nathan J. Kane, and WMC Litigation Center, Madison, on behalf of the Wisconsin Manufacturers and Commerce, Inc.

An amicus curiae brief was filed by Margo S. Kirchner, and Wisconsin Justice Initiative, Inc, Milwaukee; Daniel J. Schneider, and Wisconsin Fair Maps Coalition, Chicago, on behalf of the Wisconsin Justice Initiative, Inc. & Wisconsin Fair Maps Coalition.

An amicus curiae brief was filed by Matthew W. O’Neill, and Fox, O’Neill & Shannon, S.C., Milwaukee, on behalf of Matthew Petering, PhD.

An amicus curiae brief was filed by Nicholas E. Fairweather, and Hawks Quindel S.C., Madison; Jonathan B. Miller (pro hac vice), Michael Adame (pro hac vice), and Public Rights Project, Oakland, on behalf of Local Elected Officials.

4 An amicus curiae brief was filed by Robert Yablon, Bryna Godar, and State Democracy Research Initiative, University of Wisconsin Law School, Madison, on behalf of Legal Scholars. An amicus curiae brief was filed by Samuel T. Ward-Packard, and Elias Law Group LLP, D.C.; Abha Khanna (pro hac vice), and Elias Law Group LLP, Seattle; William K. Hancock (pro hac vice), Julie Zuckerbrod (pro hac vice), and Elias Law Group LLP, D.C., on behalf of Jo Ellen Burke, Jennie Tunkieicz and John Persa.

An amicus curiae brief was filed by Tony Wilkin Gibart, Adam Voskuil, Daniel P. Gustafson, and Midwest Environmental Advocates, Madison, on behalf of Coalition on Lead Emergency.

5 2023 WI 79 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 2023AP1399-OA

STATE OF WISCONSIN : IN SUPREME COURT

Rebecca Clarke, Ruben Anthony, Terry Dawson, Dana Glasstein, Ann Groves-Lloyd, Carl Hujet, Jerry Iverson, Tia Johnson, Angie Kirst, Selika Lawton, Fabian Maldonado, Annemarie McClellan, James McNett, Brittany Muriello, Ela Joosten (Pari) Schils, Nathaniel Slack, Mary Smith- Johnson, Denise Sweet and Gabrielle Young,

Petitioners,

Governor Tony Evers, in his official capacity; Nathan Atkinson, Stephen Joseph Wright, Gary Krenz, Sarah J. Hamilton, Jean-Luc Thiffeault, Somesh Jha, Joanne Kane and Leah Dudley,

Intervenors-Petitioners, FILED v. DEC 22, 2023 Wisconsin Elections Commission, Don Millis, Robert F. Spindell, Jr., Mark L. Thomsen, Ann Samuel A. Christensen Clerk of Supreme Court S. Jacobs, Marge Bostelmann, Joseph J. Czarnezki in their official capacities as Members of the Wisconsin Election Commission;, Meagan Wolfe in her official capacity as the Administrator of the Wisconsin Elections Commission;, Andre Jacque, Tim Carpenter, Rob Hutton, Chris Larson, Devin LeMahieu, Stephen L. Nass, John Jagler, Mark Spreitzer, Howard Marklein, Rachael Cabral-Guevara, Van H. Wanggaard, Jesse L. James, Romaine Robert Quinn, Dianne H. Hesselbein, Cory Tomczyk, Jeff Smith and Chris Kapenga in their official capacities as Members of the Wisconsin Senate,

Respondents, Wisconsin Legislature; Billie Johnson, Chris Goebel, Ed Perkins, Eric O'Keefe, Joe Sanfelippo, Terry Moulton, Robert Jensen, Ron Zahn, Ruth Elmer and Ruth Streck,

Intervenors-Respondents.

KAROFSKY, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, DALLET and PROTASIEWICZ, JJ., joined. ZIEGLER, C.J., filed a dissenting opinion. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion. HAGEDORN, J., filed a dissenting opinion.

ORIGINAL ACTION. Rights declared.

¶1 JILL J. KAROFSKY, J. In Wisconsin the number of state

legislative districts containing territory completely

disconnected from the rest of the district is striking. At

least 50 of 99 assembly districts and at least 20 of 33 senate

districts include separate, detached territory. A particularly

stark example is the Madison-area 47th Assembly District (shown

in yellow below). This district contains more than a dozen

separate, detached parts that are home to thousands of people

who must cross one or more other districts before reaching

another part of the 47th.1

1The following images of assembly and senate districts are from the Legislative Technology Services Bureau's Geographic Information Services website. Legislative Technology Services Bureau, Geographic Information Services, Wisconsin District Maps (https://gis-ltsb.hub.arcgis.com/pages/district-maps). This court "take[s] judicial notice of the location of the various political subdivisions of the state," including the location of legislative districts. See Ryan v. State, 168 Wis. 14, 15, 168 N.W. 566 (1918).

2 ¶2 Here we are asked to determine whether these districts

violate Article IV, Sections 4 and 5 of the Wisconsin

Constitution, which provide that state legislative districts

must consist of "contiguous territory." Wis. Const. art. IV,

§§ 4-5. Two groups of Wisconsin voters (the Clarke Petitioners2

2 The Clarke Petitioners are Rebecca Clarke, Ruben Anthony, Terry Dawson, Dana Glasstein, Ann Groves-Lloyd, Carl Hujet, Jerry Iverson, Tia Johnson, Angie Kirst, Selika Lawton, Fabian Maldonado, Annemarie McClellan, James McNett, Brittany Muriello, Ela Joosten (Pari) Schils, Nathaniel Slack, Mary Smith-Johnson, Denise (Dee) Sweet, and Gabrielle Young.

3 and Wright Petitioners3), the Governor, and a group of state

senators4 (collectively, Petitioners), argue that the current

districts are non-contiguous, and therefore violate the

Wisconsin Constitution. Petitioners ask us to enjoin their use

in future elections and to order the adoption of remedial maps.

Additionally, they ask us to issue a writ quo warranto declaring

the November 2022 state senate elections unlawful, and to order

special elections for these offices that would otherwise not be

on the ballot until November 2026. The Legislature, several senators elected in 2022,5 and a group of Wisconsin voters6

(collectively, Respondents)7 argue that the current state

3 The Wright Petitioners are Nathan Atkinson, Stephen Joseph Wright, Gary Krenz, Sara J. Hamilton, Jean-Luc Thiffeault, Somesh Jha, Joanne Kane, and Leah Dudley, several of whom participated in the Johnson litigation. See Johnson v. Wis. Elections Comm'n, 2021 WI 87, 399 Wis. 2d 623, 967 N.W.2d 469 ("Johnson I"); Johnson v. Wis. Elections Comm'n, 2022 WI 14, 400 Wis. 2d 26, 971 N.W.2d 402 ("Johnson II"); Johnson v. Wis. Elections Comm'n, 2022 WI 19, 401 Wis. 2d 198, 972 N.W.2d 559 ("Johnson III"). After we denied their petition for leave to commence an original action, see Wright v. Wis. Elections Comm'n, 2023 WI 71, 409 Wis. 2d 417, 995 N.W.2d 771, they subsequently filed a motion to intervene in this case, which the Court granted. 4 They are Senators Carpenter, Larson, Spreitzer, Hesselbein, and Smith. 5 They are Senators Cabral-Guevara, Hutton, Jacque, Jagler, James, Kapenga, LeMahieu, Marklein, Nass, Quinn, Tomczyk, and Wanggaard. 6 Four of these voters——Billie Johnson, Eric O'Keefe, Ed Perkins, and Ronald Zahn——were petitioners in Johnson. They intervened in this case along with Chris Goebel, Robert Jensen, Ruth Elmer, Ruth Streck, and Terry Moulton, who were not parties to Johnson. 7 One of the named Respondents, Wisconsin Elections Commission, takes no position on the issues presented.

4 legislative districts comply with the Wisconsin Constitution's

contiguity requirements. Respondents also contend that

Petitioners' claims are barred by various defenses, and that the

relief the Petitioners seek is otherwise unavailable.

¶3 We hold that the contiguity requirements in Article

IV, Sections 4 and 5 mean what they say: Wisconsin's state

legislative districts must be composed of physically adjoining

territory. The constitutional text and our precedent support

this common-sense interpretation of contiguity. Because the current state legislative districts contain separate, detached

territory and therefore violate the constitution's contiguity

requirements, we enjoin the Wisconsin Elections Commission from

using the current legislative maps in future elections.8 We also

reject each of Respondents' defenses. We decline, however, to

issue a writ quo warranto invalidating the results of the 2022

state senate elections.

¶4 Because we enjoin the current state legislative

district maps from future use, remedial maps must be drawn prior

to the 2024 elections. The legislature has the primary

authority and responsibility to draw new legislative maps. See Wis. Const. art. IV, § 3. Accordingly, we urge the legislature

to pass legislation creating new maps that satisfy all

requirements of state and federal law. We are mindful, however,

that the legislature may decline to pass legislation creating

Because we determine that non-contiguous districts violate 8

the constitution, we need not address Petitioners' alternative argument that the process by which the current state legislative districts were adopted violated the Wisconsin Constitution's separation-of-powers doctrine. Md. Arms Ltd. P'ship v. Connell, 2010 WI 64, ¶48, 326 Wis. 2d 300, 786 N.W.2d 15 ("Issues that are not dispositive need not be addressed." (citation omitted)). 5 new maps, or that the governor may exercise his veto power.

Consequently, to ensure maps are adopted in time for the 2024

election, we will proceed toward adopting remedial maps unless

and until new maps are enacted through the legislative process.

At the conclusion of this opinion, we set forth the process and

relevant considerations that will guide the court in adopting

new state legislative districts——and safeguard the

constitutional rights of all Wisconsin voters.

I. BACKGROUND

¶5 Following the 2020 census, the legislature passed

legislation creating new state legislative district maps, the

governor vetoed the legislation, and the legislature did not

attempt to override his veto. Because the legislature and the

governor reached an impasse, the 2011 maps remained in effect,

even though they no longer complied with the Wisconsin or United

States Constitutions due to population shifts.

¶6 Billie Johnson and other Wisconsin voters asked this

court to redraw the unconstitutional 2011 maps. See Johnson v.

Wis. Elections Comm'n, 2021 WI 87, ¶2, 399 Wis. 2d 623, 967

N.W.2d 469 ("Johnson I"). In that case, we first confirmed that

the 2011 maps no longer complied with the state and federal

requirement that districts be equally populated. See id. Next,

we identified the principles that would guide the court in

adopting new maps, including the proposition that remedial maps

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

comport with relevant legal requirements." Id., ¶72 (quoting Wright v. City of Albany, 306 F. Supp. 2d 1228, 1237 (M.D. Ga.

2003)). We then invited the parties to submit proposed state

6 legislative maps for our review. See id., ¶87 (Hagedorn, J.,

concurring). Of the proposed maps, we adopted the Governor's.

See Johnson v. Wis. Elections Comm'n, 2022 WI 14, ¶52, 400

Wis. 2d 626, 971 N.W.2d 402 ("Johnson II"). The United States

Supreme Court summarily reversed that decision, holding that the

Governor's proposed legislative maps violated the Equal

Protection Clause of the Fourteenth Amendment because they

increased the number of majority-Black districts in the

Milwaukee area without sufficient justification. Wis. Legis. v.

Wis. Elections Comm'n, 595 U.S. 398, 403, 406 (2022) (per

curiam). On remand, we adopted the legislative maps proposed by

the Legislature. See Johnson v. Wis. Elections Comm'n, 2022 WI

19, ¶3, 401 Wis. 2d 198, 972 N.W.2d 559 ("Johnson III").

¶7 In this case, the Clarke Petitioners filed a petition

for leave to commence an original action challenging the maps

adopted in Johnson III, arguing that they: (1) are an extreme

partisan gerrymander; (2) do not comply with the contiguity

requirements contained in Article IV, Sections 4 and 5 of the

Wisconsin Constitution; and (3) were created via a process that

violated the separation of powers. We granted leave in part,

allowing Petitioners' contiguity and separation-of-powers claims

to proceed, while declining to review the issue of extreme

partisan gerrymandering. We explained that although

Petitioners' extreme-partisan-gerrymandering claim presented an

important and unresolved legal question, we declined to address

it due to the need for extensive fact-finding. See Clarke v. Wis. Elections Comm'n, 2023 WI 70, 409 Wis. 2d 372, 995 N.W.2d

779.

7 ¶8 After granting the petition in part, we permitted

several parties to intervene. We ordered the parties to provide

briefing on the following four questions:

1.) Do the existing state legislative maps violate the contiguity requirements contained in Article IV, Sections 4 and 5 of the Wisconsin Constitution?

2.) Did the adoption of the existing state legislative maps violate the Wisconsin Constitution's separation of powers?

3.) If the court rules that Wisconsin's existing state legislative maps violate the Wisconsin Constitution for either or both of these reasons and the legislature and the governor then fail to adopt state legislative maps that comply with the Wisconsin Constitution, what standards should guide the court in imposing a remedy for the constitutional violation(s)?

4.) What fact-finding, if any, will be required if the court determines there is a constitutional violation based on the contiguity clauses and/or the separation- of-powers doctrine and the court is required to craft a remedy for the violation? If fact-finding will be required, what process should be used to resolve questions of fact?

Id. After all parties submitted initial briefs, Respondents

filed a motion to dismiss, asserting various defenses. Oral

argument was held on November 21, 2023. ¶9 In this opinion, we first address whether the existing

state legislative districts violate the Wisconsin Constitution's

contiguity requirements. We determine that a substantial number

of districts do so. Next, we turn to Respondents' motion to

dismiss and the defenses asserted therein. Because none of

Respondents' proffered defenses apply here, we deny Respondents'

motion to dismiss. Finally, we enjoin the Wisconsin Elections Commission from using the maps in future elections, and we

8 explain the process and relevant considerations that will guide

the court in adopting remedial maps. II. CONTIGUITY

¶10 We begin by determining the meaning of "contiguous

territory" set out in Article IV, Sections 4 and 5 of the

Wisconsin Constitution. To do so, we examine the constitutional

text, our precedent interpreting that text, and other

jurisdictions' interpretations of similar provisions. Next, we

apply that meaning to the current legislative districts to determine whether the districts violate the contiguity

requirements. We conclude that the current legislative maps

contain districts that are not composed of "contiguous

territory" and therefore violate the Wisconsin Constitution.

A. Text

¶11 We start our analysis with Article IV, Section 4 of

the Wisconsin Constitution, which sets the ground rules for how

Wisconsin Assembly members are elected and how their districts

are to be established. That section reads in full as follows:

The members of the assembly shall be chosen biennially, by single districts, on the Tuesday succeeding the first Monday of November in even- numbered years, by the qualified electors of the several districts, such districts to be bounded by county, precinct, town or ward lines, to consist of contiguous territory and be in as compact form as practicable. Wis. Const. art. IV, § 4 (emphasis added). The underlined

portion of Section 4 imposes three separate requirements for

establishing assembly districts. The districts must: (1) "be bounded by county, precinct, town or ward lines;" (2) "consist

9 of contiguous territory;" and (3) "be in as compact form as

practicable."

¶12 Article IV, Section 5 sets out rules for how senators

are elected and how their districts are established:

The senators shall be elected by single districts of convenient contiguous territory, at the same time and in the same manner as members of the assembly are required to be chosen; and no assembly district shall be divided in the formation of a senate district. The senate districts shall be numbered in the regular series, and the senators shall be chosen alternately from the odd and even-numbered districts for the term of 4 years. Wis. Const. art. IV, § 5 (emphasis added). The underlined

portion of Section 5 imposes three requirements on senate

districts. The senate districts must (1) be "single districts;"

(2) be "of convenient contiguous territory;" and (3) not divide

any assembly districts.

¶13 Sections 4 and 5 both impose a contiguity requirement

on districts——specifically, assembly and senate districts must

consist of "contiguous territory." Given the language in the

constitution, the question before us is straightforward. When

legislative districts are composed of separate, detached parts,

do they consist of "contiguous territory"? We conclude that

they do not.

¶14 Much of the Wisconsin Constitution is set out in broad

terms, the interpretation of which may lead to difficult

questions and require a complex balancing of interests. For

instance, at what point does a search or seizure become

unreasonable? See Wis. Const. art. I, § 11. What does it mean for a person to be "entitled to a certain remedy in the laws for

all injuries"? See Wis. Const. art. I, § 9. Or even, how 10 compact does a district have to be in order to be in "as compact

form as practicable"? See Wis. Const. art. IV, § 4.

¶15 In other places, however, our constitution imposes

specific requirements whose meaning is immediately apparent from

the words themselves. For instance, assembly elections must be

held "on the Tuesday succeeding the first Monday in November in

even-numbered years." See Wis. Const. art. IV, § 4. And judges

must have been licensed to practice law for "5 years immediately

prior to appointment." See Wis. Const. art. VII, § 24. ¶16 The contiguous territory requirement fits squarely

into the latter category. It is immediately apparent, using

practically any dictionary, that contiguous means "touching" or

"in actual contact." See, e.g., Contiguous, Black's Law

Dictionary, (11th ed. 2019) ("Touching at a point or along a

boundary."); Contiguous, Oxford English Dictionary (2d ed. 1989)

("touching, in actual contact, next in space; meeting at a

common boundary, bordering, adjoining"); Contiguous, Merriam

Webster Dictionary (11th ed. 2019) ("being in actual contact:

touching along a boundary or at a point"). These definitions

make clear that contiguous territory is territory that is touching, or in actual contact. In other words, a district must

be physically intact such that a person could travel from one

point in the district to any other point in the district without

crossing district lines. See Bernard Grofman, Criteria for

Districting: A Social Science Perspective, 33 UCLA L. Rev. 77,

84 (1985) ("A district may be defined as contiguous if every part of the district is reachable from every other part without

crossing the district boundary.").

11 ¶17 We find additional support for this understanding of

contiguity in historical definitions and early Wisconsin

districting practices. In examining historical definitions of

the word "contiguous," we see that the definition has not

changed since the Wisconsin Constitution was adopted. See

Contiguous, A Dictionary of the English Language (1756)

("meeting so as to touch; bordering upon each other; not

separate"); Contiguous, An American Dictionary of the English

Language (1828) ("touching: meeting or joining at the surface or border"). Turning to early districting practices, the first

state legislative districts, set forth in the Wisconsin

Constitution, were all physically contiguous. See Wis. Const.

art. XIV, § 12 (1848). Additionally, the constitution specified

that if existing towns were split or new towns were created, the

districts had to remain physically intact. See id. In short,

historical definitions and practices related to contiguity

bolster our conclusion that contiguity does indeed require

"touching," or "actual contact."

¶18 Respondents assert that a district with separate,

detached territory can still be contiguous——so long as the detached territory is a "municipal island"9 and the main body of

9Municipal islands are portions of a municipality separated from the main body of the municipality. Municipal islands are created via annexation, either because a municipality has annexed the island, or because a municipality has annexed territory in such a way as to isolate a portion of another municipality. No party disputes that municipal islands created by annexation are themselves permissible. This court said as much in Town of Blooming Grove v. City of Madison, 275 Wis. 342, 347-48 81 N.W.2d 721 (1957), when it held that the City of Madison was not prohibited from annexing portions of the Town of Blooming Grove in such a way that separated unincorporated portions of Blooming Grove from one another.

12 the municipality is located elsewhere in the district. The

Legislature refers to this as "political contiguity." Adopting

the concept of political contiguity would essentially require us

to read an exception into the contiguity requirements——that

district territory must be physically touching, except when the

territory is a detached section of a municipality located in the

same district.

¶19 We decline to read a political contiguity exception

into Article IV's contiguity requirements. The text contains no such exception. Both Section 4 and Section 5 include the

discrete requirement that districts be composed of contiguous

territory. There are no exceptions to contiguity in the

constitution's text, either overt or fairly implied. True,

assembly districts must also be "in as compact form as

practicable" and "bounded by county, precinct, town or ward

lines," but the existence of additional requirements does not

constrain or limit the separate requirement that district

territory be contiguous.

¶20 Contiguity is binary: territory is either contiguous

(touching, in contact) or it is not (separate, detached). See Johnson v. State, 366 S.W.3d 11, 24, 30 (Mo. 2012) (en banc)

(describing contiguity as "an absolute standard that either is

satisfied or not satisfied by the challenged map" because it is

"free of any phrase that could broaden the meaning of

'contiguous.'"). In this respect, the contiguity requirements

are unlike, for example, the provision of Article IV, Section 4 that requires districts be "in as compact form as practicable."

13 Contiguity is not required only when it is practicable——it is a

constitutional imperative for all districts.

B. Precedent

¶21 This straightforward understanding of contiguity has

been twice confirmed by this court: first in Chicago & Northwest

Railway Co. v. Town of Oconto, 50 Wis. 189, 196, 6 N.W. 607

(1880), and then twelve years later in State ex rel. Lamb v.

Cunningham, 83 Wis. 90, 148, 53 N.W. 35 (1892). In Oconto, we

determined that "separate, detached" territory was not contiguous:

To so construe the constitution as to [allow towns to] be composed of separate, detached, and non-contiguous territory, would most unquestionably restrict the sovereign power of the legislature in the organization of assembly districts 'consisting of contiguous territory, and bounded by county, precinct, town, or ward lines.' Article 4, § 4, Const.10 50 Wis. at 196. In Lamb, we addressed the question of district

contiguity head on, stating that Article IV, Section 4 "requires

that each assembly district must consist of contiguous

territory; that is to say, it cannot be made up of two or more

pieces of detached territory." Lamb, 83 Wis. at 148. Simply

put, this court understood the contiguity requirement to mean

just what it says: Districts must be made up of contiguous

This court later clarified that Oconto's holding on town 10

contiguity did not prohibit municipalities from annexing territory in a way that created municipal islands, reasoning in part that annexation of some areas within a town did not change town boundaries, which stretched across both incorporated and unincorporated areas. Thus, all parts of the town remained contiguous. Town of Blooming Grove v. City of Madison, 275 Wis. 342, 346-47, 81 N.W.2d 721 (1957). Blooming Grove expressly declined to address the impact of town contiguity on legislative districts, and did not revise our underlying definition of contiguity itself. Id. at 346-48.

14 territory——i.e., territory that is not separate or detached, but

physically touching.

¶22 Respondents argue that this court's Johnson decisions

support their position——that the contiguity requirements are

satisfied even when a district includes detached territory, so

long as that territory is a municipal island. The following is

the full extent of our municipal island analysis in Johnson I:

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). Johnson I, 399 Wis. 2d 623, ¶36. We twice repeated our cursory

treatment of contiguity in Johnson II and Johnson III. See

Johnson II, 400 Wis. 2d 626, ¶36; Johnson III, 401 Wis. 2d 198,

¶70.

¶23 We take a moment to briefly examine Prosser v.

Elections Board, 793 F. Supp. 859 (W.D. Wis. 1992), the source

of Johnson I's proposition that districts can be legally

contiguous if they include detached portions of a municipality.

In Prosser, a federal district court determined that lack of

contiguity in legislative maps was not "a serious demerit," and

noted that the Wisconsin Legislature "treat[ed] islands as

contiguous with the cities or villages to which they belong."

Prosser, 793 F. Supp. at 866. The Prosser court did not examine

15 this court's precedent, but instead cited to two statutes,11 one

of which had been repealed by the time of our Johnson I

decision. Id.

¶24 Our reliance on Prosser was in error. To the extent

that Johnson's passing statements about the contiguity

requirements of Article IV, Sections 4 and 5 represent binding

precedent, we overrule them. As a court, "we have repeatedly

recognized the importance of stare decisis to the rule of law."

State v. Johnson, 2023 WI 39, ¶19, 407 Wis. 2d 195, 990 N.W.2d 174. But one situation in which we may depart from stare

decisis is when a decision is "unsound in principle" because it

"misapplies the Wisconsin Constitution." State v. Roberson,

2019 WI 102, ¶51, 389 Wis. 2d 190, 935 N.W.2d 813. Johnson is

unsound in principle because it misapplied the constitution in

three ways. First, Johnson failed to analyze the contiguity

requirements evident in the text of the constitution. Second,

Johnson did not attempt to square its view of contiguity with

the court's precedential decisions regarding the constitution's

contiguity requirements in Oconto or Lamb. Third, Johnson I

relied entirely upon Prosser12 which itself ignored the ordinary meaning of the constitutional text and instead pointed to two

statutes, one of which had been repealed by the time of the

Johnson I decision. Under these circumstances, we would "do

Namely, Wis. Stat. §§ 4.001(3); 5.15(1)(b) (1991-92). 11

Neither statute defines what the constitution requires, and in any event, § 4.001(3) was repealed in 2011. 2011 Wis. Act 43. § 2.

We note that "federal district court cases are not 12

binding authority on this court." State v. Wood, 2010 WI 17, ¶18, 323 Wis. 2d 321, 780 N.W.2d 63.

16 more damage to the rule of law by obstinately refusing to admit

[our] error, thereby perpetuating injustice, than by" overruling

this part of Johnson. Roberson, 389 Wis. 2d 190, ¶49. We

therefore hold that, notwithstanding any statements to the

contrary in Johnson, Article IV, Sections 4 and 5 mean what they

say——districts must be composed of contiguous territory; i.e.,

territory that is touching, not separate or detached.

C. Persuasive Authority

¶25 Although we are not bound by other states' interpretations of district contiguity requirements, we are

persuaded by their near-uniform acceptance that "contiguous

territory" does indeed mean territory that is touching, not

separate or detached.13 See, e.g., Below v. Gardner, 963 A.2d

785, 792 (N.H. 2002) ("Courts generally agree that contiguous

territory is territory that touches, adjoins or is connected, as

distinguished from territory that is separated by other

territory."); In re Legislative Districting of State, 475 A.2d

428, 437 (Md. 1982) ("[C]ontiguous territory is territory

touching, adjoining and connected, as distinguished from

territory separated by other territory."); Hickel v. Se. Conf., 846 P.2d 38, 45 (Alaska 1992) ("Contiguous territory is

See Yunsieg P. Kim & Jowei Chen, Gerrymandered by 13

Definition: The Distortion of "Traditional" Districting Criteria and A Proposal for Their Empirical Redefinition, 2021 Wis. L. Rev. 101, 167 (noting that 49 states have imposed contiguity requirements on their legislative maps); Richard G. Niemi, The Relationship Between Votes and Seats: The Ultimate Question in Political Gerrymandering, 33 UCLA L. Rev. 185, 187 (1985) ("That political districts should be contiguous——that all parts of a district should be connected——is not likely to be important in gerrymandering cases because it is relatively noncontroversial.").

17 territory which is bordering or touching."); Sherill v. O'Brien,

81 N.E. 124, 131 (N.Y. 1907) ("The ordinary and plain meaning of

the words 'contiguous territory' is not territory nearby, in the

neighborhood or locality of, but territory touching, adjoining,

and connected, as distinguished from territory separated by

other territory."). This understanding of contiguous remains

the same even for states, like ours, that allow non-contiguous

municipal annexation. See, e.g., Stephenson v. Bartlett, 582

S.E.2d 247, 254 (N.C. 2003) (upholding a lower court decision holding that contiguity means sharing "a common boundary", even

though N.C. Gen. Stat. § 160A-58.1 allows for non-contiguous

municipal annexation). Clearly, the holding of this court is

not novel. We are simply giving effect to a constitutional

contiguity requirement as so many other courts have done.

¶26 The few contiguity-related issues that other courts

have genuinely grappled with are edge cases that arise when

district territory is connected only by water, or when

contiguity is technically achieved, but barely (for example,

when territory is connected only at a single point). When edge

cases arise, courts still understand that parts of a district may not be separated by other districts. See Wilkins v. West,

571 S.E.2d 100, 109 (Va. 2002) (holding a district was

contiguous over water, while noting that "clearly, a district

that contained two sections completely severed by another land

mass would not meet this constitutional requirement [of

contiguity]."). In other words, the existence of edge cases does not justify abandoning the requirement that territory must

18 indeed be touching to be contiguous. To clarify matters for the

remedial process, we discuss these ancillary issues next.

D. Ancillary Issues: Water Contiguity and Touch-Point Contiguity

¶27 Like many other states, Wisconsin's geography is such

that certain districts span bodies of water.14 This does not, by

itself, violate the contiguity requirement. A district can

still be contiguous if it contains territory with portions of

land separated by water. See Johnson v. State, 366 S.W.3d at 31

(noting that "the dictionary definition of 'territory'

references a geographic area without regard to whether the

portions of the land within the geographic area are split by

large rivers or other bodies of water."). This understanding of

water contiguity is common in states that include or border

bodies of water. See, e.g., Wilkins, 571 S.E.2d at 109 ("[N]o

one disputes that the geography and population of this

Commonwealth necessitate that some electoral districts include

water, and that land masses separated by water may nevertheless

satisfy the contiguity requirement in certain circumstances."); Hickel, 846 P.2d at 45 ("Absolute contiguity of land masses is

impossible in Alaska, considering her numerous archipelagos.

Accordingly, a contiguous district may contain some amount of

open sea."); Parella v. Montalbano, 899 A.2d 1226, 1255 (R.I.

2006) ("In the instant matter, while the districts are not

contiguous on land, this Court finds that the districts are

For instance, Madeline Island in Ashland County does not 14

have sufficient population to constitute its own district, so any district that includes it will have to span across a portion of Lake Superior.

19 contiguous on the basis of shore-to-shore contiguity."). As in

these states, the fact that a district's territory includes land

separated by water will not, by itself, defeat the contiguity

requirements in Article IV, Sections 4 and 5.

¶28 In addition to water-contiguity, we must also address

the issue of "touch-point contiguity." Touch-point contiguity

occurs when territory is contiguous only because it is joined at

a single point. Some states allow touch-point contiguity, and

some do not. Compare Stephenson, 582 S.E.2d at 254 (affirming a trial court's finding that "a district whose parts are 'held

together' by the mathematical concept of 'point contiguity' does

not meet the . . . criteria for contiguity."), with In re 1983

Legislative Apportionment of House, Senate, & Cong. Districts,

469 A.2d 819, 831 (Me. 1983) (holding that a district that was

contiguous only at a single point "approach[ed] the limits of

what is constitutionally permissible," but still met the

contiguity requirement).

¶29 For our purposes, since territory that touches at a

single point is indeed touching, touch-point contiguity alone

does not violate the contiguity requirement. Although touch- point contiguity can be a "sign that traditional districting

criteria were compromised," Covington v. North Carolina, 316

F.R.D. 117, 141 (M.D.N.C. 2016), aff'd, 581 U.S. 1015 (2017)

(citing Shaw v. Reno, 509 U.S. 630, 636 (1993)), such concerns

are better addressed by examining redistricting criteria as a

20 whole rather than complicating the otherwise simple contiguity

requirement.15

E. The Current Maps' Non-Contiguity

¶30 Having determined that "contiguous territory" means

that the territory must be actually touching, we now turn to the

current legislative maps. We examine the current maps and

conclude that the non-contiguous districts violate the

requirements set out in Article IV, Sections 4 and 5 of the

Wisconsin Constitution. ¶31 None of the parties disputes that the current

legislative maps contain districts with discrete pieces of

territory that are not in actual contact with the rest of the

district. We again look at the example of Assembly District 47

which plainly includes separate, detached parts:

15A district with only touch-point contiguity may not be as compact as reasonably practicable, for example. See Wis. Const. art. IV, §§ 4-5.

21 ¶32 Assembly district 53 in the Oshkosh area is another

such example, with multiple separate, detached parts:

22 Assembly district 68 in the Eau Claire area (in yellow below) is

another:

23 ¶33 Many senate districts also contain separate, detached

parts. District 22 in the Racine area, shown in orange and

purple below, is one example:

District 27, shown in orange, purple, and green below, is

another:

24 ¶34 In total, at least 50 assembly districts and at least

20 senate districts include separate, detached parts. That is

to say, a majority of the districts in both the assembly and the

senate do not consist of "contiguous territory" within the

meaning of Article IV, Section 4, nor are they "of convenient

contiguous territory" within the meaning of Article IV, Section

5. Therefore, we hold that the non-contiguous legislative

districts violate the Wisconsin Constitution.

¶35 We would be remiss to end our discussion on contiguity without emphasizing that contiguity is "not just a gracenote in

the score of democracy; it is crucial, both practically and

theoretically." Daniel D. Polsby & Robert D. Popper, The Third

Criterion: Compactness as a Procedural Safeguard Against

Partisan Gerrymandering, 9 Yale L. & Pol'y Rev. 301, 330 (1991).

The contiguity requirement (along with compactness) helps make

for districts that are more geographically cohesive——and

therefore more likely to reflect a reasonably homogeneous slate

of interests than districts with scattered pockets of isolated

communities. Additionally, drafters of contiguity requirements

have viewed contiguity as no mere technical requirement, but as an important tool to constrain districting practices they

consider undesirable. See Rucho v. Common Cause, 588 U.S. ___,

139 S. Ct. 2484, 2495 (2019) (noting that the Apportionment Act

of 1842 required contiguity "in an attempt to forbid the

practice of the gerrymander"); Pearson v. Koster, 359 S.W.3d 35,

38 (Mo. 2012) (stating that the purpose of a contiguity requirement was "to guard, as far as practicable, under the

system of representation adopted, against a legislative evil,

25 commonly known as the gerrymander" (citation omitted)); Hickel,

846 P.2d at 45 ("[T]he requirements of contiguity, compactness

and socio-economic integration were incorporated by the framers

of the reapportionment provisions to prevent gerrymandering").

We decline to chip away at such a consequential districting

requirement by approving an exception not found in our

constitution's text.

III. DEFENSES

¶36 Having determined that the non-contiguous legislative

districts violate the Wisconsin Constitution, we now turn to

Respondents' motion to dismiss and explain why none of their

proffered defenses preclude us from holding in favor of

Petitioners on the merits.

¶37 In their motion to dismiss and other briefing,

Respondents maintain that Petitioners lack standing to challenge

the contiguity of the current legislative districts, and that

their claims are barred by laches, preclusion, and estoppel.

Additionally, Respondents contend that this case is an

impermissible collateral attack on this court's judgment in

Johnson III, and that, as a result, neither the declaratory nor

the injunctive relief Petitioners seek is available.16 We

conclude that Respondents' defenses do not apply, and that

Respondents also make a brief argument that adjudicating 16

this case in Petitioners' favor will violate Respondents' due process rights under the Fourteenth Amendment of the United States Constitution. These arguments are underdeveloped, and as such, we do not address them. See Casanova v. Polsky, 2023 WI 19, ¶44, 406 Wis. 2d 247, 986 N.W.2d 780 ("[W]e need not address underdeveloped arguments.").

26 declaratory and injunctive relief are available. Accordingly,

we deny the motion to dismiss.17

A. Standing

¶38 At the outset, we deny Respondents' motion to dismiss

for lack of standing. The Governor indisputably has standing,

and that is all that is required for this case to proceed.

¶39 Respondents do not argue that the Governor lacks

standing, nor could they. Our cases make clear that "the state,

acting either through the Governor or the Attorney General, may

challenge the constitutionality of a state reapportionment plan

as a violation of state constitutional rights of the citizens."

State ex rel. Reynolds v. Zimmerman, 22 Wis. 2d 544, 552, 126

N.W.2d 551 (1964) (emphasis added).18 Importantly, as long as

17The Clarke and Wright Petitioners assert that the motion to dismiss is procedurally improper because the rules governing original actions do not permit it, see Wis. Stat. § (Rule) 809.70, and because we implicitly rejected these arguments when we granted in part leave to commence this original action. Since we reject Respondents' arguments on the merits, we need not address the procedural propriety of the motion. 18 State ex rel. Reynolds v. Zimmerman, 22 Wis. 2d 544, 126 N.W.2d 551 (1964) involved a challenge based on equal population, but it supported its proposition that the governor had standing by pointing to cases in which the executive branch challenged maps on other state constitutional grounds, including contiguity. Id. at 552 n.3 (citing State ex rel. Att'y Gen. v. Cunningham, 81 Wis. 440, 51 N.W. 724 (1892)). Therefore, it is difficult to see why Reynolds' holding would be limited to equal population challenges, particularly given Reynolds' broad language referring to "violation[s] of state constitutional rights of the citizens." Id. at 552.

27 one of the Petitioners has standing, this case may proceed.19

See City of Madison v. Town of Fitchburg, 112 Wis. 2d 224, 232,

332 N.W.2d 782 (1983) ("Having determined that one party has

standing to maintain this action, we next turn to the merits.");

see also Chi. Joe's Tea Room, LLC v. Vill. of Broadview, 894

F.3d 807, 813 (7th Cir. 2018) ("As long as there is at least one

individual plaintiff who has demonstrated standing to assert

these rights as his own, a court need not consider whether the

other plaintiffs . . . have standing to maintain the suit." (quoting Bond v. Utreras, 585 F.3d 1061, 1070 (7th Cir. 2009))

(quotation marks omitted)). Accordingly, we need not address

Respondents' standing arguments further.

B. Laches, Issue Preclusion, Claim Preclusion, and Judicial Estoppel

¶40 For a myriad of reasons, Respondents have failed to

demonstrate that Petitioners' claims are barred by laches, issue

preclusion, claim preclusion, or judicial estoppel.

1. Laches

¶41 Laches is an affirmative defense that applies when the

failure to promptly bring a claim prejudices the party defending

against that claim. See Wis. Small Bus. United, Inc. v.

Brennan, 2020 WI 69, ¶12, 393 Wis. 2d 308, 946 N.W.2d 101. A

laches defense has three elements: "(1) a party unreasonably

delays in bringing a claim; (2) a second party lacks knowledge

The fact that the Governor is an intervenor-petitioner is 19

immaterial. When a party intervenes, they become "a full participant in the proceedings, having all the same rights as all other parties to the action." Democratic Nat'l Comm. v. Bostelmann, 2020 WI 80, ¶9, 394 Wis. 2d 33, 949 N.W.2d 423.

28 that the first party would raise that claim; and (3) the second

party is prejudiced by the delay." Id. (citing State ex rel.

Wren v. Richardson, 2019 WI 110, ¶15, 389 Wis. 2d 516, 936

N.W.2d 587).

¶42 Respondents have failed to demonstrate two necessary

elements of laches: unreasonable delay and prejudice. Taking

unreasonable delay first, this case was filed less than a year-

and-a-half after Johnson III adopted the state legislative

district maps at issue in this case. Johnson III was decided on April 15, 2022, the last possible day for districts to be

established prior to the 2022 fall elections. See Johnson III,

401 Wis. 2d 198, ¶138 (Rebecca Grassl Bradley, J., concurring)

(explaining that "Wisconsin law authorizes candidates to begin

circulating nomination papers for [the fall] primary on April

15."). Petitioners ran out of time and could not obtain relief

prior to the 2022 elections. As a result, Petitioners decided

to request relief in time for the 2024 elections——the soonest

elections for which relief could be granted. Given the timing of

legislative elections, filing this case in August of 2023 is not

unreasonable delay. See also State ex rel. Lopez-Quintero v. Dittmann, 2019 WI 58, ¶28 387 Wis. 2d 50, 928 N.W.2d 480

("'[T]he overriding responsibility of [the Supreme] Court is to

the Constitution of the United States' and of this court, to the

Wisconsin Constitution as well, 'no matter how late it may be

that a violation of the Constitution is found to exist.'"

(quoting Chessman v. Teets, 354 U.S. 156, 165 (1957))). ¶43 As for prejudice, Respondents have not demonstrated

any relevant prejudice stemming from Petitioners' delay. The

29 only harms Respondents cite are litigation costs (both in

Johnson and in this case) and vague assertions about disruption

to the status quo. But litigation costs alone cannot constitute

prejudice for laches purposes, and any disruption to the current

state legislative districts is necessary to serve the public's

interest in having districts that comply with each of the

requirements of the Wisconsin Constitution. See, e.g., Goodman

v. McDonnell Douglas Corp., 606 F.2d 800, 808 (8th Cir. 1979)

(rejecting the argument that "the cost of litigation . . . by itself could constitute prejudice within the contemplation of a

laches defense."). Accordingly, we hold that laches does not

apply.20

2. Issue Preclusion

¶44 Issue preclusion is an equitable defense that "is

designed to limit the relitigation of issues that have been

actually litigated in a previous action." Dostal v. Strand,

2023 WI 6, ¶22, 405 Wis. 2d 572, 984 N.W.2d 382 (quoting Aldrich

v. LIRC, 2012 WI 53, ¶88, 341 Wis. 2d 36, 814 N.W.2d 433). In

an issue preclusion analysis, we determine: (1) whether issue

preclusion can be applied as a matter of law, and (2) if so,

whether applying issue preclusion would be "fundamentally fair."

Id., ¶23. Issue preclusion can be applied as a matter of law

We also note that this case is distinguishable from Trump 20

v. Biden, 2020 WI 91, Wis. 2d 629, 951 N.W.2d 568, where we were asked to overturn the results of a legally conducted election, and we held that several of the claims failed under the doctrine of laches. Here we are asked to determine whether state legislative maps are constitutional, and because we determine they are not, we establish a process going forward so that constitutional maps are adopted in time for the next election.

30 when a factual or legal issue was "actually litigated and

determined in the prior proceeding by a valid judgment in a

previous action" and "the determination was essential to the

judgment." Id., ¶24; see also N. States Power Co. v. Bugher,

189 Wis. 2d 541, 550-51, 525 N.W.2d 723 (1995).

¶45 Issue preclusion does not bar Petitioners' contiguity

claims because contiguity was not actually litigated in

Johnson.21 In Johnson, all agreed that the state legislative

districts enacted in 2011 were unconstitutional due to population shifts that occurred prior to the 2020 census.

Johnson I, Wis. 2d 623, ¶2. The sole claim in Johnson was

malapportionment. Of import, none of the parties argued that

either the 2011 state legislative districts or any of the

parties' proposed remedial district maps violated the

constitution's contiguity requirements. Indeed, in their

briefing, the Johnson parties scarcely mentioned contiguity at

all. As discussed above, when the parties did mention

contiguity, they primarily cited Prosser, 793 F. Supp. at 866, a

non-binding federal district court decision, which said

(contrary to this court's prior precedent), the Wisconsin

Since we determine that issue preclusion cannot be 21

applied because Petitioners' contiguity claim was not actually litigated, we do not reach the second question of whether the application of issue preclusion is "fundamentally fair." See Dostal v. Strand, 2023 WI 6, ¶23, 405 Wis. 2d 572, 984 N.W.2d 382.

31 constitution does not require "literal contiguity."22 Under

these circumstances, we hold that no party in Johnson "actually

litigated" whether the current state legislative districts

satisfy Article IV, Sections 4 and 5's contiguity requirements.23

Therefore, issue preclusion does not apply in this case.

22 Moreover, before we decided Johnson I, we ordered the parties to submit a joint stipulation of facts and law. In that joint stipulation, the parties agreed that "[c]ontiguity for state assembly districts is satisfied when a district boundary follows municipal boundaries. Municipal 'islands' are legally contiguous with the municipality to which the 'island' belongs." This further underscores the fact that no party in Johnson actually litigated the issue of contiguity. See also City of Sheboygan v. Nytsch, 2006 WI App 191, ¶12, 296 Wis. 2d 73, 722 N.W.2d 626 (quoting Restatement (Second) of Judgments § 27 cmt. e (1982)) (explaining an issue is not actually litigated for issue-preclusion purposes when the issue is resolved by stipulation of the parties), vacated in part on other grounds 2008 WI 64, ¶5, 310 Wis. 2d 337, 750 N.W.2d 475. Such an agreement also undermines Respondents' argument that judicial estoppel should bar the Petitioners' contiguity claim, as will be explained later. 23 Even if contiguity were actually litigated, the Clarke Petitioners (and several of the Wright Petitioners) were not parties in Johnson, nor do they have a "sufficient identity of interest" with any of the Johnson parties to preclude them from litigating the issue here. See Paige K.B. ex rel. Peterson v. Steven G.B., 226 Wis. 2d 210, 223, 594 N.W.2d 370 (1999). The United States Supreme Court has emphasized that applying "issue preclusion to nonparties" raises due process issues and "runs up against the 'deep-rooted historic tradition that everyone should have his [or her] own day in court.'" Taylor v. Sturgell, 553 U.S. 880, 892-93 (2008) (quoting Richards v. Jefferson County, 517 U.S. 793, 798 (1996)). Respondents' only argument regarding the Clarke Petitioners is that they have sufficient identity of interest with the parties in Johnson since some of the Clarke Petitioners' attorneys represented other parties in Johnson. But the identity of the lawyers hired by the Clarke Petitioners is irrelevant to whether the Clarke Petitioners' due process rights were protected. See Taylor, 553 U.S. at 892-93. Thus, our decisions in Johnson cannot preclude the Clarke Petitioners from raising the contiguity issue here.

32 3. Claim Preclusion

¶46 We also reject Respondents' argument that the

Governor's and the Wright Petitioners' contiguity claims are

barred by claim preclusion. Unlike issue preclusion, which

applies only to issues that were actually litigated in a prior

proceeding, claim preclusion prevents relitigation of "all

matters 'which were litigated or which might have been litigated

in the former proceedings.'" Kruckenberg v. Harvey, 2005 WI 43,

¶19, 279 Wis. 2d 520, 694 N.W.2d 879 (quoting Sopha v. Owens-

Corning Fiberglas Corp., 230 Wis. 2d 212, 233, 601 N.W.2d 627

(1999)). Claim preclusion has three requirements: "(1)

identity between the parties or their privies in the prior and

present suits; (2) prior litigation resulted in a final judgment

on the merits by a court with jurisdiction; and (3) identity of

the causes of action in the two suits." Sopha, 230 Wis.2d at

233-34.

¶47 Claim preclusion does not apply to the Governor's or

the Wright Petitioners' claims because this case and Johnson

involve different causes of action. In determining whether

causes of action are identical for claim-preclusion purposes,

Wisconsin applies the "transactional approach," which views

claims "in factual terms and coterminous with the transaction,

rather than in terms of legal theories." Fed. Nat'l Mortg.

Ass'n v. Thompson, 2018 WI 57, ¶¶33-34, 381 Wis. 2d 609, 912

N.W.2d 364. Put another way, we look to whether there is a

shared set of operative facts at issue in the two proceedings,

not whether the two cases involved similar or related legal theories. See id., ¶34.

33 ¶48 Applying the transactional approach, we conclude that

the causes of action in Johnson and here are fundamentally

different. Johnson involved claims regarding the legislatively

enacted 2011 state legislative maps which became

unconstitutionally malapportioned after the 2020 census.

Everyone agreed that the maps were unconstitutionally

malapportioned. The operative facts in Johnson thus concerned

only the 2011 maps and the 2020 census results. In this case,

by contrast, the Governor and the Wright Petitioners argue that the Johnson remedy was unconstitutional on grounds not raised in

Johnson. None of the apportionment facts underlying Johnson are

relevant to that remedy question; only the maps the court

adopted at the conclusion of that case are pertinent.

Therefore, the judgment in Johnson does not preclude either the

Governor's or Wright Petitioners' contiguity claims.24

4. Judicial Estoppel

¶49 Respondents also contend that the Governor and Wright

Petitioners are judicially estopped from asserting contiguity

Additionally, because claim preclusion requires "identity 24

between the parties or their privies in the prior and present suits," it cannot apply to Wright Petitioners Atkinson, Kane, and Dudley, who were not parties in Johnson. Kruckenberg v. Harvey, 2005 WI 43, ¶21, 279 Wis. 2d 520, 694 N.W.2d 879. Although the Legislature argues that these individuals may be precluded based on their "identity of interest" with the other Wright Petitioners, the case they cite involves issue preclusion, not claim preclusion. See Paige K.B., 226 Wis. 2d at 226. In the claim-preclusion context, privity or an "absolute identity of interest," such as successorship-in- interest, is required. Pasko v. City of Milwaukee, 2002 WI 33, ¶18, 252 Wis. 2d 1, 643 N.W.2d 72. Because Respondents have not established such a relationship, claim preclusion cannot be applied to these individuals.

34 arguments inconsistent with those asserted in Johnson. See

Mrozek v. Intra Fin. Corp., 2005 WI 73, ¶22, 281 Wis. 2d 448,

699 N.W.2d 54 ("Judicial estoppel precludes a party from

asserting one position in a legal proceeding and then

subsequently asserting an inconsistent position."). There are

three requirements for applying judicial estoppel: "(1) the

later position must be clearly inconsistent with the earlier

position; (2) the facts at issue should be the same in both

cases; and (3) the party to be estopped must have convinced the first court to adopt its position." Salveson v. Douglas County,

2001 WI 100, ¶38, 245 Wis. 2d 497, 630 N.W.2d 182. Even when

all of these elements are met, the court applies judicial

estoppel at its discretion. See State v. Harrison, 2020 WI 35,

¶21, 391 Wis. 2d 161, 942 N.W.2d 310. Because judicial estoppel

is meant to prevent "cold manipulation and not unthinking or

confused blunder, it has never been applied where plaintiff's

assertions were based on fraud, inadvertence, or mistake."

State v. Petty, 201 Wis. 2d 337, 347, 548 N.W.2d 817 (1996)

(citing State v. Fleming, 181 Wis. 2d 546, 558, 510 N.W.2d 837

(Ct. App. 1993)). ¶50 We decline to exercise our discretion to apply

judicial estoppel here. Even assuming the elements of judicial

estoppel were met, there are compelling public policy reasons

why this court should not exercise its discretion to apply

estoppel in this case. As for the Governor, "[a]s a general

rule the doctrine of estoppel will not be applied against the public, the United States government, or the state governments,

where the application of that doctrine would encroach upon the

35 sovereignty of the government and interfere with the proper

discharge of governmental duties." Park Bldg. Corp. v. Indus.

Comm'n, 9 Wis. 2d 78, 88, 100 N.W.2d 571 (1960) (quoting P.H.

Vartanian, Comment Note, Applicability of Doctrine of Estoppel

Against Government and its Governmental Agencies, 1 A.L.R.2d

338, 340-41 (1948)). Additionally, given the parties'

stipulation in Johnson, it is difficult to view any

inconsistency in position as "cold manipulation" which judicial

estoppel seeks to deter. Instead any inconsistency is more easily explained as "inadvertence" or "mistake," which does not

merit judicial estoppel. Given our past case law on contiguity,

as well as the primacy of our constitution, preventing parties

from litigating this issue would not serve the goals of this

doctrine. Therefore, we decline to apply judicial estoppel.

C. Availability of Relief

¶51 Respondents contend that this case should be dismissed

because it is an impermissible collateral attack on this court's

judgment in Johnson III. According to the Respondents, the

relief Petitioners seek is unavailable as a result.

¶52 This argument comes in two parts. First, Respondents

argue that a declaratory judgment is unavailable because the

Declaratory Judgments Act, Wis. Stat. § 806.04 (2021-22),25 does

not allow the court to declare its own prior judgment

All subsequent references to the Wisconsin Statutes are 25

to the 2021-22 version unless otherwise indicated.

36 unconstitutional.26 Second, Respondents assert that in order to

challenge this court's judgment in Johnson III, Petitioners must

either: (a) demonstrate that the judgment was either issued

without jurisdiction or procured by fraud; or (b) move to reopen

or modify the judgment under Wis. Stat. § 806.07. Respondents

urge that since Petitioners have done neither, the judgment in

Johnson III may not be disturbed.

¶53 Respondents first argue that declaratory judgment is

unavailable under the Declaratory Judgments Act. Respondents point to Wis. Stat. § 806.04(2), which provides that courts may

issue declarations resolving "any question of construction or

validity arising under" a "deed, will, written contract, or

other writings constituting a contract" or "a statute, municipal

ordinance, contract or franchise." Because prior judgments of

this court are absent from this list, Respondents reason that we

cannot declare the state legislative districts adopted in

Johnson III unconstitutional. But Respondents ignore Wis. Stat.

§ 806.04(1) and (5), which together make clear that we "have

power to declare rights, status and other legal relations" and

that sub. (2) "does not limit or restrict the exercise of" that

26In a single sentence in both its opening brief and motion to dismiss, the Legislature additionally asserts that declaratory relief is unavailable because Petitioners have not complied with Wis. Stat. § 806.04(11), which requires that "all persons shall be made parties who have or claim any interest which would be affected by the declaration." This argument is underdeveloped. The Legislature cites no authority suggesting that dismissal is the proper remedy for failing to comply with § 806.04(11) and, in any event, the prevailing parties in Johnson are parties to this case. Accordingly, we decline to address this argument further. See Casanova v. Polsky, 2023 WI 19, ¶44, 406 Wis. 2d 247, 986 N.W.2d 780 ("[W]e need not address underdeveloped arguments.").

37 general power. See § 806.04(5) (emphasis added). For this

reason, the non-exhaustive list in § 806.04(2) does not prohibit

the court from issuing the declaratory relief Petitioners

request.

¶54 Respondents' assertion that injunctive relief is not

available in this case is similarly unavailing. The argument

that injunctive relief is available only by "reopening" Johnson

and modifying its injunction under Wis. Stat. § 806.07 flies in

the face of decades of practice in redistricting cases. The court-ordered redistricting plan adopted by the federal court in

Prosser, 793 F. Supp. 859, was enjoined by the federal court in

Baumgart v. Wendelberger, Nos. 01-C-0121, 02-C-0366, 2002 WL

34127471, at *8 (E.D. Wis. May 30, 2002). And Johnson itself

enjoined the use of a court-ordered plan adopted by the federal

courts in Baldus v. Members of Wis. Gov't Accountability Bd.,

862 F. Supp. 2d 860 (E.D. Wis. 2012). Yet neither the Johnson

nor Baumgart courts "reopened" these prior cases or modified the

injunctions issued in them. Instead, those courts simply issued

their own injunctions, superseding the previously issued

injunctions. ¶55 In summary, we determine that none of Respondents'

defenses preclude us from deciding this case on the merits. We

now turn to remedy.

IV. REMEDY

¶56 As we declared above, the current legislative maps

contain districts that violate Article IV, Sections 4 and 5 of the Wisconsin Constitution. At least 50 of 99 assembly

districts and at least 20 of 33 senate districts contain

38 territory completely disconnected from the rest of the district.

Given this pervasiveness, a remedy modifying the boundaries of

the non-contiguous districts will cause a ripple effect across

other areas of the state as populations are shifted throughout.

Consequently, it is necessary to enjoin the use of the

legislative maps as a whole, rather than only the non-contiguous

districts. We therefore enjoin the Wisconsin Elections

Commission from using the current legislative maps in all future

elections. Accordingly, remedial legislative district maps must be adopted. We recognize that next year's legislative elections

are fast-approaching, and that remedial maps must be adopted in

time for the fall primary in August 2024. With that in mind,

the following section first describes the role of the court in

the remedial process. Second, we articulate the principles the

court will follow when adopting remedial maps. Third, we

explain why the court is denying Petitioners' quo warranto

claim. We conclude with the next steps in the remedial process.

A. This Court's Role in Redistricting

¶57 It is essential to emphasize that the legislature, not

this court, has the primary authority and responsibility for drawing assembly and senate districts. Jensen v. Wisconsin

Elections Board, 2002 WI 13, ¶6, 249 Wis. 2d 706 (citing Wis.

Const. art. IV, § 3). Therefore, when an existing plan is

declared unconstitutional, it is "appropriate, whenever

practicable, to afford a reasonable opportunity for the

legislature to meet constitutional requirements by adopting a substitute measure." Wise v. Lipscomb, 437 U.S. 535, 540

(1978). There may be exceptions to this general rule, but we

39 decline Petitioners' request to apply one here. Should the

legislative process produce a map that remedies the contiguity

issues discussed above, there would be no need for this court to

adopt remedial maps.

¶58 We remain cognizant, however, of the possibility that

the legislative process may not result in remedial maps. In

such an instance, it is this court's role to adopt valid

remedial maps. Zimmerman, 22 Wis. 2d at 571 ("[W]e do not

abdicate our power to draft and execute a final plan of apportionment which conforms to the requirements of art. IV,

Wis. Const., should the other arms of our state government be

unable to resolve their differences and adopt a valid plan.").

The United States Supreme Court has specifically recognized the

ability of a state judiciary to remedy unconstitutional

legislative districts by crafting new remedial maps. Growe v.

Emison, 507 U.S. 25, 33 (1993) ("[S]tate courts have a

significant role in redistricting. 'The power of the judiciary

of a State to require valid reapportionment or to formulate a

valid redistricting plan has not only been recognized by this

Court but appropriate action by the States in such cases has been specifically encouraged.'" (quoting Scott v. Germano, 381

U.S. 407, 409 (1965))). And this court has exercised such

authority in the past when faced with unconstitutional maps.

See, e.g., Zimmerman, 22 Wis. 2d at 571; Johnson III, 401

Wis. 2d 198, ¶73. If the legislative process does not result in

remedial legislative maps, then it will be the job of this court to adopt remedial maps.

40 ¶59 It is important (though perhaps obvious) to note that

although we enjoin the Wisconsin Elections Commission's use of

the present maps because they contain districts that are non-

contiguous, this court must consider other districting

requirements, in addition to contiguity, when adopting remedial

maps. Just as a court fashioning a remedy in an apportionment

challenge must ensure that remedial maps comply with state and

federal law, so too must this court in remedying a different

constitutional violation. ¶60 Before laying out the principles this court will use

in adopting remedial maps, we pause to address the "least

change" approach articulated by this court in Johnson I. The

parties differ over the extent to which this court should rely

on least change in our evaluation of remedial maps. In

Respondents' view, least change should not just serve as one

principle among others, but as the predominant principle driving

the court's process in adopting new maps. Petitioners, by

contrast, offer various rationales for why least change should

not be applied at all. For the reasons set forth below, this

court will not consider least change when adopting remedial maps.

¶61 At first glance, the concept of least change might

appear simple. At its most basic level, it is the idea that our

remedial maps "'should reflect the least change'" from the prior

maps "necessary . . . to comport with relevant legal

requirements." See Johnson I, 399 Wis. 2d 623, ¶72 (quoting Wright, 306 F. Supp. 2d at 1237). But as this court learned

during the Johnson litigation, what appeared simple in theory

41 was far more complicated in reality. The fundamental problem in

Johnson was the inability of this court to agree upon the actual

meaning of "least change" in practice. Some members of the

court argued that least change simply meant "core retention——a

measure of voters who remain in their prior districts." Johnson

II, 400 Wis. 2d 626, ¶7 (explaining that core retention is "the

best metric of least change"). Others, who had initially

endorsed the least-change approach, insisted that core retention

was "a previously unknown[] judicial test" and an "extra-legal criterion," and that least change actually meant minimizing

population deviations or splits of local government units. See

id., ¶¶67, 74-75 (Ziegler, C.J., dissenting); id., ¶211 (Rebecca

Grassl Bradley, J., dissenting). Because no majority of the

court agreed on what least change actually meant, the concept

amounted to little more than an unclear assortment of possible

redistricting metrics. The Johnson majority opinions never

fully enumerated these metrics or explained their relative

importance, let alone defined a least-change approach in a

coherent way. See Johnson III, 401 Wis. 2d 198, ¶¶71-72.

¶62 Additionally, least change did not fit easily or consistently into the balance of other requirements and

considerations essential to the mapmaking process. As will be

discussed below, we must consider numerous constitutional

requirements when adopting remedial maps. We cannot allow a

judicially-created metric, not derived from the constitutional

text, to supersede the constitution. Conceivably, least change (if actually agreed upon) could be relevant to traditional

districting criteria, commonly considered in redistricting but

42 not constitutionally or statutorily mandated. See infra, ¶68.

In that instance, least change would be secondary to the

constitutional requirements and balanced with other factors,

such as "preserving communities of interest." However, Johnson

I did not adopt a cabined approach to least change. Instead,

Johnson I declared that the overarching approach to adopting

remedial maps was for them to "reflect the least change

necessary" from the previous maps. See Johnson I, 399

Wis. 2d 623, ¶72. ¶63 As illustrated across the course of the Johnson

litigation, "least change" is unworkable in practice. As such,

we overrule any portions of Johnson I, Johnson II, and Johnson

III that mandate a least change approach. See Johnson Controls,

Inc. v. Emps. Ins. of Wausau, 2003 WI 108, ¶¶98-99, 264

Wis. 2d 60, 665 N.W.2d 257 (explaining that the unworkability of

a decision is one justification for departing from precedent).

It is impractical and unfeasible to apply a standard that (1) is

based on fundamentals that never garnered consensus, and (2) is

in tension with established districting requirements. Here we

must first focus on established districting requirements set out in state and federal law, and only then on other districting

criteria. With that in mind, we set out the following

principles that will guide the court's process in adopting

remedial maps.

B. Redistricting Principles

¶64 The following principles will guide our process in adopting remedial legislative maps. First, the remedial maps

must comply with population equality requirements. State and

43 federal law require a state's population to be distributed

equally amongst legislative districts with only minor

deviations. Wis. Const. art. IV, § 3; Zimmerman, 22 Wis. 2d at

555-56; U.S. Const. amend XIV; Reynolds v. Sims, 377 U.S. 533,

577-79 (1964). When it comes to population equality, courts are

held to a higher standard than state legislatures as we have a

"judicial duty to 'achieve the goal of population equality with

little more than de minimis variation.'" Connor v. Finch, 431

U.S. 407, 420 (1977) (quoting Chapman v. Meier, 420 U.S. 1, 26- 27 (1975)); see Wis. State AFL-CIO v. Elections Bd., 543 F.

Supp. 630, 637 (E.D. Wis. 1982) (allowing a deviation of 1.74%

for assembly districts); Prosser, 793 F. Supp. at 866, 870

(formulating a map with a total deviation of 0.52% and noting

that "[b]elow 1 percent, there are no legally or politically

relevant degrees of perfection"); Baumgart, 2002 WL 34127471, at

*7 (1.48% deviation for assembly districts); Baldus, 849 F.

Supp. 2d at 851 (0.62% deviation for senate districts and 0.76%

for assembly districts); Johnson II, 400 Wis. 2d 626, ¶36 (1.20%

for senate districts and 1.88% for assembly districts); Johnson

III, 401 Wis. 2d 198, ¶61 (0.57% deviation for senate districts and 0.76% deviation for assembly districts).

¶65 Second, districts must meet the basic requirements set

out in Article IV of the Wisconsin Constitution. Assembly

districts must be (a) bounded by county, precinct, town or ward

lines; (b) composed of contiguous territory; and (c) in as

compact form as practicable. Wis. Const. art. IV, § 4. Senate districts must be composed of "convenient contiguous territory."

Wis. Const. art. IV, § 5 Additionally, districts must be

44 single-member districts that meet the numbering and nesting27

requirements set out in Article IV, Sections 2, 4, and 5.

¶66 The contiguity requirement for assembly and senate

districts was discussed at length above. To reiterate, for a

district to be composed of contiguous territory, its territory

must be touching such that one could travel from one point in

the district to any other point in the district without crossing

district lines. As to the "bounded" requirement, this court

considers the extent to which assembly districts split counties, towns, and wards28 (particularly towns and wards as the smaller

political subdivisions), although we no longer interpret the

requirement to entirely prohibit any splitting of the enumerated

political subdivisions, as we once did. See Johnson I, 399

Wis. 2d 623, ¶35; AFL-CIO, 543 F. Supp. 630, 635-36 (E.D. Wis.

1982); Baumgart, 2002 WL 34127471, at *3. Compactness is

generally defined as "closely united in territory," see AFL-CIO

543 F. Supp. at 634, although this court has never adopted a

particular measure of compactness. See Johnson I, 399

Wis. 2d 23, ¶37.

¶67 Third, remedial maps must comply with all applicable federal law. In addition to the population equality requirement

27 Assembly districts must be "nested" within a senate district——that is, "no assembly district shall be divided in the formation of a senate district." Wis. Const. art. IV, § 5. Additionally, Wis. Stat. § 4.001 requires that there be "33 senate districts, each composed of 3 assembly districts." 28 The "bounded" requirement also refers to precincts, but "the precinct of the constitution disappeared when the uniform system of town and county government prescribed by the constitution (article 4, § 23) became fully operative." Cunningham, 81 Wis. at 520 (Lyon, C.J., concurring).

45 discussed above, maps must comply with the Equal Protection

Clause and the Voting Rights Act of 1965. See Wis. Legislature

v. Wis. Elections Comm'n, 595 U.S. 398, 401 (2022) (explaining

that race-conscious districting is permitted by the Equal

Protection Clause only if strict scrutiny is satisfied).

¶68 Fourth, the court will consider other traditional

districting criteria not specifically outlined in the Wisconsin

or United States Constitution, but still commonly considered by

courts tasked with formulating maps. These other traditional districting criteria include reducing municipal splits29 and

preserving communities of interest. See AFL-CIO, 543 F. Supp.

at 636 (comparing the number of municipal splits across maps);

Baldus, 849 F. Supp. 2d at 856-57 (considering whether district

lines were disruptive to a community of interest). These

criteria will not supersede constitutionally mandated criteria,

such as equal population requirements, but may be considered

when evaluating submitted maps. AFL-CIO, 543 F. Supp. at 636

(considering the number of municipal splits, but acknowledging

that "the splitting of municipal boundaries is necessary to

adhere to the one person, one vote, principle."). ¶69 Fifth, we will consider partisan impact when

evaluating remedial maps. When granting the petition for

original action that commenced this case, we declined to hear

Municipalities include towns, cities, and villages. 29

Although Article IV, Section 4's "bounded by" requirement refers to towns, it does not refer to city or village boundaries, or "municipal" boundaries in general. As such, consideration of municipal splits does not derive from our constitution. Nonetheless, this court has still considered the number of municipal splits when evaluating maps. See Johnson III, 401 Wis. 2d 198, ¶69.

46 the issue of whether extreme partisan gerrymandering violates

the Wisconsin Constitution. As such, we do not decide whether a

party may challenge an enacted map on those grounds.

¶70 However, that does not mean that we will ignore

partisan impact in adopting remedial maps. Unlike the

legislative and executive branches, which are political by

nature, this court must remain politically neutral. We do not

have free license to enact maps that privilege one political

party over another. Our political neutrality must be maintained regardless of whether a case involves an extreme partisan

gerrymandering challenge. As we have stated, "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." Jensen, 249 Wis. 2d 706, ¶12

(quoting Prosser, 793 F. Supp. at 867). Other courts have held

the same. See Baumgart, 2002 WL 34127471, at *3 (also quoting

Prosser, 793 F. Supp at 867); Burling v. Chandler, 804 A.2d 471,

483 (N.H. 2002) (devising its own redistricting plan because "[e]ach plan ha[d] calculated partisan political consequences");

Peterson v. Borst, 786 N.E.2d 668, 673 (Ind. 2003) ("Whatever

role politics may legitimately play in the decisions and

maneuverings of the legislative and executive branches, if those

branches cannot reach a political resolution and the dispute

spills over into an Indiana court, the resolution must be judicial, not political."); Maestas v. Hall, 274 P.3d 66, 76

(N.M. 2012) ("A court's adoption of a plan that represents one

47 political party's idea of how district boundaries should be

drawn does not conform to the principle of judicial independence

and neutrality.").

¶71 It bears repeating that courts can, and should, hold

themselves to a different standard than the legislature

regarding the partisanship of remedial maps. As a politically

neutral and independent institution, we will take care to avoid

selecting remedial maps designed to advantage one political

party over another. Importantly, however, it is not possible to remain neutral and independent by failing to consider partisan

impact entirely. As the Supreme Court recognized in Gaffney v.

Cummings, 412 U.S. 735, 753 (1973), "this politically mindless

approach may produce, whether intended or not, the most grossly

gerrymandered results." As such, partisan impact will

necessarily be one of many factors we will consider in adopting

remedial legislative maps, and like the traditional districting

criteria discussed above, consideration of partisan impact will

not supersede constitutionally mandated criteria such as equal

apportionment or contiguity.

C. Petitioners' Quo Warranto Claim ¶72 Before we explain the process by which the court will

adopt remedial maps, we turn to the Petitioners' request for us

to order special elections in 2024 for senators in odd-numbered

districts who would otherwise not be up for reelection until

2026. The Petitioners ground this request in a request for a

writ quo warranto, arguing that state senators have "usurp[ed], intrud[ed] into or unlawfully [held] or exercise[d] any public

office" and therefore should be "excluded from the office"

48 because they took office in unconstitutionally configured

districts. Wis. Stat. §§ 784.04(1)a; 784.13.

¶73 As a preliminary matter, quo warranto actions may be

brought by private individuals under Wis. Stat. § 784.04, but

the action must be in the name of the state. Wis. Stat.

§ 784.04(2); Boerschinger v. Elkay Enterprises, Inc., 26

Wis. 2d 102, 110, 132 N.W.2d 258 (1965). The Petitioners have

not brought a quo warranto action in the name of the state;

therefore, Wis. Stat. § 784.04 does not provide us the authority to determine whether any party has a right to hold office, much

less to order any special elections. Boerschinger, 26

Wis. 2d at 110 ("In quo warranto brought under the

statute . . . the action must be in the name of the state.").

¶74 Although the quo warranto statute does not apply in

this case, we acknowledge that a party's right to a public

office can also be determined in a declaratory judgment action

when the right "is only ancillary to the principal cause of

action in the complaint." See id. at 114. However, as the

Petitioners acknowledge, courts tasked with remedying

unconstitutional maps in Wisconsin have not ordered special elections as a remedy. Nor are special elections the standard

remedy elsewhere. See North Carolina v. Covington, 581 U.S.

486, 488 (2017) (noting that the Supreme Court has never

addressed whether a special election may be a proper remedy for

an unconstitutional racial gerrymander, and reversing a federal

district court that ordered special elections without adequately weighing the interests at stake). We decline to implement such

a drastic remedy here.

49 D. Remedial Process

¶75 The process by which the court will adopt remedial

maps will be set out in an order issued concurrently with this

opinion. In broad strokes, all parties will be given the

opportunity to submit remedial legislative district maps to the

court, along with expert evidence and an explanation of how

their maps comport with the principles laid out in this opinion.

The court will appoint one or more consultants who will aid in

evaluating the remedial maps. Parties will have the opportunity to respond to each other, and to the consultant's report.

¶76 We set out this process in order to afford all parties

a chance to be heard, while bearing in mind the need for

expediency given that next year's elections are fast-

approaching. We begin our process now instead of waiting to see

whether the legislative process results in new maps. In other

words, both the legislative process (should there be one) and

our process will proceed concurrently. This will allow the

court to adopt remedial legislative maps in time for the

upcoming elections if legislation creating remedial maps is not

enacted. V. CONCLUSION

¶77 Article IV, Sections 4 and 5 of the Wisconsin

Constitution mean what they say: state legislative districts

must be composed of "contiguous territory." At least 50 of 99

assembly districts and at least 20 of 33 senate districts

violate this mandate, rendering them unconstitutional. We therefore enjoin the Wisconsin Elections Commission from using

the current maps in all future elections. As such, remedial

50 maps must be adopted prior to the 2024 elections. We are

hopeful that the legislative process will produce new

legislative district maps. However, should that fail to happen,

this court is prepared to adopt remedial maps based on the

criteria, process, and dates set forth in this opinion and the

concurrent order.

By the Court.—Rights declared.

51 No. 2023AP1399-OA.akz

¶78 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting). This

deal was sealed on election night. Four justices remap

Wisconsin even though this constitutional responsibility is to

occur every ten years, after a census, by the other two branches

of government.1 The public understands this.2 Nonetheless, four

justices impose their will on the entire Assembly and half of

the Senate, all of whom are up for election in 2024. Almost

every legislator in the state will need to respond, with

lightning speed, to the newly minted maps, deciding if they can

or want to run, and scrambling to find new candidates for new

districts.3 All of this remains unknown until the court of four,

and its hired "consultants," reveal the answer. The parties'

dilatory behavior in bringing this suit at this time should not

The Legislature exercises its constitutional authority to 1

redistrict per Wis. Const. art. IV, § 3 ("At its first session after each enumeration made by the authority of the United States, the legislature shall apportion and district anew the members of the senate and assembly, according to the number of inhabitants."). The Governor exercises his constitutional authority to either sign the legislature's maps into law or veto them per Wis. Const. art. V, § 10(2)a.

See Marquette Law School Poll: Oct. 26-Nov.2, 2023, 2

https://law.marquette.edu/poll/wp-content/uploads/2023/11/ MLSP76Toplines.html#E8:_SCOWIS_map_case (51% of registered voters surveyed want to "keep [current] maps in place").

Neither citizens nor legislators will know if they will 3

have the same representation or constituency, whether the legislator still lives in the district they once represented, whether legislators will be pitted against one another in newly combined districts or whether the district even resembles its former self. We will not know implications of dual representation for citizens who may have new and old representation, as they may have just elected their senator under the existing maps.

1 No. 2023AP1399-OA.akz

be rewarded by the court's granting of such an extreme remedy,

along such a constrained timeline. Big change is ahead. The

new majority seems to assume that their job is to remedy

"rigged" maps which cause an "inability to achieve a Democratic

majority in the state legislature."4 These departures from the

judicial role are terribly dangerous to our constitutional,

judicial framework. No longer is the judicial branch the least

dangerous in Wisconsin. See The Federalist No. 78, (Alexander

Hamilton) (Clinton Rossiter ed., 1961).

¶79 Redistricting was just decided by this court in the

Johnson litigation.5 This court was saddled with the

responsibility to adopt maps because the legislative and

executive branches were at an impasse, and absent court action,

4Pet. to Take Juris. of Original Action, at 8; Aug. 2, 2023, https://acefiling.wicourts.gov/document/eFiled/ 2023AP001399/687203 5The phrase "Johnson litigation" (and "Johnson") throughout this dissent refers to the redistricting original action, Johnson v. Wisconsin Elections Commission, No. 2021AP1450-OA, which this court decided during the 2021-22 term. See Johnson v. Wis. Elections Comm'n, 2021 WI 87, 399 Wis. 2d 623, 967 N.W.2d 469 ("Johnson I"); Johnson v. Wis. Elections Comm'n, 2022 WI 14, 400 Wis. 2d 626, 971 N.W.2d 402 ("Johnson II"), summarily rev'd sub nom. Wis. Legislature v. Wis. Elections Comm'n, 595 U.S. 398, 142 S Ct. 1245 (2022) (per curiam); and Johnson v. Wis. Elections Comm'n, 2022 WI 19, 401 Wis. 2d 198, 972 N.W.2d 559 ("Johnson III").

2 No. 2023AP1399-OA.akz

there would be a constitutional crisis.6 Johnson v. Wisconsin

Elections Comm'n, 2021 WI 87, ¶68, 399 Wis. 2d 623, 967

N.W.2d 469 ("Johnson I"). As a result of Johnson, there are

census-responsive maps in place. Nonetheless, the four robe-

wearers grab power and fast-track this partisan call to remap

Wisconsin. Giving preferential treatment to a case that should

have been denied, smacks of judicial activism on steroids. The

court of four takes a wrecking ball to the law, making no room,

nor having any need, for longstanding practices, procedures,

traditions, the law, or even their co-equal fellow branches of

government. Their activism damages the judiciary as a whole.

Regrettably, I must dissent.

¶80 The court of four's outcome-based, end-justifies-the-

means judicial activist approach conflates the balance of

governmental power the people separated into three separate

branches, to but one: the judiciary. Such power-hungry

activism is dangerous to our constitutional framework and

undermines the judiciary. When four members of this court "throw off constraints, revise the rules of decision, and set

6Clarke presents none of the time constraints this court faced in Johnson I, where "judicial action [became] appropriate to prevent a constitutional crisis." Johnson I, 399 Wis. 2d 623, ¶68. Nonetheless, the court of four rushes ahead, making every attempt to evade judicial review, crafting the selection of only one, not both petitions for original action, and only two, not all, issues having no need for traditional practice and procedure. See Clarke v. Wis. Elections Comm'n, 2023 WI 70, 409 Wis. 2d 372, 995 N.W.2d 779 (granting petition for original action, but only with respect to issues 4 and 5); Wright v. Wis. Elections Comm'n, 2023 WI 71, 409 Wis. 2d 417, 995 N.W.2d 771 (denying petition for leave to commence original action).

3 No. 2023AP1399-OA.akz

the law on a new course," it is prudent for all of us to

"question whether that power has been exercised judiciously" or

whether it is instead an exercise in judicial activism.7 Today

is the latest in a series of power grabs by this new rogue court

of four, creating a pattern of illicit power aggregation which

disrupts, if not destroys, stability in the law.

¶81 This pattern of conduct is entrenched even further to

achieve particular political outcomes regardless of principles

fundamental to the constitution and the law. The court of four

accepted and now begin to decide a procedurally and legally

flawed original action in order to "take a fresh look at the

gerrymandering question"8 over maps one of them has repeatedly

called "absolutely, positively rigged."9 What other settled

areas of law might be next? Without all four members of this

court acting in lockstep, there could be no such overreach and

disrespect for the law. To be clear, it is sheer will, not the

law, which drives the decision of Justices Ann Walsh Bradley,

Rebecca Dallet, Jill Karofsky, and Janet Protasiewicz. They may

7Diane S. Sykes, Reflections on the Wisconsin Supreme Court, 89 Marq. L. Rev. 723, 725-26 (2006). 8Jessie Opoien and Jack Kelly, Protasiewicz would "enjoy taking a fresh look" at Wisconsin voting Maps, The Cap Times (Mar. 2, 2023), https://captimes.com/news/government/ protasiewicz-would-enjoy-taking-a-fresh-look-at-wisconsin- voting-maps/article_d07fbe12-79e6-5c78-a702-3de7b444b332.html 9Paul Fanlund, Supreme Court election is a chance to beat the far right at its long game, The Cap Times (Jan. 13, 2023), https://captimes.com/opinion/paul-fanlund/opinion-supreme-court- election-is-a-chance-to-beat-the-far-right-at-its- long/article_af9b5d76-a584-54ad-9226-7c9d7a806d12.html.

4 No. 2023AP1399-OA.akz

please a particular constituency, but it is at great cost to the

judicial institution. Any one of the four could change the

trajectory set, with the courage to change their seemingly

preordained vote. But instead, each fall in line, and, like the

past, allow pure will, instead of the law, to drive and guide

the outcomes they invent.

¶82 Unfortunately, this latest unlawful power grab is not

an outlier, but is further evidence of a bold, agenda-driven

pattern of conduct. To set the stage, recall that these four

members of the court came out swinging, when they secretly and

unilaterally planned and dispensed with court practices,

procedures, traditions, and norms.10 Preordained and planned

even before day one of the new justice's term on August 1, 2023,

but unknown to the other members of the court, the four acted to

aggregate power, meeting in secret as a "super-legislature."

They met behind closed doors, at a rogue, unscheduled and

illegitimate meeting, over the protestations of their

colleagues, in violation of longstanding court rules and procedures. Even before day one of the newest justice's term,

and before the court term started in September, they met, in

secret, to carry out their plan, only known to them, to dispense

with over 40 years of court-defined precedent. They even took

the unprecedented action to strip the constitutional power of

the chief justice, which had been understood for decades of

chief justices and different court membership, instead usurping

Press Release, Chief Justice Annette Kingsland Ziegler 10

(Aug. 4, 2023), https://www.wispolitics.com/wp-content/uploads/ 2023/08/230804SCOWIS.pdf

5 No. 2023AP1399-OA.akz

that role through an administrative committee. For nearly four

decades and five chief justices, every member of the court had

respected the power the people of Wisconsin constitutionally

vested in the chief justice to administrate the court system.11

¶83 Not content with taking over the chief justice's

power, they secretly pre-planned the firing of, for admittedly

no reason, then-Director of State Courts Randy Koschnick before

the official court term had begun and before our newest

justice's term began on August 1.12 The court of four presumed

to hire a sitting circuit court judge, Audrey Skwierawski, as

the Interim Director of State Courts even though that decision

violated the public trust doctrine as set forth in the

It is noteworthy that for the first time in 26 years, 11

since 1996, our court released to the public all of its opinions from the 2022-23 term by June 30, 2023. In addition, the court did not have a backlog of cases entering into the 2023-24 term. 12This was another shameful incident in this raw judicial power pattern, as Justice Jill Karofsky made it known before Justice Protasiewicz was even sworn in that the yet-to-be- officially-formed court of four would fire Director Koschnick. Molly Beck and Daniel Bice, New Liberal Majority on State Supreme Court fires Director of State Court System, Milwaukee Journal Sentinel (Aug. 1, 2023), https://www.jsonline.com/story/news/politics/2023/08/01/new- majority-on-supreme-court-to-fire-director-of-state-court- system/70502650007/

6 No. 2023AP1399-OA.akz

constitution, statutes, and case law.13 Judge Audrey Skwierawski

was recently permanently hired as Director of State Courts

despite these significant issues.14 The court should have hired

a fully qualified candidate who did not have any of these legal

impediments.

¶84 But wait: there's more. Also in an underhanded and

unprecedented manner, these four members of the court met in

secret, before the court term began, conniving and then

implementing a plan to eliminate the court of its longstanding

See Wis. Const. art. VII, § 10(1) ("No . . . judge of any 13

court of record shall hold any other office of public trust, except a judicial office, during the term for which elected."); Wis. Stat. § 757.02(2) ("The judge of any court of record in this state shall be ineligible to hold any office of public trust, except a judicial office, during the term for which he or she was elected or appointed."); see also Wagner v. Milwaukee Cnty. Election Comm'n, 2003 WI 103, ¶2, 263 Wis. 2d 709, 666 N.W.2d 816 (holding that the Wisconsin Constitution prohibits a judge or justice from holding a non-judicial position of public trust during the entire term for which he or she was originally elected).

I requested to see and have input on the contents of the 14

press release hiring Judge Skwierawski as the Director before its release. However, the court of four issued it on December 14, 2023, without that occurring. Interestingly, they use the words "transparency and accountability" in the press release, but those words must mean something else to them. See "The Supreme Court of Wisconsin announces Judge Audrey K. Skwierawski as the next Director of State Courts" (Dec. 14, 2023), https://www.wicourts.gov/news/view.jsp?id=1604#:~:text= MADISON%2C%20Wis.,is%20effective%20December%2031%2C%202023.

In addition, aside from the public trust doctrine's constitutional and statutory roadblocks to her serving as Director, Judge Skwierawski is supposed to be on the bench, in Milwaukee, serving the citizens as a duly elected, full-time judicial officer. The court could have hired a fully qualified candidate who did not have any of these impediments.

7 No. 2023AP1399-OA.akz

practices and procedures in violation of the existing internal

operating procedures and rules. The four conjured up new rules

and procedures that are designed to ensure complete control

over, and no speed bumps to, their preferences.

¶85 We all know that the Johnson litigation definitively

decided all issues, including contiguity. Nonetheless, the four

eagerly received this original action which the parties filed to

coincide with Justice Protasiewicz's swearing in, ensuring that

she would sit in judgment.15 And because the four had met

previously to attempt to grab all the power they could find,

this case was set to be fast-tracked and skip to the front of

the line.

¶86 The court of four conduct themselves in a manner that

lacks accountability and transparency. They exhibit a striking

pattern of disrespect for their colleagues, court practices and

procedures, the law, and the constitution. They upend the

15The majority opinion fails to mention or even acknowledge this glaring fact, that this petition was intentionally brought the day after the court composition changed. Why is this? Steve Schuster, Lawsuit to challenge Wisconsin's legislative maps to be filed, Wis. Law Journal (Apr. 6, 2023), https://wislawjournal.com/2023/04/06/lawsuit-to-challenge- wisconsins-legislative-maps-to-be-filed/ ("A Madison-based law firm is planning to challenge the state's gerrymandered legislative maps . . . . The lawsuit will be filed after Justice-elect Janet Protasiewicz is sworn in on Aug. 1, Nicole Safar, executive director of Madison-based Law Forward, said . . . ."); see also Jack Kelly, Liberal law firm to argue gerrymandering violates Wisconsin Constitution, The Cap Times (Apr. 6, 2023), https://captimes.com/news/government/liberal- law-firm-to-arguegerrymandering-violates-wisconsin- constitution/article_2dfb9757-6d2d-58ba-9461- 10b3d20d5f00.html.

8 No. 2023AP1399-OA.akz

constitutional call for a court of seven, not a court of four.16

Historically, our court of seven has always met at agreed upon

dates and times, with ample notice of the issues to be

discussed, and the opportunity to hear respective, knowing,

positions, only then reaching determinations. Traditions,

practices, procedures, and constitutional mandates were long

respected over many decades. Regardless of the fact that these

have been time-honored through many variations and machinations

of court membership, and over a span of five chief justices,

four rogue members of the court nonetheless brazenly seized all

the power they can find. Power at any cost is the new normal

for this crew. So, in true form to the new court of four, the

law will not stand in the way of what they wish to accomplish.

¶87 This original action, filed to coincide with the

change in court membership,17 requests this court to remedy an

"inability to achieve a Democratic majority in the state

legislature" which in turn, "harms their ability to see laws and

16Wis. Const. art. VII, § 4(1) ("The supreme court shall have 7 members. . . ."). 17Steve Schuster, Lawsuit to challenge Wisconsin's legislative maps to be filed, Wis. Law Journal (Apr. 6, 2023), https://wislawjournal.com/2023/04/06/lawsuit-to-challenge- wisconsins-legislative-maps-to-be-filed/ ("A Madison-based law firm is planning to challenge the state's gerrymandered legislative maps . . . . The lawsuit will be filed after Justice-elect Janet Protasiewicz is sworn in on Aug. 1, Nicole Safar, executive director of Madison-based Law Forward, said . . . ."); see also Jack Kelly, Liberal law firm to argue gerrymandering violates Wisconsin Constitution, The Cap Times (Apr. 6, 2023), https://captimes.com/news/government/liberal- law-firm-to-arguegerrymandering-violates-wisconsin- constitution/article_2dfb9757-6d2d-58ba-9461- 10b3d20d5f00.html.

9 No. 2023AP1399-OA.akz

policies they favor enacted."18 As much as the majority and

others like to call this case "redistricting," it is not.

Redistricting occurs once every ten years and that fact was just

conclusively decided.19 They know contiguous maps, responsive to

the census, were fully litigated in Johnson. The people of

Wisconsin, through their constitution, placed the partisan

officeholders——the legislature, with oversight by the governor——

in charge of the partisan process of redistricting.20 The

constitution does not call for maps to be redrawn every time a

18 Pet. to Take Juris. of Original Action supra note 4, at 8.

Wis. Const. art. IV, § 3 ("At its first session after 19

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."); see also State ex rel. Smith v. Zimmerman, 266 Wis. 307, 312, 63 N.W.2d 52 (1954) ("It is now settled that without a constitutional change permitting it no more than one legislative apportionment between two federal [censuses].")

The legislature exercises its constitutional authority to 20

redistrict per Wis. Const. art. IV, § 3, and the governor exercises his constitutional authority to either sign the legislature's maps into law or veto them per Wis. Const. art. V, § 10(2)a.

10 No. 2023AP1399-OA.akz

new justice is elected.21 This court of four abandons its

judicial responsibility and instead reimagines the law to

achieve an outcome.

¶88 More specifically, just last year in Johnson, the

court determined, and all agreed, that the maps complied with

the contiguity requirement. "Contiguity for state assembly

districts is satisfied when a district boundary follows the

municipal boundaries. Municipal 'islands' are legally

contiguous with the municipality to which the 'island' belongs."

Joint Stip. of Facts & Law, at ¶20 (Nov. 4, 2021)

https://acefiling.wicourts.gov/document/uploaded/2021AP001450/45

0892. Even the parties now arguing that the maps are not

contiguous recognize that the contiguity requirement has been

deemed satisfied not only in the maps the parties submitted in

21As the new court of four knows, this court just conclusively addressed redistricting in the Johnson litigation, observing that "[t]he 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" under Article IV, Section 3. Johnson I, 399 Wis. 2d 623, ¶51 (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)). It is only natural——in fact, it is inevitable——that a partisan body engaging in a partisan process will reach a result that is in some measure partisan. See Whitford v. Gill, 218 F. Supp. 3d 837, 939 (W.D. Wis. 2016) (Griesbach, J., dissenting) ("[P]artisan intent is not illegal, but is simply the consequence of assigning the task of redistricting to the political branches of government."), rev'd sub nom., Gill v. Whitford, 585 U.S. ___, 138 S. Ct. 1916 (2018).

11 No. 2023AP1399-OA.akz

the Johnson litigation, but also in the maps the state has

relied on for the last 60 to 70 years.22

¶89 Moreover, every person who wished to have a say or

participate in the Johnson litigation was welcome to do so and

did. No one sought reconsideration of the Johnson litigation

while it was within their power to do so. Johnson went all the

way to the United States Supreme Court and back. Some of the

litigants now were part of the Johnson litigation, some chose

not to engage. But the law imposes consequences for those who

choose to sit out of litigation entirely, and for those who

stipulate to or do not make an argument in litigation. Finality

of litigation does not endow one with the authority to wait to

see what happens in that litigation cycle, forego timely filing

a motion for reconsideration, and then bring arguments years

after the fact, with the only intervening change being the

court's composition. Four members of this court choose to not

let pesky parameters like finality or other foundational

judicial principles, or even the constitution, stand in the way of the predetermined political outcome which they seem

preordained to deliver. Given the new court of four's conduct

so far, we can expect more such judicial mischief in the future.

On their watch, Wisconsin is poised to become a litigation

nightmare. What is next?

Oral argument in Clarke v. Wis. Elections Comm'n, No. 22

2023AP1399-OA, held Nov. 21, 2023, available on WisconsinEye https://wiseye.org/2023/11/21/wisconsin-supreme-court-rebecca- clarke-v-wisconsin-elections-commission/ (Rebuttal arguments of Attorneys Sam Hirsch and Mark Gaber at 2:53:00 and 3:01, respectively.)

12 No. 2023AP1399-OA.akz

¶90 The processes normally required in litigation before

the supreme court seem nothing more than window dressing in this

case. Briefing and oral argument occurred, but the conclusion

seemed preordained. It seems all that is left are the words to

be written in a fast-tracked, handpicked case wherein the issues

were chosen in an effort to evade any judicial review.23

Apparently process is now unimportant to the court of four.24

¶91 It is the parties who are required to develop the

facts and a full record for the court to review. We are not a

factfinding court. One would think that the very justices who

previously believed factfinding critically important in

Johnson,25 would pause, and allow factfinding to occur by the

parties instead of handpicking their hired "consultants."

Factfinding in this case should occur utilizing traditional

process, as there are no time constraints which would otherwise

drive the need for a legal determination by original action.

Clarke v. Wis. Elections Comm'n, 2023 WI 70, 409 23

Wis. 2d 372, 995 N.W.2d 779 (granting petition for original action, but only with respect to issues 4 and 5); Wright v. Wis. Elections Comm'n, 2023 WI 71, 409 Wis. 2d 417, 995 N.W.2d 771 (denying petition for leave to commence original action).

Recently, members of the majority declined to hear "hot" 24

issues because process was important. But now, members of the majority decide to hear "hot" issues because process is not important. Have they changed their position on process? See Doe 1 v. Madison Metro. Sch. Dist., 2022 WI 65, ¶39, 403 Wis. 2d 369, 976 N.W.2d 584 ("Litigation rules and processes matter to the rule of law just as much as rendering ultimate decisions based on the law."); see also Trump v. Biden, 2020 WI 91, 394 Wis. 2d 629, 951 N.W.2d 568.

Johnson 25 III, 401 Wis. 2d 198, ¶161 (Karofsky, J., dissenting).

13 No. 2023AP1399-OA.akz

Particularly for something as important as "redistricting," why

be afraid of developing a full record and considering all legal

principles subjecting the decision to further review? What of

the fact that the citizens of Wisconsin and the litigants are

forced, by judicial fiat, to have out-of-state, not stipulated

to, unreviewable "consultants" who are seemingly unaccountable

to anyone but the court of four. In fact, the idea of hiring

"consultant map drawers" was sprung on counsel at oral

arguments. The court of four has now hired these "consultants"

who will presumably affect the outcome of the case. We have no

idea what, if any, parameters exist to guide the "consultants,"

the litigants, or the court. Will they have free reign to do

whatever they see fit, to achieve the requested remedy of making

the state legislature more Democratic? Deference to these

"consultants" and a hidden, unreviewable process smacks of

outcome-based decision making. What gives them that authority?

They rely on no statutes to give them that authority.26 It is

What 26 are the parameters of the consultant's responsibilities, and under what constitutional or statutory authority do they operate? Are they and their decisions reviewable and subject to cross-examination, as court-appointed expert witnesses are? Wis. Stat. § 907.06. Can they make findings of fact and conclusions of law as referees can? Wis. Stat. § 805.06(5)(a). Additionally, the majority fails to answer, in either its order appointing these "consultants" or its majority opinion, how the parties are to consider and implement the majority's newly contrived "partisan impact" factor in their proposed maps. How will these "consultants" measure "partisan impact" in the parties' proposed maps, or their own submissions? It is hard to say, given the majority's painstaking efforts to avoid providing any such clarity or methodology. The majority cites no statutory authority these "consultants" are appointed under, because none exists: this court does not hire third-party "consultants" to assist it in decision making. Wis. Stat. § 751.09 ("In actions where the 14 No. 2023AP1399-OA.akz

not normal process for our court to hire experts to present new

evidence and influence decision making with information outside

the record. The "consultants" unchecked by the parties, will

most certainly influence, if not decide, the outcome of this

litigation. The parties do not stipulate to proceeding with

this forced factfinding map drawing method. Is the procedure

the court imposes on the litigants even constitutional as

applied? Reaching for evidence outside of the record is highly

unusual. The court should not require it here. Yet, the court

of four imposes its will to rush to an outcome. This is

completely unnecessary and violative of every notion of

traditional factfinding, fairness and judicial decision making.

The constitution certainly does not call for "consultants" to

redistrict anew; instead the constitution vests that power in

the legislative branch as approved by the executive branch. In

fact, the constitution makes no room for unreviewable

"consultants" to be arbiters of the state's maps. These

consultants sure do seem like hand-picked cover for the court of four's decision to throw out "rigged maps" and remedy the

parties' "inability to achieve a Democratic majority in the

state legislature."27

supreme court has taken original jurisdiction, the court may refer issues of fact or damages to a circuit court or referee for determination.") See also Justice Rebecca Grassl Bradley's dissent to order appointing Dr. Bernard Grofman and Dr. Jonathan Cervas as court "consultants," Clarke v. Wis. Elections Comm'n, No. 2023AP1399-OA, unpublished order at 5-7 (Wis. Dec. 22, 2023) (Rebecca Grassl Bradley, J., dissenting). 27 Pet. to Take Juris. of Original Action supra note 4, at 8.

15 No. 2023AP1399-OA.akz

¶92 Turning to the text and content of this opinion, fully

joined by all four, it clearly lacks in legal discourse and

analysis that should accompany such an important determination.

The opinion is a sea change in the law. While a picture may

generally be worth a thousand words, pictures do not replace the

need to properly conduct the required legal analysis. Yet, the

new rogue court of four continues its pattern of being quick to

engage in partisan political power grabs, while short on

respecting legal traditions, practices, procedures, and the law.

It is the law, not personal preference, that should be the

judicial lodestar. In short, the opinion is sorely lacking in

sound jurisprudential analysis.

¶93 More specifically, this original action is wrongly

taken and decided for a host of heretofore understood and

respected legally-binding tenets. However, the court of four

glosses right over them.

 For starters, this original action fails as it amounts

to nothing more than an untimely motion for reconsideration of this court's decision in Johnson,

which is now time-barred. Wis. Stat. (Rule) § 809.64.

 The proponents of this case and the majority fail to

meaningfully address stare decisis. This legal

principle demands a "respect for prior decisions" such

as this court's decisions throughout the Johnson

litigation "[as] fundamental to the rule of law."

Johnson Controls, Inc. v. Emps. Ins. of Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665 N.W.2d 257.

16 No. 2023AP1399-OA.akz

 It overlooks that parties such as the Governor and the

Citizen Mathematicians and Scientists28 are judicially

estopped from advancing different positions now from

the positions they took in the Johnson litigation.

State v. Petty, 201 Wis. 2d 337, 347, 548 N.W.2d 817

(1996) (citing Coconate v. Schwanz, 165 Wis. 2d 226,

231, 477 N.W.2d 74 (Ct. App. 1991)) ("[A] party [is

precluded] from asserting [one] position in a legal

proceeding and then subsequently asserting an

inconsistent position.").

 Similarly, laches bars these claims, as "equity aids

the vigilant, not those who sleep on their rights."

Kenosha Cnty. v. Town of Paris, 148 Wis. 2d 175, 188,

434 N.W.2d 801 (Ct. App. 1988).

 The majority's analysis turns a blind eye to the fact

that "[i]n order to have standing to sue, a party must

have a personal stake in the outcome of the

controversy," a personal stake not met by those who do not reside in these alleged municipal islands and

especially for those who merely border these

"municipal islands" of which more than a third contain

zero residents. City of Madison v. Town of Fitchburg,

28 Gary Krenz, Sarah J. Hamilton, Stephen Joseph Wright, Jean-Luc Thiffeault, and Somesh Jha were labeled the "Citizen Mathematicians and Scientists" in the Johnson litigation. They are each intervenors-petitioners in this case. For ease of reference, I refer to them collectively as "Citizen Mathematicians and Scientists" in this writing.

17 No. 2023AP1399-OA.akz

112 Wis. 2d 224, 228, 332 N.W.2d 782 (1983) (emphasis

added).

 And, this case is barred by claim and issue preclusion

principles, which "are designed to limit the

relitigation of issues that have been actually

litigated in a previous action," Aldrich v. LIRC, 2012

WI 53, ¶88, 341 Wis. 2d 36, 814 N.W.2d 433, and

"extends to all claims that either were or could have

been asserted in the previous litigation." Dostal v.

Strand, 2023 WI 6, ¶24, 405 Wis. 2d 572, 984

N.W.2d 382.

¶94 But the court of four gives little consideration to

that jurisprudence. Instead of letting the law get in the way,

they proceed to the task at hand: to redraw the "rigged" maps

and remedy an "inability to achieve a Democratic majority in the

state legislature."29

¶95 To be clear, this case is nothing more than a now

time-barred motion to reconsider Johnson.30 An honest look at the plain law would require that this petition be dismissed.

Instead, the creative legal machinations engaged in by the

masters of this lawsuit, emboldened and encouraged by the new

court of four, requires mind-boggling contortion of the law to

29 Pet. to Take Juris. of Original Action supra note 4, at 8. 30Wis. Stat. (Rule) § 809.64 ("A party may seek reconsideration of the judgment or opinion of the supreme court by filing a motion under s. 809.14 for reconsideration within 20 days after the date of the decision of the supreme court.")

18 No. 2023AP1399-OA.akz

achieve a particular political outcome. Sadly, judicial

activism is once again alive and well in Wisconsin, creating

great instability.

¶96 In addition, the demanding legal analysis of stare

decisis is completely absent from the majority opinion. Stare

decisis, the requirement to follow legal precedent, means this

case ends before it even starts, since the Johnson litigation

already declared what the law is. This petition is a political

quest masquerading as a legal query, filed to coincide with the

seating of the parties' "judge of choice" and not coincidently,

filed the day after she assumed the bench.31 Judge shopping

should be verboten to all. Allowing this sham experiment to

continue under a nebulous guise of "fairness," should be beneath

my colleagues.32 In any court, but especially a court of last

resort, sound legal principles, including stare decisis, should

31Steve Schuster, Lawsuit to Challenge Wisconsin's Legislative Maps to Be Filed, Wis. L.J. (Apr. 6, 2023), https://wislawjournal.com/2023/04/06/lawsuit-to-challenge- wisconsins-legislative-maps-to-be-filed/ ("A Madison-based law firm is planning to challenge the state's gerrymandered legislative maps . . . . The lawsuit will be filed after Justice-elect Janet Protasiewicz is sworn in on Aug. 1, Nicole Safar, executive director of Madison-based Law Forward, said . . . ."); see also Jack Kelly, Liberal Law Firm to Argue Gerrymandering Violates Wisconsin Constitution, The Cap Times (Apr. 6, 2023), https://captimes.com/news/government/liberal- law-firm-to-arguegerrymandering-violates-wisconsin- constitution/article_2dfb9757-6d2d-58ba-9461- 10b3d20d5f00.html. 32Wis. Stat. § 757.02(1) ("I. . . . do solemnly swear that I will support the constitution of the United States and the constitution of the state of Wisconsin; that I will administer justice without respect to persons and will faithfully and impartially discharge the duties of said office to the best of my ability. So help me God.") (emphasis added).

19 No. 2023AP1399-OA.akz

prevail over political and personal preferences, even when one

might not like the results. Numerous jurisprudential tenets

require that this matter now be deemed improvidently granted, as

application of the law so clearly dictates that this original

action never should have been granted in the first instance.33

It fails legal scrutiny. Any remedy which this court might now

conjure up to justify this preordained outcome is devoid of

legal merit.

¶97 In no small measure, Justice Ann Walsh Bradley, the

most senior member of the court, knows better than to join this

judicial mischief. She used to respect the doctrine of stare

decisis.34 And, if the shoe were on the other foot——much like

when some on the court previously tried to usurp the role of

Chief Justice Abrahamson——she would be raucously objecting.35

Then, she declared that this court should "call a spade a

spade. . . . This is about personal ambition, politics and

33Clarke v. Wis. Elections Comm'n, 2023 WI 70, 409 Wis. 2d 372, 995 N.W.2d 779 (order granting petition for original action) (Ziegler, C.J., dissenting). 34See Mayo v. Wis. Injured Patients & Fams. Comp. Fund, 2018 WI 78, ¶110, 383 Wis. 2d 1, 914 N.W.2d 678 (Ann Walsh Bradley, J., dissenting) ("The decision to overturn a prior case must not be undertaken merely because the composition of the court has changed."); Johnson Controls, Inc. v. Empr's Ins. of Wausau, 2003 WI 108, ¶94, 264 Wis. 2d 60, 665 N.W.2d 257 ("Stare decisis is fundamental to the rule of law. Indeed, this court follows the doctrine of stare decisis scrupulously because of our abiding respect for the rule of law.") 35In 1998, Justice Ann Walsh Bradley was convinced that the creation of an administrative committee, which would take over the role of the chief justice, was unconstitutional. She threatened to sue her colleagues over the matter. What changed? Shirley Abrahamson is no longer the chief justice.

20 No. 2023AP1399-OA.akz

pettiness. . . . [The four] justices are interested in toppling

the chief."36 Her fondness for sound legal principles like stare

decisis seems to vary depending on whether she is the majority

or the minority.

¶98 Justice Ann Walsh Bradley's former colleague, now

federal Seventh Circuit Judge Diane Sykes, reminded us all of

the inherent institutional and reputational dangers the court

faced when it previously departed from its constitutional role.

History teaches us that when the balance of power on the court

shifted for the 2004-2005 court term, making then a new majority

consisting of Ann Walsh Bradley and three others, the newly

constituted court majority of four, issued a series of blatantly

activist decisions. See Diane S. Sykes, Reflections on the

Wisconsin Supreme Court, 89 Marq. L. Rev. 723 (2006). In one of

many such activist-driven decisions from that new majority, she

and three others appeared to yield to political pressure and

abrogated its barely two year-old decision in Panzer v. Doyle,

2004 WI 52, 271 Wis. 2d 295, 680 N.W.2d 666, with Dairyland Greyhound Park, Inc. v. Doyle, 2006 WI 107, 295 Wis. 2d 1, 719

N.W.2d 408. Similarly, though the court a year prior had upheld

noneconomic damage caps for medical malpractice in personal

injury cases in Maurin v. Hall, 2004 WI 100, 274 Wis. 2d 28, 682

N.W.2d 866, the new court abruptly changed course and undermined

the notion of judicial deference to legislative policy choices

Statement of Justice Ann Walsh Bradley, printed in, Cary 36

Segall, Justice Lay Bare Problems with Abrahamson; Four Upset They're Left Out of Decisions, Wis. State Journal (Feb. 14, 1999).

21 No. 2023AP1399-OA.akz

in Ferdon, justifying their unprecedented move by declaring that

"a statute may be constitutionally valid when enacted but may

become constitutionally invalid because of changes in the

conditions to which the statute applies." Ferdon v. Wis.

Patients Comp. Fund, 2005 WI 125, ¶114, 284 Wis. 2d 573, 701

N.W.2d 440. In yet another instance, the court expanded its

supervisory role beyond the permissible bounds of saying what

the law is, to endow themselves with a "broad authority to

mandate desirable policy ostensibly related to judicial

proceedings" in the vein of the executive branch, which then

"extend[ed] far beyond the litigants in [that] specific case."37

The activism that took over that new court majority's decision-

making coursed through virtually every area of the law: civil,

criminal, juvenile, and even rule-making. Throughout that time,

members of the court lay aside their robes of judicial

independence to affix their campaign pins of judicial activism

and tipped the scales of the court's independent decision making

power in their favor. Here we go again. ¶99 Will this redistricting original action be the first

in a series of outcome-based legal decisions of the new court of

four? In the 2004-2005 term, when Justice Ann Walsh Bradley was

Rick Esenberg, A Court Unbound? The Recent Jurisprudence 37

of the Wisconsin Supreme Court 10 (Federalist Society White Paper Mar. 2007), https://fedsoc-cms- public.s3.amazonaws.com/update/pdf/IhZ6cE38iAto3CRWgllVqKrbM9j2I kM6y7zNZE56.pdf.

22 No. 2023AP1399-OA.akz

then in the new majority,38 the court "signaled a dramatic shift

in [their] jurisprudence." Sykes, supra ¶98 at 725. With Ann

Walsh Bradley in tow, that iteration of the court of four

throughout the 2004-2005 term and beyond, "depart[ed] from some

familiar and long-accepted principles that normally operate as

constraints on the court's use of power" including such

principles as "the presumption that statutes are constitutional,

judicial deference to legislative policy choices, respect for

precedent and authoritative sources of legal interpretation, and

the prudential institutional caution that counsels against

imposing broad-brush judicial solutions to difficult social

problems." Sykes, supra ¶98 at 725-26. The 2004-2005 court

majority proceeded to make a mockery of the law, throwing wide

open the door of judicial activism in cases that ranged from

criminal law to civil law to torts to juvenile to rulemaking and

everything in between. As Judge Sykes recounts in her Hallows

lecture39 reflecting on the court's activist missteps from that

term, that court of four:

 "rewrote the rational basis test for evaluating challenges to state statutes under the Wisconsin Constitution, striking down the statutory limit on noneconomic damages in medical malpractice cases;[40]

The new majority consisted of Shirley Abrahamson, Ann 38

Walsh Bradley, N. Patrick Crooks, and Louis Butler (who filled the vacancy created by Diane Sykes' appointment to the Seventh Circuit Court of Appeals.)

Case summary excerpts taken from Sykes, Reflections on 39

the Wisconsin Supreme Court, supra note 7.

Ferdon v. Wisconsin Patients Comp. Fund, 2005 WI 125, 284 40

Wis. 2d 573, 701 N.W.2d 440. 23 No. 2023AP1399-OA.akz

 eliminated the individual causation requirement for tort liability in lawsuits against manufacturers of lead-paint pigment, expanding "risk contribution" theory, a form of collective industry liability;[41]

 expanded the scope of the exclusionary rule under the state constitution to require suppression of physical evidence obtained as a result of law enforcement's failure to administer Miranda warnings;[42]

 declared a common police identification procedure inherently suggestive and the resulting identification evidence generally inadmissible in criminal prosecutions under the state constitution's due process clause; [43] and

 invoked its supervisory authority over the state court system to impose a new rule on law enforcement that all juvenile custodial interrogations be electronically recorded."[44] Sykes, supra ¶98 at 725.

¶100 Most of our current court composition knows about the

historic missteps of that court, second-hand. But Justice Ann

Walsh Bradley knows about it first-hand, as she was one of the

then court of four. She has the benefit of having been a

justice on the Wisconsin Supreme Court for about three decades,

41 Thomas v. Mallett, 2005 WI 129, 285 Wis. 2d 236, 701 N.W.2d 523. 42 State v. Knapp, 2005 WI 127, 285 N.W.2d 86, 700 N.W.2d 899. 43 State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582. 44 State v. Jerrell C.J., 2005 WI 105, 283 Wis. 2d 145, 699 N.W.2d 110.

24 No. 2023AP1399-OA.akz

since 1995, and a member of the bench for nearly 40 years.45

Past error should counsel her to depart from lending her name to

the activism embraced by the new majority.

¶101 Instead, all of Justice Ann Walsh Bradley's years of

collective judicial experience takes the majority right back

full-circle to the 2004-2005 court and its penchant for judicial

activism. Any one of the current court of four could refrain

from lending her vote to the exploration of such judicial

mischief. The 2004-2005 court term became irrevocably branded,

which should serve as a cautionary tale against justices

engaging in judicial activism. Activism is destructive to the

institution of the court, whether to achieve liberal or

conservative outcomes. That is the point. The court's role is

only to declare what the law is.46 The Johnson litigation

declared what the law is.

¶102 Does anyone wonder how Wisconsin became a nationwide

hotbed for political spending, a record holder for the most

For added perspective, at the time Ann Walsh Bradley 45

first started serving as a judge, her three other colleagues were not even lawyers yet: Justice Rebecca Dallet was in high school, Justice Jill Karofsky was just starting out as a freshman at Duke University, and Justice Janet Protasiewicz was wrapping up her undergraduate studies at U.W.-Milwaukee.

In doing so, as United States Supreme Court Chief Justice 46

John Roberts reminds us, "[j]udges are [to be] like umpires. Umpires don't make the rules; they apply them. . . . ." Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 56 (Sept. 12, 2005).

25 No. 2023AP1399-OA.akz

expensive judicial campaign in our nation's history?47 Is this

the new norm? The state Democratic Party chair has already said

that "[t]he stakes [of Ann Walsh Bradley's upcoming campaign]

will be enormous," and that "[a]s a party, [Democrats will] be

just about ready to do anything to avoid returning to a 'rogue

court'."48 Ann Walsh Bradley once upon a time found this

problematic.49 She claimed to "have [had] a vision for our court

system where political parties [do not] hav[e] undue input" on

judicial races, as she "strongly believe[d] political parties

should stay out of judicial races."50 Time will tell whether Ann

Walsh Bradley will change her position on that as well.

¶103 The majority leaves behind fundamental judicial tenets

giving no deference to longstanding legal parameters. These

47Wisconsin Supreme Court Race Cost Record $51 Million, Wisconsin Democracy Campaign (July 18, 2023), https://www.wisdc.org/news/press-releases/139-press-release- 2023/7390-wisconsin-supreme-court-race-cost-record-51m. 48Steven Walters, Schimel Could Be Potent Supreme Court Candidate, Urban Milwaukee (Dec. 4, 2023), https://urbanmilwaukee.com/2023/12/04/the-state-of-politics- schimel-could-be-potent-supreme-court-candidate 49Quote of Ann Walsh Bradley, Wisconsin Public Television, Candidate Debate, Mar. 27, 2015, https://ballotpedia.org/ Wisconsin_Supreme_Court_elections,_2015 ("This has never happened before in the state of Wisconsin to this degree that a political party would be inserted into a nonpartisan race. Political parties have agendas and we can't have courts with agendas because that undermines the public's trust in the people in our decisions.") 50Scott Bauer, Supreme Court candidates spar over partisan influences, Green Bay Press Gazette (Mar. 24, 2015), https://www.greenbaypressgazette.com/story/news/politics/2015/03 /24/supreme-court-candidates-partisan-influences/70405490/

26 No. 2023AP1399-OA.akz

four members of the court exhibit a continuing and escalating

pattern of power-starved behavior which amounts to an exercise

of sheer raw power accumulation, at any cost. This original

action is their latest power grab. Power-aggregation of this

nature is often "clad, so to speak, in sheep's clothing," in

hopes that others will not recognize the danger they are in

until it is too late. Morrison v. Olson, 487 U.S. 654, 699

(1988) (Scalia, J., dissenting). The court of four hopes that

their innocuously clad actions can escape immediate detection as

usually "the potential of the asserted principle to effect

important change in the equilibrium of power [between the

branches] is not immediately evident," so it "must be discerned

by a careful and perceptive analysis. But this wolf comes as a

wolf." Id. (Scalia, J., dissenting). The four justices'

evident lack of regard for fundamental sound judicial principles

requires me to vociferously dissent.

I

¶104 The legislative power, per the Wisconsin Constitution, is vested in the legislative branch, not the judicial branch.

Wis. Const. art. IV, § 1 ("The legislative power shall be vested

in a senate and assembly.") This grant of legislative power

includes the power to carry out redistricting. Per the

Wisconsin Constitution, it is the legislature, following the

United States census, who shall "apportion and district anew the

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

of inhabitants." Wis. Const. art. IV, §3. It is the legislature, not the judiciary, who is responsible for creating

27 No. 2023AP1399-OA.akz

maps which comply with the limited expressed apportionment

guidelines under both the federal and state constitutions.

Under normally functioning political process, when the

legislature "redistricts anew" every 10 years and passes

compliant maps, those maps take effect upon being signed into

law by the governor or when the governor's veto of those maps is

overridden. Wis. Const. art. V, § 10(2)a.

¶105 As a political process delegated to the political

branches, redistricting was not, and is not, the responsibility

of the courts. The court's responsibility as an impartial,

apolitical branch is to declare what the law is. See Marbury v.

Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (emphasis added) ("It

is emphatically the province and duty of the judicial department

to say what the law is."); see also Wis. Justice Initiative v.

Wis. Elections Comm'n, 2023 WI 38, ¶18, 407 Wis. 2d 87, 990

N.W.2d 122 ("The main power we have been given in the

constitution is the judicial power, which by necessity means the

power to interpret the law in appropriate cases."). Thus, the apolitical judicial branch normally has no role to play in this

political process.

¶106 But sometimes that traditional political process

fails. Where that political process fails, and there is a

constitutional crisis such that there are no compliant maps in

place with which to conduct state elections, then the judiciary

does have an important——albeit limited——role to play in

providing a judicial remedy to solve the issue.

28 No. 2023AP1399-OA.akz

¶107 Such was the unappealing situation we found ourselves

in during the Johnson redistricting litigation cycle. The

majority's discussion of our expansive Johnson redistricting

history was underdeveloped. Their framing, all two scant

paragraphs of it, combined with their assertion that this

court's treatment of the issue of contiguity was somehow

"cursory", majority op. at ¶22, conveniently lacks important

context and pertinent details on how this court——which included

three current members of the majority——definitively answered

these and all redistricting questions multiple times,

conclusively, throughout our Johnson litigation these last two

years.

¶108 Following the 2020 census, Wisconsin voters filed a

petition for an original action in this court claiming the then-

existing congressional and state legislative maps were

malapportioned under the state and federal constitutions,

requiring that new maps be drawn. See State ex rel. Reynolds v.

Zimmerman, 22 Wis. 2d 544, 556, 126 N.W.2d 551 (1964) (finding "the principle of per capita equality of representation" in

Article IV, Section 3 of the Wisconsin Constitution). We

granted the petition. Johnson v. Wis. Elections Comm'n, No.

2021AP1450-OA, unpublished order (Sept. 22, 2021). The majority

seems to overlook the inconvenient fact that during the

resulting litigation, this court liberally permitted parties to

intervene, and then "grant[ed] intervention to all parties that

sought it." Johnson v. Wis. Elections Comm'n, 2022 WI 14, ¶2, 400 Wis. 2d 626, 971 N.W.2d 402 ("Johnson II"), summarily rev'd

29 No. 2023AP1399-OA.akz

sub nom., Wis. Legislature v. Wis. Elections Comm'n, 595 U.S.

398, 142 S. Ct. 1245 (2022) (per curiam). These intervenors are

listed below.51 This original action commenced an "odyssey" that

brought this court face-to-face with every issue and claim the

parties could garner in support of their proposed maps——

including the contiguity issue raised here. See Johnson v. Wis.

Elections Comm'n, 2022 WI 19, 401 Wis. 2d 198, 972 N.W.2d 559

(Karofsky, J., dissenting) ("Johnson III").

A. Johnson I

¶109 It is worth remembering how this most recent

redistricting challenge came to the court. In Johnson I, we

laid the groundwork for how we would proceed with the unenviable

task of settling the inter-branch dispute over redistricting

maps. Johnson I, 399 Wis. 2d 623. That year, "[t]he political

process failed . . . , necessitating our involvement." Id.,

¶19. Called upon to remedy this failure so a map would be in

place for the upcoming election, this court resolved to remedy

the existing malapportionment by selecting a map submitted to us by the parties. Johnson II, 400 Wis. 2d 626, ¶6. This

approach sought to preserve our role as an independent judiciary

free of the political thicket. "[N]othing in the constitution

vests this court with the power of the legislature to enact new

Black Leaders Organizing for Communities, Voces de la 51

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.

30 No. 2023AP1399-OA.akz

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." Johnson I, 399

Wis. 2d 623, ¶3. We therefore proceeded, seeing our only

permissible task as "ensuring the maps satisfy

all . . . constitutional and statutory requirements"; not to

adjudicate "[c]laims of political unfairness in the maps[,

which] present political questions, not legal ones." Id., ¶4.

After all, "[t]he job of the judiciary is to decide cases based

on the law." Id., ¶82 (Hagedorn, J., concurring).

¶110 This court began by stating the obvious: the map

selected must comply with state law, but also federal

constitutional and statutory requirements. Id., ¶¶24-27. These

include the Equal Protection Clause's one-person-one-vote

requirement, the prohibition on multimember congressional

districts under 2 U.S.C. § 2c, and the Voting Rights Act's

("VRA's") prohibition of "the denial or abridgment of the right

to vote on account of race, color, or membership in a language minority group." Id.; see Reynolds v. Sims, 377 U.S. 533, 577

(1964) ("[T]he Equal Protection Clause requires 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."); 52 U.S.C. § 10301 (establishing the framework

for so-called vote dilution claims). Like the federal

constitution, we recognized that Article IV, Section 3 of the

Wisconsin Constitution also imposes a one-person-one-vote rule, requiring reapportionment "according to the number of

31 No. 2023AP1399-OA.akz

inhabitants" in new districts. Johnson I, 399 Wis. 2d 623,

¶¶28-38 (confirming that this interpretation comports with the

constitution's original meaning).

¶111 The parties further asked this court to consider

partisan fairness in selecting a new map. This ask ran headlong

into our role as an apolitical branch whose sole purpose is to

resolve legal disputes. See Wis. Justice Initiative, 407

Wis. 2d 38, ¶18 ("The main power we have been given in the

constitution is the judicial power, which by necessity means the

power to interpret the law in appropriate cases."). We do not

resolve partisan power politics. We resolve parties' rights and

responsibilities under the law by "focus[ing] on the language of

the adopted text and historical evidence" of its meaning. State

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

Some questions, while they may be intriguing, nonetheless lie

outside the legal boundaries of what courts can answer.

¶112 The majority calls partisan gerrymandering an

"important and unresolved legal question," majority op., ¶7, that they declined to take up in the petition for original

action over concerns of the extensive factfinding required. See

Clarke v. Wis. Elections Comm'n, 2023 WI 70, 409 Wis. 2d 372,

995 N.W.2d 779. But this court answered the question of

partisan gerrymandering in Johnson I, when this court concluded

the Wisconsin Constitution has nothing to say about partisan

gerrymandering, and therefore it is not a justiciable legal

claim this court can resolve. Johnson I, 399 Wis. 2d 623, ¶81 (lead op.). Partisan gerrymandering is "[t]he practice of

32 No. 2023AP1399-OA.akz

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). This

begs the question: "Diluted relative to what benchmark?"

Gonzalez v. Aurora, 535 F.3d 594, 598 (7th Cir. 2008)

(recognizing that VRA vote-dilution claims beg the same

question). That benchmark is proportional partisan

representation——"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." Johnson I, 399

Wis. 2d 623, ¶42. We recognized that nothing in the law

authorizes this court to grant parties relief based on whether a

particular map achieves proportional partisan representation.

"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." Id., ¶45. Seats in a representative body must be earned via the political process. That is what makes

the political branches accountable to the people. "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." Id., ¶42

(quoting Rucho v. Common Cause, 588 U.S. ___, 139 S. Ct. 2484,

2501 (2019)).

33 No. 2023AP1399-OA.akz

¶113 Not only did this court conclude partisan fairness is

a political question assigned to the legislature, but our

searching review of the Wisconsin Constitution revealed nothing

setting forth any cognizable right to partisan fairness in

redistricting. We concluded, "[n]othing 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."52 Johnson I, 399 Wis. 2d 623,

¶58. "Likewise, Article I, Sections 3[53] and 4[54] of the

Wisconsin Constitution do not inform redistricting challenges"

because "[n]othing about the shape of a district infringes

anyone's ability to speak, publish, assemble, or petition."

Id., ¶¶59-60. We further said finding a legal standard for

partisan fairness in Article I, Section 22, which provides,

"All people are born equally free and independent, and 52

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.

"Every person may freely speak, write and publish his 53

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." Wis. Const. art. I, § 3.

"The right of the people peaceably to assemble, to 54

consult for the common good, and to petition the government, or any department thereof, shall never be abridged." Wis. Const. art. I, § 4.

34 No. 2023AP1399-OA.akz

"[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," and to "fabricate a legal standard of partisan

fairness . . . would represent anything but 'moderation' or

'temperance[.]'" Id., ¶62. 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." Id. Instead,

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 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. Id., ¶63 (quoting Zimmerman, 22 Wis. 2d at 562 (alterations in

original).

¶114 Finally, rejecting the Johnson I dissent's assertion

that the task of adopting remedial maps required this court to

35 No. 2023AP1399-OA.akz

rule as a partisan actor,55 we adopted "[a] least-change

approach[, which] is the most consistent, neutral, and

appropriate use of our limited judicial power to remedy the

constitutional violations in this case." Id., ¶85 (Hagedorn,

J., concurring); see also id., ¶¶69-72. Least change, as a

framework this court put forward throughout the Johnson

litigation, properly reflects the limited role the judicial

branch plays in redistricting, as it is the legislature, not the

judiciary, which is granted constitutional authority to

redistrict. Least change remains the law. Until today. Now,

the majority, citing to nothing, declares instead that the

standard this court implemented barely two years ago "is

unworkable in practice," majority op., ¶63, simply so that they

can overrule it, and move this institution down the darkened

path of outcome-based judicial activism.

B. Johnson II

¶115 Having made clear the ground rules in Johnson I, this

court proceeded to select remedial maps in Johnson II, 400 Wis. 2d 626. To repeat, we decided the proper way for this

court to select remedial maps is to "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

The Johnson I dissent incorrectly interpreted the 55

majority's "least change" approach as "inherently political" in its determination to limit the judiciary's role in a political process granted to the legislature and the governor. Johnson I, 399 Wis. 2d 623, ¶¶88-89 (Dallet, J., dissenting).

36 No. 2023AP1399-OA.akz

Wisconsin Constitution." Johnson I, 399 Wis. 2d 623, ¶81 (lead

op.). As the judiciary, we cannot "consider the partisan makeup

of districts because it does not implicate any justiciable or

cognizable right," and we implement "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." Id. Instead of requesting a hearing or a referee

to engage in factfinding, the parties agreed to proceed on

stipulated facts and expert reports. Parties, including the

Governor, Senate Democrats, and Citizen Mathematicians and

Scientists, stipulated at the outset of the Johnson litigation

that Article IV's contiguity requirement is satisfied by

municipal islands, and these islands are constitutionally

permissible. Joint Stip. of Facts & Law, supra ¶88 ("Contiguity

for state assembly districts is satisfied when a district

boundary follows the municipal boundaries. Municipal 'islands'

are legally contiguous with the municipality to which the 'island' belongs.")

¶116 Applying this framework to the maps, a majority of the

court first concluded that the Governor's proposed congressional

map "best follow[ed] our directive to make the least changes

from existing congressional district boundaries while complying

with all relevant state and federal laws." Johnson II, 400

Wis. 2d 626, ¶25. A majority of the court accordingly adopted

Democratic Governor Evers' proposed congressional map as the remedial map. Id. Curiously, no challenge is made to that

37 No. 2023AP1399-OA.akz

Democratically drawn map which was chosen with the "least

change" methodology. Could it be that it already achieves the

desired partisan outcome?

¶117 In selecting the proper remedial maps for the state

legislature, however, a majority of this court initially went

astray. The Johnson II majority adopted Governor Evers'

proposed legislative maps——"which carve[d] seven Assembly

districts with populations that [were] curiously at almost exact

51% African-American populations"——based on an erroneous

application of Section 2 of the VRA and the Equal Protection

Clause. Id., ¶72 (Ziegler, C.J., dissenting). A majority of

this court misunderstood and misapplied VRA § 2 in creating a

race-based remedy in the absence of a VRA violation or

wrong: creating such an untethered race-based remedy out of

thin air, as a majority of the court had done, is in fact,

unconstitutional.

¶118 "A State may not use race as the predominant factor in

drawing district lines unless it has a compelling reason." Cooper v. Harris, 581 U.S. 285, 291 (2017). If there is no

compelling reason, using race as the predominant factor in

drawing district lines creates an unjustified, unconstitutional

racial gerrymander in violation of the Equal Protection Clause.

Shaw v. Reno, 509 U.S. 630 (1993). The United States Supreme

Court has specified three elements, known as the "Gingles

preconditions," which must be established in order to

demonstrate a VRA § 2 violation necessitating the creation of an additional minority opportunity district:

38 No. 2023AP1399-OA.akz

(1) the racial group must be "sufficiently large and geographically compact to constitute a majority in a single-member district"; (2) the group must be "politically cohesive"; and (3) the white majority must "vot[e] sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate." League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 425

(2006) (quoting Thornburg v. Gingles, 478 U.S. 30, 50-51

(1986)). "If all three Gingles requirements are established,

the statutory text directs us to consider the 'totality of

circumstances' to determine whether members of a racial group

have less opportunity than do other members of the electorate."

Id. at 425-26. Section 2 further provides, though "[t]he extent

to which members of a protected class have been

elected . . . may be considered," "nothing in [VRA § 2]

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(b). Unless "each of the three Gingles

prerequisites is established, 'there neither has been a wrong

nor can be a remedy.'" Cooper, 581 U.S. at 306 (quoting Growe

v. Emison, 507 U.S. 25, 41 (1993)). The Supreme Court therefore "insist[s] on a strong basis in evidence of the harm being

remedied" under the VRA in order to survive strict scrutiny.

Miller v. Johnson, 515 U.S. 900, 922 (1995); accord Shaw, 509

U.S. at 653 ("[R]acial bloc voting and minority-group political

cohesion [the requirements of a VRA redistricting violation]

never can be assumed, but specifically must be proved in each

case in order to establish that a redistricting plan dilutes minority voting strength in violation of § 2."). "[T]he purpose

39 No. 2023AP1399-OA.akz

of strict scrutiny is to 'smoke out' illegitimate uses of race

by assuring that the legislative body is pursuing a goal

important enough to warrant use of a highly suspect tool." City

of Richmond v. J.A. Croson Co,, 488 U.S. 469, 493 (1989).

¶119 The Johnson II majority improperly concluded that

Democratic Governor Evers' racial gerrymander was proper, even

though it did not meet this minimum threshold necessary to

survive strict scrutiny. Johnson II, 400 Wis. 2d 626, ¶¶47, 50

("[W]e cannot say for certain on this record that seven

majority-Black assembly districts are required by the VRA. But

based on our assessment of the totality of the circumstances and

given the discretion afforded states implementing the Act, we

conclude the Governor's configuration is permissible."). The

majority's violation of the law was sufficient cause for the

United States Supreme Court, three weeks after the Johnson II

majority selected the Governor's maps, to take the rarely

invoked action of summarily reversing the majority's

40 No. 2023AP1399-OA.akz

interpretation of the VRA56 and the Equal Protection Clause,

while leaving the rest of the analysis intact. Wis. Legislature

v. Wis. Elections Comm'n, 595 U.S. 398, 142 S. Ct. 1245 (2022)

(per curiam). The Supreme Court determined that the majority of

this court had "failed to answer" "whether a race-neutral

alternative that did not add a seventh majority-black district

would deny black voters' equal political opportunity" in trying

to determine whether there was a VRA violation which justified

First, the United States Supreme Court determined that 56

the Johnson II majority mistook the VRA § 2 as requiring the creation of as many majority opportunity districts as possible, thus "embracing just the sort of uncritical majority-minority district maximization that [the Supreme Court] ha[s] expressly rejected." Wis. Legislature v. Wis. Elections Comm'n, 595 U.S. 398, 142 S. Ct. 1245, 1249 (2022) (per curiam) (citing Johnson v. De Grandy, 512 U.S. 997, 1017 (1994) ("Failure to maximize cannot be the measure of § 2.")). The Johnson II majority improperly took Cooper's "leeway" language as indicating that "it had to conclude only that the VRA might support race-based districting——not that the statute required it." Id.; Cooper v. Harris, 581 U.S. 285, 306 (2017). The Supreme Court explained that its "precedent instructs otherwise"; "that 'leeway' does not allow a State to adopt a racial gerrymander that the State does not, at the time of imposition 'judg[e] necessary under a proper interpretation of the VRA.'" Wis. Legislature, 142 S. Ct. at 1250 (quoting Cooper, 581 U.S. at 306).

Second, the Court observed that the Johnson II majority's "analysis of Gingles' preconditions fell short of [the Court's] standards" by "improperly rel[ying] on generalizations to reach the conclusion that the preconditions were satisfied" "[r]ather than carefully evaluating evidence at the district level." Id. In fact, the "sole piece of cited record evidence came from an intervenor who argued that the Governor's map violated the VRA." Id. at 1250 n.2.

Finally, the Supreme Court faulted the Johnson II majority for "improperly reduc[ing] Gingles' totality-of-circumstances analysis to a single factor" and "focus[ing] exclusively on proportionality," an approach the Court previously rejected as contrary to the VRA's language. Id. at 1250.

41 No. 2023AP1399-OA.akz

the Governor's racially gerrymandered maps. Wis. Legislature,

142 S. Ct. at 1250-51.

¶120 The Supreme Court's repudiation of this court was only

the third time that this court has ever been summarily reversed.

The first was about 73 years ago, and the second being about 55

years ago.57 As a result of that rare repudiation, the court was

required to revisit state legislative maps for the upcoming

election, but congressional maps selected by the court majority

were left intact.

C. Johnson III

¶121 We finally brought this line of cases to an end——or so

we thought!——and settled this issue in Johnson III on remand

from the Supreme Court's summary reversal. Johnson III, 401

Wis. 2d 198. It is worth repeating that any map this court

could select as a judicial remedy had to first comply with

federal constitutional and statutory requirements, including the

VRA, Equal Protection Clause, one-person-one-vote requirement,

and the Wisconsin Constitution, and then had to align with the court's "least change approach" adopted in Johnson I. The maps

also had to comply with state law. All parties were free to,

and invited to, submit maps for our consideration which met

these foundational compliance requirements. Among the five maps

submitted to us, we ultimately selected the Legislature's maps

because, of the maps submitted, these maps were "the only

legally compliant maps" and were thus "the best, and only,

57Plankinton Packing Co. v. Wis. Emp. Rels. Bd., 338 U.S. 953 (1950); Greenwald v. Wisconsin, 390 U.S. 519 (1968).

42 No. 2023AP1399-OA.akz

viable proposal." Johnson III, 401 Wis. 2d 198, ¶22. These

court-selected remedial maps——the Democratic Governor's

congressional map and the Republican Legislature's state senate

and assembly maps——were then used to conduct the state's 2022

elections and remained in place and in effect until this most

recent collateral attack on the court's judgment in Johnson III.

Notably, all parties agreed, and the court concluded, that the

selected maps complied with contiguity.

II

¶122 The majority's decision to hear this present case and

now overrule its own less than two-year-old decision following a

change in court membership is a resurrection of the contempt

voiced by the Johnson III dissenters following the United States

Supreme Court's summary reversal. The Johnson III dissenters

demonstrated an open and notorious disregard for their

fundamental duty to neutrally apply the law. "Rather than

admitting [their] error" the Johnson III dissenters "launche[d]

an indignant attack on this nation's highest court," echoing arguments from Justice Sotomayor's dissent to the per curiam and

chastising this court for applying binding Supreme Court

precedents that the dissenters felt were "gaslighting." Johnson

III, 401 Wis. 2d 198, ¶¶137-39 & n.33 (Rebecca Grassl Bradley,

J., concurring); id., ¶175 (Karofsky, J., dissenting). Not

content with the outcome of the Johnson litigation, the majority

hopes that having a fourth "kick at the cat," provides them with

the predetermined outcome they desire——both state and federal all democratic maps.

43 No. 2023AP1399-OA.akz

¶123 This original action comes camouflaged as something

other than what it is: a motion for reconsideration of this

court's decision in Johnson III, a procedurally problematic

avenue these parties cannot avail themselves of as it is now

time-barred. Wis. Stat. § (Rule) 809.64 ("A party may seek

reconsideration of the judgment or opinion of the supreme court

by filing a motion under s. 809.14 for reconsideration within 20

days after the date of the decision of the supreme court.").

All other legal bases and procedural mechanisms for this court

to reexamine these maps once again are likewise barred. Yet

here we are.

¶124 This case, along with all the factual disputes and

legal issues it presents, or could even possibly present, have

already been thoroughly litigated at the highest courts of this

state and the nation. The parties are precluded from bringing

new claims now over the same maps this court has already

rendered judgment on. Accordingly, this court should not be

reexamining the congressional or state legislative maps we imposed as a judicial remedy less than two years ago under the

guise of seeking district "contiguity" or avoiding violation of

the principle of "separation of powers."

¶125 The new court majority's handling of this case strikes

a resounding blow at the root of our shared foundational

judicial principles and duties. We should never have taken this

case. This court should not have engaged in a vaunted show of

judicial window dressing in pretending that the outcome of this case was not already predetermined from the outset. There is

44 No. 2023AP1399-OA.akz

only one way the majority can justify its extraordinary steps

taken in flagrant defiance of our precedent, our law, and our

nation's highest court: raw judicial power.

¶126 This case should be dismissed as improvidently

granted. Be that as it may, this court cannot now address

issues which these parties had a prior opportunity to raise,

decided not to, and now seek to raise before Johnson III is even

cold, and do so in an unnecessarily constrained timeframe that

runs up against our 2024 election cycle. Justice, due process,

and the court system's reliance on finality of judgments, demand

this case's dismissal and its arguments precluded under stare

decisis, standing, judicial estoppel, issue preclusion, claim

preclusion, laches, and due process. Unlike the majority

opinion, I will address them in detail.

A. Stare Decisis

¶127 These four members of the court fundamentally

undermine this essential legal principle in their quest to

deliver a predetermined outcome to their constituents. ¶128 The doctrine of stare decisis inhibits the majority's

exercise of raw judicial power in seeking to overrule a case so

recently decided. We do not formulaically adhere to, or quickly

dispense with, stare decisis simply as a means for avoiding hard

questions. Stare decisis is not judicial window dressing.

Rather, stare decisis is a foundational concept in our legal

system because "respect for prior decisions is fundamental to

the rule of law." Johnson Controls, Inc., 264 Wis. 2d 60, ¶94. Stare decisis "ensures the integrity of the judicial system by

45 No. 2023AP1399-OA.akz

developing consistency in legal principles and establishing that

cases are grounded in the law, not in the will of individual

members of the court." State v. Roberson, 2019 WI 102, ¶97, 389

Wis. 2d 190, 935 N.W.2d 813 (Dallet, J., dissenting). "This

court follows the doctrine of stare decisis scrupulously because

of our abiding respect for the rule of law." Hinrichs v. DOW

Chemical Co., 2020 WI 2, 389 Wis. 2d 669, 937 N.W.2d 37 (quoting

Johnson Controls, Inc., 264 Wis. 2d 60, ¶94). "That is why we

require a special justification in order to overturn our

precedent." State v. Johnson, 2023 WI 39, ¶19, 407 Wis. 2d 195,

990 N.W.2d 174. A mere change in the composition of the court

does not rise to the high level of the "special justification"

standard required to overturn a prior case. Mayo v. Wis.

Injured Patients & Fams. Comp. Fund, 2018 WI 78, ¶110, 383

Wis. 2d 1, 914 N.W.2d 678 (Ann Walsh Bradley, J., dissenting)

("The decision to overturn a prior case must not be undertaken

merely because the composition of the court has changed.")

¶129 Adherence to stare decisis is essential because there is no finality in judgement "[w]hen constitutional

interpretation is open to revision in every case, [as] 'deciding

cases becomes a mere exercise of judicial will, with arbitrary

and unpredictable results.'" Citizens Util. Bd. v. Klauser, 194

Wis. 2d 484, 513, 534 N.W.2d 608 (1995) (Abrahamson, C.J.,

dissenting) (quoting Appeal of Concerned Corporators of

Portsmouth Sav. Bank, 525 A.2d 671, 701 (N.H. 1987) (Souter, J.,

dissenting)). Departing from a prior decision——decided so recently and affecting the same set of facts——erodes "public

46 No. 2023AP1399-OA.akz

faith in the judiciary as a source of impersonal and reasoned

judgments." Moragne v. States Marine Lines, Inc., 398 U.S. 375,

403 (1970).

¶130 From the start of this Johnson litigation cycle, the

relevant parties, including the Governor, Senate Democrats, and

the Citizen Mathematicians and Scientists, agreed and this court

determined that "municipal islands" are "legally contiguous even

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

Johnson I, 399 Wis. 2d 623, ¶36; see also Joint Stip. of Facts &

Law supra ¶88 ("Contiguity for state assembly districts is

satisfied when a district boundary follows the municipal

boundaries. Municipal 'islands' are legally contiguous with the

municipality to which the 'island' belongs.") And they have

been, for years.58 That holding was reiterated by this court

again in Johnson II and yet again in Johnson III when we adopted

proposed remedial maps——including remedial maps proposed by

parties who now argue for a different interpretation of

contiguity——which contained municipal islands. These holdings on contiguity, which three members of the current majority did

not take fault with in their dissents, were in line with the

court's understanding of contiguity, as reflected in the maps

that existed since the 1950s or 1960s, according to counsel,

previous 50 years of law on the topic, the parties own agreement

Oral argument in Clarke v. Wis. Elections Comm'n, No. 58

2023AP1399-OA, held Nov. 21, 2023, available on WisconsinEye https://wiseye.org/2023/11/21/wisconsin-supreme-court-rebecca- clarke-v-wisconsin-elections-commission/ (Rebuttal arguments of Attorneys Sam Hirsch and Mark Gaber at 2:53:00 and 3:01, respectively.)

47 No. 2023AP1399-OA.akz

that the maps are contiguous, and the court's reliance on

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

(per curiam) ("Since the distance between town and island is

slight, we do not think the failure of the legislative plan to

achieve literal contiguity a serious demerit; and we note that

it has been the practice of the Wisconsin legislature to treat

islands as contiguous with the cities or villages to which they

belong.").

¶131 The court's determination that municipal islands were

constitutionally permissible in Johnson I was essential to the

court's provision of a remedy, so the allegation that these

repeated holdings and determinations were dicta or simply

"cursory" comments is farcical. Majority. op., ¶¶22-23. Using

a dicta allegation as an "end run around stare decisis" in this

present case "undermines our common law tradition of fidelity to

precedent." Est. of Genrich v. OHIC Ins. Co., 2009 WI 67, ¶85,

318 Wis. 2d 553, 769 N.W.2d 481 (Ann Walsh Bradley, J.,

concurring in part and dissenting in part); State v. Picotte, 2003 WI 42, ¶61, 261 Wis. 2d 249, 661 N.W.2d 381.

¶132 The majority dismisses 50 years of precedent, a

federal court determination in Prosser, and three successive

binding determinations by this court in Johnson I, II, and III

in order to do away with a necessary stare decisis analysis

which does not trend in their favor. As an analysis shows, this

contiguity precedent did not demand a literal physically

touching definition. Johnson I, 399 Wis. 2d 623, ¶36; see also Prosser, 793 F. Supp. at 866 ("Since the distance between town

48 No. 2023AP1399-OA.akz

and island is slight, we do not think the failure of the

legislative plan to achieve literal contiguity a serious

demerit; and we note that it has been the practice of the

Wisconsin legislature to treat islands as contiguous with the

cities or villages to which they belong."). The court then, as

the court should now be, was "not persuaded . . . that the

Wisconsin Constitution requires literal contiguity." Id. Stare

decisis, as a principle, does not require the court to "retain

constitutional interpretations that were objectively wrong when

made." Koschkee v. Taylor, 2019 WI 76, ¶8 n.5, 387 Wis. 2d 552,

929 N.W.2d 600. But "objectively wrong" is a high bar to

overcome, one which is not overcome here, as there is simply no

reason for overruling Johnson I and Johnson III that would not

also counsel overruling any other case.

¶133 The law demands a stare decisis analysis. That is

notably absent from the majority opinion. The court's new

composition does not dispense with the need for such analysis,

and the opinion they put forward does not satisfy the "special justification" bar required to overturn a precedential case.

See Mayo, 383 Wis. 2d 1, ¶110 (Ann Walsh Bradley, J.,

dissenting) ("The decision to overturn a prior case must not be

undertaken merely because the composition of the court has

changed.")

¶134 Given that the court's membership is all that has

changed, it lends credence to the fact that overruling a case so

recently decided——in violation of foundational legal principles——is little more than the majority's impermissible

49 No. 2023AP1399-OA.akz

exercise of raw judicial power for activist means. Fidelity to

stare decisis and the rule of law impedes these activist means.

B. Standing

¶135 The majority donates barely a paragraph to dispel of a

rather glaring issue——whether the parties even have the

requisite standing necessary to bring their claims. The

majority's retreat to a position of "we need not address" the

arguments that we find potentially problematic is unsurprising,

yet disappointing. The issue of standing is not so easily

dispensed with as the majority opinion suggests. Majority op.,

¶¶38-39. Standing may actually prove to be rather problematic

to them.

¶136 Standing in Wisconsin is "not a matter of

jurisdiction, but of sound judicial policy." Friends of Black

River Forest v. Kohler Company, 2022 WI 52, ¶17, 402

Wis. 2d 587, 977 N.W.2d 342; Wis. Bankers Ass'n Inc. v. Mut.

Sav. & Loan Ass'n of Wis., 96 Wis. 2d 438, 444 n.1, 291

N.W.2d 869 (1980); State ex rel. First Nat'l Bank of Wisconsin Rapids v. M & I Peoples Bank of Coloma, 95 Wis. 2d 303, 308 n.5,

290 N.W.2d 321 (1980). "[T]he Wisconsin standing analysis is

conceptually similar to the federal analysis." Waste Mgmt. of

Wis., Inc. v. DNR, 144 Wis. 2d 499, 509, 424 N.W.2d 685 (1988).

With this approach, the court asks, "Does the challenged action

cause the petitioner injury in fact?" And "is the interest

allegedly injured arguably within the zone of interests to be

protected or regulated by the statute or constitutional guarantee in question?" Friends of Black River Forest, 402

50 No. 2023AP1399-OA.akz

Wis. 2d 587, ¶18 (citing Ass'n of Data Processing Serv. v. Camp,

397 U.S. 150, 153 (1970)). "'Standing' is a concept that

restricts access to judicial remedy to those who have suffered

some injury because of something that someone else has either

done or not done." Krier v. Vilione, 2009 WI 45, ¶20, 317

Wis. 2d 288, 766 N.W.2d 517 (quoting Three T's Trucking v. Kost,

2007 WI App 158, ¶16, 303 Wis. 2d 681, 736 N.W.2d 239). "In

order to have standing to sue, a party must have a personal

stake in the outcome of the controversy." Madison v. Fitchburg,

112 Wis. 2d at 228 (emphasis added); see also Mast v. Olsen, 89

Wis. 2d 12, 16, 278 N.W.2d 205 (1979); Tri-State Home

Improvement Co. Inc. v. LIRC, 111 Wis. 2d 103, 113, 330

N.W.2d 186 (1983); Moedern v. McGinnis, 70 Wis. 2d 1056, 1064,

236 N.W.2d 240 (1975). Being harmed "without more, does not

automatically confer standing." Krier, 317 Wis. 2d 288, ¶20.

¶137 Standing analysis can vary "depending on the nature of

the claim asserted." Chenequa Land Conservancy, Inc. v. Village

of Hartland, 2004 WI App 144, ¶13, 275 Wis. 2d 533, 685 N.W.2d 573. In dealing with redistricting claims however, the

United States Supreme Court has determined that residents cannot

allege harms "result[ing] from the boundaries" of other

residents' districts, but the harms allegedly suffered must

emanate from the boundaries of the particular resident's

"particular district": they must be "district specific" harms

suffered. Gill v. Whitford, 585 U.S. ___, 138 S. Ct. 1916, 1930

(2018). If a harm is found, "the remedy that is proper and sufficient lies in the revision of the boundaries of the

51 No. 2023AP1399-OA.akz

individual's own district," a remedy "does not necessarily

require restructuring all of the State's legislative districts."

Id. at 1930-31.

¶138 Petitioners' assertion that they have standing because

the allegedly non-contiguous districts render a "less responsive

and less representative" legislature, and they are thus harmed

by legislators who have "difficulty advancing constituent

interests" in fragmented districts, cannot advance a cognizable

injury which this court can remedy. Many of the petitioners do

not live in the municipal islands in question, let alone the

supposedly non-contiguous districts surrounding them.59 For

these parties who do not live in these scrutinized districts,

the Supreme Court outlined in Sinkfield v. Kelley that they also

cannot allege a harm or present a cognizable injury on the basis

of residing in districts which merely border allegedly

unconstitutional districts. Sinkfield v. Kelley, 531 U.S. 28,

30-31 (2000) (per curiam). The majority seems to have misplaced

these pertinent facts somewhere along the way, and has not had the good fortune to stumble back over them. Parties cannot

assert a generalized grievance when they themselves do not live

in, nor are directly harmed by, the presence of municipal

islands which have been in place for over 50 years. In many of

Only some of the petitioners allege to live in a district 59

with a municipal island, and none articulate a concrete injury: two petitioners live in districts with islands of zero residents, three petitioners live in districts with islands of one to four residents, and the remaining petitioners and Citizen Mathematicians and Scientists don't claim to live in districts with municipal islands.

52 No. 2023AP1399-OA.akz

the districts of which they complain, the "islands" can be

absorbed into the existing district so not to require much

judicial map drawing at all.

¶139 The majority also fails to advance a compelling answer

for how the petitioners' alleged initial harm, that they are

unable "to achieve a Democratic majority in the state

legislature," is the fault of municipal islands which

overwhelmingly contain zero to 20 residents.60 Nor is it clear

why this court, in order to remedy that far-fetched alleged

harm, must toss statewide maps it adopted as a judicial remedy

just last year. The majority's lack of methodology leaves the

public and members of the legislature in limbo. Majority op.,

¶3. The majority plays the game without letting anyone else

know the rules.

¶140 Connections between the alleged harm and the extreme

remedy initially sought are strained to the point of breaking.

Perhaps the majority recognizes this, as they duck any and all

discussion or analysis of Gill v. Whitford. Gill helpfully limits alleged harms to what parties can show is "district

specific," not "result[ing] from the boundaries" of other

people's districts, and would, if harms were nonetheless found,

limit remedy to "revision of the boundaries of the individual's

own district" instead of "requir[ing] restructuring all of the

State's legislative districts." Gill, 138 S. Ct. at 1930-31.

In briefing and oral argument, the parties identified 211 60

"municipal islands," of which approximately 33% have zero residents, more than 80% have less than 20 residents, and a mere 5% of these contain 100 or more residents.

53 No. 2023AP1399-OA.akz

Parties alleging generalized grievances lack standing to demand

the extreme statewide remedy they seek.

¶141 While this court has previously recognized that the

Governor has standing to bring a redistricting challenge on

behalf of the state's citizens,61 a point the majority clings to,

the Governor had his day in court and agreed the maps were

contiguous. The majority fails to wrestle with the very real

reality of what happens when the Governor——who they argue has

the clearest claim to standing——was a party in the previous

judicial proceedings and is precluded for a host of reasons from

bringing these claims now. Evidently then, the rest of this

hastily erected house of cards starts to crumble, and the

majority would then be forced to address the numerous standing

issues of the remainder of the parties. But it fails to even

begin this analysis.

¶142 Stated differently, if the one party who may have the

clearest claim to standing, the Governor, is nonetheless

estopped and precluded from relitigating claims this court has already addressed, then the others are left without a leg to

stand on. Nothing plus nothing is still nothing, unless your

judges do not require that the parties have standing in order to

wholesale redraw only the maps that do not lean Democratic.

C. Judicial Estoppel

61 "[The] state, acting . . . through the Governor . . . , may challenge the constitutionality of a state reapportionment plan as a violation of state constitutional rights of the citizens." State ex rel. Reynolds v. Zimmerman, 22 Wis. 2d 544, 552, 126 N.W.2d 551 (1964).

54 No. 2023AP1399-OA.akz

¶143 Judicial estoppel is a preclusion principle "intended

to protect the judiciary as an institution from the perversion

of judicial machinery[.]" Petty, 201 Wis. 2d at 346 (quoting

Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir.

1982)). Simply, judicial estoppel "protect[s] [courts] against

a litigant playing 'fast and loose with the courts' by asserting

inconsistent positions" at different stages of the litigation

cycle. State v. Fleming, 181 Wis. 2d 546, 557, 510 N.W.2d 837

(1993) (quoting Yanez v. United States, 989 F.2d 323, 326 (9th

Cir. 1993)). Thus, a party is judicially estopped from

"asserting a position in a legal proceeding and then

subsequently asserting an inconsistent position." Petty, 201

Wis. 2d at 347; see also State v. Mendez, 157 Wis. 2d 289, 294,

459 N.W.2d 578, 580 (Ct. App. 1990); Coconate, 165 Wis. 2d at

231. "[T]he doctrine is not reducible to a pat formula."

Petty, 201 Wis. 2d at 348. But the analysis conducted

"recognize[s] certain boundaries," Levinson v. United States,

969 F.2d 260, 264-65 (7th Cir. 1992), including whether (1) the party's later position is clearly inconsistent with the earlier

position; (2) whether the facts at issue are the same in both

cases; and (3) whether the party to be estopped convinced the

first court to adopt its position. State v. Harrison, 2020 WI

35, ¶27, 391 Wis. 2d 161, 942 N.W.2d 310.

¶144 In the Johnson litigation, the parties' "earlier

position" was that Article IV's contiguity requirement was

satisfied without requiring literal physical contiguity. Both Governor Evers and the Citizen Mathematicians and Scientists

55 No. 2023AP1399-OA.akz

stipulated that municipal islands are legally contiguous with

the municipality to which the "island" belongs, so literal

contiguity was essentially not required. Joint Stip. of Facts &

Law supra ¶88; see Prosser, 793 F. Supp. at 866 (three-judge

panel). And that made sense. So the court concluded municipal

islands were thus allowable within the understanding and

precedent of contiguity. According to counsel at oral argument,

Wisconsin has utilized faulty, "non-contiguous" maps since the

1950s or 1960s.62 The Governor had no quarrel with this, as just

last year he proposed remedial maps containing the municipal

islands which he now decries. He now argues in direct

opposition to the argument then made. He now avers that our

constitution requires literal physical contiguity and municipal

islands are not allowable. Why the change of heart? A change

in the court. The facts at issue between the earlier round of

Johnson litigation and this current round of litigation are the

same, satisfying the second element.

¶145 The Governor and the Citizen Mathematicians and Scientists persuaded the court to adopt a position on

contiguity, as evidenced in their initial briefing in Johnson.

These parties also stipulated to contiguity. Joint Stip. of

Facts & Law supra ¶88 ("Contiguity for state assembly districts

is satisfied when a district boundary follows the municipal

Oral argument in Clarke v. Wis. Elections Comm'n, No. 62

2023AP1399-OA, held Nov. 21, 2023, available on WisconsinEye https://wiseye.org/2023/11/21/wisconsin-supreme-court-rebecca- clarke-v-wisconsin-elections-commission/ (Rebuttal arguments of Attorneys Sam Hirsch and Mark Gaber at 2:53:00 and 3:01, respectively.)

56 No. 2023AP1399-OA.akz

boundaries. Municipal 'islands' are legally contiguous with the

municipality to which the 'island' belongs.") The Governor

proposed maps in Johnson that contained what he now argues is

noncontiguous territory, yet he then argued it was a

constitutionally compliant map.63 This court initially adopted

his maps in Johnson II on the grounds of their purported

constitutional compliance. These facts collectively beggar

belief then that the court was not "convinced" by the parties to

adopt a position on contiguity one way or the other. The

parties convinced this court to adopt their positions related to

contiguity in Johnson and now attempt to convince this

differently constituted court to adopt their changed position.

¶146 Judicial estoppel is an equitable doctrine which is a

matter of discretion. That fact should not give the court pause

when that analysis is overlaid on the facts of the case before

us now. Even where courts have hesitated to exercise their

judicial discretion in invoking this doctrine, they have

nonetheless recognized that such hesitancy arises in cases where courts are "more uncertain . . . that the two judicial actions

concern the same factual issues or positions," as judicial

estoppel "should be used only when the positions taken are

clearly inconsistent." Harrison v. LIRC, 187 Wis. 2d 491, 497-

See, generally, State v. English-Lancaster, 2002 WI App 63

74, 252 Wis. 2d 388, 642 N.W.2d 627; see also Cnty. of Milwaukee v. Edwards S., 2001 WI App 169, 247 Wis. 2d 87, 633 N.W.2d 241 (concluding when a party asks the court for something, and the court provides it, the party cannot later argue that the very thing they requested was unlawful.)

57 No. 2023AP1399-OA.akz

98, 523 N.W.2d 138 (Ct. App. 1994). Petitioners64 advanced

positions here which are clearly inconsistent with their

positions advanced in Johnson I and II. Hesitation to invoke

judicial estoppel is not necessary. These parties are

judicially estopped from launching this unprincipled attack on

the court's prior decisions in the Johnson litigation. And, as

referenced earlier in this dissent's section on standing, supra

section II B., the fact that the Governor can be judicially

estopped from bringing this claim directs the court majority

back to the foundational——and in this instance, foundationally

problematic——issue of addressing the other parties' severely

weakened assertions of standing to bring these claims in the

first place.

D. Issue Preclusion

¶147 Any trial lawyer or judge knows that parties in

litigation often stipulate to certain elements of that

litigation. And when they do, those stipulations are largely

accepted by the court, and not necessarily analyzed to the same extent as the remaining live issues before the court.

Stipulations often streamline litigation and allow resources to

be devoted to the crux of the case. Quite obviously then, when

all parties agree on an issue, that matter may not receive the

same precise detailed scrutiny and analysis as the matters that

are fully at issue and being fully litigated without

stipulation. Contiguity was agreed upon and concluded in

Johnson.

64 Governor Evers and Citizen Mathematicians and Scientists.

58 No. 2023AP1399-OA.akz

¶148 Were this problematic original action to somehow

survive the numerous procedural issues already facing it, it

would still not hold up under an issue and claim preclusion

analysis. The doctrine of issue preclusion, previously known as

collateral estoppel, clearly bars the parties from relitigating

what was already decided in the Johnson litigation. "The

doctrine of issue preclusion . . . is designed to limit the

relitigation of issues that have been actually litigated in a

previous action." Aldrich, 341 Wis. 2d 36, ¶88. The focus of

the analysis is on whether a particular issue——that is, the

application of law to a given set of facts——was decided in a

previous case. See N. States Power Co. v. Bugher, 189

Wis. 2d 541, 550-51, 525 N.W.2d 723 (1995). "[T]he rights of

persons not parties to the original litigation may be

implicated . . . ." Kruckenberg v. Harvey, 2005 WI 43, ¶57, 279

Wis. 2d 520, 694 N.W.2d 879.

¶149 "In the first step of the analysis, we must determine

whether the issue or fact was actually litigated and determined in the prior proceeding by a valid judgment in a previous action

and whether the determination was essential to the judgment."

Dostal, 405 Wis. 2d 572, ¶24. "An issue is 'actually litigated'

when it is 'properly raised, by the pleadings or otherwise, and

is submitted for determination, and is determined.'" Id.; see

also Randall v. Felt, 2002 WI App 157, ¶9, 256 Wis. 2d 563, 647

N.W.2d 373 (quoting Restatement (Second) of Judgments § 27 cmt.

d (1980)). If the issue is properly raised and thus actually litigated, then a court conducts a fundamental fairness analysis

59 No. 2023AP1399-OA.akz

based on the facts of the case, to see if applying the doctrine

of issue preclusion comports with principles of fundamental

fairness. Est. of Rille v. Physicians Ins. Co., 2007 WI 36,

¶38, 300 Wis. 2d 1, 728 N.W.2d 693; see also Mozrek v. Intra

Fin. Corp, 2005 WI 73, ¶17, 281 Wis. 2d 448, 699 N.W.2d 54.

¶150 Contiguity was actually litigated and determined in a

prior proceeding. The assertion that an essential element of

the Johnson litigation which parties stipulated to, was not

"actually litigated," struggles to find basis in the law. The

majority cites to the Restatement (Second) of Judgments to

bolster their claim.65 The parties' stipulation was, "Contiguity

for state assembly districts is satisfied when a district

boundary follows the municipal boundaries. Municipal 'islands'

are legally contiguous with the municipality to which the

'island' belongs." Joint Stip. of Facts & Law supra ¶88.

¶151 The parties' stipulation and conclusions of the court

in Johnson end the analysis. In Johnson this court asked the

parties to address in their briefing the constitutional parameters that the court should be bound by in drawing or

appointing constitutionally compliant maps. The parties did so.

This court, as the parties did, determined that municipal

islands were constitutionally permissible within the

understanding of contiguity: the parties drew and proposed

remedial maps containing municipal islands, arguing that their

maps containing these islands satisfied contiguity, and the

"An issue is not actually litigated if . . . it is the 65

subject of a stipulation between the parties." Restatement (Second) of Judgments 27 cmt. e (1982).

60 No. 2023AP1399-OA.akz

court accepted three times that municipal islands satisfied

contiguity in Johnson I, II, and III. The court's decision in

the Johnson litigation was central to the judgment. The issue

of contiguity was thus "properly raised" by the parties and

"actually litigated."

¶152 Parties' stipulations in litigation are an everyday

occurrence, and they are relied upon. The court should not

upend this commonplace understanding.

¶153 Though a court "may permit or deny the application of

the doctrine of issue preclusion on the basis of fundamental

fairness," no recognized factors counsel against the doctrine's

application. Est. of Rille, 300 Wis. 2d 1, ¶60. We consider

five factors for determining whether issue preclusion should be

applied:

1) Could the party against whom preclusion is sought have obtained review of the judgment as a matter of law;

2) Is the question one of law that involves two distinct claims or intervening contextual shifts in the law;

3) Do significant differences in the quality or extensiveness of proceedings between the two courts warrant relitigation of the issue;

4) Have the burdens of persuasion shifted such that the party seeking preclusion had a lower burden of persuasion in the first trial than in the second; and

5) Are matters of public policy and individual circumstances involved that would render the application of collateral estoppel to be fundamentally unfair, including inadequate opportunity or incentive to obtain a full and fair adjudication in the initial action?

61 No. 2023AP1399-OA.akz

Id., ¶61. None of these factors are applicable to this case.

The Governor and the Citizen Mathematicians and Scientists

obtained review when this court addressed redistricting in

Johnson. We "granted intervention to all parties that sought

it." Johnson II, 400 Wis. 2d 626, ¶2. As for the second

factor, nothing has changed. We are looking at the same maps

and the same sort of claims. There has not even been an

intervening change in the law, merely an intervening change in

the court's membership. Despite requests by Alabama for the

Supreme Court to significantly rework its voting rights

jurisprudence, the Court recently reaffirmed the very same VRA

framework we applied in Johnson. See Allen v. Milligan, 599

U.S. 1, 143 S. Ct. 1487 (2023).

¶154 The parties have insisted on bringing these claims as

original actions and decline to go the route of traditional

factfinding. This court may use factfinding procedures such as

referees in actions where it has taken original jurisdiction.66

This court cannot delegate to this referee the judicial power vested solely in them by the Wisconsin Constitution, however.

Universal Processing Servs. v. Cir. Ct. of Milwaukee Cnty., 2017

WI 26, ¶36, 374 Wis. 2d 26, 892 N.W.2d 267. Nor is there

anything in the permissive language of this statute enabling

this court to force parties to utilize such factfinding

procedures now after the fact. If the parties now have issues

or complaints with the quality of this court's proceedings in

the Johnson cases, they have only themselves to blame in

66 Wis. Stat. § 751.09.

62 No. 2023AP1399-OA.akz

foregoing the routine factfinding process. The opportunity to

address contiguity was in Johnson or via a possible motion for

reconsideration. At any measure, this court is not a

factfinding tribunal. The parties have decided to bring this

case as an original action and forego the traditional

factfinding processes. So, it is this court's loss that we do

not have a record before us to otherwise help inform on our

decision.

¶155 Finally, the fifth factor counsels against

relitigation. Redistricting is a process that, under our state

constitution, is only supposed to occur once every decade. Wis.

Const. art. IV, § 3 ("At its first session after each

enumeration made by the authority of the United States, the

legislature shall apportion and district anew the members of the

senate and assembly, according to the number of inhabitants.").

"It is now settled that without a constitutional change

permitting it no more than one legislative apportionment between

two federal [censuses]." State ex rel. Smith v. Zimmerman, 266 Wis. 307, 312, 63 N.W.2d 52 (1954). "No doubt, one of the

objections of the constitutional provision was to prevent

juggling with apportionments." State ex rel. Hicks v. Stevens,

112 Wis. 170, 180, 88 N.W. 48 (1901). Reopening these

previously resolved issues wreaks havoc on judicial finality and

distorts our constitutional policy of ensuring that settled

legislative and congressional maps remain that way. Issue

preclusion effectively bars the Governor and the Citizen

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Mathematicians and Scientists from undermining these settled

principles.

¶156 This original action involves the same maps, the same

redistricting processes, many of the same parties, and already-

addressed claims. This court reviewed the proposed maps for

compliance with federal and state constitutional law, as well as

compliance with this court's limited judicial role (least

change), ultimately selecting the Legislature's maps on those

grounds. Johnson III, 401 Wis. 2d 198, ¶¶60-73. Now, after the

litigation cycle has run its course, these parties, the Governor

and the Citizen Mathematicians and Scientists, are dissatisfied

with the outcome and want to make claims and raise issues which

we have already decided and are now precluded. Issue preclusion

effectively bars their attempt to do so. While the outcome may

not have been what these parties wanted, they must nonetheless

live with the court's decision.

¶157 As a side note, the parties attempted to backdoor

considerations of "partisan fairness" or "partisan gerrymandering" back into the court's analysis by way of at

least initially confining it to the remedy phase. The majority

continues that ill-fated venture of taking up an issue that both

this court and the United States Supreme Court have determined

is non-justiciable,67 by attempting to wrap it up in the perhaps

more pleasant euphemism of "partisan impact," which the majority

"will consider. . . . when evaluating remedial maps." Majority.

67 See Johnson I, 399 Wis. 2d 623; Rucho v. Common Cause, 588 U.S. ___, 139 S. Ct. 2484 (2019).

64 No. 2023AP1399-OA.akz

op., ¶69. Never mind figuring out how exactly the majority

plans to go about evaluating "partisan impact" or determining

how much "partisan impact" is permissible and how much is too

much. They provide no measurable standard for calculating it.

Apparently then, it is for them to know, and for us to find out!

"The fact that the majority imposes its own unique and undefined

standard further demonstrates that it exercises its will rather

than its judgment." Hawkins v. Wis. Elections Comm'n, 2020 WI

75, ¶49, 393 Wis. 2d 629, 948 N.W.2d 877 (Ziegler, J.,

dissenting).

¶158 Why backdoor an issue that they did not think merited

full consideration as they refused to take it up in the petition

for original action? Perhaps because in going about it this

way, members of the majority hope to evade appellate review.

Perhaps because with this issue, members of the majority are

more wary of stare decisis. The majority knows that this court

has already directly addressed the issue at length. We already

considered and settled the issue of partisan gerrymandering as related to these maps, determining that the Wisconsin

Constitution has nothing to say about partisan gerrymandering or

partisan fairness, and therefore it is not a justiciable legal

claim which this court can resolve. Johnson I, 399 Wis. 2d 623.

This court, in line with the United States Supreme Court,

determined previously that "[t]he Wisconsin Constitution

contains 'no plausible grant of authority' to the judiciary to

determine whether maps are fair to the major parties . . . ." Id., ¶52 (quoting Rucho, 139 S. Ct. at 2507). Finally, this

65 No. 2023AP1399-OA.akz

court recognized that nothing in the law authorizes this court

to grant parties relief based on whether a particular map

achieves proportional partisan representation. Johnson I, 399

Wis. 2d 623, ¶45 ("The people have never consented to the

Wisconsin judiciary deciding what constitutes a 'fair' partisan

divide."). So, if this court were to get involved in this

discussion, it would violate the separation of powers principle

these parties are concerned with by "encroach[ing] on the

constitutional prerogative of the political branches." Id.

¶159 As explained above, Johnson I thoroughly examined the

question of whether the Wisconsin Constitution prohibits the

legislature from engaging in partisan gerrymandering. Id.,

¶¶39–63. We explained that partisan fairness is a political

question constitutionally assigned to the legislature, and that

no provision of our state constitution forbids the legislature

from gerrymandering to produce a partisan advantage. Id.

Again, this court is not a political body empowered to resolve

political disputes: it is a judicial body empowered to resolve legal disputes. Wis. Justice Initiative, 407 Wis. 2d 87, ¶¶68-

69 (Rebecca Grassl Bradley, J., concurring). It is inevitable

that a partisan body, such as the legislature, would reach a

result that is in some measure, partisan. See Whitford v. Gill,

218 F. Supp. 3d 837, 939 (W.D. Wis. 2016) (Griesbach, J.,

dissenting) ("[P]artisan intent is not illegal, but is simply

the consequence of assigning the task of redistricting to the

political branches of government.") rev'd sub nom., Whitford v. Gill, 138 S. Ct. 1916 (2018).

66 No. 2023AP1399-OA.akz

¶160 The majority's reliance on foreign case law fares no

better in propping up their attempt to relitigate partisan

fairness outside of the pesky limitations of "least change."

Foreign cases are not binding on this court. Additionally, the

United States Supreme Court concluded in Rucho that "judicial

review of partisan gerrymandering does not meet th[e] basic

requirements" that 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" so partisan gerrymandering claims are non-justiciable.

Rucho, 139 S. Ct. at 2507. The parties rush right past the

clear directive in Rucho and fail to cite to or even address its

influence over the various federal cases they cite.

¶161 This court must not allow a non-justiciable, political

question like partisan fairness to be camouflaged into the

majority's decision. The majority declines to put forward a

measurable standard by which this court is supposed to define or

determine "partisan impact," demonstrating that they "exercise[]. . . . [their] will rather than [their] judgment."

Hawkins, 393 Wis. 2d 629, ¶49 (Ziegler, J., dissenting). Their

standard-deficient approach evokes recollections of the

"eyeballing" tests from bygone legal eras encapsulated in "we'll

know it when we see it" terminology.68 This court has already

68 Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring) ("I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it. . . .").

67 No. 2023AP1399-OA.akz

addressed the issues of partisan gerrymandering and political

fairness, as well as contiguity. Issue preclusion bars us now

from allowing these relevant parties to relitigate what has

already been litigated.

E. Claim Preclusion

¶162 The Governor and the Citizen Mathematicians and

Scientists raise an issue which was decided in Johnson——

contiguity——and raised an issue which was not decided in Johnson

——separation of powers. Regardless, the doctrine of claim

preclusion bars both claims from being brought now. See Dostal,

405 Wis. 2d 572, ¶24 ("[C]laim preclusion . . . extends to all

claims that either were or could have been asserted in the

previous litigation.").

Three elements must be present for an earlier action to bar a subsequent action: "(1) an identity between the parties or their privies in the prior and present suits; (2) an identity between the causes of action in the two suits; and, (3) a final judgment on the merits in a court of competent jurisdiction." Fed. Nat'l Mortgage Ass'n v. Thompson, 2018 WI 57, ¶31, 381

Wis. 2d 609, 912 N.W.2d 364 (quoting N. State Power Co., 189

Wis. 2d at 551). "A final judgment is conclusive in all

subsequent actions between the same parties [or their privies]

as to all matters which were litigated or which might have been

litigated in the former proceedings." Lindas v. Cady, 183

Wis. 2d 547, 558, 515 N.W.2d 458 (1994) (quoting Depratt v. West

Bend Mutual Ins. Co., 113 Wis. 2d 306 310, 334 N.W.2d 883

(1983)).

68 No. 2023AP1399-OA.akz

¶163 The first element of claim preclusion is easily met.

Both the Governor and the Citizen Mathematicians and Scientists

were parties to the initial Johnson litigation.

¶164 In order to satisfy the remaining second element

necessary for claim preclusion to apply, Wisconsin has adopted a

"transactional approach" from the Second Restatement of

Judgments to inform when there is an "identity between the

causes of action in the two suits." N. States Power Co., 189

Wis. 2d at 551, 553-55; see also Restatement (Second) of

Judgments § 24 (1982). Simply, "if both suits arise from the

same transaction, incident, or factual situation, [claim

preclusion] generally will bar the second suit." N. States

Power Co., 189 Wis. 2d at 554. "The concept of a transaction

connotes a common nucleus of operative facts." Kruckenberg, 279

Wis. 2d 520, ¶26. "It is irrelevant that 'the legal theories,

remedies sought, and evidence used may be different between the

first and second actions.'" Menard v. Liteway Lighting Prods.,

2005 WI 98, ¶32, 282 Wis. 2d 582, 698 N.W.2d 738; see also N. States Power Co., 189 Wis. 2d at 555 ("[T]he number of

substantive theories that may be available to the plaintiff is

immaterial——if they all arise from the same factual

underpinnings."). To determine whether claims arise from one

transaction, the court "consider[s] whether the facts are

related in time, space, origin, or motivation." Menard, 282

Wis. 2d 582, ¶30 (citing Restatement (Second) of Judgments § 24

cmt. B (1982)).

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¶165 The majority contends that these causes of action are

"fundamentally different." Majority op., ¶48. In this current

case, there is far more than a "common nucleus of operative

facts," Kruckenberg, 279 Wis. 2d 520, ¶26, connecting the prior

and current actions, sufficient to satisfy the requirements of

the second element of claim preclusion. We have the Governor

and the Citizen Mathematicians and Scientists, which are

identical to the parties from our Johnson litigation. These

parties brought claims and advanced legal theories "arising from

the same transaction and factual situations" as those this court

already addressed in Johnson I and Johnson III. These parties'

claims are based on the same maps, which are rooted in the same

"factual situations" previously addressed by this court. The

causes of action are related in time, as this most recent

petition was filed a little over a year after this court

concluded this line of litigation involving these legislative

maps in Johnson III, and less than two years since this court

initiated this line of litigation in Johnson I. The motivations, declaring the current maps unconstitutional on

various grounds, remains the same. While the remedies sought

and some of the legal theories advanced in the subsequent action

differ from those of the prior action, that discrepancy is

immaterial as "they all arise from the same factual

underpinnings": this court's adoption of the Legislature's

redistricting maps. N. States Power Co., 189 Wis. 2d at 555.

The common thread running through this line of Johnson litigation connects them all to this "common nucleus of

70 No. 2023AP1399-OA.akz

operative facts." The second element of claim preclusion is

satisfied.

¶166 The doctrine of "claim preclusion . . . extends to all

claims that either were or could have been asserted in the

previous litigation." See Dostal, 405 Wis. 2d 572, ¶24.

Contiguity was already raised, addressed, and decided on

previously by a court of competent jurisdiction: this court.

See Johnson I, 399 Wis. 2d 623; Johnson III, 401 Wis. 2d 198.

Claim preclusion forbids the Governor and the Citizen

Mathematicians and Scientists from relitigating the question of

contiguity. Additionally, though they were free to do so, these

parties failed to present their additional separation of powers

claim or advance their additional legal theories in our prior

Johnson litigation cycle. Following this court's decision in

Johnson III, claims which could have been, but for whatever

reason were not raised (separation of powers) are now barred, as

this court's final judgement "is conclusive in all subsequent

actions between the same parties as to all matters which were litigated or which might have been litigated in the former

proceedings." Lindas, 183 Wis. 2d at 558 (quoting Depratt, 113

Wis. 2d at 310). While claim preclusion bars this separation of

powers argument from being brought now, this argument seemed

destined to be relegated to an honorable mention in a footnote

anyway; perhaps the result of an over-eager party grasping at

baseless straws emanating from a disgruntled dissenter to this

court's decision in Johnson III.

71 No. 2023AP1399-OA.akz

¶167 If the majority's logic holds true, and contiguity was

not properly raised and actually litigated, then there is

nothing stopping any party from waiting this litigation round

out and in similar fashion, waiting until next year and

litigating other issues or points which the court did not

address here. Could parties raise the remaining issues which

the majority declined to take up in the Clarke petition for

original action,69 since they have not been fully litigated

either? What about those similarly raised in Wright which this

court declined to take up? The resulting application of the

majority's logic should be enough to condemn it.

F. Laches

¶168 Where were these parties throughout the Johnson

redistricting litigation? Just over two years ago in Johnson,

under a different court composition, we liberally and freely

"granted intervention to all parties that sought it." Johnson

II, 400 Wis. 2d 626, ¶2. Nothing prevented any of the previous

or new parties to this case from presenting their claims, along with everyone else, when it was appropriate to do so in Johnson.

Some of these parties, like the Clarke petitioners, for whatever

reason, chose not to accept the open invitation to participate

The three remaining issues which the court declined to 69

take up all center around whether the state legislative redistricting plans proposed by the legislature and judicially imposed by this court in Johnson III are "extreme partisan gerrymanders" implicating various Wisconsin constitutional provisions and protections.

72 No. 2023AP1399-OA.akz

at the time this court addressed these issues in Johnson.70

While we should tackle issues that remain to be decided and not

abdicate our responsibility, we should not relitigate issues

that were just decided. The fact that these parties chose not

to participate, or at best made no effort to do so, should not

necessitate the court to now reward that unexplainable dilatory

behavior and encourage litigants to play the same "wait and see"

game.

¶169 "Laches is founded on the notion that equity aids the

vigilant, and not those who sleep on their rights to the

detriment of the opposing party . . . ." State ex rel. Wren v.

Richardson, 2019 WI 110, ¶14, 389 Wis. 2d 516, 936 N.W.2d 587;

see also Town of Paris, 148 Wis. 2d at 188 ("[E]quity aids the

vigilant, not those who sleep on their rights."); 27A Am. Jur.

2d Equity § 108 (2023). At its core, laches is "an equitable

defense designed to bar relief when a claimant's failure to

promptly bring a claim causes prejudice to the party having to

defend against that claim." Wis. Small Business United, Inc. v. Brennan, 2020 WI 69, ¶11, 393 Wis. 2d 308, 946 N.W.2d 101.

Courts may apply laches where (1) a party unreasonably delays in

bringing a claim; (2) a second party lacks knowledge that the

first party would raise that claim; and (3) the second party is

prejudiced by that delay. Id., ¶12. Laches, as an equitable

The Clarke petitioners were not parties in the Johnson 70

litigation. However, many of the same law firms and lawyers who represented parties previously in the Johnson litigation are now continuing their redistricting litigation fight through new representation of the Clarke petitioners, including Law Forward, Inc.; Stafford Rosenbaum LLP; and the Campaign Legal Center.

73 No. 2023AP1399-OA.akz

bar, is "designed to bar relief when a claimant's failure to

promptly bring a claim causes prejudice to the party having to

defend against that claim." Id. (quoting Sawyer v. Midelfort,

227 Wis. 2d 124, 159, 595 N.W.2d 423 (1999)).

¶170 This court had a different composition two years ago,

but that fact alone cannot be why these parties chose not to

actively participate in that litigation at that time. To the

dispassionate observer, such contortions of the law appear

questionable and should come with consequences. Surprisingly,

the parties are forthright enough to tell us themselves that

this is in fact their reason for bringing this claim now——after

waiting two years in alleged ongoing state of harm——to ensure

that this case coincided with the changed composition of the

court.71 It defies reason for parties to sit out litigation,

obtain the benefit of seeing how arguments are presented, and

then with that benefit of hindsight, bring their now modified

claims over the same issues, with the same legal representation,

at their leisure, years later. It further defies reason that given those same facts, and the fact that the respondents would

not have had knowledge of the parties bringing new claims over

the same maps a year later, that the parties can now demand that

71Steve Schuster, Lawsuit to challenge Wisconsin's legislative maps to be filed, Wis. Law Journal (Apr. 6, 2023), https://wislawjournal.com/2023/04/06/lawsuit-to-challenge- wisconsins-legislative-maps-to-be-filed/ ("A Madison-based law firm is planning to challenge the state's gerrymandered legislative maps . . . . The lawsuit will be filed after Justice-elect Janet Protasiewicz is sworn in on Aug. 1, Nicole Safar, executive director of Madison-based Law Forward, said . . . .").

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this court provide them an extraordinary remedy (overturning

decades of precedent and the votes of millions of

Wisconsinites), and do so in a constrained timeframe of mere

months before another round of elections gets underway. Such

unnecessary fast tracking due to the parties' own inexplicable

delay may rightfully raise questions of intrusion on the

opposing party's rights to fully litigate the claims presented.

¶171 There was unreasonable delay and prejudice here

because "unreasonable delay in laches is based not on what

litigants know, but what they might have known with the exercise

of reasonable diligence." Wren, 389 Wis. 2d 516, ¶20.

Additionally, "[w]hat amounts to prejudice . . . depends upon

the facts and circumstances of each case, but it is generally

held to be anything that places the party in a less favorable

position." Id., ¶32. Respondents could not have known that

parties which brought claims in Johnson would bring claims again

after the result did not go their way: nor could the

respondents have known that parties which could have participated in Johnson but chose not to, would bring modified

claims after the fact. Rather, respondents as well as millions

of Wisconsinites relied on the court's judicially imposed maps

to conduct the 2022 elections.

¶172 If ever a case was foreclosed by laches, this is that

case. A laches analysis essentially asks, "whether a party

delayed without good reason," and then beyond that, whether that

party's delay "prejudiced the party seeking to defend against that claim." Brennan, 393 Wis. 2d 308, ¶11; see also Wren, 389

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Wis. 2d 516, ¶14. When correctly applied, laches forbids the

court from addressing issues the court has already decided.

This present case is unlike our prior election-related cases

where laches was at issue, because in those cases, the court

shirked its responsibility to consider and address live issues

the court had not already decided, but were issues that would

recur and be left uncertain for future elections.72 See Trump v.

Biden, 2020 WI 91, ¶107, 394 Wis. 2d 629, 951 N.W.2d 568

(Ziegler, J., dissenting) ("Once again, in an all too familiar

pattern, four members of this court abdicate their

responsibility to [declare what the law is]."); Hawkins, 393

Wis. 2d 629, ¶32 (Ziegler, J., dissenting); Trump v. Evers, No.

2020AP1971-OA, unpublished order (Wis. Dec. 3. 2020); Wis.

Voters Alliance v. Wis. Elections Comm'n, No. 2020AP1930-OA,

unpublished order (Wis. Dec. 4, 2020) (Roggensack, C.J.,

dissenting). Choosing rather to kick the can down the road to

some indeterminate time in the unknown future for anyone but

72The majority misrepresents what happened in Trump v. Biden, focusing on the remedy rather than the issues. Majority op., ¶43 n.20. Trump v. Biden was not singularly about a requested remedy, of this court "overturn[ing] the results of [an] election." Id. Rather, Trump v. Biden posed four election-related issues which, absent this court declaring what the law is, would be left uncertain for future elections; namely, "[a]bsentee ballots lacking a separate application; absentee envelopes that are missing or have a defective witness address; indefinitely confined voters/faulty advice from election officials; and ballots cast at Madison's Democracy in the Park/ballot drop boxes." Trump v. Biden, 394 Wis. 2d 629, ¶114 (Ziegler, J., dissenting). To say that the Trump v. Biden case was limited to a decision regarding one remedy lacks an understanding about the many issues that were ripe for legal analysis and should have been decided regardless of the requested remedy.

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that current court majority to have to deal with, is not a

proper application of laches. Here though, we have already

decided the case and its issues throughout the Johnson

litigation. This is not a live, undecided issue. There is no

constitutional crisis whereby absent a court decision there are

no existing maps.

¶173 The parties present no compelling reason why they

should have been allowed to "sit on their hands" and prejudice

the opposing party in not bringing their claims at the time that

the door to such claims was open. The majority echoes the

questionable assertions of counsel at oral argument, that they

could not participate in Johnson because they "ran out of time"

to do so. Majority op., ¶42. Surely, both counsel and the

majority are familiar with the existence of varied deadlines

which constrain parties' actions and reactions throughout a

litigation cycle. Additionally, the majority appears to make

the mistake of starting to toll the laches clock at the

conclusion of Johnson III, instead of where it properly should start: at Johnson I, when this court invited parties to

participate and granted intervention to those who sought it.

Johnson I, 399 Wis. 2d 623, ¶6. These contortions around laches

to reach a pre-determined outcome make a mockery of our legal

system and prejudice the opposing party who relies on the

finality of this court's decision. This court should not reward

such behavior. Laches applies, and laches bars these untimely

claims. G. Due Process

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¶174 Not only has the majority ignored procedural and legal

principles which would bar consideration of this case, but it

hides from the law concerning due process,73 contributing a mere

two sentences to the important issue. They relegate litigants'

fundamental due process rights to hopeful inconspicuousness in a

footnote.74 What's the rush? Why hide from the issue?

¶175 The foundational legal principle that "no [wo]man can

be a judge in [her] own case" is essential to maintaining a

fair, independent, and impartial judiciary. Williams v.

Pennsylvania, 579 U.S. 1, 8—9 (2016). An independent judiciary

protects "[t]he Constitution and the rights of individuals from

the effects of those ill humors, which the arts of designing

men, or the influence of particular conjectures, sometimes

disseminate among the people themselves." The Federalist No.

78, at 469 (Alexander Hamilton) (Clinton Rossiter ed., 1961).

It instills public confidence in the fairness of the judicial

process and system, and in the judiciary's role "as apolitical

and neutral arbiters of the law." Johnson I, 399 Wis. 2d 623, ¶72. In contrast, it is the legislature's duty to write the

law, and "until the legislature changes the law it is [the

court's] duty to construe the law as we find it." Fredricks v.

The United States Constitution provides that no state may 73

"deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1.

"Respondents also make a brief argument that adjudicating 74

this case in Petitioners' favor will violate Respondents' due process rights under the Fourteenth Amendment of the United States Constitution. These arguments are underdeveloped, and as such, we do not address them." Majority op., ¶37 n.16.

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Kohler Co., 4 Wis. 2d 519, 525-26, 91 N.W.2d 93 (1958); see also

State v. Doxtater, 47 Wis. 278, 288, 2 N.W. 439 (1879) ("It is

our duty to expound and execute the law as we find it . . . .").

These principles are not only fundamental to our governmental

system, but they protect a litigant's constitutional right to

due process of law. This right to due process includes the

right to have one's day in court and to have one's case heard by

a neutral arbiter, as "[a] fair trial in a fair tribunal is a

basic requirement of due process." In re Murchison, 349 U.S.

133, 136 (1955). "The operation of the due process clause in

the realm of judicial impartiality, then, is primarily to

protect the individual's right to a fair trial." People v.

Freeman, 222 P.3d 177, 181 (Cal. 2010). A justice violates

litigants' constitutional rights to due process if there is

"objective proof of actual bias" or "a serious risk of actual

bias." State v. Herrmann, 2015 WI 84, ¶113, 364 Wis. 2d 336,

867 N.W.2d 772 (Ziegler, J., concurring) (citing Caperton v.

A.T. Massey Coal Co., 556 U.S. 868, 883-84 (2009)). ¶176 In Caperton, the United States Supreme Court concluded

that a justice was disqualified from hearing an appeal because

his sitting as a judicial officer on the case violated

litigants' due process rights. In a very fact-specific

decision, the Supreme Court reversed the state supreme court

because a recently elected justice failed to recuse himself when

the justice had an "unconstitutional potential for bias."

Caperton, 556 U.S. at 882. A future litigant had spent significant funds ensuring the judge's election, including the

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statutory minimum $1,000 to his campaign committee, another

nearly $2.5 million to a political organization supporting the

candidate, and another over $500,000 on independent expenditures

to support the candidate. Id. at 873. This future potential

litigant's $3 million contribution was "more than the total

amount spent by all other [] supporters and three times the

amount spent by [the candidate's] own committee. Id. The

contributor had a case that would most certainly be heard by the

newly elected justice. In other words, that contributor made

sure that candidate would decide his case. The Court concluded

that his sitting on a case that would come to him shortly after

his election, was a due process violation because "under a

realistic appraisal of psychological tendencies and human

weakness,' the interest 'poses such a risk of actual bias or

prejudgment that the practice must be forbidden if the guarantee

of due process is to be adequately implemented.'" Id. at 883-84

(quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)).

¶177 The crux of Caperton is that a due process violation occurs when a party who would like that judicial officer to hear

their case, essentially picks that judicial officer to hear

their case, by funding that judge's election, and knowing that

the newly minted judge will surely sit in judgment of that

interested party's case in the near future. "Approximately 11

months after [the judge] won the election, and shortly before

A.T. Massey filed its petition for appeal, Caperton moved to

disqualify [the judge] in the particular case that was pending the entire election . . . ." Miller v. Carroll, 2020 WI 56,

80 No. 2023AP1399-OA.akz

¶70, 392 Wis. 2d 49, 944 N.W.2d 542 (Ziegler, J., concurring).

The judge denied the motion nearly six months later, eight

months before the appeal was filed. Caperton, 556 U.S. at 874.

Based on the relative size of [the] contribution in comparison to the total amount of money contributed to the campaign; the total amount spent in the election; the apparent effect such contribution had on the outcome of the election; and the temporal relationship between the contribution, the election, and the pendency of the case, the Supreme Court concluded there was a serious, objective risk of the [the justice]'s actual bias in sitting on that particular case . . . . State v. Allen, 2010 WI 10, ¶268, 322 Wis. 2d 372, 778

N.W.2d 863 (per curiam) (Ziegler, J., concurring). The facts of

Caperton were so extreme75 that the Supreme Court found that "due

process require[d] recusal" as "the probability of actual bias

[rose] to an unconstitutional level." Caperton, 556 U.S. at

872, 887.

¶178 Reviewing the facts of Caperton versus the facts of

Clarke, it is clear that due process deserves more than a two-

sentence consideration. In Caperton, the interested party knew that whoever "won the[] election would most certainly be on the

court when it decided whether to sustain or overturn" the

court's verdict against him but that case did not arise for 11

months. Miller v. Carroll, 392 Wis. 2d 49, ¶70 (Ziegler, J.,

concurring) (citing Caperton, 556 U.S. at 872). With Clarke,

"Caperton involved extreme and extraordinary facts which 75

the Supreme Court recognized in its majority opinion no less than a dozen times." State v. Herrmann, 2015 WI 84, ¶128, 364 Wis. 2d 336, 867 N.W.2d 772 (Ziegler, J., concurring) (citing State v. Allen, 2010 WI 10, ¶261, 322 Wis. 2d 372, 778 N.W.2d 863 (per curiam) (Ziegler, J., concurring)).

81 No. 2023AP1399-OA.akz

the interested parties filed this case directly with the

Wisconsin Supreme Court just after its candidate was sworn in.

With Caperton, the interested party knew the state's highest

court would consider his pending case on appeal, so he supported

the candidate he wanted to have sit in judgment of his case.

With Clarke, the interested parties supported their candidate so

she would be sitting on their future redistricting case. In

Caperton, the interested party donated or spent $3 million to

help elect his candidate of choice. In Clarke, the interested

parties donated at least $10 million, in a record-breaking

election, to elect their judge who spoke freely of her thoughts

on redistricting.76 In Caperton, the interested party's

"outsized" donation was "more than the total amount spent by all

other[] supporters and three times the amount spent by the [the

candidate's] own committee." Caperton, 556 U.S. at 873. With

Clarke, nearly $60 million was spent,77 ranking Justice

Protasiewicz's campaign as the most expensive judicial campaign

WisPolitics tracks $56 million in spending on Wisconsin 76

Supreme Court race (July 19, 2023), https://www.wispolitics.com/ 2023/wispolitics-tracks-56-million-in-spending-on-wisconsin- supreme-court-race/; see also Wisconsin Supreme Court Race Cost Record $51 Million, Wis. Democracy Campaign (Mar. 29, 2023), https://www.wisdc.org/news/press-releases/139-press-release- 2023/7351-protasiewicz-received-2-of-every-3-from-democratic- party.

Id., https://www.wispolitics.com/2023/wispolitics-tracks- 77

56-million-in-spending-on-wisconsin-supreme-court-race/.

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in United States history.78 In Caperton, the interested parties'

chosen judicial candidate won with 53.3% of the vote.79 In

Clarke, the interested parties' chosen judicial candidate won

with 55.5% of the vote.80 In Caperton, the petitioner moved to

disqualify the recently elected justice before bringing his

appeal, but the newly elected judge denied the motion to recuse

six months later. Caperton, 556 U.S. at 874-75. With Clarke,

members of the Wisconsin Legislature filed a recusal motion

against Justice Protasiewicz, but she, also a recently elected

justice, denied their recusal motion. Clarke v. Wis. Elections

Comm'n, 2023 WI 66, ¶5, 409 Wis. 2d 249, 995 N.W.2d 735.

¶179 The parties interested in Justice Protasiewicz's

election are intricately involved with, and beneficiaries of,

the case they filed directly before her in this original action

right after she was sworn in. Their timing of selecting her as

78 This campaign's spending is five times higher than the previous state record ($10 million for the 2020 Wisconsin Supreme Court race) and more than three times higher than the national record spent on a judicial race ($15 million on a 2004 Illinois race). See Wisconsin Supreme Court Race Cost Record $51 Million, Wis. Democracy Campaign (July 18, 2023), https://www.wisdc.org/news/press-releases/139-press-release- 2023/7390-wisconsin-supreme-court-race-cost-record-51m. 79 Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 873 (2009). 80Liberal judge Janet Protasiewicz won a seat on Wisconsin's state Supreme Court, flipping the body's ideological majority, Politico (last updated Nov. 26, 2023), https://www.politico.com/2023-election/results/wisconsin/ supreme-court/

83 No. 2023AP1399-OA.akz

their judge and then bringing this petition is irrefutable.81

Now, the four members of the court have fast-tracked this

litigation, bypassing and rushing the traditional court steps,

processes, and the law.

¶180 To be clear, Justice Protasiewicz was not shy

expressing her personal viewpoint during her campaign. For

example, at a candidate forum hosted by WisPolitics, then-

candidate Protasiewicz indicated that she entered the race

because she "could not sit back and watch extreme right-wing

partisans hijack our Supreme Court" and remarked, "let's be

clear here, the maps are rigged . . . bottom line, absolutely,

positively rigged. They do not reflect the people of this

state."82 Then-candidate Protasiewicz went on to criticize this

court's "least change approach" to redistricting, saying that it

"might sound good for some people, [but] I see no basis for it

in the constitution, no basis in case law. Basically, what the

Steve 81 Schuster, Lawsuit to challenge Wisconsin's legislative maps to be filed, Wis. Law Journal (Apr. 6, 2023), https://wislawjournal.com/2023/04/06/lawsuit-to-challenge- wisconsins-legislative-maps-to-be-filed/ ("A Madison-based law firm is planning to challenge the state's gerrymandered legislative maps . . . . The lawsuit will be filed after Justice-elect Janet Protasiewicz is sworn in on Aug. 1, Nicole Safar, executive director of Madison-based Law Forward, said . . . ."); see also Jack Kelly, Liberal law firm to argue gerrymandering violates Wisconsin Constitution, The Cap Times (Apr. 6, 2023), https://captimes.com/news/government/liberal- law-firm-to-arguegerrymandering-violates-wisconsin- constitution/article_2dfb9757-6d2d-58ba-9461- 10b3d20d5f00.html.

Paul Fanlund, Supreme Court election is a chance to beat 82

the far right at its long game, The Cap Times (Jan. 13, 2023), https://captimes.com/opinion/paul-fanlund/opinion-supreme-court- election-is-a-chance-to-beat-the-far-right-at-its- long/article_af9b5d76-a584-54ad-9226-7c9d7a806d12.html.

84 No. 2023AP1399-OA.akz

least-change approach has done, it has taken . . . meaningful

votes away from people in larger communities in Dane County and

Milwaukee County."83 From the outset, then-candidate

Protasiewicz indicated what she, as a presumed future member of

the court, would do: remove least change as an "unworkable"

governing standard in order to clear the way for the newly

constituted court to redraw the maps. Even more directly, then-

candidate Protasiewicz celebrated via her Facebook page,

Politico's highlighting of the Wisconsin Supreme Court race,

exclaiming "POLITICO says that our race could challenge the

court's narrow 4-3 conservative majority and have ramifications

over future redistricting decisions in Wisconsin. Judge Janet

Protasiewicz (@Janet for Justice) Facebook, (Jan. 9, 2023)

(emphasis added) https://www.facebook.com/JanetforJustice. Her

colleague, Justice Rebecca Dallet, campaigned invoking

tremendous out-of-state support, and when at a Democratic-hosted

California fundraiser she said, "I know that [California] values

are our Wisconsin values that we've lost along the way."84 Justice Protasiewicz, also having received much out-of-state

support, has remarked, "I would anticipate that at some point,

we'll be looking at those maps" and that she "would anticipate

that [she] would enjoy taking a fresh look at the gerrymandering

83 Id.

Patrick Marley, Court candidate Rebecca Dallet rells San 84

Francisco crowd "your values are our Wisconsin values," Milwaukee Journal Sentinel (Mar. 21, 2018), https://www.jsonline.com/story/news/politics/2018/03/21/court- candidate-rebecca-dallet-tells-san-francisco-crowd-your-values- our-wisconsin-values/445869002/.

85 No. 2023AP1399-OA.akz

question."85 The parties even said that this case would be filed

once the new justice was sworn in. And it was.86

¶181 A person, including a justice, has the right to free

speech as protected under both our federal and state

85Jessie Opoien and Jack Kelly, Protasiewicz would "enjoy taking a fresh look" at Wisconsin voting Maps, The Cap Times (Mar. 2, 2023), https://captimes.com/news/government/ protasiewicz-would-enjoy-taking-a-fresh-look-at-wisconsin- voting-maps/article_d07fbe12-79e6-5c78-a702-3de7b444b332.html. 86While then-candidate Protasiewicz did then say, "I can't ever tell you what I am going to do on a particular case, but I can tell you my values and common sense tells that it's wrong," can you un-ring the bell? Id.

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constitutions.87 But, that free speech may affect whether that

justice may sit on a case.88

¶182 Due Process does not reward the petitioners' "judge

shopping," as "'[j]udge shopping' has always been taboo."

Allen, 322 Wis. 2d 372, ¶262 (Ziegler, J., concurring). "In

Caperton, the Supreme Court reaffirmed that basic tenet when it

concluded that a litigant's efforts to "choose[] the judge,"

through directing a justice's election campaign and thus placing

that justice on that contributing party's pending case did not

pass constitutional muster." Id., ¶262 (Ziegler, J.,

U.S. 87 Const. amend. I ("Congress shall make no law. . . . abridging the freedom of speech."); Wis. Const. art. I, § 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.")

The Supreme Court's decision in Republican Party of 88

Minnesota v. White, 536 U.S. 765, 788 (2002) (holding that a restriction on an announcement by a candidate for judicial office of his or her views on disputed legal and political issues during a campaign violates the First Amendment), is not incompatible with the Court's decision in Caperton. Put together, these cases address issues that while complementary, are yet distinct. In White, the Court was more concerned with the First Amendment claims and concerns of the judicial candidate. In Caperton, the Court was more concerned with the due process claims and concerns of the litigant. Neither invalidates the other; rather, when contextually read together, both cases shed some light on the careful balancing act that courts are routinely engaged in. In the case before us, we must conduct the unenviable yet necessary act of balancing a judicial candidate's right to freedom of speech against a claimant's fundamental right to due process and having his or her claim heard before a neutral arbiter. The constitutional right to speak freely is not without its limits. It must yield to Wisconsin claimants' constitutional rights to due process before an impartial tribunal.

87 No. 2023AP1399-OA.akz

concurring) (citation omitted). Judges with an

"unconstitutional potential for bias" are required to recuse

themselves to preserve litigants' due process rights. Caperton,

556 U.S. at 881. Even before Caperton, "if a justice should

have been disqualified from considering the case and

nevertheless participates, the decision is void." State v.

Henley, 2011 WI 67, ¶45 n.5, 338 Wis. 2d 610, 802 N.W.2d 175

(Abrahamson, C.J., Ann Walsh Bradley and Crooks, JJ.,

dissenting) (citing State v. Am. TV & Appliance of Madison,

Inc., 151 Wis. 2d 175, 179, 443 N.W.2d 662 (1989)); see also

Caperton, 556 U.S. 868. That determination is even clearer

post-Caperton.

¶183 We don't know whether Caperton will be reviewed by the

Supreme Court. But if not, it seems a new bar has been set.

III. CONCLUSION

¶184 This original action should never have been accepted.

It is nothing more than a motion for reconsideration, which is

time-barred; ignores stare decisis, standing, judicial estoppel, issue preclusion, claim preclusion, and laches. Not only is

this a fundamentally legally flawed proceeding for these

preceding listed reasons, but it also raises serious questions

regarding Caperton and whether this proceeding is a violation of

litigants' due process rights. What's next? Pre-selected

"consultants" who will decide the fate of Wisconsin voters even

though the Wisconsin Supreme Court already decided these issues

conclusively in the Johnson litigation? Will these "consultants" be endowed with the authority to reach all factual

88 No. 2023AP1399-OA.akz

and legal conclusions necessary to draw the maps, while evading

review and the constitutional protections due the parties? The

four rogue members of the court have upended judicial practices,

procedures, and norms, as well as legal practices, procedures,

and precedent, yielding only to sheer will to create a

particularized outcome which will please a particular

constituency. At a minimum, this is harmful to the judicial

branch and the institution as a whole. I dissent.

89 No. 23AP1399-OA.rgb

¶185 REBECCA GRASSL BRADLEY, J. (dissenting). Riding a

Trojan horse named Contiguity, the majority breaches the lines

of demarcation separating the judiciary from the political

branches in order to transfer power from one political party to

another. Alexander Hamilton forewarned us that "liberty can

have nothing to fear from the judiciary alone, but would have

everything to fear from its union with either of the other

departments." The Federalist No. 78, at 523 (J. Cooke ed.,

1961). With its first opinion as an openly progressive faction,

the members of the majority shed their robes, usurp the

prerogatives of the legislature, and deliver the spoils to their

preferred political party. These handmaidens of the Democratic

Party trample the rule of law, dishonor the institution of the

judiciary, and undermine democracy.

¶186 The outcome in this case was preordained with the

April 2023 election of a candidate who ran on a platform of

"taking a fresh look"1 at the "rigged" maps.2 As promised just

Jessie Opoien & Jack Kelly, Protasiewicz Would 'Enjoy 1

Taking a Fresh Look' at Wisconsin Voting Maps, The Cap Times (Mar. 2, 2023), https://captimes.com/news/government/protasiewicz-would-enjoy- taking-a-fresh-look-at-wisconsin-voting-maps/article_d07fbe12- 79e6-5c78-a702-3de7b444b332.html.

Corrinne Hess, Wisconsin Supreme Court Candidate Janet 2

Protasiewicz Assails State's Election Maps as 'Rigged', Milwaukee J. Sentinel (Jan. 9, 2023), https://www.jsonline.com/story/news/politics/2023/01/09/wisconsi n-supreme-court-candidate-protasiewicz-assails-election- maps/69790966007/.

1 No. 23AP1399-OA.rgb

two days after Protasiewicz's election,3 petitioners filed this

case only one day after she joined the court. The majority

chooses contiguity as a convenient conduit by which to toss the

legislative maps adopted by this court in 2022 as a remedy for

malapportionment, but any issue grounded in state law would

suffice in order to insulate the majority's activism from review

by the United States Supreme Court. The majority's machinations

do not shield it from the Court vindicating the respondents' due

process rights, however. See Appendix A. Litigants are

constitutionally entitled to have their cases heard by a fair

and impartial tribunal, an issue of primary importance the

majority absurdly dismisses as "underdeveloped." Majority op.,

¶37 n.16. The parties fully briefed the due process claim,

which Protasiewicz unilaterally rejected. Clarke v. Wis.

Elections Comm'n, 2023 WI 66, 995 N.W.2d 735. While this court

is powerless to override her recusal decision,4 the United States

Supreme Court is not.

¶187 The majority's treatment of the remaining issue sophomorically parrots the petitioners' briefing

and undermines the rule of law. The Wisconsin Constitution

requires assembly districts "to consist of contiguous territory"

3Jack Kelly, Liberal Law Firm to Argue Gerrymandering Violates Wisconsin Constitution, The Cap Times (Apr. 6, 2023), https://captimes.com/news/government/liberal-law-firm-to- arguegerrymandering-violates-wisconsin- constitution/article_2dfb9757-6d2d-58ba-9461- 10b3d20d5f00.html.

4State v. Henley, 2011 WI 67, 338 Wis. 2d 610, 802 N.W.2d 175 (per curium).

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and senate districts "of convenient contiguous territory." Wis.

Const. art. IV, §§ 4-5. For fifty years, maps drawn by both

Republican and Democratic legislative majorities contained

districts with detached territory. State and federal courts

uniformly declared such districts to be "legally contiguous even

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

Johnson v. Wis. Elections Comm'n, 2021 WI 87, ¶36, 399

Wis. 2d 623, 967 N.W.2d 469 (Johnson I); Prosser v. Elections

Bd., 793 F. Supp. 859, 866 (W.D. Wis. 1992). Just last year,

three members of the majority in this very case adopted maps

containing districts with detached territory. Johnson v. Wis.

Elections Comm'n, 2022 WI 14, ¶¶34-36, 400 Wis. 2d 626, 971

N.W.2d 402 (Johnson II), rev'd sub nom. Wis. Legislature v. Wis.

Elections Comm'n, 595 U.S. 398 (2022) (per curiam). This well-

established legal conclusion having become politically

inconvenient, the same three justices now deem the existence of

such districts "striking." Majority op., ¶1. If this creative

constitutional "problem" were so glaringly obvious, then the attorneys who neglected to raise the issue over the last five

decades committed malpractice, and the federal and state judges

who adopted maps with districts containing detached territory

should resign for incompetency.

¶188 No one is fooled, however. The members of the

majority refashion the law to achieve their political agenda.

The precedent they set (if anything remains of the principle)

devastates the rule of law. The Wisconsin Constitution commands redistricting to occur once every ten years. Wis. Const. art.

3 No. 23AP1399-OA.rgb

IV, § 3. Both state and federal courts have always respected

"the command in the Wisconsin Constitution not to re-district

more than once each 10 years." Baldus v. Members of Wis. Gov't

Accountability Bd., 849 F. Supp. 2d 840, 859 (E.D. Wis. 2012)

(citing State ex rel. Smith v. Zimmerman, 266 Wis. 307, 63

N.W.2d 52 (1954)).

¶189 The majority's machinations in this case open the door

to redistricting every time court membership changes. A supreme

court election in 2025 could mean Clarke is overturned, Johnson

is restored, and new maps adopted. In 2026 or 2027, Johnson

could be overturned (again), Clarke resurrected, and new maps

adopted. This cycle could repeat itself in 2028. And in 2029.

And in 2030.

¶190 Although the majority endorses repeated kicks at the

redistricting cat, this is not normal in redistricting, or any

other sort of case. The majority rewrites history to suggest

otherwise. As but one example, the majority claims "Johnson

itself enjoined the use of a court-ordered plan adopted by the federal courts [sic] in Baldus v. Members of Wis. Gov't

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

Majority op., ¶54. The majority disingenuously ignores the fact

that this court's actions in Johnson occurred ten years after

Baldus and only after the 2020 census rendered the prior

decade's maps malapportioned. See Johnson I, 399 Wis. 2d 623,

¶4. After the federal court in Baldus identified a violation of

federal law——shortly after the legislature enacted the maps——the federal court (there was only one) decided it "will not tread

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into the black water of re-drawing the redistricting boundaries

itself. Instead, as discussed above, the Court will allow the

Legislature to sort out the redistricting maps' infirmities on

its own." Baldus, 849 F. Supp. 2d at 861 (internal citation

omitted). The federal court in Baldus ultimately ordered "that

the redistricting plans adopted pursuant to Act 43 for all

Assembly Districts and Senate Districts, with the exception of

Assembly Districts 8 and 9 to the extent noted above, shall

remain unchanged." Baldus 862 F. Supp. 2d at 863. A "slight

adjustment" to two assembly districts hardly transforms

legislatively-enacted plans into court-developed ones as the

majority misleadingly insinuates. Johnson I, 399 Wis. 2d 623,

¶4 (citing Baldus, 862 F. Supp. 2d at 863).

¶191 Upon completion of the 2020 census, the governor vetoed

the redistricting plans passed by the legislature, so the court

in Johnson enjoined the 2011 legislative maps that had become

unconstitutionally malapportioned due to population shifts.

Political impasse left the judiciary as the only branch able to act. There is absolutely no precedent for a supreme court to

enjoin its own remedy one year later. Perhaps if the majority

focused on studying the law rather than rushing to set its

political machinations on a ridiculous fast track, it would

avoid such embarrassing errors.

¶192 When the people shift political power to a different

party, they vote for changes in the law. The constitution

limits the judicial power, however, to declaring what the law is. The majority elevates its political desires over the

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structural separation of powers on which the preservation of our

republic depends. The majority imperils freedom and opens the

door to judicial tyranny. I dissent.5

I. JOHNSON I RESOLVED THE CONTIGUITY QUESTION

¶193 Riddled with non sequiturs, heavy on hypocrisy, and

laden with law review citations but light on actual law, the

majority opinion presents a misleading caricature of the court's

decision in Johnson I, necessitating an overview of what that

opinion actually says. Just twenty months ago, this court used

its limited remedial powers to reapportion Wisconsin's

legislative districts in order to bring them into compliance

with the constitutional guarantee of equality in representation.

See Johnson v. Wis. Elections Comm'n, 2022 WI 19, ¶73, 401

Wis. 2d 198, 972 N.W.2d 559 (Johnson III). The inability of the

legislature and the governor to agree on new legislative maps

after the 2020 census necessitated the court's involvement in

redistricting. Johnson I, 399 Wis. 2d 623, ¶¶17-18, 68

("Judicial action becomes appropriate to prevent a constitutional crisis."). The 2011 legislative maps——enacted by

5The majority punts on the petitioners' nonsensical separation of powers argument, which was inspired by the rhetorical bluster of a dissenting justice unhappy with the court's decision. See Johnson v. Wis. Elections Comm'n, 2022 WI 19, ¶187, 401 Wis. 2d 198, 972 N.W.2d 559 (Johnson III) (Karofsky, J., dissenting). While dissents may embellish for rhetorical effect, their "silly extravagances" should not migrate into an official court opinion. See Obergefell v. Hodges, 576 U.S. 644, 719 (2015) (Scalia, J., dissenting). If the separation of powers argument had any legal merit, it is inexplicable why the majority doesn't embrace it. Three-fourths of the justices comprising today's majority already did, in Johnson III.

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the legislature, signed into law by the governor, and upheld by

a federal court (with a slight adjustment)——had become non-

compliant "with the constitutional requirement of an equal

number of citizens in each legislative district, due to shifts

in population across the state." Id., ¶4. This court allowed

every interested party to participate in Johnson, granting every

motion for intervention. See Johnson II, 400 Wis. 2d 626, ¶2.

¶194 Every party in Johnson stipulated before we decided

Johnson I that the contiguity requirements under Article IV,

Sections 4 and 5 of the Wisconsin Constitution permit municipal

islands detached from their assigned districts. See Joint Stip.

of Facts and Law, Johnson v. Wis. Elections Comm'n, No.

2021AP1450, at 15 (Nov. 4, 2021). We agreed. Johnson I, 399

Wis. 2d 623, ¶36. So did the dissenters. See id., ¶¶88-115

(Dallet, J., dissenting). Every party——including the Governor——

submitted maps containing municipal islands. A majority in

Johnson II,6 selected the Governor's proposed legislative maps,

municipal islands and all; three justices in this current majority blessed those maps as constitutional.7 400 Wis. 2d 626,

¶36.

Johnson v. Wis. Elections Comm'n, 2022 WI 14, ¶8, 400 Wis. 6

2d 626, 971 N.W.2d 402 (Johnson II), rev'd sub nom. Wis. Legislature v. Wis. Elections Comm'n, 595 U.S. 398 (2022) (per curiam). The United States Supreme Court summarily reversed Johnson II because the majority in that case improperly applied the constitutional guarantee of equal protection in its selection of the Governor's maps, which sorted voters based on race without constitutionally permissible justification. Wis. Legislature, 595 U.S. at 406.

For example, Assembly Districts 3, 5, 26, 46, and 96 in 7

the Governor's proposed maps contain detached municipal islands. 7 No. 23AP1399-OA.rgb

¶195 The majority in this case misrepresents the Johnson I

court's holding on contiguity, misleadingly asserting the court

"failed to analyze the contiguity requirements evident in the

text of the constitution" and "did not attempt to square its

view of contiguity with" our past cases, such as State ex rel.

Lamb v. Cunningham. Majority op., ¶24. Quoting Lamb in Johnson

I, the court acknowledged constitutional contiguity "generally

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

detached territory.'" 399 Wis. 2d 623, ¶36 (quoting State ex

rel. Lamb v. Cunningham, 83 Wis. 90, 148, 53 N.W. 35 (1892)).

We continued, "[i]f 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." Id.

(citing Prosser, 793 F. Supp. at 866).

¶196 After the court decided Johnson I, the Governor, or

any other petitioner who participated in the case, could have

filed a motion for reconsideration8 on contiguity, asking the court to correct the allegedly flagrant constitutional error

somehow repeatedly overlooked by countless lawyers, federal

judges,9 and justices of this court for five decades.10 To no

8 Wis. S. Ct. IOP, IV, J. (Aug. 4, 2023). 9In 1992, a panel of three federal judges declared that the Wisconsin Constitution did not require "literal contiguity" because "it has been the practice of the Wisconsin legislature to treat islands as contiguous with the cities or villages to which they belong." Prosser v. Elections Bd., 793 F. Supp. 859, 866 (W.D. Wis. 1992).

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one's surprise, they instead waited for the Clarke petitioners

to file this suit immediately after the makeup of the court

changed, courtesy of an election bought and paid for by the

Democratic Party of Wisconsin.11

¶197 "Legal opinions are important . . . for the reasons

they give, not the result they announce[.] . . . An opinion

that gets the reasons wrong gets everything wrong . . . ."

Antonin Scalia, The Dissenting Opinion, 1994 J. Sup. Ct. Hist.

33, 33 (1994). An apt description of the majority opinion.

Although the majority purports to interpret our constitution, it

fails to follow our judicial methodology——or any methodology at

all. See Wis. Just. Initiative, Inc. v. Wis. Elections Comm'n,

2023 WI 38, 407 Wis. 2d 87, 990 N.W.2d 122 (originalism).

Unbounded by methodological discipline, the majority opinion is

devoid of an intellectual foundation and without integrity.

¶198 The majority misuses dictionaries to declare the

constitutional contiguity requirements "mean what they say."

Majority op., ¶3. Although the words "contiguous territory" come from our original constitution of 1848, the majority relies

most heavily on modern dictionaries, considering contemporaneous

dictionaries and practices from the founding of the state mere

"support." Id., ¶17. It is elementary that words don't have

It appears that at least since the 1970s, Wisconsin's 10

legislative maps, whether drawn by the legislature or adopted by a court, have contained municipal islands.

See WisPolitics Tracks $56 Million in Spending on 11

Wisconsin Supreme Court Race, WisPolitics (July 19, 2023), https://www.wispolitics.com/2023/wispolitics-tracks-56-million- in-spending-on-wisconsin-supreme-court-race/.

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meaning on their own; their meaning comes from the context in

which they are used. See Towne v. Eisner, 245 U.S. 418, 425

(1918) (citing Lamar v. United States, 240 U.S. 60 (1916) ("A

word is not a crystal, transparent and unchanged, it is the skin

of a living thought and may vary greatly in color and content

according to the circumstances and the time in which it is

used."). The majority's reliance on modern dictionaries is

misplaced.

¶199 The majority resorts to verifiable fibs, maintaining

that "using practically any dictionary" "contiguous means

'touching' or 'in actual contact.'" Majority op., ¶16. That is

patently untrue, and the majority knows it. The respondents

cited a litany of contemporaneous dictionaries defining

contiguous to mean "near" or "close" to, but not necessarily

touching:

Nathan Bailey, An Universal Etymological English Dictionary (1775) (Contiguous: "that touches, or is next; very near, close, adjoining"); Samuel Johnson & John Walker, A Dictionary of the English Language 153 (1828) (Contiguity: "Actual contact; nearness of situation"; Contiguousness: "Close connection"); John Ogilvie & Charles Annandale, The Imperial Dictionary of the English Language 571 (1885) (Contiguity: "Actual contact of bodies; a touching; nearness of situation or place; a linking together, as a series of objects; a continuity."; Contiguous: "Touching; meeting or joining at the surface or border; close together; neighbouring; bordering or adjoining"); Contiguity, Black's Law Dictionary (1st ed. 1891) ("In close proximity; in actual close contact."); James A.H. Murray, A New English Dictionary on Historical Principles 903 (1893) (Contiguity: "loosely. Close proximity, without actual contact"; Contiguous: "loosely. Neighbouring, situated in close proximity (though not in contact)"); Robert Hunter & Charles Morris, Universal Dictionary of the English Language 10 No. 23AP1399-OA.rgb

1238 (1897) (Contiguity: "Ordinary language: (1) Contact with, or (more loosely) immediate proximity to, nearness in place"; Contiguous: "Ordinary language: 1. Meeting so as to touch; adjoining, touching, close together, connected. . . . 2. Used more loosely in the sense of neighbouring, close, near."). It is intellectually dishonest to pretend these definitions do

not exist and that the respondents never provided them. The

majority also neglects to mention that this court has recognized

the term "contiguous" is often used to mean near, but not

necessarily touching. N. Pac. Ry. Co. v. Douglas Cnty., 145

Wis. 288, 291, 130 N.W. 246, 248 (1911) ("'Adjacent' is

sometimes used for touching on or bounded by; but strictly

speaking it signifies, near to but not touching; contiguous is

probably sometimes also used in the former sense and sometimes

and more properly in the latter, while 'adjoining' is really the

proper term for in contact with, though each of such words is

occasionally used in a perverted way. It will be found that

they have been construed variously by courts according to

circumstances."); Hennessy v. Douglas Cnty., 99 Wis. 129, 136-

37, 74 N.W. 983 (1898) ("'Adjacent' signifies, in this connection, 'lying near, close to, or contiguous, but not

actually touching.'").

¶200 The majority's misuse of dictionaries betrays a

profound misunderstanding of how these resources are used in

legal analysis. A dictionary is not a talisman that a judge can

invoke to provide the definitive meaning of a term used in a

statute or constitution. It is merely a tool among several a judge may use to understand a text's meaning. Care must be

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taken for a number of reasons. Dictionaries "define the core

meanings of a term" but often omit "the periphery." Antonin

Scalia & Brian A. Garner, Reading Law: The Interpretation of

Legal Texts 418 (2012). Dictionaries also often omit typical,

ordinary uses of terms, or list the order of possible

definitions differently and for different reasons. Ellen P.

Aprill, The Law of the Word: Dictionary Shopping in the Supreme

Court, 30 Ariz. State L.J. 275, 298 (1998). Because words often

have more than one meaning, context matters a great deal.

Dictionaries cannot tell you what, in context, a word means. A

dictionary is merely a "museum of words." Frank H. Easterbrook,

Text, History, and Structure in Statutory Interpretation, 17

Harv. J.L. & Pub. Pol'y 61, 67 (1994). Accordingly, "a

comparative weighing of dictionaries is often necessary" when

they are employed. Scalia & Garner, supra, at 417.

Dictionaries cannot communicate what words mean in a specific

context.

¶201 The majority does not seem to recognize the limits of dictionaries, or the importance of acknowledging and weighing

different definitions. The majority resorts to fabrication with

its obviously false claim that all dictionaries define the term

"contiguous" the way the majority prefers. The remarkable power

to declare something unconstitutional——and forever remove it

from democratic decision making——should be exercised carefully

and with humility. The majority's drive-by dictionary citations

exhibit a slipshod analysis.

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¶202 The majority's lack of intellectual foundation is on

full display with its asymmetrical treatment of cases and

dictionaries. For reasons left unexplained, the majority treats

dictionaries contemporaneous to the constitution's ratification

as less authoritative than modern dictionaries. Majority op.,

¶¶16-17. But the majority treats older cases as more

authoritative than recent cases. See id., ¶¶21-23. The

majority does not even attempt to square the circle. This

inconsistency reveals the majority is not searching for the

constitution's meaning, but carefully cherry-picking sources to

feign support for its preferred outcome.

¶203 True to form, the majority mischaracterizes the

respondents' contiguity argument. The majority contends that

respondents claim "a district with separate, detached territory"

is contiguous provided it is a municipal island and "the main

body of the municipality is located elsewhere in the district."

Id., ¶18. But the respondents' actual argument on the

contiguity requirement doesn't resemble the majority's retelling.

¶204 The respondents argue the term "contiguous territory"

in Article IV, Sections 4 and 5 of the Wisconsin Constitution

allows for the use of existing municipal boundaries to form a

single district. For example, if town and city boundaries are

used to form an assembly district, as long as the town and city

share a border, or are near each other, the "contiguous

territory" requirement is met, even if the city or town has municipal islands.

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¶205 Central to respondents' interpretation, the term

"territory" in the phrase "contiguous territory" refers to the

various government entities (like towns and wards) that are used

to create an assembly or senate district. See State ex rel.

Reynolds v. Zimmerman, 23 Wis. 2d 606, 128 N.W.2d 16 (1964) (per

curium) (requiring "individual senate districts [to] consist[ ]

of contiguous assembly districts"). Under respondents' theory,

an assembly district contains "detached territory" if, for

example, it includes a town that does not touch, or is not near,

any other government entity used to form the assembly district.

Accordingly, respondents believe their interpretation is

consistent with Lamb's statement that an assembly district

"cannot be made up of two or more pieces of detached territory."

Lamb, 83 Wis. at 148. Contrary to the majority's recasting of

respondents' argument, respondents do not believe that "detached

territory can still be contiguous——so long as the detached

territory is a 'municipal island[ ].'" Majority op., ¶18.

Respondents reject the idea that municipal islands are "detached territory" in the context of the contiguity requirement.

¶206 Based on its own mischaracterization of respondents'

argument, the majority claims the respondents' contiguity

interpretation "would essentially require us to read an

exception into the contiguity requirements——that district

territory must be physically touching, except when the territory

is a detached section of a municipality located in the same

district." Id. And because "the text contains no such exception," the court rejects the respondents' argument. Id.,

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¶19. This is sophistry. The respondents never even suggested

the "district['s] territory" must be touching. Nor did the

respondents ask the majority to create an exception to the

constitution's commands. Instead, the respondents provided an

interpretation of "contiguous territory" the majority finds too

difficult to refute. In response, the majority tilts at

windmills——pretending the respondents made an argument that is

easier for the majority to dismiss. After completing its

exercise in deception, the majority simply assumes——without any

analysis whatsoever——that the word "territory" refers to the

land comprising a district.

¶207 Glossing over these glaring analytical errors, the

majority obliges its political benefactor, seizing the exclusive

constitutional roles of the legislature and the governor in the

redistricting process, and anointing itself an all-powerful

committee of four to supplant the political choices of the

coordinate branches with its subjective notions of what is

"fair." Such "accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many,

and whether hereditary, self appointed, or elective, may justly

be pronounced the very definition of tyranny." The Federalist

No. 47, supra, at 324 (Madison).

II. THE CONSTITUTION CONSTRAINS THIS COURT FROM OVERSTEPPING ITS AUTHORITY AND INVADING THE POLITICAL BRANCHES' DOMAIN ¶208 If the current maps were unconstitutional, the only

proper exercise of this court's power would be a remedy that respects the legislature's and the governor's constitutionally

prescribed roles in the redistricting process. If the members 15 No. 23AP1399-OA.rgb

of the majority were acting as a court rather than a super

legislature of four, they would modify the maps only to the

extent necessary to comply with the law. Specifically, if the

majority wished to remedy only detached municipal islands, as it

professes, it would adopt the respondents' proposal and redraw

only those districts containing detached territory. The

majority refuses to do so, with nothing more than a single

sentence explanation in which the majority says a more modest

remedy would "cause a ripple effect across other areas of the

state" so new maps are "necessary." Majority op., ¶56. The

majority offers zero support for this conclusory assertion

because none exists. The majority instead dispenses with the

existing maps in order to confer an advantage on its preferred

political party with new ones.

¶209 The majority abandons the court's least-change

approach adopted in Johnson I in order to fashion legislative

maps that "intrude upon the constitutional prerogatives of the

political branches and unsettle the constitutional allocation of power." 399 Wis. 2d 623, ¶64. The least-change approach in

Johnson I guaranteed the court would ground any reapportionment

decisions in the law alone, leaving the political decisions of

redistricting to the political branches where they belong. Id.,

¶71. The majority's decision to discard the judicially

restrained methodology of Johnson I unveils its motivation to

redraw the legislative maps for the benefit of Democratic state

legislative candidates. By design, the majority's transparently political approach will reallocate political power in Wisconsin

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via a draconian remedy, under the guise of a constitutional

"error" easily rectified by modest modifications to existing

maps.

¶210 The majority misrepresents the least-change approach

as "an unclear assortment of possible redistricting metrics,"

majority op., ¶61, a hypocritical stance for justices who

replace it with a "partisan impact" factor bereft of any

definition. The majority misleads the public to disguise what

it is actually doing: abandoning the law and giving itself free

reign to shift political power from Republicans to Democrats.

In overruling the following holding, the majority rejects the

notion that it should confine its actions to the powers the

people gave the judiciary: "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." Johnson I, 399 Wis. 2d

623, ¶72; accord id., ¶85 (Hagedorn, J., concurring) ("A least-

change approach is the most consistent, neutral, and appropriate use of our limited judicial power to remedy the constitutional

violations in this case").

¶211 The majority professes to overrule Johnson I's least-

change approach because it is supposedly "unworkable in

practice." Majority op., ¶63. The voters of Wisconsin should

remember that four justices have confessed an inability to

conform their official actions to the law. It should be neither

"impracticable" nor "unfeasible," id., for any jurist to set aside policy preferences and instead apply the law. As a

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barrier to judges basing their decisions on political leanings,

the least-change approach is only "impracticable" and

"unfeasible" for justices who wish to act as a super

legislature, as the members of the majority do in this case. A

majority may dismantle that barrier but the judicial oath of

office remains.

¶212 As the respondents proposed, any contiguity violation

could be remedied by simply dissolving municipal islands into

their surrounding assembly districts. The majority dismisses

the idea without explaining why the maps must instead be redrawn

in their entirety. To say the quiet part out loud, confining

the court's remedy to districts with municipal islands would

deprive the majority of its desired political outcome. Its

overreach flouts not only Johnson I but also black-letter law

limiting the judiciary's remedial powers.

¶213 "The remedial powers of an equity court must be

adequate to the task, but they are not unlimited." Whitcomb v.

Chavis, 403 U.S. 124, 161 (1971). Under this longstanding principle of judicial restraint, the remedy in this case——as in

all cases——should be tailored to the actual violation. If a

district contains unconstitutionally noncontiguous territory,

then dissolving the detached territory into its surrounding

district represents the most logical and adequate remedy. This

more modest remedy would minimize disruption to Wisconsin

voters. The majority's drastic remedy of overhauling the

entirety of the legislative maps will maximize it.

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¶214 A district-by-district remedy rather than a full

redrawing of the legislative maps would follow the federal

approach to redistricting cases the majority once professed to

revere. Johnson I, 399 Wis. 2d 623, ¶88 (Dallet, J. dissenting)

("[T]he federal courts . . . are best suited to handle

redistricting cases."). In Gill v. Whitford, the United States

Supreme Court considered whether voters had federal standing to

challenge the entirety of the 2011 Wisconsin state legislative

maps as an unfair partisan gerrymander. 585 U.S. ___, 138 S.

Ct. 1916, 1929-30 (2018). Without deciding the merits of the

voters' partisan gerrymandering claims, the Court said if a harm

were found it "does not necessarily require restructuring all of

the State's legislative districts." Id. at 1931. This holding

relied on the following principle: A "remedy must of course be

limited to the inadequacy that produced the injury in fact that

the plaintiff has established." Lewis v. Casey, 518 U.S. 343,

357 (1996). A court's modifications of an otherwise

constitutional map should be confined to those necessary to remedy the constitutional violations. Upham v. Seamon, 456 U.S.

37, 42-43 (1982).

¶215 The parties identified approximately 200 municipal

islands surrounded by another assembly district in violation of

the majority's crabbed reading of the contiguity requirement in

Article IV, Sections 4 and 5 of the Wisconsin Constitution. The

vast majority of these districts contain few people; many are

uninhabited. The majority opinion does not address these facts and instead emphasizes a few districts it believes are the most

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egregious to justify the unwarranted redrawing of the

legislative maps in their entirety. Majority op., ¶¶31-33.

Less than five percent of the roughly 200 municipal islands have

more than 100 people. The court could easily satisfy the

majority's new definition of contiguity by dissolving each

municipal island into its surrounding district. Some tinkering

would have to be done to bring the maps into compliance with the

one-person, one-vote principle, but this remedy would stop short

of wading into the political morass of redrawing maps from

scratch. The majority shuns a modest remedy because it would

foreclose consideration of the partisan "impact" factor the

majority buries at the end of its opinion but which will

dominate the entire process going forward.

III. PARTISAN FAIRNESS IS NOT A JUDICIALLY MANAGEABLE STANDARD

¶216 Buried at the end of its opinion, the majority

identifies "partisan impact" as the fifth and last

"redistricting principle" it will consider in reallocating

political power in this state. Id., ¶69. Its placement disguises the primacy this factor will have in the majority's

schemes. The majority neglects to offer a single measure,

metric, standard, or criterion by which it will gauge "partisan

impact." Most convenient for the majority's endgame, there

aren't any, lending the majority unfettered license to design

remedial maps fulfilling the majority's purely political

objectives. See Harper v. Hall, 881 S.E.2d 156, ¶124 (2023)

(Newby, J., dissenting), opinion withdrawn and superseded on reh'g, 886 S.E.2d 393 (2023) ("By intentionally stating vague

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standards, it ensures that four members of this Court alone

understand what redistricting plan is constitutionally

compliant.").

¶217 In considering "partisan impact," the majority acts

without authority. Unlike other state constitutions,12

"[n]othing 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.'" Johnson I, 399 Wis. 2d 623, ¶45 (quoting

Rucho v. Common Cause, 588 U.S. ___, 139 S. Ct. 2484, 2499

(2019)). "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." Id., ¶45 (citing Vieth

v. Jubelirer, 541 U.S. 267, 291 (2004) (plurality opinion)).

¶218 The majority's decision to consider the "partisan impact" of proposed maps lacks any legal foundation, enabling

the majority to engage in a purely political exercise. As the

court explained in Johnson I, the "lack of standards by which to

12 See Fla. Const. art. III, § 21(a) ("No apportionment plan or district shall be drawn with the intent to favor or disfavor a political party or an incumbent[.]"); Ohio Const. art. XI, § 6 (prohibiting redistricting commission from creating a legislative district plan that favors or disfavors a political party); Mo. Const. art. III, § 3 ("Districts shall be designed in a manner that achieves both partisan fairness and, secondarily, competitiveness."); Colo. Const. art. V, § 48.1(3)(a) (directing the redistricting commission to "maximize the number of politically competitive districts").

21 No. 23AP1399-OA.rgb

judge partisan fairness is obvious from even a cursory review of

partisan gerrymandering jurisprudence." 399 Wis. 2d 623, ¶41.

Accordingly, courts "'have no license to reallocate political

power between the two major political parties,' because 'no

legal standards [exist] to limit and direct [our] decisions.'"

Id., ¶52 (quoting Rucho, 139 S. Ct. at 2507).

¶219 The majority says it will "take care to avoid

selecting remedial maps designed to advantage one political

party over another," but provides no guiding principles to

govern its actions. Majority op., ¶71. The majority doesn't

offer any limiting principles because there aren't any. By its

nature, redistricting involves political decisions entrusted to

the legislative branch. Despite its unconvincing attempts to

shroud its "partisan impact" lodestar with empty invocations of

judicial neutrality and impartiality, adjudicating "partisan

impact" unavoidably "recast[s] this court as a policymaking body

rather than a law-declaring one." Johnson I, 399 Wis. 2d 623,

¶52. ¶220 The majority says it won't select a map "designed to

advantage one political party over another" or one that

"privilege[s] one political party over another." Majority op.,

¶¶70-71. Words like "advantage" and "privilege" imply a

baseline of fairness, but the court never defines it. It can't;

no law says what an "unfair" political advantage in a

legislative map looks like. And what about third parties? The

majority will marginalize and exclude minority interests if it fails to bestow proportional representation on every minor

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party; after all, the constitution does not privilege the

dominant parties. The novice map drawers in the majority would

then discover what "unworkable in practice," id., ¶63, really

means.

¶221 The United States Supreme Court comprehensively

described the impossibility of judicially defining or

identifying what constitutes politically "fair" maps, an

irrefutable point we echoed in Johnson I. 399 Wis. 2d 623,

¶¶40-41. In Rucho v. Common Cause, the Court documented the

presence of partisanship in the drawing of legislative

districts——by the political branches——dating back to the

founding of our nation. 139 S. Ct. at 2494-95. There is

nothing surprising about it; the legislative and executive

branches are, well, political. The judiciary is not supposed to

be.13 In declaring such claims nonjusticiable, the Court

highlighted two of its prior cases,14 in which it attempted to

define what constitutes an unfair partisan apportionment. Id.

at 2497-98. In doing so, it reiterated Justice Anthony Kennedy's earlier admonition that judicial standards must be

"'clear, manageable, and politically neutral.'" Id. at 2498

(quoting Vieth, 541 U.S. at 308-09 (Kennedy, J., concurring in

See Williams-Yulee v. Fla. Bar, 575 U.S. 433, 437 (2015) 13

("Judges are not politicians, even when they come to the bench by way of the ballot.").

In both of those cases, the United States Supreme Court 14

did not reach a majority and the number of separate writings reveal the utter confusion over what judicial standard to apply when judges are tasked with determining what level of partisanship is "fair." See Davis v Bandemer, 478 U.S. 109 (1986); Vieth v. Jubelirer, 541 U.S. 267 (2004).

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the judgment)). Because the Court was unable to identify any

legal standards by which to adjudicate partisan fairness, it

determined such claims involve nonjusticiable political

questions "beyond the competence of the federal courts." Id. at

2500. The majority in this case believes it possesses a

judicial ability the United States Supreme Court somehow lacks.

What extraordinary hubris.

¶222 In successfully convincing the majority to consider

partisan fairness, petitioners point to the difference between

the statewide percentage of votes received by Democrats compared

to the number of Democrats in the state legislature. Their

argument presumes that an individual voter who votes for a

Democrat at the top of the ticket will automatically support a

Democratic state legislative candidate. Voters do not, however,

blindly cast their ballots for one party. Whitford v. Gill, 218

F. Supp. 3d 837, 936 (W.D. Wis. 2016) (Griesbach, J.,

dissenting), vacated, 138 S. Ct. 1916 (2018) ("Party affiliation

is not set in stone or in a voter's genes[.]"). A variety of factors influence electoral choices. See Rucho, 139 S. Ct. at

2503. Partisan preferences can change rapidly and social

science cannot reliably predict voters' future choices among

candidates. Id. Political identification is not an immutable

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characteristic; election results in Wisconsin reveal recurring

shifts in party preferences and loyalties.15

¶223 What the majority calls "partisan impact" will mean

proportional representation. See id. at 2499 ("Partisan

gerrymandering claims invariably sound in a desire for

proportional representation."). Proportionality is far from

politically neutral and is incompatible with the constitution,

which requires single-member legislative districts. Wis. Const.

art. IV, §§ 4–5. Requiring single-member districts renders

proportionality impossible because single-member district

elections unavoidably produce disproportionate results. See

Whitford, 218 F. Supp. 3d at 950 (Griesbach, J., dissenting)

("Another reason proportionality is not a right is that

disproportionality is built in, and in fact even assumed, in

winner-take-all systems of voting."). Proportionality is also

in tension with our state constitution "because Article IV of

the Wisconsin Constitution specifies requirements that favor the

preservation of communities of interest, irrespective of individual partisan alignment." Johnson I, 399 Wis. 2d 623,

¶47. The majority attacks our representative form of government

by introducing the extra-constitutional criterion of "partisan

impact."

Craig Gilbert, What 30 Years of Voting History Tells Us 15

about Wisconsin's Shifting Suburban Vote, Milwaukee J. Sentinel, May 10, 2023, https://www.jsonline.com/story/news/politics/analysis/2023/05/10 /how-the-2024-presidential-race-in-wisconsin-hinges-on-suburban- trends/70179579007/.

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¶224 Perfect political symmetry between the statewide vote

and the composition of the legislature is unattainable because

of the geographic distribution of the state's voters. While

Wisconsin has had close statewide races over the prior decade,

the concentration of voters differs dramatically among urban,

suburban, and rural areas of the state. For example, in the

2020 presidential election, Dane County and Milwaukee County,

the two largest counties by total votes, cast approximately 35

percent of the total statewide votes for Joe Biden.16 Waukesha

and Brown County17 accounted for only 14 percent of the total

statewide votes for Donald Trump. Increasingly, the large

percentage of Democratic votes from Dane County has been a

determining factor in otherwise close statewide elections.18

Republican statewide candidates receive support from more rural

and less densely populated counties throughout the state. This

16 President Biden received 1,630,866 total votes in Wisconsin in 2020 and Dane County recorded 260,121 votes for Biden and Milwaukee County recorded 317,527 votes for Biden. 2020 Wisconsin Election Results, N.Y. Times, (Accessed Nov. 30, 2023), https://www.nytimes.com/interactive/2020/11/03/us/elections/resu lts-wisconsin.html. 17 These two counties were chosen for comparison because their voters cast the two highest number of ballots for Donald Trump. Of the 1,610,184 total votes Donald Trump received in Wisconsin in 2020, Waukesha County recorded 159,649 votes and Brown County recorded 75,871 votes. Id. 18 Ruth Conniff, How Dane County is Making Wisconsin Less Red, Isthmus, Dec. 3, 2022, https://isthmus.com/opinion/opinion/how-dane-county-is-making- wisconsin-less-red/.

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political reality19 illustrates why the statewide vote is a

flawed indicator of what the makeup of the state legislature

"should" be. Even if representative proportionality were an

attainable goal, the constitution gives the judiciary, the only

non-partisan branch of state government, no role to play in such

political calculations.

¶225 Supreme Court Justice Sandra Day O'Connor, a former

state legislator, recognized the unsound premises underlying

proportional representation, which the majority fails to grasp

in its quest to enforce partisan "fairness":

This preference for proportionality is in serious tension with essential features of state legislative elections. Districting itself represents a middle ground between winner-take-all statewide elections and proportional representation for political parties. If there is a constitutional preference for proportionality, the legitimacy of districting itself is called into question: the voting strength of less evenly distributed groups will invariably be diminished by districting as compared to at-large proportional systems for electing representatives. Moreover, one implication of the districting system is that voters cast votes for candidates in their districts, not for a statewide slate of legislative candidates put forward by the parties. Consequently, efforts to determine party voting strength presuppose a norm that does not exist——statewide elections for representatives along party lines. Davis v. Bandemer, 478 U.S. 109, 159 (1986) (O'Connor, J.,

concurring in the judgment) (emphasis added). Justice Antonin

Scalia explained that the federal Constitution, like ours, does

19 "Democrats have often been concentrated in cities while Republicans have often been concentrated in suburbs and sometimes rural areas." Vieth, 541 U.S. at 359 (2004) (Breyer, J., dissenting).

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not guarantee "equal representation in government to

equivalently sized groups. It nowhere says 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.

¶226 By shoehorning consideration of "partisan impact" into

the remedial phase of this litigation, the majority strikes a

blow against our republican form of government. Forcing

legislative representation reflecting the statewide strength of

a political party on citizens in less populated areas of the

state overrides their choice of candidates without their

consent. "Proportional party representation is simply

incompatible with the constitutionally prescribed form of

representative government chosen by the people of Wisconsin."

Johnson I, 399 Wis. 2d 623, ¶50.

¶227 The majority says it must consider "partisan impact"

in redrawing the state's legislative maps in order to remain

politically "neutral and independent." Majority op., ¶71. If that "sounds contradictory," Johnson I, 399 Wis. 2d 623, ¶112

(Dallet, J., dissenting), that's because it is. The court

concedes its decision does not derive from the Wisconsin

Constitution or any other law. And the gerrymander-claim-

versus-judicial-remedy distinction, which "appears at first to

be an escape hatch" for the majority is "upon reflection, a trap

door." Nathaniel Persily, In Defense of Foxes Guarding

Henhouses: The Case for Judicial Acquiescence to Incumbent- Protecting Gerrymanders, 116 Harv. L. Rev. 649, 673 (2002). The

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majority's fixation on "partisan impact" might, intentionally or

unintentionally, run afoul of the Voting Rights Act. 52 U.S.C.

§ 10301. Historically, a preoccupation with "fair maps" has

come at the expense of communities of color. Johnson III, 401

Wis. 2d 198, ¶¶96-104 (Rebecca Grassl Bradley, J., concurring).

By injecting "partisan impact" into the calculation, the

majority transforms itself into a legislative body making

political and policy decisions. A pledge to be "neutral and

independent" cannot be fulfilled when the majority appropriates

the political tasks of redistricting that belong to the

political branches.

¶228 Since the majority recognizes its focus on partisan

fairness is untethered to law, it must explain, in a politically

neutral way, why judicial neutrality does not require the

consideration of countless other factors. The majority's choice

to consider "partisan impact" is imbued with policy

determinations necessitating overtly political choices. Opening

the door to judicial policymaking in this manner invites interest groups of every kind to demand "fairness" in

representation on any basis whatsoever: sex, religion, age,

socioeconomic status, gender identity, etc. As a matter of

policy, why wouldn't the majority ensure that farmers, union

members, property owners, renters, small business owners, and

hunters have representation in proportion to their numbers? See

Vieth, 541 U.S. at 288; Johnson I, 399 Wis. 2d 623, ¶57 (citing

Larry Alexander & Saikrishna B. Prakash, Tempest in an Empty Teapot: Why the Constitution Does Not Regulate Gerrymandering,

29 No. 23AP1399-OA.rgb

50 Wm. & Mary L. Rev. 1, 21-22 (2008)) (noting that if

proportionality for partisan affiliation is required, every

group, including gun owners and vegetarians, has a valid claim

to proportional representation in the legislature because

"[n]othing distinguishes partisan affiliation from hundreds——

perhaps thousands——of other variables"). Is it acceptable to

increase partisan fairness at the expense of the ability of

Evangelical Christians to elect their preferred candidates? Why

does the majority prioritize partisan fairness over the

interests of the elderly? The answer is obvious; the majority's

decision is deeply partisan. So much for judicial neutrality.

¶229 "A government of laws means a government of rules."

Morrison v. Olson, 487 U.S. 654, 733 (1988) (Scalia, J.,

dissenting). The majority replaces rules with whim, preferring

its own malleable notions of fairness over constitutional

commands, in order to engineer districts more favorable for

Democratic state legislative candidates. The majority succumbs

to the temptation of results at the expense of its own legitimacy. Robert H. Bork, The Tempting of America: The

Political Seduction of the Law 2 (1990).

IV. LACHES AND JUDICIAL ESTOPPEL SHOULD BAR THIS CASE

¶230 Redistricting is the quintessential "political

thicket." See Colegrove v. Green, 328 U.S. 549, 556 (1946)

(plurality opinion). We should not decide such cases unless, as

in 2021, we must. In this case, we need not enter the thicket.

Unlike the majority, I would not address the merits. A collateral attack on a supreme court judgment, disguised as an

30 No. 23AP1399-OA.rgb

original action petition, would ordinarily be dismissed upon

arrival. Allowing petitioners' stale claims to proceed makes a

mockery of our judicial system, politicizes the court, and

incentivizes litigants to sit on manufactured redistricting

claims in the hopes that a later, more favorable makeup of the

court will accept their arguments. The doctrines of laches and

judicial estoppel exist to prevent such manipulation of the

judicial system.

A. Laches

¶231 Two days after Protasiewicz's election, one of the six

law firms representing the petitioners announced its plan "to

challenge the state's voting maps based on the assertion that

partisan gerrymandering violates the Wisconsin Constitution,"

although at that point the lawyers were "still putting the

pieces together about what we think the most successful

arguments will be."20 It is hard to imagine a more fitting case

for the application of laches than a tardy litigant calling to

collect on judicial campaign trail promises. To preserve its institutional legitimacy, the court should have applied the

doctrine and dismissed this action.

¶232 The doctrine of laches bars relief "when a claimant's

failure to promptly bring a claim causes prejudice to the party

having to defend against that claim." Wis. Small Bus. United,

Inc. v. Brennan, 2020 WI 69, ¶11, 393 Wis. 2d 308, 946

N.W.2d 101 (citation omitted). This affirmative, equitable

20 Kelly, supra note 3.

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defense ensures that "'equity aids the vigilant, and not those

who sleep on their rights to the detriment of the opposing

party.'" State ex rel. Wren v. Richardson, 2019 WI 110, ¶14,

389 Wis. 2d 516, 936 N.W.2d 587 (quoting 27A Am. Jur. 2d Equity

§ 108). "Application of laches is within the court's discretion

upon a showing by the party raising the claim of [1]

unreasonable delay, [2] lack of knowledge the claim would be

raised, and [3] prejudice." Trump v. Biden, 2020 WI 91, ¶10,

394 Wis. 2d 629, 951 N.W.2d 568 (citation omitted). The

doctrine of laches is of particular importance in election-

related disputes. Id., ¶11.

¶233 All three elements of laches exist in this case. The

constitution limits redistricting to occur once every ten years,

after the federal census, and the constitution gives the

legislature the power of reapportionment. Only political

stalemate triggers court involvement. See Wis. Const. art. IV,

§ 3; Johnson I, 399 Wis. 2d 623, ¶18; Baldus, 849 F. Supp. 2d at

859 (citing Zimmerman, 266 Wis. 307) (noting the Wisconsin Constitution's "command" "not to re-district more than once each

10 years."). We should not indulge litigants who sat out

Johnson——or worse yet, were parties in Johnson——and who

strategically conjure legal claims that could have been made

more than two years ago. "The doctrine of laches is derived

from the maxim that those who sleep on their rights, lose them."

Chattanoga Mfg., Inc. v. Nike, Inc., 301 F.3d 789, 792 (7th Cir.

2002).

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¶234 As a preliminary matter, the doctrine of laches

applies to redistricting claims, as well as requests for

injunctive relief, notwithstanding an alleged ongoing harm.

Petitioners contend laches does not apply in this case because

an alleged harm——constitutionally noncontiguous districts——is

ongoing and they are requesting prospective relief. The

majority appears to agree. See majority op., ¶43 n.20. But as

one court explained, an ongoing-violation theory "is contrary to

well settled reapportionment and laches case law." Fouts v.

Harris, 88 F. Supp. 2d 1351, 1354 (S.D. Fla. 1999), aff'd sub

nom. Chandler v. Harris, 529 U.S. 1084 (2000) (citation omitted)

(barring claim that districts were racially gerrymandered

contrary to the United States Constitution with the doctrine of

laches); see also White v. Daniel, 909 F.2d 99 (4th Cir. 1990)

(applying laches to bar redistricting claim under Section 2 of

the Voting Rights Act of 1965); Sanders v. Dooly County, 245

F.3d 1289 (11th Cir. 2001) (applying laches to deny request for

injunctive relief related to a districting plan containing racially gerrymandered districts violating the Equal Protection

Clause); Knox v. Milwaukee Cnty. Bd. of Elections Comm'rs, 581

F. Supp. 399 (E.D. Wis. 1984) (applying laches to deny request

to enjoin implementation of a Milwaukee reapportionment plan,

which plaintiffs claimed violated Section 2 of the Voting Rights

Act of 1965); Mac Govern v. Connolly, 637 F. Supp. 111 (D. Mass.

1986) (applying laches to bar injunctive relief for plaintiffs

claiming the state legislative maps where not equally apportioned under the Equal Protection Clause); Chestnut v.

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Merrill, 377 F. Supp. 3d 1308 (N.D. Ala. 2019) (applying laches

to deny injunctive relief under Section 2 of the Voting Rights

Act of 1965 against challenged districts). Wisconsin precedent

accords with federal cases. This court has approved the use of

laches to deny prospective injunctive relief, even against

government actors seeking to vindicate public rights. Forest

Cnty. v. Goode, 219 Wis. 2d 654, 681-84, 579 N.W.2d 715 (1998)

(stating that laches should be considered by the circuit court

when deciding whether to issue an injunction against one

violating a zoning ordinance). The doctrine of laches applies

to claims for prospective relief, even in the redistricting

context.

1. Unreasonable Delay

¶235 The first element of laches concerns whether the

petitioners "unreasonably delayed" in bringing their claim.

Trump, 394 Wis. 2d 629, ¶13. "What constitutes an unreasonable

delay varies and 'depends on the facts of a particular case.'"

Id. (quoting Brennan, 393 Wis. 2d 308, ¶14). Because redistricting cases require the court to enter the political

thicket, and in light of the disruption another round of

redistricting may cause, this requirement has extra force in

redistricting cases and analogous contexts. See id., ¶30

("Parties bringing election-related claims have a special duty

to bring their claims in a timely manner."). This element is

met.

¶236 The Wisconsin legislature last enacted legislative maps in 2011 and those maps contained municipal islands. 2011

34 No. 23AP1399-OA.rgb

Wis. Act 44; 2011 Wis. Act 43. None of the petitioners argued

the maps were unconstitutional for containing noncontiguous

territory within one or more districts. The maps created in

2011 became unconstitutionally malapportioned due to population

shifts identified following the census of 2020. Johnson I, 399

Wis. 2d 623, ¶16. Four voters filed an original action with

this court, seeking a mandatory injunction to remedy

malapportionment. Id., ¶5. We invited any prospective

intervenor to move to participate in Johnson and granted every

motion to intervene. Johnson II, 400 Wis. 2d 626, ¶2. Many of

the parties in this case——the Governor and all but two of the

Atkinson intervenor-petitioners21——participated in Johnson. They

did not argue the 2011 maps contained unconstitutionally

noncontiguous districts nor did they propose the definition of

contiguity advanced and adopted in this case. In fact, the

petitioners who participated in Johnson stipulated that

municipal islands are constitutionally contiguous. The

petitioners who participated in both cases could have raised the contiguity issue in Johnson. They didn't. They could have

moved the court for reconsideration after we issued our

decision. They didn't. To wait nearly two years after our

decision in Johnson I addressed the meaning of contiguous

territory constitutes unreasonable delay, even setting aside the

admitted gamesmanship of the litigants.

¶237 The majority starts the unreasonable-delay clock after

Johnson III was decided and insists the Clarke petitioners did

21 The two newcomers are Nathan Atkinson and Leah Dudley.

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not immediately raise the contiguity issue after Johnson III

because petitioners "could not obtain relief prior to the 2022

elections." Majority op., ¶42. But the majority presupposes

something prevented the Clarke petitioners from participating in

the Johnson litigation. Nothing did. The petitioners who sat

out Johnson have never explained why they did not participate in

Johnson, even when given the opportunity to explain themselves

at oral argument. Nor did they show they were reasonably

unaware of the contiguity issue at that time. "[U]nreasonable

delay in laches is based not on what litigants know, but what

they might have known with the exercise of reasonable diligence.

This underlying constructive knowledge requirement arises from

the general rule that 'ignorance of one's legal rights is not a

reasonable excuse in a laches case.'" Wren, 389 Wis. 2d 516,

¶20 (quoting 27A Am. Jur. 2d Equity § 138) (emphasis added).

Everyone knows this action was brought promptly after

Protasiewicz joined the court because the petitioners knew she

and the three dissenters in Johnson would welcome any opportunity to redraw the maps they viewed as "rigged." Laches

bars such tactics. See Knox, 581 F. Supp. at 403-04 (finding

unreasonable delay when the plaintiffs were given opportunities

to participate in the districting process, voice their concerns,

and even submit alternative plans, but chose not to).

¶238 If waiting to file this original action until August

2, 2023, one day after Protasiewicz's investiture, were not

blatant enough, the law firm representing the petitioners said the quiet part out loud two days after Protasiewicz won her

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election, promising to file a gerrymandering claim and admitting

the firm would not have brought any claim if Protasiewicz had

lost the election.22 Contrary to the majority's telling, the

petitioners did not just wait until "August of 2023" to bring

their claims, majority op., ¶42; they waited until the day after

the composition of the court changed——a fact so embarrassing the

majority never acknowledges it. Such gamesmanship and delay

would not be rewarded by a court with integrity. Trump v. Biden

conveyed the court's expectation for parties to act diligently

when bringing election-related claims. Relaxing the rule when

the petitioners seek partisan advantage on behalf of Democrats

signals that different standards apply to Republicans. Putting

a partisan thumb on the scales of justice calls into question

the court's legitimacy.

2. Lack of Knowledge

¶239 The second element of laches asks whether the

respondents lacked knowledge that the petitioners would bring

the contiguity claim. Brennan, 393 Wis. 2d 308, ¶18. Respondents assert they were unaware the petitioners would bring

the contiguity claim. Nothing in the record suggests otherwise.

The petitioners who did participate in Johnson all stipulated

that municipal islands were constitutionally contiguous. The

Kelly, supra note 3 ("When asked if she and her 22

colleagues would be discussing a potential legal challenge if Protasiewicz hadn't won on Tuesday, Safar said, 'There wouldn't be an opportunity to have a fair argument, I don't think, under Justice Kelly.'"). This undermines——to put it mildly——the believability of counsel's statement at oral argument that petitioners would have filed this original action even if Protasiewicz had lost the election.

37 No. 23AP1399-OA.rgb

second element is met. See id. (holding the second element of

laches is met if respondent "had no advance knowledge or warning

of [the] particular claim").23

3. Prejudice

¶240 The third and final element of laches requires a

showing of prejudice, which means "'anything that places the

party in a less favorable position.'" Trump, 394 Wis. 2d 629,

¶24 (quoting Wren, 389 Wis. 2d 516, ¶32). In a context

analogous to redistricting, this court has considered prejudice

to third parties. See id., ¶¶25-27 (considering prejudice to

voters in election-related context); id., ¶125 (Ziegler, J.,

dissenting) (noting the majority focused "on the prejudice to

third parties"). Other courts have likewise considered

prejudice to third parties in redistricting cases. White, 909

F.2d at 103-04 (considering the prejudicial effect judicially

mandated redistricting would have on voters not party to the

suit); Chestnut, 377 F. Supp. 3d at 1317 (similar); Fouts, 88 F.

Supp. 2d at 1354 (similar); see Sanders, 245 F.3d at 1291. The third element of laches is met.

¶241 The respondents assert they spent considerable time

and resources in the Johnson litigation to ensure Wisconsin

voters would have constitutionally permissible maps for future

elections. This court also spent considerable time and

Although the respondents meet the second element of 23

laches, it does not always apply because the requirement "focuses on the ability of the asserting party to mitigate any resulting prejudice when notice is provided. But this may not be possible in all types of claims." Trump v. Biden, 2020 WI 91, ¶23 n.10, 394 Wis. 2d 629, 951 N.W.2d 568.

38 No. 23AP1399-OA.rgb

resources on Johnson. Petitioners seek to wipe out all of the

work done in Johnson——and the majority obliges. This is an

accepted form of prejudice to respondents. See Wren, 389 Wis.

2d 516, ¶33 (noting economic prejudice is a cognizable form of

prejudice for purposes of laches); 27A Am. Jur. 2d Equity § 144

(footnotes omitted) ("Prejudice may also be invoked by the

expenditure of time and the effort that the plaintiff's delayed

claim would defeat.").

¶242 Because the majority errs by starting the clock at the

end of Johnson III, the majority fails to find any prejudice

against the respondents. The respondents do not claim the costs

of litigating this suit cause them prejudice. Instead, the

respondents claim that wiping away all of the money, time, and

effort devoted to Johnson is prejudicial. Contrary to what the

majority asserts, prejudice in the form of wasted money, time,

and effort on an action already concluded distinguishes

respondents' claim of prejudice from the case on which the

majority relies, which states that costs incurred in litigating a current suit are not prejudicial. Majority op., ¶43 (citing

Goodman v. McDonnell Douglass Corp., 606 F.2d 800, 808 (8th Cir.

1979)). The prejudice to respondents is especially acute

because all of the petitioners were either parties in Johnson or

could have been. The contiguity challenge could have been

resolved in that case. It is extremely prejudicial to the

respondents for the petitioners to sit out litigation they were

invited to join, "'gamble on the outcome'" of the litigation, "'and then challenge it when dissatisfied with the results.'"

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See Trump, 394 Wis. 2d 629, ¶11 (quoting 29 C.J.S. Elections §

459 (2020)). But the majority doesn't care about that kind of

unfairness.

¶243 Respondents are not the only ones to suffer prejudice

as a result of the majority entertaining the petitioners' claim.

The petitioners waited until after the maps adopted in Johnson

had been used and after voters and legislators became accustomed

to their new districts. Both voters and legislators are

prejudiced by this suit because many legislators have developed

relationships with their constituents. Redrawing the maps so

soon after Johnson, and after elections have occurred under

those maps, risks severe voter confusion——a well-recognized form

of prejudice in the redistricting context. E.g., White, 909

F.2d at 104 ("We believe that two reapportionments within a

short period of two years would greatly prejudice the County and

its citizens by creating instability and dislocation in the

electoral system and by imposing great financial and logistical

burdens."); Chestnut, 377 F. Supp. 3d at 1317 ("[W]hile congressional races are better funded and more highly

publicized, the court remains unconvinced that a more publicized

election will necessarily educate voters on where the newly

drawn district lines lay."); see also 27A Am. Jur. 2d Equity §

144 (Prejudice "may further arise from delayed actions

challenging elections or election procedures, due to confusion

to voters . . . .").

¶244 The majority unconvincingly attempts to dismiss the prejudice to voters engendered by redrawing the state

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legislative maps. First, the majority minimizes this well-

recognized form of prejudice as merely "vague assertions about

disruption to the status quo." Majority op., ¶43. Second, the

majority insists that "any disruption . . . is necessary to

serve the public's interest in having districts that comply with

each of the requirements of the Wisconsin Constitution." Id.,

¶43. The majority's dismissiveness perfunctorily discounts the

prejudice to confused voters. The majority surely did not apply

this logic in Trump v. Biden. In that case, the petitioners

sought the invalidation of several thousands of ballots because

they were cast unlawfully or were otherwise invalid. 394 Wis.

2d 629, ¶1. The court held laches barred the petitioners from

bringing their claims. Id., ¶3. The court held that voters

would be prejudiced if their ballots were struck. Id., ¶¶24-28.

The court did not disregard prejudice to voters simply because

the public also has an interest in elections being conducted in

accordance with state law. It would be one thing if the

majority acknowledged this prejudice and then, using its discretion, decided not to apply laches because it thinks other

interests outweigh the prejudice to confused voters. But to

pretend no prejudice exists, because concluding otherwise would

thwart the majority's political agenda, is shameful.

¶245 This court has applied the laches doctrine in

election-related disputes specifically when the relief sought

"would be an extraordinary step for this court to take." Trump,

394 Wis. 2d 629, ¶31. The petitioners in this case seek the extraordinary remedy of tossing the legislative maps in their

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entirety and upending the political balance of the state

legislature just months before the 2024 elections, yet the

majority entertains a claim that could have been brought in

Johnson I. Petitioners waited until the court's membership

changed with the hope of achieving a more favorable outcome. An

impartial application of this court's recent laches doctrine

would bar the petitioners' claims.

4. Discretion

¶246 Even though all of the elements of laches are met, it

remains within our discretion to apply the doctrine. Wren, 389

Wis. 2d 516, ¶15 (citing State ex rel. Washington v. State, 2012

WI App 74, ¶26, 343 Wis. 2d 434, 819 N.W.2d 305). Applying the

doctrine of laches is the only "appropriate and equitable"

decision in this case. Id. The constitution does not permit

redistricting to be a yearly affair. It is a fundamentally

political process in which this court acted in Johnson only to

avoid a constitutional crisis. Johnson I, 399 Wis. 2d 623, ¶68

("Judicial action becomes appropriate to prevent a constitutional crisis."). Absent political impasse, for the

sake of our institutional legitimacy and out of respect for

roles the constitution assigns to the political branches, we

keep ourselves out of the process. Failure to bring

redistricting claims promptly poses a great danger "to the

entire administration of justice." Trump, 394 Wis. 2d 629, ¶30.

Entertaining political claims delayed until the seating of a

justice who had prejudged the existing maps as "rigged" poses a great danger to the integrity of this court. The majority could

42 No. 23AP1399-OA.rgb

have its integrity by properly applying the doctrine of laches

but instead forges ahead to the detriment of this court's

institutional legitimacy.

B. Judicial Estoppel

¶247 The doctrine of judicial estoppel bars the Governor

and the Atkinson petitioner-intervenors who participated in the

Johnson litigation24 from arguing municipal islands are

unconstitutionally noncontiguous. "The equitable doctrine of

judicial estoppel . . . is intended to protect against a

litigant playing fast and loose with the courts . . . . The

doctrine precludes a party from asserting a position in a legal

proceeding and then subsequently asserting an inconsistent

position." State v. Petty, 201 Wis. 2d 337, 347, 548 N.W.2d 817

(1996) (internal quotation marks and citations omitted).

Judicial estoppel applies if: (1) the party's later position is

inconsistent with its earlier position; (2) the facts at issue

are the same in both cases; and (3) the party convinced the

first court to adopt its position. Id. at 348 (quoted source omitted).

¶248 Both the Governor and the Atkinson petitioner-

intervenors deny taking a position in this case at odds with

their position in Johnson and further claim the court never

adopted their initial position. The facts betray their

duplicity.

Stephen Wright, Gary Krenz, Sarah Hamilton, 24 Jean-Luc Thiffeault, and Somesh Jha all participated in Johnson.

43 No. 23AP1399-OA.rgb

¶249 The Governor and Atkinson petitioner-intervenors

contend they never argued that municipal islands are

constitutionally contiguous in Johnson. This is false. The

Atkinson petitioner-intervenors, then identifying as "Citizen

Mathematicians and Scientists," argued for the permissibility of

municipal islands in Johnson I.25 Both the Governor and Atkinson

petitioner-intervenors stipulated that municipal islands are

constitutionally contiguous.26 The stipulation verifies the

parties' position that municipal islands are constitutional.27

Having lost in Johnson, the Governor and the Atkinson

petitioner-intervenors now argue municipal islands are

unconstitutional, the opposite of the position they advanced in

Johnson. The court adopted their position in Johnson I, holding

25"This Court has defined 'contiguous' to mean that 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, 57 (1892); but cf. Prosser, 793 F. Supp. at 866 (holding that the Wisconsin Constitution does not require 'literal contiguity' where a town had annexed noncontiguous 'islands' and 'the distance between town and island is slight')." Br. Intervenors-Pet'rs Citizen Mathematicians and Scientists, Johnson v. Wis. Elections Comm'n, No. 2021AP1450, at 22 (Oct. 25, 2021). 26"Contiguity for state assembly districts is satisfied when a district boundary follows the municipal boundaries. Municipal 'islands' are legally contiguous with the municipality to which the 'island' belongs. Wis. Stat. §5.15(1)(b); Wis. Stat. §4.001(2) (1972); see Prosser v. Election Bd., 793 F. Supp. 859, 866 (W.D. Wis. 1992) (three-judge court)." Joint Stip. of Facts and Law, Johnson v. Wis. Elections Comm'n, No. 2021AP1450, at 15 (Nov. 4, 2021). 27A stipulation, by definition, is an "agreement between opposing parties concerning some relevant point[.]" Stipulation, Black's Law Dictionary 1712 (11th ed. 2019).

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municipal islands are constitutional. 399 Wis. 2d 623, ¶36. No

justice dissented on this point. Shifting majorities in Johnson

II and Johnson III adopted maps with municipal islands. See

Johnson II, 400 Wis. 2d 626, ¶¶8-10; Johnson III, 401 Wis. 2d

198, ¶70. No justice dissented on this point in either of those

decisions. Notably, the court adopted the Governor's proposed

state legislative maps in Johnson II, municipal islands and all.

In his brief urging the court to adopt his legislative maps in

Johnson II, the Governor argued his maps were constitutionally

contiguous despite having municipal islands.28

¶250 The Governor contends the court was not convinced to

adopt his position because there was no adversarial briefing on

the issue of municipal islands in the Johnson litigation. The

Governor, however, fails to cite any legal authority requiring

adversarial briefing on an issue before judicial estoppel may

apply. Precedent supports its application even absent

adversarial briefing. E.g., Cnty. of Milwaukee v. Edward S.,

2001 WI App 169, ¶11, 247 Wis. 2d 87, 633 N.W.2d 241 (estopping a litigant from arguing an adjournment was improper when the

parties stipulated to the adjournment). Regardless, courts may

not blindly accept a stipulation of law; they have a duty to

independently determine what the law is. "[W]e are not bound by

the parties' interpretation of the law or obligated to accept a

party's concession of law. This court, not the parties, decides

questions of law." State v. Carter, 2010 WI 77, ¶50, 327 Wis.

28Gov. Tony Evers's Br. Support Proposed Maps, Johnson v. Wis. Elections Comm'n, No. 2021AP1450, at 17 (Dec. 15, 2021).

45 No. 23AP1399-OA.rgb

2d 1, 785 N.W.2d 516. Irrespective of the parties' stipulation

of law, this court was duty-bound to satisfy itself that

remedial maps met the constitutional command of contiguity and

it did so, irrespective of the parties' shared position on the

issue.

¶251 The Governor fundamentally misconstrues the

requirement that the party to be estopped must have convinced

the earlier court to adopt its position. Applying judicial

estoppel does not require us to peer into the minds of judges to

ascertain whether a court was actually convinced of the party's

position. The requirement merely means that the party estopped

needs to have "succeed[ed] in maintaining that position," Matter

of Cassidy, 892 F.2d 637, 641 (7th Cir. 1990) (quoting Davis v.

Wakelee, 156 U.S. 680, 689 (1895)); or, stated differently, the

party is estopped if "the court maintains that [same] position."

State v. English-Lancaster, 2002 WI App 74, ¶19, 252 Wis. 2d

388, 642 N.W.2d 627 (citing State v. Gove, 148 Wis. 2d 936, 944,

437 N.W.2d 218 (1989)). Stated conversely, "[a] party is not bound to a position it unsuccessfully maintained." Matter of

Cassidy, 892 F.2d at 641; Olson v. Darlington Mut. Ins. Co.,

2006 WI App 204, ¶6, 296 Wis. 2d 716, 723 N.W.2d 713 ("Because

'a litigant is not forever bound to a losing argument,' there

must be an action of the court adopting a party's position to

give rise to judicial estoppel."). If the estopped party

advanced a position the court later adopted, the requirement is

met. See English-Lancaster, 252 Wis. 2d 388, ¶22 (holding that a defendant was judicially estopped from arguing that a

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cautionary instruction was inadequate because it was the

defendant who asked for the cautionary instruction and accepted

the wording of the court's proposed instruction, calling it a

case of "classic judicial estoppel"). The Governor and Atkinson

petitioner-intervenors stipulated that municipal islands are

constitutional, and the court held as much in Johnson I. 399

Wis. 2d 623, ¶36. The Governor proposed state legislative maps

containing municipal islands, and this court adopted them in

Johnson II. 400 Wis. 2d 626, ¶¶8-10. The court clearly adopted

their position on contiguity in the Johnson litigation.

¶252 The Governor and the Atkinson petitioner-intervenors

do not advance their contiguity arguments in good faith. Like

the majority, they could not care less what "contiguous

territory" means in Article IV, Sections 4 and 5 of the

Wisconsin Constitution. Everyone understands their argument is

not based on a newfound concern for the court's fidelity to the

constitution. It is merely an argument onto which the parties

have latched in order to smuggle a partisan "fairness" claim through the court. The call for a partisan power shift

permeates their briefs. The Atkinson petitioner-intervenors

falsely deny asserting the contiguity of municipal islands in

Johnson and falsely claim they argued that municipal islands are

not constitutionally contiguous. Not only did the Atkinson

petitioner-intervenors argue such islands are constitutional in

their brief in Johnson I, they also stipulated to the

constitutionality of municipal islands. Judicial estoppel bars such duplicity. Petty, 201 Wis. 2d at 354 ("The doctrine looks

47 No. 23AP1399-OA.rgb

toward cold manipulation, not an unthinking or confused

blunder."). The Governor and the Atkinson petitioner-

intervenors should be barred by the doctrine of judicial

estoppel from arguing that municipal islands are

unconstitutional.

¶253 The majority does not contest that the elements of

judicial estoppel are met. See majority op., ¶50. Instead, the

majority simply "decline[s] to exercise [its] discretion to

apply judicial estoppel here." Id. In doing so, the majority

invokes "compelling public policy reasons." Id.

¶254 Harkening back to the monarchical principle that the

king can do no wrong,29 the majority privileges the Governor's

duplicity because he is a government actor. See id. No

precedent insulates the Governor from application of the

doctrine. While some courts have been reluctant to apply

judicial estoppel to government actors,30 this court has never

limited the doctrine to non-government actors. To bolster their

flawed argument, the Governor and the majority rely solely on cases concerning equitable estoppel, and fail to cite a single

case involving judicial estoppel: Turkow v. DNR, 216 Wis. 2d

273, 576 N.W.2d 288 (Ct. App. 1998); DOR v. Moebius Printing

Co., 89 Wis. 2d 610, 279 N.W.2d 213 (1979); Vill. of Hobart v.

29 See Holytz v. City of Milwaukee, 17 Wis. 2d 26, 33, 115 N.W.2d 618 (1962) (quoting Britten v. Eau Claire, 260 Wis. 382, 386, 51 N.W.2d 30 (1952)) (holding that the government does not have common law immunity from tort suits for harms wrongfully caused by it, noting that the doctrine was rooted "'in the ancient and fallacious notion that the king can do no wrong'"). 30 See New Hampshire v. Maine, 532 U.S. 742, 755-56 (2001).

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Brown Cnty., 2005 WI 78, 281 Wis. 2d 628, 698 N.W.2d 83; State

v. Chippewa Cable Co., 21 Wis. 2d 598, 124 N.W.2d 616 (1963);

Park Bldg. Corp. v. Indus. Comm'n, 9 Wis. 2d 78, 100 N.W.2d 571

(1960). This court has hesitated to apply equitable estoppel

only when applying it would interfere with the state's exercise

of its police powers. Vill. of Hobart, 281 Wis. 2d 628, ¶29

n.9. But hesitancy does not translate to immunity. The

Governor changed his position on the issue of contiguity to

benefit his political party, not the public interest.31 There

has been no change in state public policy or material facts

since the Johnson litigation. Notably, some of the respondents

in this case are also government actors, and "each owes the

other a full measure of respect." New Hampshire v. Maine, 532

U.S. 742, 756 (2001). The Governor's change in position

embodies political gamesmanship, and the majority's embrace of

it belies their hollow professions of neutrality. The Governor

"'make[s] a mockery out of justice,'" and the court should bar

him from doing so. Blumberg v. USAA Cas. Ins. Co., 790 So. 2d 1061, 1066 (Fla. 2001).

¶255 The majority's feeble defense for declining to apply

judicial estoppel in this case is a procession of non sequiturs.

The majority posits that "[g]iven our past case law on

contiguity, as well as the primacy of our constitution,

preventing parties from litigating this issue would not serve

the goals" of judicial estoppel. Majority op., ¶50. It should

Tony Evers was the Governor during the Johnson litigation 31

and currently holds that office. There has not been a change in officeholder to justify the Governor's flip-flop on the issue.

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be self-evident that neither our past cases on contiguity nor

the primacy of the constitution have anything to do with

preventing the Governor and the Atkinson petitioner-intervenors

from re-litigating the issue of contiguity in order to protect

the court from assaults on its integrity. Petty, 201 Wis. 2d at

354. The majority dismisses the judicial estoppel doctrine

because "[g]iven the parties' stipulation in Johnson, it is

difficult to view any inconsistency in position as 'cold

manipulation' which judicial estoppel seeks to deter." Majority

op., ¶50. There is, however, no relationship between a party's

stipulation to a legal position and the party's later

manipulation of willing justices. In a footnote the majority

states it will "explain" why the stipulation "undermines

Respondents' argument that judicial estoppel should bar the

Petitioners' contiguity claim" "later." Id., ¶45 n.22. The

majority, however, neglects to provide its promised explanation.

Regardless, the majority's myopic focus on the parties'

stipulation misses the point. The Governor not only stipulated that municipal islands are constitutionally contiguous. The

Governor also proposed state legislative maps——containing

municipal islands——in Johnson II and argued that those maps were

constitutionally contiguous. The majority's non sequiturs and

narrow focus on the stipulation create a smoke screen to obscure

the bad faith of the Governor and the Atkinson petitioner-

intervenors. Because the majority yearns to redraw the state

legislative maps, it rebrands the petitioners' manipulations as mere "mistakes." Id., ¶50.

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¶256 The Governor offers one final reason to not apply the

doctrine of judicial estoppel: public policy.32 See May v. May,

2012 WI 35, ¶14, 339 Wis. 2d 626, 813 N.W.2d 179 ("If a trial

court's decision to apply estoppel would violate public policy,

a reviewing court must reverse that decision as an erroneous

exercise of discretion."). Public policy interests squarely

favor estopping the Governor's gamesmanship. Because this

second round of redistricting litigation seeks to shift the

balance of political power, this court should be a bulwark

against such attacks on the integrity of our court system. The

majority's indulgence of the Governor's manipulation of the law

for political advantage only confirms suspicions that

redistricting cases are nothing more than exercises of raw

political power by judicial partisans. Judicial estoppel

developed as a doctrine to protect the judiciary's integrity——an

interest at its apex when this court enters the "'political

thicket' that judges 'ought not to enter.'" See Jensen v. Wis.

Elections Bd., 2002 WI 13, 249 Wis. 2d 706, 639 N.W.2d 537 (quoting Colegrove, 328 U.S. at 556).

¶257 In any ordinary case, the Governor and the Atkinson

petitioner-intervenors would be barred by the doctrine of

judicial estoppel from arguing that municipal islands are

unconstitutional. Both previously argued that municipal islands

are constitutional. The court accepted their argument, holding

The majority similarly says there are "compelling public 32

policy reasons why this court should not exercise its discretion to apply estoppel in this case." Majority op., ¶50. The majority fails to actually articulate any reasons.

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municipal islands are constitutional. The Governor and the

Atkinson petitioner-intervenors made an about-face as soon as it

was advantageous to do so. This is a textbook example of when

judicial estoppel applies. Just like its selective application

of laches, the majority abuses its discretion, applying

equitable doctrines against Republicans, Trump, 394 Wis. 2d 629,

but not Democrats. The doctrine of judicial estoppel is meant

to protect the integrity of courts by prohibiting parties from

manipulating the judicial process. Petty, 201 Wis. 2d at 354

(stating that the "doctrine of judicial estoppel is designed to

combat" "manipulative perversion[s] of the judicial process").

The majority's rejection of the doctrine in this political case

betrays its lack of integrity and its complicity in the

manipulation.33

V. STARE DECISIS

¶258 "To avoid an arbitrary discretion in the courts, it is

indispensable that they should be bound down by strict rules and

precedents, which serve to define and point out their duty in every particular case that comes before them." The Federalist

No. 78, supra, at 529 (Hamilton). Expounding the value of

following prior precedent, the court recognizes this judicial

maxim "ensures that existing law will not be abandoned lightly.

See Clarke v. Wis. Elections Comm'n, 2023 WI 70, 995 33

N.W.2d 779, 801-02 (Hagedorn, J., dissenting) (noting that the court was "happy to oblige" the petitioners' requests, despite their obvious partisan ambitions, going so far as to "dutifully adopt[ ] an accelerated briefing and oral argument schedule" and "change[ ] our internal writing deadline on original actions to ensure this case would be fast-tracked").

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When existing law is open to revision in every case, deciding

cases becomes a mere exercise of judicial will, with arbitrary

and unpredictable results." Schultz v. Natwick, 2002 WI 125,

¶37, 257 Wis. 2d 19, 653 N.W.2d 266 (footnotes and internal

quotation marks omitted). The Johnson litigation concluded last

year. The constitution's meaning has not changed in the

interim——just the court's membership.

¶259 Two members of the majority once extolled the

importance of stare decisis "'because it promotes evenhanded,

predictable, and consistent development of legal

principles . . . and contributes to the actual and perceived

integrity of the judicial process.'" Mayo v. Wis. Injured

Patients & Fams. Comp. Fund, 2018 WI 78, ¶110, 383 Wis. 2d 1,

61, 914 N.W.2d 678, 707 (Ann Walsh Bradley, J., dissenting)

(quoting Johnson Controls, Inc. v. Emps. Ins. of Wausau, 2003 WI

108, ¶95, 264 Wis. 2d 60, 665 N.W.2d 257 (2003)). "Stare

decisis, the principle that courts must stand by things decided,

is fundamental to the rule of law." State v. Prado, 2021 WI 64, ¶67, 397 Wis. 2d 719, 960 N.W.2d 869 (Per Ann Walsh

Bradley, J.). "We have repeatedly recognized the importance of

stare decisis." State v. Johnson, 2023 WI 39, ¶19, 407

Wis. 2d 195, 90 N.W.2d 174 (Per Dallet, J.). Justice Ann Walsh

Bradley has specifically lamented, "[a] change in membership of

the court does not justify a departure from precedent." St.

Croix Cnty. Dep't of Health & Hum. Servs. v. Michael D., 2016 WI

35, ¶93, 368 Wis. 2d 170, 880 N.W.2d 107 (Abrahamson & Ann Walsh Bradley, JJ., dissenting). Despite their lip service to the

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doctrine in previous cases, the justices now "throw[ ] the

doctrine of stare decisis out the window" and retread paths this

court only just traveled. Koschkee v. Taylor, 2019 WI 76, ¶62,

387 Wis. 2d 552, 929 N.W.2d 600 (Ann Walsh Bradley, J.,

dissenting).

¶260 While this court is not inexorably bound by stare

decisis, respecting this well-established legal maxim "reduces

incentives for challenging settled precedents, saving parties

and courts the expense of endless relitigation." Kimbel v.

Marvel Ent., LLC, 576 U.S. 446, 455 (2015). The doctrine's

preservation of stability and finality are especially important

in the context of redistricting.

¶261 Reopening the redistricting door and rehearing the

same arguments we addressed and resolved in the Johnson cases——

just two terms ago——feeds the perception that the majority will

discard settled cases when politically advantageous for

implementing the four justices' policy preferences. Voters and

their representatives should now expect their districts to change after each state supreme court election cycle. The

majority sows confusion and disorder that will inexorably lead

to instability in the balance of power and conflict between the

political branches.

VI. CONCLUSION

¶262 "[T]here is no liberty, if the judiciary power be not

separated from the legislative and the executive," the French

philosopher Montesquieu warned. "Were it joined with the legislative, the life and liberty of the subject would

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be exposed to arbitrary control; for the judge would be

then the legislator." Baron De Montesquieu, The Spirit of

Laws 152 (Thomas Nugent trans., Hafner Publishing Company 1949)

(1748). The majority appoints itself as a redistricting

commission to impose legislative maps it deems politically

"fair." The court arrogates unto itself the power to make

purely political decisions——untethered to any law, and with no

lawful authority. Democrats may cheer the majority's mission to

bestow political power on their party, but the majority's

abandonment of neutrality delegitimizes the institution. See

Baker v. Carr, 369 U.S. 186, 267 (1962) (Frankfurter, J.,

dissenting) ("The Court's authority . . . ultimately rests on

sustained public confidence in its moral sanction. Such feeling

must be nourished by the Court's complete detachment . . . from

political entanglements and by abstention from injecting itself

into the clash of political forces in political settlements.").

The majority crowns itself supreme over the governor and the

legislature, but the people never gave the judiciary such authority. An election never overrides the constitution.

¶263 "Do Justice!" counsel for the Democratic Senators

proclaimed as she concluded her oral argument before the court.

"[A] [c]ourt-managed version of the French Revolution,"34

however, is not the kind of justice this court is supposed to

dispense. Hohri v. United States, 793 F.2d 304, 313 (D.C. Cir.

1986) (Bork, J., dissenting from denial of reh. en banc), rev'd,

See Robert H. Bork, The Tempting 34 of America: The Political Seduction of the Law 207 (1990).

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482 U.S. 64 (1987)) ("[W]e administer justice according to law.

Justice in a larger sense, justice according to morality, is for

[the legislature] and the [governor] to administer . . . .").

The majority's diktat transforms the judiciary from the "least

dangerous"35 branch into one of the greatest threats to liberty

the people of Wisconsin have ever faced.

35 The Federalist No. 78, at 522 (Alexander Hamilton) (J. Cooke ed., 1961)

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Appendix A

Clarke v. Wisconsin Elections Commission, No. 2023AP1399-OA, 2023 WI 70, 995 N.W.2d 779 (Rebecca Grassl Bradley, J., dissenting).

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¶264 BRIAN HAGEDORN, J. (dissenting). This is a sad turn

for the Wisconsin Supreme Court. Today, the court dives

headlong into politics, choosing to wield the power it has while

it has it. Wisconsinites searching for an institution

unpolluted by partisan warfare will not find it here.

¶265 No matter how today's decision is sold, it can be

boiled down to this: the court finds the tenuous legal hook it

was looking for to achieve its ultimate goal——the redistribution

of political power in Wisconsin. Call it "promoting democracy"

or "ending gerrymandering" if you'd like; but this is good, old-

fashioned power politics. The court puts its thumb on the scale

for one political party over another because four members of the

court believe the policy choices made in the last redistricting

law were harmful and must be undone. This decision is not the

product of neutral, principled judging.

¶266 The matter of legislative redistricting was thoroughly

litigated and resolved after the 2020 census. We adopted a

judicial remedy (new maps) and ordered that future elections be conducted using these maps until the legislature and governor

enact new ones. Johnson v. Wis. Elections Comm'n, 2022 WI 19,

¶3, 401 Wis. 2d 198, 972 N.W.2d 559 (Johnson III). That remedy

remains in place, and under Wisconsin law, is final. Now

various parties, new and old, want a mulligan. But litigation

doesn't work that way. Were this case about almost any other

legal matter, the answer would be cut-and-dried. We would

unanimously dismiss the case and reject this impermissible collateral attack on a prior, final decision.

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¶267 So why are the ordinary methods of deciding cases now

thrown by the wayside? Because a majority of the court imagines

it has some moral authority, dignified by a black robe, to

create "fair maps" through judicial decree. To be sure, one can

in good faith disagree with Johnson's holding that adhering as

closely as possible to the last maps enacted into law——an

approach called "least change"——is the most appropriate use of

our remedial powers. And the claim here that the constitution's

original meaning requires the territory in all legislative

districts to be physically contiguous is probably correct,

notwithstanding decades of nearly unquestioned practice

otherwise. But that does not give litigants a license to ignore

procedure and initiate a new case to try arguments they had

every opportunity to raise in the last action, but did not.

Procedural rules exist for a reason, and we should follow them.

As we have previously explained, "Litigation rules and processes

matter to the rule of law just as much as rendering ultimate

decisions based on the law. Ignoring the former to reach the latter portends of favoritism to certain litigants and

outcomes." Doe 1 v. Madison Metro. Sch. Dist., 2022 WI 65, ¶39,

403 Wis. 2d 369, 976 N.W.2d 584. Indeed it does.

¶268 The majority heralds a new approach to judicial

decision-making. It abandons prior-stated principles regarding

finality in litigation, standing, stare decisis, and other

normal restraints on judicial will——all in favor of expediency.

But principles adopted when convenient, and ignored when inconvenient, are not principles at all. It is precisely when

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one's principles are tested and costly——yet are kept

nonetheless——that they prove themselves truly held. The

unvarnished truth is that four of my colleagues deeply dislike

maps that give Republicans what they view as an inappropriate

partisan advantage. Alas, when certain desired results are in

reach, fidelity to prior ideals now seems . . . a bit less

important than before. No matter how pressing the problem may

seem, that is no excuse for abandoning the rules of judicial

process that make this institution a court of law.

¶269 The majority's outcome-focused decision-making in this

case will delight many. A whole cottage industry of lawyers,

academics, and public policy groups searching for some way to

police partisan gerrymandering will celebrate. My colleagues

will be saluted by the media, honored by the professoriate, and

cheered by political activists. But after the merriment

subsides, the sober reality will set in. Without legislative

resolution, Wisconsin Supreme Court races will be a perpetual

contest between political forces in search of political power, who now know that four members of this court have assumed the

authority to bestow it. A court that has long been accused of

partisanship will now be enmeshed in it, with no end in sight.

Rather than keep our role in redistricting narrow and

circumspect, the majority seizes vast new powers for itself. We

can only hope that this once great court will see better days in

the future. I respectfully dissent.

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I. REDISTRICTING BACKGROUND——HOW WE GOT HERE

¶270 I begin by answering the question that many are

probably asking: why is the Wisconsin Supreme Court involved in

drawing maps in the first place? The short story is as follows.

¶271 The Wisconsin Constitution requires the legislature to

draw new state legislative maps after the federal census every

ten years. Wis. Const. art. IV, § 3. This means the

legislature must enact new maps into law, which requires the

governor's signature or an override of the governor's veto.

Wis. Const. art. V, § 10. In 2011, after the 2010 census, the

legislature did enact new maps into law. See 2011 Wis. Act 43

(state legislative maps); 2011 Wis. Act 44 (congressional maps).

Following the 2020 census, however, the governor and legislature

could not agree on district lines and, thus, no maps were

enacted. Johnson v. Wis. Elections Comm'n, 2021 WI 87, ¶2, 399

Wis. 2d 623, 967 N.W.2d 469 (Johnson I). The 2011 maps remained

the law.

¶272 In 2021, this court entered the fray at the request of a group of voters. Johnson, No. 2021AP1450-OA, Order (Wis.

Sept. 22, 2021). Given the constitutional right of citizens to

proportionate representation following updated census numbers,1

we were asked to fill the void and adopt temporary maps (what I

will call "remedial maps") reflecting population changes. We

invited almost anyone to participate in the litigation as a

party, including interest groups, voters, elected officials, the

1See Reynolds v. Sims, 377 U.S. 533, 577 (1964); State ex rel. Att'y Gen. v. Cunningham, 81 Wis. 440, 484, 51 N.W. 724 (1892).

4 No. 2023AP1399.bh

Governor, and the Legislature. Id. Each party briefed us on

all relevant legal requirements, including contiguity. In the

end, we adopted remedial maps for use until either new maps are

enacted into law or a new census triggers the constitutional

duty to reapportion again. Johnson III, 401 Wis. 2d 198, ¶3.

To this day, the governor and legislature have not complied with

their constitutional obligation to enact new maps into law, so

the remedial maps remain in place.

¶273 It is important to understand that when a court draws

legislative maps, it is not making new law. When this court

adopted new maps two years ago, it only imposed a temporary

legal remedy. It is the legislature's responsibility to

"district anew" through the legislative process. Wis. Const.

art. IV, § 3. The constitution does not contemplate courts

drawing maps in the ordinary course. Redistricting is, after

all, "an inherently political and legislative——not judicial——

task." Jensen v. Wis. Elections Bd., 2002 WI 13, ¶10, 249

Wis. 2d 706, 639 N.W.2d 537. We step in if and only if the political process fails.

¶274 In Johnson I, we concluded that remedial maps should

be based on the last maps enacted into law, and that they should

only modify what is necessary to remedy any constitutional

violations. 399 Wis. 2d 623, ¶¶76-78. This respects the

constitutional role of the political branches and keeps the

judiciary out of policymaking to the maximum amount possible.

Id. Thus, our aim was to alter existing law only as necessary to vindicate the constitutional rights at stake, and no more.

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Additionally, we concluded that partisan outcomes would not and

should not guide our decision, and that partisan gerrymandering

is neither a cognizable nor justiciable legal claim under the

Wisconsin Constitution. Id., ¶¶39-63. We further agreed with

all the parties and held that when annexation creates municipal

islands, "the district containing detached portions of the

municipality is legally contiguous even if the area around the

island is part of a different district." Id., ¶36.

¶275 Now, a year and a half after the dust settled, the

petitioners come to us requesting a do-over. They raise several

claims regarding the remedial maps we adopted in Johnson. But

in timing and substance, the petitioners have proven their goal

is to obtain new maps that give more political power in the

state legislature to Democratic Party candidates.2 The majority

has the same goal, but sidestepped taking this issue directly

when it chose not to hear the petitioners' partisan

gerrymandering claim. Clarke v. Wis. Elections Comm'n, No.

2023AP1399-OA, Order (Wis. Oct. 6, 2023). Rather, the court has chosen to shift the political balance of power indirectly by

tossing out the maps adopted barely two years ago and drawing

new ones more to its liking.

¶276 The court today rests its conclusion on the grounds

that maps must be physically contiguous. Majority op., ¶¶3, 24.

The petition alleges that the remedial maps we adopted in 2

Johnson harmed the petitioners because they cannot "achieve a Democratic majority in the state legislature." Clarke v. Wis. Elections Comm’n, 2023AP1399-OA, Petition at 8, ¶5 (Aug. 2, 2023).

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The court also holds that it will not confine its remedy to

curing the purported unlawfulness, but will fashion new maps

from scratch. Id., ¶56. It sees itself as being empowered to

"district anew," even though the constitution gives that

responsibility to the legislature. Wis. Const. art. IV, § 3.

Further, the court holds that political outcomes should, and

will, guide its decision.3 Id., ¶¶69-71. Each of these

overrules and departs from our decision in Johnson.

¶277 All in all, the court's opinion ignores inconvenient

facts and issues, mischaracterizes the relevant arguments, and

finds dubious grounds on which to achieve its politically

motivated goals.4 And to boot, the remedial process we now

embark on is hazy at best, and perfectly tailored for political

manipulation. An odd recipe for "fair" maps.

3 The majority also says that the petitioners' partisan gerrymandering claim is an "unresolved legal question." Majority op., ¶7. It is not. Johnson did address it, because we needed to address all relevant legal requirements necessary to draw lawful maps. 2021 WI 87, ¶¶53-63, 399 Wis. 2d 623, 967 N.W.2d 469. The majority here, like it does elsewhere, simply ignores statements and holdings that do not support its goals—— now or in the future. 4 Take, for example, the majority's conclusion that it is "immediately apparent, using practically any dictionary, that contiguous means 'touching' or 'in actual contact.'" Majority op., ¶16. Seems simple enough. But a cursory look under the hood reveals quite a different picture. As Justice Rebecca Grassl Bradley explains, the respondents pointed us to heaps of dictionaries defining contiguity as "very near" or "close" or "adjoining." Justice Rebecca Grassl Bradley's dissent, ¶199. Maybe those definitions do not comport with the original meaning of the contiguity requirement. But rather than face the issue head-on, the majority ducks for cover.

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II. THE MAJORITY'S PROCEDURAL ERRORS

¶278 The majority opinion offers only a perfunctory

analysis of the significant procedural objections that should

dispose of this case.

¶279 Among them, the majority falls woefully short in

supporting its conclusion that the parties met the requirements

for standing. "Standing is the foundational principle that

those who seek to invoke the court's power to remedy a wrong

must face a harm which can be remedied by the exercise of

judicial power." Teigen v. Wis. Elections Comm'n, 2022 WI 64,

¶160, 403 Wis. 2d 607, 976 N.W.2d 519 (Hagedorn, J.,

concurring). Courts do not have the power to "weigh in on

issues whenever the respective members of the bench find it

desirable." Foley-Ciccantelli v. Bishop's Grove Condo. Ass'n,

Inc., 2011 WI 36, ¶131, 333 Wis. 2d 402, 797 N.W.2d 789

(Prosser, J., concurring). As three members of today's majority

have previously opined, "standing is important . . . because it

reins in unbridled attempts to go beyond the circumscribed boundaries that define the proper role of courts." Fabick v.

Evers, 2021 WI 28, ¶92, 396 Wis. 2d 231, 956 N.W.2d 856 (Ann

Walsh Bradley, J., dissenting); see also Teigen, 403

Wis. 2d 607, ¶160 (Hagedorn, J., concurring) (standing "serves

as a vital check on unbounded judicial power").

¶280 So what is the harm being claimed here? The

petitioner-voters say they suffer the harm of a "less responsive

and representative" legislature because of the contiguity deficiency. That is, they are claiming that legislators

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representing districts with municipal islands (the detached

parts of a municipality) surrounded by another district are less

able to respond to the constituents residing in those islands.

Given that almost all of the challenged municipal islands have a

population smaller than the roster of the Milwaukee Brewers, and

that the citizens living in them are kept in the same district

as the rest of their municipality, this alleged harm might

charitably be called a head-scratcher. The majority surely

recognizes this, so it goes another route. It quotes State ex

rel. Reynolds v. Zimmerman for the proposition that the Governor

"may challenge the constitutionality of a state reapportionment

plan as a violation of state constitutional rights of the

citizens."5 Majority op., ¶39. Then, it argues that because the

Governor has standing, there's no need to consider the standing

problems of the other parties seeking relief. Id.

¶281 But relying on the Governor here does not work. Under

claim preclusion, and other equitable bars,6 the Governor cannot

5 22 Wis. 2d 544, 552, 126 N.W.2d 551 (1964).

My colleagues lay out a convincing case for judicial 6

estoppel as well. Chief Justice Ziegler's dissent, ¶¶143-46; Justice Rebecca Grassl Bradley's dissent, ¶¶247-57. Judicial estoppel generally precludes parties from convincing a court to adopt a position in one case, only to take an inconsistent position in a later case. See State v. Harrison, 2020 WI 35, ¶27, 391 Wis. 2d 161, 942 N.W.2d 310. The majority says the Governor's changed position on contiguity arises from inadvertence or mistake, but as Justice Rebecca Grassl Bradley's dissent explains, his "about-face" is a "textbook example of when judicial estoppel applies." Justice Rebecca Grassl Bradley's dissent, ¶257.

In addition, the Governor and the petitioners deliberately delayed bringing this case until August 2, 2023, the day after a new justice joined the court. Justice Rebecca Grassl Bradley 9 No. 2023AP1399.bh

litigate contiguity again and should be dismissed from the case.7

And it's not a close call.

¶282 The Governor's legal positions throughout this

redistricting litigation saga are astonishing; any other

litigant in any other lawsuit would be promptly dismissed from

the case. In Johnson, the Governor initially argued that the

constitution's contiguity requirement mandated physical

contiguity, just like the petitioners argue in this case.8 Then,

the Governor changed course and agreed with all the other

parties that keeping municipalities together did not violate the

contiguity requirement.9 We agreed and so held, and invited map

proposals consistent with our decision. Johnson I, 399

Wis. 2d 623, ¶36; id., ¶87 (Hagedorn, J., concurring). The

Governor then submitted proposed remedial maps with municipal

islands——the very thing the Governor now argues violates the

lays out a strong case that laches, which bars litigants from sitting on their hands to the detriment of others, also prohibits the relief being sought. Justice Rebecca Grassl Bradley's dissent, ¶¶231-46. 7Claim preclusion also bars the Governor's separation-of- powers claim because he could have argued in Johnson that adopting the Legislature's proposed maps would be unlawful on this basis. 8In his initial brief in Johnson, he argued that contiguous "means not 'made up of two or more pieces of detached territory.'" Brief of Intervenor-Respondent Governor Tony Evers at 6, No. 2021AP1450-OA (Oct. 25, 2021) (quoting another source). 9All parties eventually stipulated that municipal islands "are legally contiguous with the municipality to which the 'island' belongs" and therefore do not affront Article IV's contiguity requirement. Johnson, No. 2021AP1450-OA, Joint Stipulations of Law 15, ¶20 (Nov. 4, 2021).

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constitution!10 And in briefing regarding the other map

proposals, which also contained municipal islands, the Governor

never questioned their legality——even though he was invited to

address any and all legal deficiencies in those proposals.

Johnson, No. 2021AP1450-OA, Order (Wis. Nov. 17, 2021).

¶283 Yet the Governor now tells us that our judicial remedy

violates the constitution's contiguity requirement. Lady

Justice may be blind, but she need not let a party pull the wool

over her eyes. The doctrine of claim preclusion exists to

prevent this kind of gamesmanship. Parties cannot relitigate

"any claim that arises out of the same relevant facts,

transactions or occurrences" underlying a final judgment on the

merits. Teske v. Wilson Mut. Ins. Co., 2019 WI 62, ¶23, 387

Wis. 2d 213, 928 N.W.2d 555 (quoting another source). This

applies to claims that were litigated, and to claims that could

have been litigated. Id. Claim preclusion is not concerned

simply with the initial cause of action, but rather, the

"transaction or factual situation." Id., ¶31. A "transaction" involves "a natural grouping or common nucleus of operative

facts." Id., ¶32. When we ask "if the claims of an action

arise from a single transaction, we may consider whether the

facts are related in time, space, origin, or motivation." Id.

(quoting another source).

¶284 The Governor's flip-flopping is classic claim

preclusion. The Governor came before this court to litigate how

https://www.google.com/maps/d/viewer?mid=1fPl8On9q8ZyTa6A 10

1V3CJDzry3YR_pGNt&ll=43.04928877881408%2C- 89.34731737718982&z=12.

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to remedy malapportionment; argued that contiguity permits

municipal islands; submitted maps (that this court initially

adopted) containing dozens of municipal islands; and now, in a

subsequent action, complains that this court's remedy violated

the constitution because its map contained municipal islands.

This argument was litigated in Johnson. And even if it wasn't,

it obviously could have been litigated. If the legislature's

proposed maps that we ultimately adopted violated the contiguity

requirements, the Governor could have said so. He did not; no

one did. The Governor is barred by claim preclusion from

litigating the issues before us again.

¶285 Courts do not usually welcome Harvey Dent impressions

from litigants before them. The majority, however, is just fine

with it. It argues that claim preclusion does not apply because

the causes of action were different. Majority op., ¶¶47-48.

We're told that Johnson was about the 2011 maps, but this case

is about the maps we adopted in our Johnson decision. Different

maps, different facts, they say. But this makes no sense. Imagine how this would play out in a contract dispute. If

parties stipulate to a breach of contract but litigate the

contractual remedies, claim preclusion would apply to the

remedial claims that were and could have been litigated. A

party could not come back later, file a new case, and seek a

modified remedy because it made ill-advised arguments about the

contractual remedies the first time. So too here.

¶286 The Johnson litigation arose because the 2011 maps were no longer lawful. The case was entirely about the legal

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and equitable principles that must govern remedial maps, and

which remedial maps should be adopted. The petition here is

nothing more than a continuation of Johnson. It simply seeks a

different remedy to address the ongoing unlawfulness of the last

maps enacted into law——those passed in 2011. Contrary to the

majority's conclusion, the facts here are part of the same

common nucleus of facts: the nature and substance of the

judicial remedy that must be in place due to the continued

unlawfulness of the 2011 maps.

¶287 If the majority is correct that the only transaction

in Johnson was the malapportionment problem with the 2011 maps,

then almost everything litigated in that case was part of a

different transaction that apparently could not have been

litigated in any preclusive way. The Voting Rights Act?

Different transaction, despite a decision from the U.S. Supreme

Court and two decisions from this court on the matter.

Political impact as a relevant consideration in remedial maps?

Different set of facts apparently, despite published decisions from this court addressing the issue. If the majority is right

that we look only to the narrow legal argument made rather than

the factual situation, then everything that this court says and

decides in this case, other than the contiguity issue itself,

will lack preclusive effect. That's absurd, of course. The

majority's attempt to get past claim preclusion by defining the

set of facts so narrowly disrupts the law and does not withstand

scrutiny.

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¶288 Given this, I do not see how the court can bypass the

voter standing problems by relying on the Governor's purported

authority to challenge a districting plan. Even if the Governor

has standing to litigate on behalf of Wisconsinites to ensure a

districting plan complies with the constitution, this does not

end the matter. The question the majority must answer——but does

not——is whether the Governor has the right to litigate on behalf

of Wisconsin voters over and over again, taking different

positions each time, until he gets the result he wants. The

ordinary application of claim preclusion prohibits the Governor

from relitigating the issues he either raised or could have

raised during the last litigation. The majority's standing

decision——resting on a party that should be dismissed——once

again looks like an outcome in search of a theory.

¶289 Next, the majority ignores the impropriety of the

court issuing an injunction on our own injunction. The majority

enjoins the Wisconsin Elections Commission from using the

legislative maps that we, just 20 months ago, mandated they use. Majority op., ¶¶3, 77. I've never seen anything quite like it.

The general rule is that judgments——and injunctions along with

them——are final and, absent fraud, cannot be collaterally

attacked. Oneida Cnty. Dep't of Soc. Servs. v. Nicole W., 2007

WI 30, ¶28, 299 Wis. 2d 637, 728 N.W.2d 652. This case is

exactly that——an impermissible collateral attack on a prior,

final case.

¶290 The majority's response is that courts regularly modify prior injunctions in redistricting cases without

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reopening old cases. Majority op., ¶54. This is true, but only

because there is an intervening event every ten years: the U.S.

Census. And following completion of the census, the

constitution requires that population shifts be accounted for

afresh. Wis. Const. art. IV, § 3. So when courts issue a new

injunction in new redistricting cases, they do so because the

law provides that every districting plan, whether adopted by a

court or the legislature, must be updated following the census.

Id. That is not the case here.

¶291 The majority also zooms by the question of whether we

can even issue a declaratory judgment in the first place. I

have serious doubts. The purpose of the Uniform Declaratory

Judgments Act is to resolve uncertainty. Wis. Stat.

§ 806.04(12). The Act evinces a strong preference for that

goal. See Wis. Stat. §§ 806.04(5) (the enumerated subject

matter upon which courts can declare rights can only be expanded

where the judgment would "remove an uncertainty"); 806.04(6)

(courts may refuse to render declaratory judgments where the judgment "would not terminate the uncertainty"). These textual

clues have been "universally accepted by courts and

commentators" as prohibiting courts from issuing declaratory

judgments that revisit prior adjudications——a move that

perpetuates uncertainty, rather than resolves it (as this case

exemplifies). Oregonian Publ'g Co., LLC v. Waller, 293

P.3d 1046, 1052 (Or. Ct. App. 2012); see also Royal v. Royal,

271 S.E.2d 144, 145 (Ga. 1980) ("The Act does not authorize a petitioner to brush aside previous judgments of the same court,

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and seek a determination of his rights as if they had never been

adjudicated.") (cleaned up); E.H. Schopler, Validity and effect

of former judgment or decree as proper subject for consideration

in declaratory action, 154 A.L.R. 740 (Originally published in

1945) ("As a general observation from the cases, it may be

stated that an action for a declaratory judgment cannot be used

as a subterfuge for the purpose of relitigating a question as to

which a former judgment is conclusive."). True to form, the

majority never wrestles with this.

III. THE MAJORITY'S REMEDIAL ERRORS

¶292 The majority pushes past all these procedural

roadblocks and still declares the maps this court adopted

unconstitutional. With remarkably little content, it then gives

the parties vague directions on what it wants for the new maps

it intends to adopt.

¶293 The court first overturns Johnson's least change

approach to redistricting. Majority op., ¶63. The majority then discards the policy choices the legislature made in passing

the 2011 districting law still on the books, and determines it

can and should draft a new law from scratch, consistent with its

own policy concerns. The majority never grapples with the

limited remedial powers of courts, which is the main idea

animating the least change approach. That's because here, the

majority sees itself as a substitute legislature rather than a

court. The majority does not try to fix the contiguity

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problems; it uses its contiguity holding as an excuse to create

new maps reflecting its own policy and partisan concerns.

¶294 In particular, the majority says "partisan impact"

will guide its decision in selecting new remedial maps. But

what does this mean? Should the maps maximize the number of

competitive districts? Should the maps seek to achieve

something close to proportionate representation?11 Should the

maps pick some reasonable number of acceptable Republican and

Democratic-leaning seats in each legislative chamber? I have no

idea, and neither do the parties. The court nonetheless invites

the submission of maps motivated by partisan goals, just as the

petitioners hoped. And with a certain amount of gusto, the

majority insists it is being neutral by openly seeking maps

aimed at tilting the partisan balance in the legislature. The

court announces it does not have "free license to enact[12] maps

that privilege one political party over another," all the while

obliging the wishes of litigants who openly seek to privilege

one political party over another. Majority op., ¶70. The irony could not be any thicker.

¶295 The court does not provide any meaningful guidance to

the parties on how to satisfy its "political impact" criteria.13

11 For an excellent discussion of the problems with this approach, see Justice Rebecca Grassl Bradley's dissent, ¶¶223- 25. 12 Courts do not enact anything, however. The legislature, in our constitutional order, enacts laws. 13 This even though the petitioners urged us during oral argument to give "clear instructions" regarding the criteria we would use to evaluate proposals.

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No standards, no metrics, nothing. Instead, it appears the

majority wishes to hide behind two "consultants" who will make

recommendations on which maps are preferable. Those consultants

will presumably use some standards to make this kind of

judgment,14 but the majority will not permit them to be subject

to discovery or witness examination.15 Like the great and

powerful Oz, our consultants will dispense wisdom without

allowing the parties to see and question what is really behind

the curtain. And at the end of this, the consultants will offer

options from which the court can choose. This attempt at

insulating the court from being transparent about its decisional

process is hiding in plain sight.

¶296 The court also fails to interact with the

constitutional requirement that districts "be bounded by county,

precinct, town or ward lines." Wis. Const. art. IV, § 4.

Currently, districts that are not physically contiguous are that

way because the legislature (and courts) have attempted to

comply with the requirement that counties, towns, and wards not

One of the experts has already opined on how he thinks 14

partisan fairness should be measured. Brief of Professors Gary King, Bernard Grofman, et al. as Amici Curiae Supporting Neither Party, League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006), 2006 WL 53994.

To the extent the consultants either pick which party's 15

map is best or compose their own, they may be acting as court- appointed experts. Our rules of evidence expressly give parties the opportunity to depose and cross-examine court-appointed experts. Wis. Stat. § 907.06(1); see Martin v. Mabus, 700 F. Supp. 327, 331 (S.D. Miss. 1988) (permitting parties to depose court-appointed expert who assisted court in drawing new electoral maps).

18 No. 2023AP1399.bh

be split——thus, keeping municipal islands in the same

legislative district as the rest of the municipality. The court

now determines that strict compliance with contiguity is

required, but it ignores how that may be in tension with the

equally required constitutional command to keep county, town,

and ward lines sacrosanct. See State ex rel. Att'y Gen. v.

Cunningham, 81 Wis. 2d 440, 521, 51 N.W. 724 (1892). While

absolute compliance with the "bounded by" clause is impossible

given the one-person, one-vote decisions of the United States

Supreme Court, a return to a more exacting constitutional

standard would likely prohibit running districts across county

lines, or breaking up towns or wards (of which municipalities

are composed) unless necessary to comply with Supreme Court

precedent. This could conflict with strict physical contiguity.

¶297 In the past, the legislature and the courts permitted

some play in the joints, allowing deviation from strict physical

contiguity to keep towns and municipalities together. But in

demanding perfect adherence to physical contiguity, the court once again pits the two requirements against each other. Will

we receive maps that accomplish physical contiguity, but do not

comply with the requirement that county lines not be crossed,

towns not be broken up, and ward lines (from which

municipalities are constructed) not be split? If so, will the

court bless one constitutional infirmity to remedy the other?

In requiring strict physical contiguity, the majority may end up

picking and choosing which constitutional provisions to honor based on which ones will serve its goals.

19 No. 2023AP1399.bh

IV. WHERE DO WE GO FROM HERE?

¶298 Although this litigation is not yet over, it is clear

to me that the Wisconsin Supreme Court is not well equipped to

undertake redistricting cases without a set of rules governing

the process. In Jensen, this court recognized the need for

special procedures governing future redistricting cases. 249

Wis. 2d 706, ¶20. We received a rule petition seeking to do

exactly that prior to Johnson, but this court could not come to

an agreement about what such a process would look like or

whether we should have one. I believed then, and am now fully

convinced, that some formalized process is desperately needed

before we are asked to do this again.

¶299 The problem with this and the Johnson case is that the

parties were and are largely concerned with serving their own

interests. In Johnson, for example, we asked the parties to

propose constitutionally compliant maps that made the fewest

changes from existing law. Johnson I, 399 Wis. 2d 623, ¶87

(Hagedorn, J., concurring). From my vantage point, none of the parties followed our directive well. Each submitted maps that

sought their own parochial and partisan interests, making many

unnecessary changes, while trying to stay somewhat close to the

prior maps. In this case, I have no doubt we will see the same

kind of partisan maneuvering, which the court here explicitly

invites. This is a mistake.

¶300 Having parties submit maps also leaves little space

for factual determinations in adjudicating Voting Rights Act issues. While federal panels handling redistricting cases can

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take and receive evidence, manage discovery, and are otherwise

institutionally equipped to make factual findings, we have no

easy mechanism for resolving complicated factual questions. And

our process last time simply did not account for the fact-

intensive VRA adjudication the Supreme Court said was necessary.

See Wis. Legislature v. Wis. Elections Comm'n, 595 U.S. 398,

403-04 (2022) (per curiam). The majority in this case barely

mentions the VRA, but that doesn't mean it won't be a problem

down the line. Whether the parties submit maps that are race-

neutral, or determine the VRA requires race-conscious line

drawing, could pose a significant problem. The court gives no

instruction on how to handle this, and we have no mechanism in

place for resolving these disputes.

¶301 Perhaps a better approach in the future is for the

court to draw a politically agnostic and race-neutral base map

using the most recent maps enacted into law, and then allow the

parties to seek refinements. No matter the approach, without

any kind of structure to govern a case that is plainly our responsibility, this court is left to the whims of partisan

agendas. This has not——and will not——serve us well. An orderly

and predictable process may also incentivize the regular

enactment of new maps into law the way the constitution

envisions, rather than litigating over every inch of political

power.

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V. CONCLUSION

¶302 In a politically charged world, the judiciary should

be a bulwark against the tribalism so prevalent among us. We

should neutrally and consistently apply our rules of judicial

process, no matter where that leads us. We should have no

favored litigants or preferred outcomes. At the end of the day,

the majority acts not to vindicate some legal principle, but to

achieve a long sought-after goal: the redistribution of

political power in the Wisconsin legislature. Rather than start

with the law and see it through to the end, the court starts

with the goal and works backwards to justify it. This is not

faithful judging, and I will have no part of it. I dissent.

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