Wisconsin justices hear arguments on congressional district gerrymandering
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Members of the Wisconsin Supreme Court seemed open to redrawing the state's U.S. House districts during oral arguments for two lawsuits claiming the current congressional map is gerrymandered.
The court's liberal majority is considering whether to allow the cases seeking a new map before the 2028 election to proceed after panels of circuit court judges dismissed them this summer.
Both cases allege gerrymandering, but by different means. The suit from national Democratic firm Elias Law Group argues Republicans drew the map as a partisan gerrymander to keep their party in the majority. The suit from the liberal firm Law Forward argues the House map is an anti-competitive gerrymander, aimed at protecting incumbents.
Attorneys representing Republican members of Congress and the GOP-controlled Wisconsin Legislature disputed those claims and argued plaintiffs are asking the court to go rogue by cutting lawmakers out of the redistricting process.
Debate on the merits of the suits lasted nearly eight hours Wednesday. Both cases argue the current 6-2 GOP majority in Wisconsin's congressional delegation was designed by Republican legislators who drew the map in 2011. Then, the suits argue, that gerrymander was cemented by the Supreme Court's former conservative majority in 2022 when it ordered a new House map with the least changes possible.
The lawyers for Law Forward and Elias honed in on the "least change" directive, noting that the Supreme Court's current liberal majority rejected it in a 2023 decision striking down Republican drawn state Assembly and Senate districts. The court should do the same, they argued, with the congressional districts.
"There's only one least change map left standing in Wisconsin," said Elias attorney Abha Khanna. "That map is essentially resting on legal quicksand."
Arguing on behalf of Law Forward, attorney Nicholas Stephanopoulos of the Election Law Clinic at Harvard Law School said the 2022 least change directive from the court was the most restrictive "ever used by any court anywhere."
Chief Justice Jill Karofsky, who is among the court's liberal majority, wasn't a fan of the least change requirement either.
"Least change says we are going to bake in whatever the political motivations were of that 2011 Legislature, and we're going to bake it in for perpetuity," Karfosky said. "And we continue to follow least change in 2021 and in 2031 and 2041 and 2051."
Conservative Justice Brian Hagedorn, who was part of the court's majority that endorsed the least change directive, took issue with a claim that it gave "blind deference" to partisan gerrymandering. He said plaintiffs would have to prove justices intended to help Republicans, when the court explicitly said it didn't.
"We said we don't mean to do anything for partisan advantage," said Hagedorn. "In fact, we mean to exclude that entirely from our consideration."