Wisconsin is the most gerrymandered state in the country. The race for Wisconsin Supreme Court could change that.
Extreme partisan gerrymandering has warped politics in Wisconsin. Flipping the balance of power on the Wisconsin Supreme Court could bring real checks and balances to our broken state legislature.
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In the first year of Tony Evers’ first term as governor, he called a special session of the Wisconsin State Legislature. It was fall, and the state budget had been signed months prior, but many of the Democratic governor’s priorities had remained unaddressed or were otherwise removed from the budget by Republicans in the Senate and Assembly.
Among those were bills on gun violence prevention. Both of the proposed bills — expanding background checks and introducing a “red flag” law — polled with the type of majority support that’s relatively unheard of in a purple, polarized state like Wisconsin. The August 2019 edition of the Marquette University Law School Poll showed that both such proposals were supported by 80% of Wisconsin voters. Even among Republicans, each measure had at least 70% support. Gun owners, too, supported the proposals in overwhelming margins.
You would think bills with that kind of support would sail through the legislature to be signed by the governor in a show of bipartisanship and cooperation and coming together to get things done. But that’s not what happened.
Instead, the Republicans running the state legislature took a radical approach to the special session: They refused to engage with it entirely.
Leadership gaveled in to the session and then gaveled out seconds later, ending it with no debate. This happened several more times during Evers’ first term, including on other issues with majority support like expanding Medicaid and repealing the state’s outdated and unclear abortion ban from the year 1849.
How could the state legislature afford to act this way and cater to the extreme fringe of the party on issue after issue, without facing public blowback? How could a purple state like Wisconsin end up with some of the most conservative policies in the nation?
The answer lies in the maps.
In the 2022 midterms, Gov. Tony Evers won re-election by 3.4%. In most states, that’s a pretty close race. In Wisconsin, however, that just about qualifies as a landslide.
Right now, Wisconsin is as much of a 50-50 state as there is anywhere in the nation. Republican Senator Ron Johnson’s re-election victory in that same midterm was the closest Senate race in the state in more than a century. Four of our last six presidential elections were decided by less than 1% (the other two being Barack Obama’s victories). A crucial 2019 race for Wisconsin Supreme Court was decided by a margin of just 0.5%. In the 21st Century, we have tended to have extraordinarily close elections here.
But while our statewide races tend to reflect the even split of the Wisconsin electorate, the same can’t be said down-ballot. A statewide race is a simple reflection of the popular vote, whereas the lines in the legislature can be drawn to give one party a huge advantage. That can insulate the majority party, in this case Republicans, from accountability from voters. That is what has happened in Wisconsin.
The Wisconsin State Legislature is widely considered to be among, if not the most, gerrymandered state legislature in the nation. Wisconsin is an evenly divided purple state and Tony Evers won re-election with 51.2% of the vote, but on the very same 2022 midterm ballots, Republicans won more than 60% of seats in the state legislature. It just doesn’t add up.
There’s a reason for this: The maps are clearly unfair, and they have warped politics and government in Wisconsin to the point where many have argued that the state no longer qualifies as a true representative democracy.
The gerrymandered state legislative maps have been the GOP’s skeleton key to holding power no matter what they do and no matter how many statewide elections they lose — and Republicans and Republican-backed candidates have lost 13 of the last 16 statewide elections. And instead of providing necessary checks and balances on the state legislature, the conservative majority on the Wisconsin Supreme Court has played a crucial role in maintaining those maps and perpetuating a system of unequal representation. If the court were to flip to a liberal majority, that all could change.
Milwaukee County judge Janet Protasiewicz, the liberal candidate in the ultra-important race for Wisconsin Supreme Court, has repeatedly identified the gerrymandered maps as a major problem during her campaign. In a candidate forum held by WisPolitics in January, she said this:
“Let’s be clear here: The maps are rigged. Absolutely positively rigged. They do not reflect the people in the state. They do not reflect accurate representation, either in the State Assembly or the State Senate. They are rigged, period. I don’t think it would sell to any reasonable person that the maps are fair.”
She’s right about that. And she’s right to make these characterizations about our state’s obviously tilted maps part of her campaign. It is one of the biggest problems in the state and the Wisconsin Supreme Court plays a direct role in decision-making on those maps.
Some of those who oppose Protasiewicz’s campaign have taken issue with her comments on the matter, arguing that by sharing her views on the maps, she’s telling the public how she would rule on a redistricting case. But for conservative candidate Daniel Kelly, we don’t really have to speculate about where he stands on the maps – he defended them in court for then-governor Scott Walker and legislative Republicans as a private practice attorney in 2012.
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Now, the court has a 4-3 conservative majority but conservative justice Patience Roggensack, 82, is retiring at the end of her term (She endorsed Jennifer Dorow in the primary, but has not yet made an endorsement in the general election). In recent years, liberal candidates have gained significant ground on the court, putting Protasiewicz in position to be the one to flip the balance if she were to win on April 4.
After losing a race in 2016 and failing to field a candidate in 2017, things started to turn around for liberals on the court in 2018 when Rebecca Dallet won a decisive 11-point victory over the conservative candidate, Michael Screnock, flipping a seat that was held by retiring conservative justice Michael Gableman. Things turned again in 2019, when conservative candidate Brian Hagedorn squeaked out a narrow victory over liberal Lisa Neubauer, flipping a seat that was held by liberal Shirley Abrahamson. The shadow of that race looms large now, as this race also comes as an off-year Spring Election following an exhausting, heavily-contested midterm. And less than 6,000 votes made the difference.
In 2020, though, Jill Karofsky defeated Daniel Kelly, the then-appointed Wisconsin Supreme Court justice and now-candidate, by more than 10% in the unforgettably absurd election held less than a month into the covid-19 pandemic. That victory set the stage for now, for 2023, opening the door to flip the balance of power on the court in this very election.
If Protasiewicz were to win on April 4, it would open the door to a host of new legal battles, with challenges to the state legislature’s gerrymandered maps high on that list.
Jeff Mandell, co-founder and board president of Law Forward, a liberal group that works on redistricting cases, said in an interview with The Recombobulation Area that there could be several avenues to challenge the maps once new judges and justices are sworn in on Aug. 1. Many of those avenues in some form center around the argument that the extreme partisan gerrymander of these maps “could violate our state constitution,” he said.
“This wouldn't be the first legal challenge to the maps in Wisconsin, but it would be the first time that anyone went to a state court and said, ‘partisan gerrymandering violates our state constitution’,” said Mandell. “Nobody has ever presented that argument to our courts before. And that, in itself, would be new and different. And we're looking at the prospect of having a court that is open to looking seriously at these issues.”
He added, “Even in saying that the partisan gerrymander violates the state constitution, I can, off the top of my head, think of four or five different ways in four or five different parts of the state constitution that you could root that argument in. And there's a lot that's yet unsettled here, including exactly who the plaintiffs are going to be, and exactly how these claims and arguments are going to be presented, and what the procedure is going to be here. But there are so many rich possibilities. But I think that's one of the reasons there's so much excitement about this.”
According to a Wisconsin Public Radio report on redistricting and the race for Wisconsin Supreme Court, those parts of the state constitution could include certain redistricting provisions and other language pertaining to voting rights.
The National Democratic Redistricting Committee (NDRC) has also taken an interest in this race. Eric Holder, the former attorney general in the Obama administration and the chairman of the NDRC, has endorsed Protasiewicz and plans to visit Wisconsin in the final stretch of the campaign.
"Republicans have made a concerted effort across the country to elect ideologues to state supreme courts in order to reduce the independence of state judicial branches, and, in turn, weaken our democracy,” said Brooke Lillard, communications director for the NDRC. “This election presents the best chance for Wisconsinites to reject those partisan efforts, and to gain the independent, fair-minded state Supreme Court majority they want and deserve."
Regardless of whether or not immediate challenges to the maps go forward – courts can be unpredictable, after all – whichever candidate is elected in this race will serve a 10-year term, and that means they’ll be on the bench for the next round of redistricting after the 2030 census.
But as Mandell said, there is a “fair amount of urgency” to address the maps now.
“Every day that the extreme partisan gerrymander is in place distorts our politics and our society in Wisconsin,” he said. “And this has already been going on since 2011…I would expect that it will not take very long after the court changes over on Aug. 1 for this to get started because the litigation process itself can be time consuming. The wheels of justice turn slowly, as they say. And it's important to try to fix this as soon as possible.”
Whether that would mean challenges to the maps could be resolved by the time the process begins for the 2024 election is still unclear, but there are ways a redistricting case could be taken directly to the Wisconsin Supreme Court, said Mandell.
And it is urgent because these maps have been so unbelievably unfair for so long now. And in the most recent redistricting cycle, they got even worse.
The maps for the last decade — passed after Scott Walker won the 2010 race for governor and Republicans won trifecta control of state government, giving them full control over the redistricting process — are ones that a Harvard University study said Wisconsin qualified as a “democracy desert,” ranking the maps as the nation’s worst, putting the state’s quality of elections on par with the non-democracies of Jordan, Bahrain and the Congo, and behind those of backsliding democracies in Hungary and Turkey.
At no point under those maps did Democrats even hold 40% of seats in the State Assembly. A crystallizing moment came after the “Blue Wave” election in 2018 when Evers ousted Walker, Sen. Tammy Baldwin won a decisive 11-point re-election victory, and Democrats won elections for every other statewide office, but Republicans still held 63 of 99 seats in the State Assembly. If you aggregate the popular vote for all State Assembly districts in that election cycle, Democrats won a majority of votes (53%), but flipped only one seat.
To be sure, there are factors beyond extreme partisan gerrymandering that contribute to this massive discrepancy. The state’s political geography explains some of it, the growing urban-rural divide has amplified it, and fair maps advocates do concede that there is a “natural gerrymander” in favor of Republicans in Wisconsin.
But those factors would explain a slight Republican advantage. It doesn't come close to explaining the reality of what’s happened since 2011, where Democrats have been completely boxed out of having any say in the state’s legislative branch — a branch now with outsized importance as Republicans have consolidated power there under the veil of the gerrymander.
The political ramifications of these gerrymandered maps in Wisconsin have been astounding. Although the state has now had a Democratic governor for more than four years, Republicans are still holding all the cards in state government. Conservative control of the legislative and judicial branches has meant Wisconsin politics have been stuck in what Ben Wikler, chairman of the Democratic Party of Wisconsin, characterized as an “undemocratic doom loop.”
As Reid Epstein, political reporter at The New York Times put it last year during the midterm election campaign, “There is at the moment no functional way for Democrats to carry out any sort of policy agenda in Madison; their only hope is to have a governor who will veto things.”
That’s not how democracy is supposed to work.
These maps make it virtually impossible for Democrats to ever win a simple majority in the state legislature. This has made the legislature largely unaccountable to voters, and under the leadership of longtime GOP Assembly Speaker Robin Vos — a detestable, vindictive, power-hungry politician who has just a 12% favorability rating in the state — legislative Republicans have broken politics in Wisconsin.
The last four years have made that abundantly clear, with Vos and Co. utilizing their stranglehold on state government to obstruct Gov. Tony Evers at every turn. They gaveled-in and gaveled-out of special session after special session called by Evers, refusing to even debate any proposals by the Democratic governor on issues ranging from gun violence prevention to education funding to Medicaid expansion to criminal justice reform to abortion rights (twice). It has reached the point where Republicans won’t even pretend to listen to the other side of the aisle, denying a public hearing to more than 98% of bills introduced by Democrats in the 2021-’22 session. Republicans in the State Senate refused to even take governor’s appointments to his cabinet and other offices up for a vote in many cases, sometimes even letting past appointees remain in their roles well past their end-date, and by the end of Evers’ first term, nearly 200 of his appointments had been left unconfirmed. In both 2020 and 2022, Republican leadership gave the legislature a nine-month break from legislating. This earned them the unenviable distinction of being the nation’s least active full-time legislature during the height of the pandemic, where they went nearly 300 days without passing a single bill, leading to catastrophic results in the state’s public health response.
On many policy decisions over the last decade-plus, Wisconsin has more closely resembled an ultra-conservative southern state than its more moderate Midwestern neighbors. Wisconsin is one of just 10 remaining states not to accept the federal Medicaid expansion (the only holdout left in the Midwest), has not even legalized medical marijuana (much less recreational, like Illinois, Michigan, and soon-to-be Minnesota), and still has its minimum wage at the federal minimum rate of $7.25 per hour. Between the infamous anti-union Act 10 bill, which stripped collective bargaining rights for public employees, and the right-to-work law passed in 2015, union membership in Wisconsin has plummeted to 8%, roughly the same percentage as in Alabama.
Poll results, too, consistently show that the public is often supportive of policies backed by Democrats in Wisconsin – policies that never get any kind of traction in the Republican-controlled state legislature. In recent polling from the Marquette University Law School Poll, huge majorities say abortion should be legal in most or all cases (61%), marijuana should be legalized (61%), the state should accept Medicaid funds (70%), should require paid family leave (73%), and background checks should be required for gun sales (81%). None of those issues have a likely path forward in the current makeup of the Wisconsin State Legislature.
Need more evidence that Wisconsin has become a far-right outlier for a purple state? Look no further than what’s happening in Minnesota and Michigan, perhaps the two most politically similar states to Wisconsin, both which just elected slim Democratic majorities in their respective state legislatures. They are now passing all kinds of progressive legislation, from universal school meals to protecting abortion rights to restoring voting rights to repealing anti-union right-to-work laws to codifying LGBTQ rights to enacting new gun safety laws.
Michigan is doing this after installing an independent redistricting commission that gave them fairer maps for 2022 and beyond.
The push for fair maps began to pick up steam in the latter part of the decade in Wisconsin and by 2020, more than 80% of Wisconsinites had voted to back referendums or resolutions advocating for fair maps.
But when the time came for legislators to introduce new maps for the 2020s, Republican leadership ignored this entirely, introducing maps that were even more gerrymandered than what were already considered to be the most gerrymandered state legislative maps in the nation. At a nine-hour public hearing to discuss maps for the next decade, not a single person spoke in favor of the maps introduced by Vos and Senate Majority Leader Devin LaMahieu. During questioning, Vos even admitted that partisanship was taken into consideration in drawing the maps.
The bill with those GOP-introduced maps would soon pass through the Republican-controlled state legislature, but was vetoed by Gov. Tony Evers, setting the stage for a legal battle over the impasse. Then, about a month later, the conservative majority on the Wisconsin Supreme Court delivered another blow to the fight for fair maps. They ruled to accept a “least change” approach for the new maps, essentially baking the extreme partisan gerrymander of the 2010’s into whatever would be accepted for the 2020’s.
Mandell contends that this ruling was unconstitutional.
“The Wisconsin State Constitution, when it talks about redistricting, what it says is that after each decennial census, ‘the legislature shall apportion and district anew,’” he said. “So our point was, if you take the words of the constitution seriously – as most judges should and do – you need to start with a blank piece of paper and draw new lines, you couldn't start with essentially a worksheet that was mostly done, and then just tinker with it. That's not ‘anew.’ That’s the very antithesis of doing it ‘anew.’ … Justice (Rebecca) Bradley and the other conservatives on the court, last year, essentially wrote the word ‘anew’ out of the constitution.”
What happened next was a confounding legal process that went all the way to the U.S. Supreme Court. Evers’ “least change” maps were initially chosen, with conservative swing justice Brian Hagedorn casting the deciding vote, but Republicans then appealed to the U.S. Supreme Court, which ruled in Republicans’ favor in an unsigned opinion, and Hagedorn then flipped his vote, saying they ran out of time in the process, making the Republican maps the ones that would be adopted for the 2022 election cycle.
While “least change” was the stated principle, the Republican-drawn maps dramatically moved the goalposts in many leftward-shifting suburban districts in the Milwaukee area suburbs (like District 13, above); somehow managed to avoid adding any new seats in fast-growing Dane County; packed and cracked districts into partisan safety, reducing the number of competitive districts overall; pulled several key purple districts a point or two in their favor, and not only iced out any potential for even the largest blue tidal wave to change the balance of power in the state’s legislative branch, but drew themselves a path to a veto-proof two-thirds supermajority (which came just two seats shy of happening!).
We need fair maps in Wisconsin. We need to get ourselves out of this “doom loop.” We have an opportunity to do so right now by electing Janet Protasiewicz to the Wisconsin Supreme Court.
Electing Daniel Kelly would do just the opposite. Kelly poses a threat to democracy in Wisconsin, and he would also keep us in the “doom loop.” We need to break free of this cycle. We need to put an end to the era of entrenched one-party rule in the Wisconsin State Legislature. It is unsustainable. It cannot continue.
What this race ultimately comes down to is this: Checks and balances. This is one of the most important roles that the judicial branch has in government. And this court has not adequately been a check on this legislature. It is time to bring some checks and balances to the doorstep of Robin Vos and the Republican-controlled Wisconsin State Legislature so that voters can bring some accountability to this broken institution.
This isn’t to say the maps should be redrawn to instead benefit Democrats. Far from it. It’s about fairness. Some years Democrats will win a majority, other years Republicans will win a majority. If one party isn’t doing their job, voters should be able to do something about it. It’s about crafting a system that reflects the people of Wisconsin and can be responsive to the state’s voters. We don’t have that right now. And that has to be the goal.
Wisconsin’s political landscape is desperate for a reset. This election offers an opportunity for a genuine reset. Let’s elect Janet Protasiewicz and seize that opportunity.
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Dan Shafer is a journalist from Milwaukee who writes and publishes The Recombobulation Area. He previously worked at Seattle Magazine, Seattle Business Magazine, the Milwaukee Business Journal, Milwaukee Magazine, and BizTimes Milwaukee. He’s also written for The New York Times, The Daily Beast, Heartland Signal, Belt Magazine, WisPolitics, and Milwaukee Record. He’s won 17 Milwaukee Press Club Excellence in Journalism Awards. He’s on Twitter at @DanRShafer.
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