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Wisconsin Spotlight | June 4, 2020

MADISON — The Wisconsin Institute for Law & Liberty and former Assembly Speaker Scott Jensen filed a petition Wednesday arguing that state, not federal, courts should handle legal challenges over redistricting plans.

The conservatives appear to have some backing from former liberal Wisconsin Supreme Court Justice Shirley Abrahamson — at least Shirley Abrahamson from 13 years ago.

WILL and Jensen are asking the state Supreme Court to adopt a rule that would amend the state statutes, allowing the court to take jurisdiction over the expected lawsuits involving the next round of political maps. The redistricting plans are crafted every 10 years by the state Legislature.

Redistricting occurs after the federal decennial census. If Republicans continue to control the Legislature, they will put together the new political representation maps. Gov. Tony Evers, a Democrat, can veto them, which he will more than likely do if they are drawn up by Republicans. Impasses have generally been settled in federal courts. But even when one party controls the two branches of government, as Republicans did in 2011, the last time the maps were drawn up, the redistricting plans have been bogged down in court.

Even after the dust settled on the 2011 legal battle, liberals filed lawsuits to stop Wisconsin’s redistricting system. They failed.

“With divided government, we can expect the courts to have the final say on legislative districts in Wisconsin,” said Rick Esenberg, president and general counsel for WILL, a Milwaukee-based public interest law firm. “This rules petition asks the Wisconsin Supreme Court to adopt rules, consistent with their previous wish, that permit a redistricting case to go forward in state courts rather than a federal court.”

The state Supreme Court, led by then-Chief Justice Shirley Abrahamson, foresaw future litigation arising from the redistricting process.

“As a practical matter, we think that litigation after the 2010 census is likely. Although the Wisconsin Legislature has usually been able to draw congressional district lines without much ado, the legislative redistricting process has proven nearly impossible,” a court-ordered commission charged with studying and drafting procedural rules governing redistricting litigation in Wisconsin wrote in a 2007 report.

Abrahamson, arguably one of the more liberal justices in the court’s history, signed off on the committee report that argued for states’ rights regarding redistricting lawsuits.

“… (W)hen the Legislature cannot enact a redistricting plan in time for the next election cycle, and where court intervention is necessary, the Wisconsin Supreme Court has the authority to hear cases under original jurisdiction,” the report stated. “(S)ince redistricting is fundamentally a state responsibility, the state courts are the appropriate forum for these actions.”

The commission noted that the “U.S. Supreme Court has recognized the primacy of state courts in redistricting.”

The commission said the state Supreme Court was not built for drawing up political maps. Instead it proposed the creation of a panel of Appeals Court judges be appointed and delegated by the Supreme Court to “devise new legislative or congressional districts.“

Ultimately, the court rejected the proposals. But the Abrahamson-led court did promise that it would not be in the same position as it was after  the 2000 Census, forced to defer a primarily state matter to the federal courts.

Evers signed an executive order in January creating what he says would be a nonpartisan commission to draw new legislative maps. Republicans have criticized the effort, asserting Evers is looking to stack the deck to serve Democrats’ political interests.

As the Supreme Court study committee noted in its 2007 report, “Redistricting is an inherently political process, one which defines the nature of representative government.”

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