The state of Wisconsin does not choose its state legislature in free and fair elections, and it has not done so for a very long time. A new lawsuit, filed just one day after Democrats effectively gained a majority on the state Supreme Court, seeks to change that.
The suit, known as Clarke v. Wisconsin Elections Commission, seeks to reverse gerrymanders that have all-but-guaranteed Republican control of the state legislature — no matter which party Wisconsin voters supported in the last election.
In 2010, the Republican Party had its best performance in any recent federal election, gaining 63 seats in the US House of Representatives and making similar gains in many states. This election occurred right before a redistricting cycle, moreover — the Constitution requires every state to redraw its legislative maps every 10 years — so Republicans used their large majorities in many states to draw aggressive gerrymanders.
Indeed, Wisconsin’s Republican gerrymander is so aggressive that it is practically impossible for Democrats to gain control of the state legislature. In 2018, for example, Democratic state assembly candidates received 54 percent of the popular vote in Wisconsin, but Republicans still won 63 of the assembly’s 99 seats — just three seats short of the two-thirds supermajority Republicans would need to override a gubernatorial veto.
The judiciary, at both the state and federal levels, is complicit in this effort to lock Democrats out of power in Wisconsin. In Rucho v. Common Cause (2019), for example, the US Supreme Court held that no federal court may ever consider a lawsuit challenging a partisan gerrymander, overruling the Court’s previous decision in Davis v. Bandemer (1986).
Three years later, Wisconsin drew new maps which were still very favorable to Republicans, but that included an additional Black-majority district — raising the number of state assembly districts with a Black majority from six to seven. These new maps did not last long, however, because the US Supreme Court struck them down in Wisconsin Legislature v. Wisconsin Elections Commission (2022) due to concerns that these maps may have done too much to increase Black representation.
This is the best summary I could come up with:
A new lawsuit, filed just one day after Democrats effectively gained a majority on the state Supreme Court, seeks to change that.
Protasiewicz’s elevation to the state’s highest court also gave Democrats a 4-3 majority (technically, Supreme Court races in Wisconsin are nonpartisan, but every recent race has pitted a liberal supported by Democrats against a conservative supported by the GOP), meaning that there’s now a very high likelihood that the state’s Republican gerrymander will fall.
The Clarke plaintiffs argue that partisan gerrymandering violates this anti-discrimination guarantee by allowing “a majority of the Legislature to create superior and inferior classes of voters based on viewpoint” — that is, by drawing maps that effectively give Republicans more voting power than Democrats.
Additionally, Wisconsin’s constitution includes a provision similar to the federal First Amendment, which provides that “every person may freely speak, write and publish his sentiments on all subjects.” The Clarke plaintiffs argue that partisan gerrymanders violate this provision because, by giving less representation to Democrats, the state effectively retaliates against those voters because of their political views.
It is possible that the court will hand down a fairly narrow decision, which might require the noncontiguous districts to be redrawn but that does not reach any of the more philosophical questions about when gerrymandering crosses the line into unconstitutional discrimination.
It is equally possible that the new majority will hand down a more sweeping decision that lays out broader rules prohibiting partisan gerrymanders in the future.
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