Wisconsin Supreme Court hearing arguments on redistricting that could result in new maps for 2024

The liberal-controlled Wisconsin Supreme Court heard arguments Tuesday in a redistricting case that Democrats hope will result in new, more favorable legislative maps for elections in 2024 that will help them chip away at the large Republican majority.

The case is being closely watched in battleground Wisconsin, a state where four of the past six presidential elections have been decided by fewer than 23,000 votes, but where Republicans have built large majorities in the Legislature under maps they drew over a decade ago.

Conservative Justice Rebecca Bradley immediately interrupted the first attorney arguing for new maps, questioning why they waited until after August when liberal justices took majority control of the court. She noted that the newly elected Justice Janet Protasiewicz said during her campaign that the current maps were “rigged.”

“Everybody knows that the reason we’re here is because there was a change in the membership of the court," Bradley said. "You would not have brought this action, right, if the newest justice had lost her election?”

Attorney Mark Gaber, from the Campaign Legal Center, said the election result had nothing to do with the timing of the lawsuit. He said the challenge over whether the districts are unconstitutionally not contiguous would have been filed regardless of the makeup of the court.

“I don't see that as a partisan issue,” Gaber said.

The lawsuit was filed the day after the Wisconsin Supreme Court became controlled 4-3 by liberal justices in August.

Arguments began shortly before 9 a.m. and were slated to run all morning. The court was expected to issue its ruling no later than early in 2024. The state elections commission has said maps must be in place by March 15 if the new districts are to be in play for the 2024 elections.

Democratic voters who filed the lawsuit heard by the court Tuesday argue that the maps passed in 2022, which vary little from those drawn in 2011, are unconstitutionally “unsalvageable” and must be struck down and redrawn. The Legislature counters that Democrats are exercising “raw political power” and trying to take advantage of the new liberal majority on the court to overturn its 2021 ruling that adopted the current maps.

The Wisconsin Supreme Court is controlled 4-3 by liberal justices, following the April election victory by Protasiewicz. She called the GOP-drawn maps “unfair” and “rigged” during the campaign, leading Republicans to threaten to impeach her before she had even heard a case. Republican Assembly Speaker Robin Vos backed off, for now, but has kept the threat alive if she votes to strike down the maps.

Democrats want the court to strike down the legislative maps, draw new ones, and order elections under those maps for all 132 state lawmakers in 2024. If the court were to rule that way, the case would certainly be appealed to the U.S. Supreme Court and it's unclear whether there would be a ruling in time for the 2024 election.

The Legislature argues that if new maps are ordered, nothing should be enacted any sooner than the 2026 election.

Litigation is ongoing in more than dozen states over U.S. House and state legislative districts enacted after the 2020 census. New York is among the most prominent. The state’s highest court heard arguments last week on whether an independent redistricting commission must take another crack at drawing congressional districts. Democrats are hoping a redraw could help them gain seats and, potentially, the House majority.

New Mexico’s Supreme Court heard arguments Monday on an appeal of a lower court ruling that rejected assertions the Democratic-led Legislature had illegally gerrymandered the state’s congressional districts. Last week, a federal judge in North Dakota ruled that state legislative districts drawn by the Republican majority violated the voting rights of two Native American tribes and must be redrawn by Dec. 22.

The Democrats' case in Wisconsin centers on whether the current districts are not contiguous and if they violate the Wisconsin Constitution’s separation of powers doctrine.

The majority of current legislative districts — 54 out of 99 in the Assembly and 21 out of 33 in the Senate — violate the state constitution’s contiguity requirement, attorneys challenging the maps argued in filings with the court.

That makes Wisconsin an outlier nationally, with 46 other states having no noncontiguous districts, and Pennsylvania, Massachusetts and Tennessee having a total of nine noncontiguous districts, attorneys argued.

Wisconsin’s redistricting laws, backed up by state and federal court rulings over the past 50 years, have permitted districts under certain circumstances to be noncontiguous, attorneys for the Legislature argued. Even if the court decided to address the issue, it could only affect alleged areas where districts aren’t contiguous and not upend existing district lines, Republicans argued.

Those seeking new maps contend that the Supreme Court violated the separation of powers doctrine when it adopted the Republican-drawn map that Democratic Gov. Tony Evers had previously vetoed, “improperly seizing powers for itself the Constitution assigns to other branches.”

The legislative electoral maps drawn by the Republican-controlled Legislature in 2011 cemented the party’s majorities, which now stand at 64-35 in the Assembly and a 22-11 supermajority in the Senate.

Since taking the majority in 2011, Republicans have enacted a wide range of conservative priorities. They have all but eliminated collective bargaining for public workers, and since 2019 they’ve been a block on Evers’ agenda, firing Evers appointees and threatening impeachment of Protasiewicz and the state’s elections leader.

Wisconsin’s Assembly districts rank among the most gerrymandered nationally, with Republicans routinely winning far more seats than would be expected based on their average share of the vote, according to an Associated Press analysis.

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Conservatives on Wisconsin’s Supreme Court are having an epic meltdown

Justice Janet Protasiewicz was sworn in as the newest member of the Wisconsin Supreme Court on Aug. 1, following an impressive victory over far-right former Justice Dan Kelly earlier this year that gave the court a progressive majority for the first time since 2008. Since Protasiewicz joined the court, a lot's happened: The liberals fired the director of the state court system, a former judge and Supreme Court candidate who holds some extreme social views; moved to adopt new rules for internal court governance; and agreed to hear a lawsuit over the constitutionality of the state's gerrymandered legislative districts.

Republicans in Wisconsin have not taken any of this very well. In the leadup to Protasiewicz's election—before she had even been elected—Republican lawmakers began tossing around the idea of impeaching her for … something to be determined. But that talk went dormant until more recently, when Assembly Speaker Robin Vos resurfaced the idea.

Two of the conservatives on the court, Chief Justice Annette Ziegler and Associate Justice Rebecca Bradley, have not handled the changes to the court very well, either. The liberals' earliest moves have limited Ziegler's powers as chief justice, which she's alleged are abuses of power that violate the Wisconsin Constitution—though she's been coy on what provision of the constitution, exactly. Still, that hasn't stopped her from issuing press releases and writing op-eds denouncing the erosion of her power as somehow unconstitutional.

Bradley's reaction, however, has been far more extreme. She's used comments to reporters, tweets, and even official court opinions to launch baseless attacks on the legitimacy of the majority's actions—criticizing them for partisanship and bias in ways that reflect her own partisanship and bias.

From the first day of the Supreme Court's new liberal majority, Bradley's core criticism is that its members are too partisan and biased. She criticized her fellow justices as "political hacks" and "politicians wearing robes," not "jurists." She argued on Twitter that their firing of the state courts director was a "[p]olitical purge[] of court employees"—a point that she made while retweeting one of the state's most prominent right-wing commentators.

And this week, when the Supreme Court allowed a case challenging the state's gerrymandered state legislative districts to proceed, Bradley dissented in furious fashion. She charged that the majority had agreed to hear the case—which in this case included not only the liberals but also fellow conservative Justice Brian Hagedorn—as part of a plan to "shift power away from Republicans and bestow an electoral advantage for Democrat candidates." Her screed even deployed a favorite slur of Republican partisans by referring to the "Democrat Party."

But for Bradley, this is nothing new.

Bradley was first appointed to the Milwaukee County Circuit Court by former Republican Gov. Scott Walker in 2012. She won reelection in 2013 by defeating—in a gigantic irony—Protasiewicz, her future colleague on the Supreme Court. Walker elevated her to the Court of Appeals in 2015, and then to the Supreme Court later that same year. She was reelected to a 10-year term in 2016 against another familiar name: Joanne Kloppenburg, who had narrowly lost the state's 2011 Supreme Court election.

During Bradley's 2016 campaign against Kloppenburg, many of her old writings for her college newspaper surfaced, revealing some deeply intolerant views. In 1992, during the height of the AIDS crisis, Bradley wrote that gay people "essentially kill themselves and others through their own behavior."

She also criticized the attention that AIDS received over diseases like cancer, writing, "How sad that the lives of degenerate drug addicts and queers are valued more than the innocent victims of more prevalent ailments," and attacked people who were comfortable with homosexuality as "degenerates who basically commit suicide through their behavior." She called abortion a "holocaust of our children" and said she found it "incomprehensible" that anyone could claim "a right to murder their own flesh and blood."

Bradley sought to distance herself from those comments during her 2016 campaign, claiming that her views had changed on homosexuality. She refused to say, though, whether she still believed that abortion was a "holocaust" and that the right to obtain an abortion was equivalent to a right to "murder," because the issue might come before the Supreme Court. At the same time, she refused to say she would recuse herself from an abortion case.

She narrowly defeated Kloppenburg and will next face Wisconsin voters in April 2026.

In her time on the court, she quickly distinguished herself with a unique brand of far-right jurisprudence. She compared Gov. Tony Evers' lockdown orders during the height of the pandemic to Japanese internment during World War II—and then recently attempted to whitewash her Wikipedia page to remove her most offensive remarks. She justified these self-edits to the Milwaukee Journal Sentinel because, she claimed, "Liberal media has distorted my record since the beginning of my judicial career, and I refuse to let false accusations go unchecked."

In a fairly routine appeal of a criminal conviction for homicide, she wrote a long dissent criticizing the trial judge for mentioning the defendant's gun ownership. "'[H]oplophobia' is the 'irrational fear of guns,'" she explained, and charged that "the sentencing judge's hoplophobia was on full display" in the case.

In a case that prohibited the use of drop boxes to collect absentee mail ballots, she compared their use to the manipulation of democracy by Saddam Hussein, Kim Jong-un, Raul Castro, and Bashar al-Assad.

Since Protasiewicz's victory earlier this year, and as the reality of serving in the minority set in, Bradley has amped up her rhetoric. In June, she castigated Hagedorn in extremely harsh terms, writing that he should "revisit the judicial oath and resign if unwilling to fulfill it." Hagedorn's offense? He sided with liberals and didn't allow a parent's lawsuit challenging the Madison School District's trans-friendly policies to skip the state's normal appeals process.

In July, the Supreme Court declined a request by the Wisconsin State Bar to allow attorneys to receive a "Diversity, Equity, Inclusion, and Access" credit. Bradley authored a lengthy concurring opinion that has to be read to be believed.

She began by arguing that "the buzzwords 'diversity, equity, inclusion, and access' (DEIA) represent a smoke screen for a divisive political agenda that perniciously reduces people to racial categories and strips them of their unique individuality." Echoing far-right rhetoric, she argued that such concepts are "a disguise for dangerous identity politics" and dismissively referred to diversity training as "woke corporate nonsense." As support for her argument, Bradley actually relied on a 2014 book authored by far-right commentator Ben Shapiro titled "How to Debate Leftists and Destroy Them: 11 Rules for Winning the Argument."

For someone with this record to accuse anyone else of partisanship or bias is a stunning display of projection and a total lack of self-awareness. Going from editing your own Wikipedia page to remove your insensitive remarks because the "liberal media" has supposedly "distorted your record" to criticizing your colleagues as "politicians wearing robes" takes some gall.

But Bradley can accuse the majority of whatever she likes. After more than a decade in the wilderness, Wisconsin finally has a Supreme Court with a progressive majority—one with unquestioned democratic legitimacy. Bradley will likely be on the losing end of the most contentious cases for the next few years—and if she continues to antagonize Hagedorn, her fellow conservative, she might find her positions winning less and less support. And in 2026, when Bradley is next before voters, she'll have to deal with the consequences of her record.