Billie Johnson v. Wisconsin Elections Commission

2021 WI 87

SUPREME COURT OF WISCONSIN
CASE NO.: 2021AP1450-OA

COMPLETE TITLE: Billie Johnson, Eric O'Keefe, Ed Perkins and
Ronald Zahn,
Petitioners,
Black Leaders Organizing for Communities, Voces
de la Frontera, League of Women Voters of
Wisconsin, Cindy Fallona, Lauren Stephenson,
Rebecca Alwin, Congressman Glenn Grothman,
Congressman Mike Gallagher, Congressman Bryan
Steil, Congressman Tom Tiffany, Congressman
Scott Fitzgerald, Lisa Hunter, Jacob Zabel,
Jennifer Oh, John Persa, Geraldine Schertz,
Kathleen Qualheim, Gary Krenz, Sarah J.
Hamilton, Stephen Joseph Wright, Jean-Luc
Thiffeault, and Somesh Jha,
Intervenors-Petitioners,
v.
Wisconsin Elections Commission, Marge Bostelmann
in her official capacity as a member of the
Wisconsin Elections Commission, Julie Glancey in
her official capacity as a member of the
Wisconsin Elections Commission, Ann Jacobs
in her official capacity as a member of the
Wisconsin Elections Commission, Dean Knudson in
his official capacity as a member of the
Wisconsin Elections Commission, Robert Spindell,
Jr. in his official capacity as a member of the
Wisconsin Elections Commission and Mark Thomsen
in his official capacity as a member of the
Wisconsin Elections Commission,
Respondents,
The Wisconsin Legislature, Governor Tony Evers,
in his official capacity, and Janet Bewley
Senate Democratic Minority Leader, on behalf of
the Senate Democratic Caucus,
Intervenors-Respondents.

ORIGINAL ACTION

OPINION FILED: November 30, 2021
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:

SOURCE OF APPEAL:
COURT:
 COUNTY:
JUDGE:

JUSTICES:
REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court with respect to all parts except ¶¶8, 69-72, and 81,
in which ZIEGLER, C.J., and ROGGENSACK, and HAGEDORN, JJ.,
joined, and an opinion with respect to ¶¶8, 69–72, and 81, in
which ZIEGLER, C.J., and ROGGENSACK, J., joined. HAGEDORN, J.,
filed a concurring opinion. DALLET, J., filed a dissenting
opinion in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.
NOT PARTICIPATING:

ATTORNEYS:
For the petitioners, there were briefs filed by Richard M.
Esenberg, Anthony F. LoCoco, Lucas T. Vebber and Wisconsin
Institute for Law & Liberty, Milwaukee.

For the intervenors-petitioners Black Leaders Organizing
for Communities, Voces de la Frontera, League of Women Voters of
Wisconsin, Cindy Fallona, Lauren Stephenson and Rebecca Alwin,
briefs, including amicus briefs, were filed by Douglas M.
Poland, Jeffrey A. Mandell, Rachel E. Snyder, Richard A. Manthe,
Carly Gerads and Stafford Rosenbaum LLP, Madison; Mel Barnes and
Law Forward, Inc., Madison; Mark P. Gaber (pro hac vice),
Christopher Lamar (pro hac vice)and Campaign Legal Center,
Washington, D.C.; Annabelle Harless (pro hac vice) and Campaign
Legal Center, Chicago.

For the intervenors-petitioners Congressmen Glenn Grothman,
Mike Gallagher, Bryan Steil, Tom Tiffany and Scott Fitzgerald
there were briefs, including amicus briefs, filed by Misha
Tseytlin, Kevin M. LeRoy, and Troutman Pepper Hamilton Sanders
LLP, Chicago.

For the intervenors-petitioners Lisa Hunter, Jacob Zabel,
Jennifer Oh, John Persa, Geraldine Schertz and Kathleen
Qualheim, there were briefs, including amicus briefs filed by
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Charles G. Curtis, Jr. and Perkins Coie LLP, Madison; Marc Erik
Elias (pro hac vice), Aria C. Branch (pro hac vice), Daniel C.
Osher (pro hac vice), Jacob D. Shelly (pro hac vice), Christina
A. Ford (pro hac vice), William K. Hancock (pro hac vice) and
Elias Law Group LLP, Washington, D.C.

For the intervenors-petitioners Citizens Mathematicians and
Scientists Gary Krenz, Sarah J. Hamilton, Stephen Joseph Wright,
Jean-Luc Thiffeault and Somesh Jha, briefs were filed by Michael
P. May, Sarah A. Zylstra, Tanner G. Jean-Louis and Boardman &
Clark LLP, Madison, and David J. Bradford (pro hac vice) and
Jenner & Block LLP, Chicago.

For the respondents Wisconsin Elections Commission, Marge
Bostelmann, Julie Glancey, Ann Jacobs, Dean Knudson, Robert
Spindell, Jr. and Mark Thomsen there were letter-briefs filed by
Steven C. Kilpatrick, assistant attorney general, Karla Z.
Keckhaver, assistant attorney general, Thomas C. Bellavia,
assistant attorney general.

For the intervenors-respondents the Wisconsin Legislature
there were briefs filed by Kevin M. St. John and Bell Giftos St.
John LLC, Madison; Jeffrey M. Harris (pro hac vice), Taylor A.R.
Meehan (pro hac vice), James P. McGlone and Consovoy McCarthy
PLLC, Arlington, Virginia and Adam K. Mortara and Lawfair LLC,
Chicago.

For the intervenor-respondent Governor Tony Evers there
were briefs filed by Joshua L. Kaul, attorney general, Anthony
D. Russomanno, assistant attorney general and Brian P. Keenan,
assistant attorney general.

For the intervenor-respondent Janet Bewley, State Senate
Democratic Minority Leader on behalf of the State Senate
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Democratic Caucus there were briefs filed by Tamara B. Packard,
Aaron G. Dumas and Pines Bach LLP, Madison.

There was an amicus brief filed by Daniel R. Suhr,
Thiensville.

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 2021 WI 87
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2021AP1450-OA

STATE OF WISCONSIN : IN SUPREME COURT

Billie Johnson, Eric O'Keefe, Ed Perkins and
Ronald Zahn,

Petitioners,

Black Leaders Organizing for Communities, Voces
de la Frontera, League of Women Voters of
Wisconsin, Cindy Fallona, Lauren Stephenson,
Rebecca Alwin, Congressman Glenn Grothman,
Congressman Mike Gallagher, Congressman Bryan
Steil, Congressman Tom Tiffany, Congressman
Scott Fitzgerald, Lisa Hunter, Jacob Zabel,
Jennifer Oh, John Persa, Geraldine Schertz,
Kathleen Qualheim, Gary Krenz, Sarah J.
Hamilton, Stephen Joseph Wright, Jean-Luc
Thiffeault, and Somesh Jha, FILED
Intervenors-Petitioners, NOV 30, 2021
v. Sheila T. Reiff
Clerk of Supreme Court
Wisconsin Elections Commission, Marge
Bostelmann in her official capacity as a member
of the Wisconsin Elections Commission, Julie
Glancey in her official capacity as a member of
the Wisconsin Elections Commission, Ann Jacobs
in her official capacity as a member of the
Wisconsin Elections Commission, Dean Knudson in
his official capacity as a member of the
Wisconsin Elections Commission, Robert
Spindell, Jr. in his official capacity as a
member of the Wisconsin Elections Commission,
and Mark Thomsen in his official capacity as a
member of the Wisconsin Elections Commission,

Respondents,
The Wisconsin Legislature, Governor Tony Evers,
in his official capacity, and Janet Bewley
Senate Democratic Minority Leader, on behalf of
the Senate Democratic Caucus,

Intervenors-Respondents.

REBECCA GRASSL BRADLEY, J., delivered the majority opinion of
the Court with respect to all parts except ¶¶8, 69-72, and 81,
in which ZIEGLER, C.J, and ROGGENSACK, and HAGEDORN, JJ.,
joined, and an opinion with respect to ¶¶8, 69–72, and 81, in
which ZIEGLER, C.J., and ROGGENSACK, J., joined. HAGEDORN, J.,
filed a concurring opinion. DALLET, J., filed a dissenting
opinion in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.

ORIGINAL ACTION. Rights declared.

¶1 REBECCA GRASSL BRADLEY, J. The Wisconsin

Constitution requires the legislature "to apportion and district

anew the members of the senate and assembly, according to the

number of inhabitants" after each census conducted under the

United States Constitution every ten years. Wis. Const. art.

IV, § 3. In fulfilling this responsibility, the legislature

draws maps reflecting the legislative districts across the

state. Every census invariably reveals population changes

within legislative districts, and the legislature must

thereafter satisfy the constitutional requirement that each

district contain approximately equal numbers of people by

developing new maps, which are subject to veto by the governor.
When this occurs, courts are often asked to step in and draw the

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 No. 2021AP1450-OA

maps.

¶2 This year, the legislature drew maps, the governor

vetoed them, and all parties agree the existing maps, enacted

into law in 2011, are now unconstitutional because shifts in

Wisconsin's population around the state have disturbed the

constitutionally guaranteed equality of the people's

representation in the state legislature and in the United States

House of Representatives. We have been asked to provide a

remedy for that inequality. Some parties to this action further

complain that the 2011 maps reflect a partisan gerrymander

favoring Republican Party candidates at the expense of Democrat

Party candidates, and ask us to redraw the maps to allocate

districts equally between these dominant parties, although no

one asks us to assign districts to any minor parties in

proportion to their share of Wisconsin's electoral vote.

¶3 The United States Supreme Court recently declared

there are no legal standards by which judges may decide whether

maps are politically "fair." Rucho v. Common Cause, 139
S. Ct. 2484, 2499-500 (2019). We agree. The Wisconsin

Constitution requires the legislature——a political body——to

establish the legislative districts in this state. Just as the

laws enacted by the legislature reflect policy choices, so will

the maps drawn by that political body. Nothing in the

constitution empowers this court to second-guess those policy

choices, and nothing in the constitution vests this court with

the power of the legislature to enact new maps. Our role in
redistricting remains a purely judicial one, which limits us to

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 No. 2021AP1450-OA

declaring what the law is and affording the parties a remedy for

its violation.

¶4 In this case, the maps drawn in 2011 were enacted by

the legislature and signed into law by the governor. Their

lawfulness was challenged in a federal court, which upheld them

(subject to a slight adjustment to Assembly Districts 8 and 9 in

order to comply with federal law). Baldus v. Members of Wis.

Gov't Accountability Bd., 862 F. Supp. 2d 860, 863 (E.D. Wis.

2012). In 2021, those maps no longer comply with the

constitutional requirement of an equal number of citizens in

each legislative district, due to shifts in population across

the state. This court will remedy that malapportionment, while

ensuring the maps satisfy all other constitutional and statutory

requirements. Claims of political unfairness in the maps

present political questions, not legal ones. Such claims have

no basis in the constitution or any other law and therefore must

be resolved through the political process and not by the

judiciary.
I. PROCEDURAL HISTORY AND HOLDING

¶5 Billie Johnson et al., four Wisconsin voters

("Wisconsin voters"), filed a petition for leave to commence an

original action in this court following the release of the

results of the 2020 census. Claiming to live in malapportioned

congressional and state legislative districts, they have asked

us to declare the existing maps——codified in Chapters 3 and 4 of

the Wisconsin Statutes——violate the "one person, one vote"
principle embodied in Article IV, Section 3 of the Wisconsin

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 No. 2021AP1450-OA

Constitution. They also have asked us to enjoin the

respondents, the Wisconsin Elections Commission (WEC) and its

members in their official capacity, from administering

congressional and state legislative elections until the

political branches adopt redistricting plans meeting the

requirements of Article IV. Because the legislature and the

governor reached an impasse, the Wisconsin voters request a

mandatory injunction,1 remedying what all parties agree are

unconstitutional plans by making only those changes necessary

for the maps to comport with the one person, one vote principle

while satisfying other constitutional and statutory mandates (a

"least-change" approach).

¶6 We granted the petition and permitted the legislature,

the governor, and several other parties to intervene. The

intervenors raised numerous issues of federal and state law. In

addition to the requirements of Article IV of the Wisconsin

Constitution, we have been asked to consider the following laws

in shaping any judicial remedy for the malapportioned
congressional and state legislative districts: (1) Article I,

Section 2 of the United States Constitution; (2) the Equal

Protection Clause of the Fourteenth Amendment of the United

1A "mandatory injunction" is "[a]n injunction that orders
an affirmative act or mandates a specified course of conduct."
Mandatory injunction, Black's Law Dictionary (11th ed. 2019).
When a court orders elections be conducted pursuant to modified
maps, it is effectively ordering a mandatory injunction. See
Reynolds v. Sims, 377 U.S. 533, 541 (1964).

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 No. 2021AP1450-OA

States Constitution; (3) the Voting Rights Act (VRA) of 1965;2

and (4) multiple provisions of the Wisconsin Constitution's

Declaration of Rights.

¶7 In anticipation of implementing a judicial remedy upon

the expected impasse the political branches have now reached, we

ordered the parties to address four issues:

(1) Under the relevant state and federal laws, what
factors should we consider in evaluating or
creating new maps?

(2) Is the partisan makeup of districts a valid
factor for us to consider in evaluating or
creating new maps?

(3) The petitioners ask us to modify existing maps
using a "least-change" approach. Should we do
so, and if not, what approach should we use?

(4) As we evaluate or create new maps, what
litigation process should we use to determine a
constitutionally sufficient map?[3]
We addressed the fourth question, at least preliminarily, in a

prior order.

¶8 We hold: (1) redistricting disputes may be judicially
resolved only to the extent necessary to remedy the violation of

a justiciable and cognizable right protected under the United

States Constitution, the VRA, or Article IV, Sections 3, 4, or 5

2One intervenor invoked the Fifteenth Amendment of the
United States Constitution, but did not develop an argument
distinguishable from the intervenor's VRA argument. See Hunter
et al. Br. at 20, 30. Accordingly, we do not address the
Fifteenth Amendment further.
3Johnson v. WEC, No. 2021AP1450-OA, unpublished order (Wis.
Oct. 14, 2021) (per curiam) (ordering supplemental briefing).

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 No. 2021AP1450-OA

of the Wisconsin Constitution; (2) the partisan makeup of

districts does not implicate any justiciable or cognizable

right; and (3) this court will confine any judicial remedy to

making the minimum changes necessary in order to conform the

existing congressional and state legislative redistricting plans

to constitutional and statutory requirements. The existing maps

were passed by the legislature and signed by the governor. They

survived judicial review in federal court. Revisions are now

necessary only to remedy malapportionment produced by population

shifts made apparent by the decennial census. Because the

judiciary lacks the lawmaking power constitutionally conferred

on the legislature, we will limit our remedy to achieving

compliance with the law rather than imposing policy choices.

II. BACKGROUND

A. Legal Context

¶9 Historical context helps frame the Petitioners' claims

by illustrating the one person, one vote principle. The phrase

"one person, one vote" is a relatively modern expression, but
the concept of equal representation by population, as well as

its alternatives, were familiar at the founding. In eighteenth-

century England, over half of the members of the House of

Commons were elected from sparsely populated districts, later

branded the "rotten boroughs." Such a system of representation

undermined popular sovereignty. 5 T.H.B. Oldfield, The

Representative History of Great Britain and Ireland 219 (1816)

("The great Earl of Chatham called these boroughs the

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 No. 2021AP1450-OA

excrescences, the rotten part of the constitution, which must be

amputated to save the body from a mortification.").

¶10 In contrast, representation by population gives an

area with a larger population more influence in the legislative

body than an area with a smaller population. Our nation's

founders enshrined this principle in Article I, Section 2 of the

United States Constitution. Its third clause specifies that the

House of Representatives, unlike its predecessor, the House of

Commons, must be apportioned "among the several

States . . . according to their respective Numbers[.]" To

account for population shifts, it requires the federal

government to conduct a census every ten years and then

reapportion representatives. U.S. Const. art. I, § 2, cl. 3.

¶11 The Framers established a bicameral legislature. They

viewed per capita representation in the House of Representatives

as essential to the preservation of the people's liberty. The

Federalist No. 52, at 327 (James Madison) (Clinton Rossiter ed.,

1961). With respect to the Senate, the Framers enshrined the
concept of state sovereignty by allocating senators equally

among the states, regardless of population size. See U.S.

Const. art. I, § 3, cl. 1 ("The Senate of the United States

shall be composed of two Senators from each State.").

Accordingly, Senate seats are unaffected by redistricting.

¶12 Redistricting involves many political choices, and the

United States Constitution does not substantially constrain

state legislatures' discretion to decide how congressional
elections are conducted. See U.S. Const. art. I, § 4.

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 No. 2021AP1450-OA

Nevertheless, redistricting must comply with the one person, one

vote principle. Wesberry v. Sanders, 376 U.S. 1, 7–8 (1964).

Even if a state does not gain or lose congressional seats,

redistricting is often a constitutional imperative after each

census due to geographic population shifts.

¶13 Wisconsin's founders also guaranteed equal

representation by population in our state constitution, which

places an affirmative duty on the legislature to implement

redistricting plans for the state legislature every ten years,

after the federal census, to account for population shifts.

Wis. Const. art. IV, § 3. No provision of the Wisconsin

Constitution requires the legislature to apportion or district

anew the state's congressional districts.4 Other federal and

state laws, discussed in more detail in the remainder of this

opinion, place further limitations on the legislature's

discretion when implementing redistricting plans.

B. The 2020 Census

¶14 The legislature enacted the current maps in 2011.
2011 Wis. Act 44; 2011 Wis. Act 43. Wisconsin's eight

congressional districts are mapped in Wis. Stat. §§ 3.11 to 3.18

(2019–20).5 See also Wis. Stat. § 3.001 ("This state is divided

into 8 congressional districts."). The state's 99 assembly

The Petitioners agree this court has never held any
4

provision of the Wisconsin Constitution imposes a one person,
one vote requirement on congressional districts. Omnibus Am.
Pet., ¶1 n.2.

All subsequent references to the Wisconsin Statutes are to
5

the 2019–20 version.

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 No. 2021AP1450-OA

districts are mapped in Wis. Stat. §§ 4.01 to 4.99, although a

federal district court made a slight adjustment to Assembly

Districts 8 and 9 after concluding the map violated the VRA.

Baldus, 862 F. Supp. 2d at 863. The state's 33 senate districts

are mapped in Wis. Stat. § 4.009. See also Wis. Stat. § 4.001

("This state is divided into 33 senate districts, each composed

of 3 assembly districts.").

¶15 In August 2021, the United States Census Bureau

delivered redistricting data to the State of Wisconsin based

upon the 2020 census. According to census data, the population

of Wisconsin grew from 5,686,986 to 5,893,718. In order to

realize equal legislative representation across districts, the

ideal congressional district should have 736,715 people, the

ideal assembly district should have 59,533, and the ideal senate

district should have 178,598. While the ideal size of each

district has changed, the number of districts remains the same.

Wisconsin has not lost or gained any congressional seats, and

the number of assembly and senate districts is set by Wisconsin
statutes. Wis. Stat. §§ 3.001, 4.001.

¶16 The Wisconsin voters and many intervenors live in

malapportioned districts, meaning they live in districts that

are overpopulated. For example, one Wisconsin voter, Johnson,

lives in Assembly District 78, which has a population of 66,838—

—7,305 more than ideal. If the districts are not reapportioned,

Johnson's vote will be diluted in the ensuing elections.

C. The Impasse
¶17 On November 11, 2021, the legislature passed

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redistricting plans. One week later, the governor vetoed the

legislation. The legislature has failed to override his veto.

¶18 At this point, the political branches have reached an

impasse, and our involvement in redistricting has become

appropriate. See Johnson v. WEC, No. 2021AP1450-OA, unpublished

order, at 2 (Wis. Sept. 22, 2021, amended Sept. 24) (per curiam)

(granting the petition for leave to commence an original action)

("[J]udicial relief becomes appropriate in reapportionment cases

only when a legislature fails to reapportion according to

constitutional requisites in a timely fashion after having had

an adequate opportunity to do so." (citation omitted)). The

parties present diametrically opposed views regarding the manner

in which this court should remedy what all parties agree is an

unconstitutional malapportionment of congressional and state

legislative districts.

¶19 Notwithstanding a history of judicial involvement in

redistricting, in our constitutional order it remains the

legislature's duty. State ex rel. Reynolds v. Zimmerman
(Zimmerman I), 22 Wis. 2d 544, 569–70, 126 N.W.2d 551 (1964).

Article IV, Section 3 of the Wisconsin Constitution commands,

"[a]t its first session after each enumeration made by the

authority of the United States, the legislature shall apportion

and district anew the members of the senate and assembly,

according to the number of inhabitants." "The Framers in their

wisdom entrusted this decennial exercise to the legislative

branch because the give-and-take of the legislative process,
involving as it does representatives elected by the people to

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make precisely these sorts of political and policy decisions, is

preferable to any other." Jensen v. Wis. Elections Bd., 2002 WI

13, ¶10, 249 Wis. 2d 706, 639 N.W.2d 537 (per curiam). The

political process failed this year, necessitating our

involvement. As should be self-evident from this court's lack

of legislative power, any remedy we may impose would be in

effect only "until such time as the legislature and governor

have enacted a valid legislative apportionment plan." State ex

rel. Reynolds v. Zimmerman (Zimmerman II), 23 Wis. 2d 606, 606,

128 N.W.2d 16 (1964) (per curiam).

III. OUR REVIEW

A. Exercising Our Original Jurisdiction

¶20 We review this case under our original jurisdiction

conferred by Article VII, Section 3(2) of the Wisconsin

Constitution, pursuant to which "[t]he supreme court . . . may

hear original actions and proceedings." Generally, we exercise

our original jurisdiction when the case concerns "the

sovereignty of the state, its franchises or prerogatives, or the
liberties of its people." Petition of Heil, 230 Wis. 428, 436,

284 N.W. 42 (1938) (per curiam) (quoting Att'y Gen. v. Chi. &

N.W. Ry., 35 Wis. 425, 518 (1874)). We granted the petition in

this case because "[t]here is no question . . . that this matter

warrants this court's original jurisdiction; any reapportionment

or redistricting case is, by definition publici juris,

implicating the sovereign rights of the people of this state."

Jensen, 249 Wis. 2d 706, ¶17 (citing Heil, 230 Wis. at 443).

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B. Principles of Interpretation

¶21 This case requires us to interpret the United States

Constitution and the Wisconsin Constitution. "Issues of

constitutional interpretation . . . are questions of law."

James v. Heinrich, 2021 WI 58, ¶15, __ Wis. 2d __, 960

N.W.2d 350 (citation omitted). We are bound by United States

Supreme Court precedent interpreting the United States

Constitution. State v. Jennings, 2002 WI 44, ¶18, 252

Wis. 2d 228, 647 N.W.2d 142 (citation omitted). As the state's

highest court, we are "the final arbiter of questions arising

under the Wisconsin Constitution[.]" Jensen, 249 Wis. 2d 706,

¶25.

¶22 Our goal when we interpret the Wisconsin Constitution

is "to give effect to the intent of the framers and of the

people who adopted it[.]" State v. Cole, 2003 WI 112, ¶10, 264

Wis. 2d 520, 665 N.W.2d 328 (quotation marks and citations

omitted). "[W]e focus on the language of the adopted text and

historical evidence [of its meaning] including 'the practices at
the time the constitution was adopted, debates over adoption of

a given provision, and early legislative interpretation as

evidenced by the first laws passed following the adoption.'"

State v. Halverson, 2021 WI 7, ¶22, 395 Wis. 2d 385, 953

N.W.2d 847 (quoting Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020

WI 67, ¶28 n.10, 393 Wis. 2d 38, 946 N.W.2d 35).

¶23 This case also requires interpretation of statutory

provisions governing redistricting. "Issues of statutory

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interpretation and application present questions of law."

James, __ Wis. 2d __, ¶15 (citation omitted).

IV. DISCUSSION

A. Relevant Considerations Under Federal and State Law

1. Federal Constitutional Requirements

¶24 Both federal and state laws regulate redistricting.

Article I, Section 2 of the United States Constitution requires

members of the House of Representatives to be chosen "by the

People of the several states." The United States Supreme Court

construed this section to mean "that as nearly as is practicable

one man's vote in a congressional election is to be worth as

much as another's." Wesberry, 376 U.S. at 7–8. Similarly, the

United States Supreme Court held, "the Equal Protection Clause

requires that a State make an honest and good faith effort to

construct districts, in both houses of its legislature, as

nearly of equal population as practicable." Reynolds v. Sims,

377 U.S. 533, 577 (1964); see also Maryland Comm. for Fair

Representation v. Tawes, 377 U.S. 656, 674–75 (1964) (holding
even state senate districts must comply with the one person, one

vote principle).

¶25 As a matter of federal constitutional law, the one

person, one vote principle applies more forcefully to

congressional districts than to state legislative districts.

The United States Supreme Court declared: "[There is] no excuse

for the failure to meet the objective of equal representation

for equal numbers of people in congressional districting other
than the practical impossibility of drawing equal districts with

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mathematical precision." Mahan v. Howell, 410 U.S. 315, 322

(1973). "[P]opulation alone" is the "sole criterion of

constitutionality in congressional redistricting under Art. I,

§ 2[.]" Id. For congressional districts, even less than a one

percent difference between the population of the largest and

smallest districts is constitutionally suspect. Karcher v.

Dagget, 462 U.S. 725, 727 (1983). "[A]bsolute population

equality" is "the paramount objective." Abrams v. Johnson, 521

U.S. 74, 98 (1997) (quoting Karcher, 462 U.S. at 732).

¶26 In contrast, the Equal Protection Clause, as applied

to state legislative districts, imposes a less exacting one

person, one vote principle. Mahan, 410 U.S. at 322. Consistent

with principles of federalism, states have limited flexibility

to pursue other legitimate policy objectives, such as

"maintain[ing] the integrity of various political subdivisions"

and "provid[ing] for compact districts of contiguous territory."

Brown v. Thomson, 462 U.S. 835, 842 (1983) (quoting Reynolds,

377 U.S. at 578) (modifications in the original).
2. Federal Statutes

¶27 Federal statutes also govern redistricting. 2 U.S.C.

§ 2c prohibits multimember congressional districts. See also

Wis. Stat. § 3.001 (same). The VRA prohibits the denial or

abridgment of the right to vote on account of race, color, or

membership in a language minority group, which implicates

redistricting practices. It provides, in relevant part:

(a) No voting qualification or prerequisite to voting
or standard, practice, or procedure shall be imposed

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or applied by any State or political subdivision in a
manner which results in a denial or abridgement of the
right of any citizen of the United States to vote on
account of race or color, or in contravention of the
guarantees set forth in section 10303(f)(2)[, which
protects language minority groups,] of this title, as
provided in subsection (b).

(b) A violation of subsection (a) is established if,
based on the totality of circumstances, it is shown
that the political processes leading to nomination or
election in the State or political subdivision are not
equally open to participation by members of a class of
citizens protected by subsection (a) in that its
members have less opportunity than other members of
the electorate to participate in the political process
and to elect representatives of their choice. The
extent to which members of a protected class have been
elected to office in the State or political
subdivision is one circumstance which may be
considered: Provided, That nothing in this section
establishes a right to have members of a protected
class elected in numbers equal to their proportion in
the population.
52 U.S.C. § 10301. The "dispersal" of a minority group among

several districts can render the group an "ineffective" voting

bloc. Cooper v. Harris, 137 S. Ct. 1455, 1464 (2017) (quoting

Thornburg v. Gingles, 478 U.S. 30, 46 n.11 (1986)). Such a

result may violate the VRA, even if the map drawers lacked

discriminatory intent. Thornburg, 478 U.S. at 71. All parties

in this case agree we should ensure any remedy we impose

satisfies the requirements of the VRA.

3. Wisconsin Constitutional Requirements

¶28 Via the Wisconsin Constitution, the people of

Wisconsin have imposed additional requirements on redistricting.

Article IV, Section 3 of the Wisconsin Constitution provides,
"[a]t its first session after each enumeration made by the

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authority of the United States," i.e., the census, "the

legislature shall apportion and district anew the members of the

senate and assembly, according to the number of inhabitants."

(Emphasis added.) As we stated in our seminal decision in State

ex rel. Attorney General v. Cunningham:

It is proper to say that perfect exactness in the
apportionment, according to the number of inhabitants,
is neither required nor possible. But there should be
as close an approximation to exactness as possible,
and this is the utmost limit for the exercise of
legislative discretion.
81 Wis. 440, 484, 51 N.W. 724 (1892). Our decision in

Cunningham comports with the provision's original meaning.

¶29 The one person, one vote principle had been

"germinating" since the nation's founding——although the phrase

is a twentieth-century invention. James A. Gazell, One Man, One

Vote: Its Long Germination, 23 W. Pol. Q. 445, 462 (1970). As

a delegate to the federal constitutional convention, founding

father James Wilson was an outspoken advocate for equal

representation by population: "[E]qual numbers of people ought

to have an equal no. of representatives. . . . Representatives

of different districts ought clearly to hold the same proportion

to each other, as their respective constituents hold to each

other." 1 The Records of the Federal Convention of 1787 179–80

(Max Farrand ed., 1911) (statement of James Wilson, Penn.); see

also James Wilson, Of the Constitutions of the United States and

of Pennsylvania——Of the Legislative Department (1790–91), in 2

The Works of the Honourable James Wilson, L.L.D., 117, 129
(1804) ("Elections are equal, when a given number of citizens,

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in one part of the state, choose as many representatives, as are

chosen by the same number of citizens, in any other part of the

state.").

¶30 In choosing per capita representation for the House of

Representatives, the founders rejected England's infamous rotten

boroughs:

The number of inhabitants in the two kingdoms of
England and Scotland cannot be stated at less than
eight million. The representatives of these eight
millions in the House of Commons amount to five
hundred and fifty-eight. Of this number, one ninth
are elected by three hundred and sixty-four persons,
and one half, by five thousand seven hundred and
twenty-three persons. It cannot be supposed that the
half thus elected . . . can add any thing either to
the security of the people against the government, or
to the knowledge of their circumstances and interests
in the legislative councils.
The Federalist No. 56, at 349 (James Madison). In contrast, the

equal proportion of representation prescribed by the

Constitution "will render the [House of Representatives] both a

safe and competent guardian of the interests which will be

confined to it." Id. at 350.
¶31 The Northwest Ordinance of 1787 further evidences the

founders' regard for equal representation by population. It

states, in relevant part, "[t]he inhabitants of the said

territory shall always be entitled to . . . a proportionate

representation of the people in the legislature[.]" Northwest

Ordinance § 14, art. 2 (1787). Its enactment guaranteed the

equality of representation for newly admitted states.
¶32 In the first redistricting case this court decided, a

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concurring justice referenced the Northwest Ordinance.

Cunningham, 81 Wis. at 512 (Pinney, J., concurring). He

explained the phrase "according to the number of inhabitants" in

Article IV, Section 3 of the Wisconsin Constitution was

"intended to secure in the future" a pre-existing right of the

people, specifically, "'proportionate representation,' and

apportionment 'as nearly equal as practicable among the

several counties for the election of members' of the

legislature[.]" Id.

¶33 Early legislative redistricting practices confirm this

original meaning. Id. In 1851, the state's first governor,

Nelson Dewey, vetoed the legislature's first redistricting plan,

explaining in his veto message:

I object to the provisions of this bill, because the
apportionment in many cases, is not made upon the
constitutional basis. A comparison of some of the
senatorial districts with the ratio and with each
other, will clearly present its unconstitutional
features.
1851 Wis. Assemb. J. 810. Consistent with its federal

counterpart, Article IV, Section 3 of the Wisconsin Constitution

gives the legislature the duty to enact a redistricting plan

after each federal census to prevent one person's vote——in an

underpopulated district——from having more weight than another's

in an overly populated district. Zimmerman I, 22 Wis. 2d at

564–69.

¶34 In addition to proportional representation by

population, the Wisconsin Constitution establishes principles of
"secondary importance" that circumscribe legislative discretion

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when redistricting. Wis. State AFL-CIO v. Elections Bd., 543

F. Supp. 630, 635 (E.D. Wis. 1982). In this case, the parties

raise only malapportionment claims; no one claims the current

maps violate one of these secondary principles. Nevertheless,

in remedying the alleged harm, we must be mindful of these

secondary principles so as not to inadvertently choose a remedy

that solves one constitutional harm while creating another.

¶35 Article IV, Section 4 of the Wisconsin Constitution

directs assembly districts "be bounded by county, precinct, town

or ward lines[.]" Applying the one person, one vote principle

may make bounding districts by county lines nearly impossible.

See Wis. State AFL-CIO, F. Supp. at 635 (stating the maintenance

of county lines is "incompatib[le] with population equality");

see also 58 Wis. Att'y Gen. Op. 88, 91 (1969) ("[T]he Wisconsin

Constitution no longer may be considered as prohibiting assembly

districts from crossing county lines, in view of the emphasis

the United States Supreme Court has placed upon population

equality in electoral districts."). Nonetheless, the smaller
the political subdivision, the easier it may be to preserve its

boundaries. See Baumgart v. Wendelberger, No. 01-C-0121, 2002

WL 34127471, at *3 (E.D. Wis. May 30, 2002) ("Although avoiding

the division of counties is no longer an inviolable principle,

respect for the prerogatives of the Wisconsin Constitution

dictate that wards and municipalities be kept whole where

possible.").

¶36 Article IV, Section 4 of the Wisconsin Constitution
further commands assembly districts be "contiguous," which

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generally means a district "cannot be made up of two or more

pieces of detached territory." State ex rel. Lamb v.

Cunningham, 83 Wis. 90, 148, 53 N.W. 35 (1892). If annexation

by municipalities creates a municipal "island," however, the

district containing detached portions of the municipality is

legally contiguous even if the area around the island is part of

a different district. Prosser v. Elections Bd., 793

F. Supp. 859, 866 (W.D. Wis. 1992).

¶37 Article IV, Section 4 of the Wisconsin Constitution

also requires assembly districts to be "in as compact form as

practicable[.]" We have never adopted a particular measure of

compactness, but the constitutional text furnishes some latitude

in meeting this requirement. Additionally, Article IV,

Section 4 prohibits multi-member assembly districts; therefore,

each district may have only a single representative. Finally,

Article IV, Section 5 states no assembly district can be

"divided in the formation of a senate district," and senate

districts must consist of "convenient contiguous territory" with
each senate district served by only a single senator.

¶38 In summary, the Wisconsin Constitution "commits the

state to the principle of per capita equality of representation

subject only to some geographical limitations in the execution

and administration of this principle." Zimmerman I, 22

Wis. 2d at 556. In determining a judicial remedy for

malapportionment, we will ensure preservation of these

justiciable and cognizable rights explicitly protected under the
United States Constitution, the VRA, or Article IV, Sections 3,

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4, or 5 of the Wisconsin Constitution.

B. This Court Will Not Consider the Partisan Makeup of
Districts
¶39 The simplicity of the one person, one vote principle,

its textual basis in our constitution, and its long history

stand in sharp contrast with claims that courts should judge

maps for partisan fairness, a concept untethered to legal

rights. The parties have failed to identify any judicially

manageable standards by which we could determine the fairness of

the partisan makeup of districts, nor have they identified a

right under the Wisconsin Constitution to a particular partisan

configuration. Because partisan fairness presents a purely

political question, we will not consider it.

1. Partisan Fairness Is a Political Question
¶40 "Sometimes, . . . 'the law is that the judicial

department has no business entertaining [a] claim of

unlawfulness——because the question is entrusted to one of the

political branches or involves no judicially enforceable

rights.'" Rucho, 139 S. Ct. at 2494 (quoting Vieth v.
Jubelirer, 541 U.S. 267, 277 (2004) (plurality)). For this

reason, "political questions" are non-justiciable, that is,

"outside the courts' competence[.]" Id. (quoting Baker v. Carr,

369 U.S. 186, 217 (1962)). Whether a map is "fair" to the two

major political parties is quintessentially a political question

because: (1) there are no "judicially discoverable and

manageable standards" by which to judge partisan fairness; and
(2) the Wisconsin Constitution explicitly assigns the task of

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redistricting to the legislature——a political body. See Baker,

369 U.S. at 217.

¶41 The lack of standards by which to judge partisan

fairness is obvious from even a cursory review of partisan

gerrymandering jurisprudence. Partisan "gerrymandering" is

"[t]he practice of dividing a geographical area into electoral

districts, often of highly irregular shape, to give one

political party an unfair advantage by diluting the opposition's

voting strength." Gerrymandering, Black's Law Dictionary (11th

ed. 2019). The United States Supreme Court declared partisan

gerrymandering claims to be non-justiciable under the United

States Constitution, and the very existence of such claims is

doubtful. Rucho, 139 S. Ct. 2484; Vieth, 541 U.S. 267. See

generally Daniel H. Lowenstein, Vieth's Gap: Has the Supreme

Court Gone from Bad to Worse on Partisan Gerrymandering, 14

Cornell J.L. & Pub. Pol'y 367 (2005). Writing for the Court in

Rucho v. Common Cause, Chief Justice Roberts noted at the outset

the Court has never struck down a map as an unconstitutional
partisan gerrymander and acknowledged that several decades of

searching for a judicially manageable standard by which to judge

maps' partisan fairness had been in vain. 139 S. Ct. at 2491.

¶42 "Partisan gerrymandering claims invariably sound in a

desire for 'proportional representation.'" Id. at 2499.

Advocated by several parties in this case, proportional

representation is the political theory that a party should win a

percentage of seats, on a statewide basis, that is roughly equal
to the percentage of votes it receives. See Proportional

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representation, Black's Law Dictionary. This theory has no

grounding in American or Wisconsin law or history, and it

directly conflicts with traditional redistricting criteria.

Davis v. Bandemer, 478 U.S. 109, 145 (1986) (O'Connor, J.,

concurring in judgment), abrogated on other grounds by Rucho,

139 S. Ct. 2484. "It hardly follows from the principle that

each person must have an equal say in the election of

representatives that a person is entitled to have his political

party achieve representation in some way commensurate to its

share of statewide support." Rucho, 139 S. Ct. at 2501.

¶43 To begin with, measuring a state's partisan divide is

difficult. Wisconsin does not have party registration, so

voters never formally disclose their party membership at any

point in the electoral process. Democratic Party v. Wisconsin,

450 U.S. 107, 110–11 (1981). According to one recent survey,

more than one-third of Wisconsinites self-identify as

independents, affiliating themselves with no party at all.

Marquette Law School Poll (Aug. 3–8, 2021),
https://law.marquette.edu/poll/wp-

content/uploads/2021/10/MLSP66Toplines.html.

¶44 Even if a state's partisan divide could be accurately

ascertained, what constitutes a "fair" map poses an entirely

subjective question with no governing standards grounded in law.

"Deciding among . . . different visions of fairness . . . poses

basic questions that are political, not legal. There are no

legal standards discernable in the Constitution for making such

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judgements[.]" Rucho, 139 S. Ct. at 2500. Nor does the

Wisconsin Constitution provide any such standards.

¶45 The people have never consented to the Wisconsin

judiciary deciding what constitutes a "fair" partisan divide;

seizing such power would encroach on the constitutional

prerogatives of the political branches. Vieth, 541 U.S. at 291.

In contrast to legislative or executive action, "'judicial

action must be governed by standard, by rule,' and must be

'principled, rational, and based upon reasoned distinctions'

found in the Constitution or laws." Rucho, 139 S. Ct. at 2507

(quoting Vieth, 541 U.S. at 278–79). Nothing in the Wisconsin

Constitution authorizes this court to recast itself as a

redistricting commission in order "to make [its] own political

judgment about how much representation particular political

parties deserve——based on the votes of their supporters——and to

rearrange the challenged districts to achieve that end." Id. at

2499.

¶ 46 Nothing in the United States Constitution or the
Wisconsin Constitution commands "that farmers or urban dwellers,

Christian fundamentalists or Jews, Republicans or Democrats,

must be accorded political strength proportionate to their

numbers[.]" Vieth, 541 U.S. at 288; see also id. at 308

(Kennedy, J., concurring in judgment) (stating there is "no

authority" for the notion that a Democrat majority of voters in

Pennsylvania should be able to elect a Democrat majority of

Pennsylvania's congressional delegation); Nathaniel Persily, In
Defense of Foxes Guarding Henhouses: The Case for Judicial

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Acquiescence to Incumbent-Protecting Gerrymanders, 116 Harv. L.

Rev. 649, 672–73 (2002) ("So long as the state's majority has

its advocate in the executive, is it necessarily true that the

state's majority should control the legislature as well?").

¶47 Not only is a right to proportional party

representation nonexistent in either constitution but the theory

conflicts with principles that are constitutionally protected.

The theory is irreconcilable with the requirement that

congressional and state legislative districts be single-member

districts. See 2 U.S.C. § 2c; Wis. Const. art. IV, §§ 4–5. For

state legislative districts, the theory is particularly ill

suited because Article IV of the Wisconsin Constitution

specifies requirements that favor the preservation of

communities of interest, irrespective of individual partisan

alignment. See Wis. Const. art. IV, §§ 4–5 (explaining state

assembly districts must be compact, contiguous, and respect

political boundary lines and state senate districts must be

contiguous and not divide assembly districts in their
formation); Prosser, 793 F. Supp. at 863 (stating there is a

"correlation between geographical propinquity and community of

interest, and therefore compactness and contiguity are desirable

features in a redistricting plan").

¶48 A proportional party representation requirement would

effectively force the two dominant parties to create a

"bipartisan" gerrymander to ensure the "right" outcome——

obliterating many traditional redistricting criteria mandated by
federal law and Article IV of the Wisconsin Constitution. See 2

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U.S.C. § 2c; Wis. Const. art. IV, §§ 4–5. Democrats tend to

live close together in urban areas, whereas Republicans tend to

disperse into suburban and rural areas. See Baumgart, 2002 WL

34127471, at *6 ("Wisconsin Democrats tend to be found in high

concentrations in certain areas[.]"). As a result, drawing

contiguous and compact single-member districts of approximately

equal population often leads to grouping large numbers of

Democrats in a few districts and dispersing rural Republicans

among several. These requirements tend to preserve communities

of interest, but the resulting districts may not be politically

competitive——at least if the competition is defined as an inter-

rather than intra-party contest. Davis, 478 U.S. at 159; see

also Larry Alexander & Saikrishna B. Prakash, Tempest in an

Empty Teapot: Why the Constitution Does Not Regulate

Gerrymandering, 50 Wm. & Mary L. Rev. 1, 42 n.117 (2008)

(explaining "competitive primaries" often produce

"responsiveness, accountability, and 'ritual cleansing'").

Democrats in urban cities may win by large margins, thereby
skewing the proportion of Democrat votes statewide relative to

the proportion of Democrat victories.

¶49 Perhaps the easiest way to see the flaw in

proportional party representation is to consider third party

candidates. Constitutional law does not privilege the "major"

parties; if Democrats and Republicans are entitled to

proportional representation, so are numerous minor parties. If

Libertarian Party candidates receive approximately five percent
of the statewide vote, they will likely lose every election; no

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one deems this result unconstitutional. The populace that voted

for Libertarians is scattered throughout the state, thereby

depriving them of any real voting power as a bloc, regardless of

how lines are drawn. See Robert Redwine, Comment,

Constitutional Law: Racial and Political Gerrymandering——

Different Problems Require Different Solutions, 51 Okla. L. Rev.

373, 396–97 (1998). Only meandering lines, which could be

considered a gerrymander in their own right, could give the

Libertarians (or any other minor party) a chance. Proportional

partisan representation would require assigning each third party

a "fair" share of representatives (while denying independents

any allocation whatsoever), but doing so would in turn require

ignoring redistricting principles explicitly codified in the

Wisconsin Constitution.

¶50 To sacrifice textually grounded requirements designed

to safeguard communities of interest in favor of proportional

representation between dominant political parties mandated

nowhere in the constitution would ignore not only the text but
its history. "The roots of Anglo-American political

representation lie in the representation of communities[.]"

James A. Gardner, One Person, One Vote and the Possibility of

Political Community, 80 N.C. L. Rev. 1237, 1243 (2002). "The

idea that the political interests of communal groups of

individuals correlated strongly with territory served, for

example, as an axiom in Madison's famous defense of the large

republic in The Federalist No. 10." James A. Gardner, Foreword,
Representation Without Party: Lessons from State Constitutional

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Attempts to Control Gerrymandering, 37 Rutgers L.J. 881, 935

(2006). Proportional party representation is simply

incompatible with the constitutionally prescribed form of

representative government chosen by the people of Wisconsin.

¶51 The Wisconsin Constitution's "textually demonstrable

constitutional commitment" to confer the duty of redistricting

on the state legislature evidences the non-justiciability of

partisan gerrymandering claims. Baker, 369 U.S. at 217.

Article IV, Section 3 of the Wisconsin Constitution

unequivocally assigns the task of redistricting to the

legislature, leaving no basis for claiming that partisanship in

redistricting raises constitutional concerns. "[P]artisan

intent is not illegal, but is simply the consequence of

assigning the task of redistricting to the political branches of

government." Whitford v. Gill, 218 F. Supp. 3d 837, 939 (W.D.

Wis. 2016) (Griesbach, J., dissenting), rev'd sub nom., Gill v.

Whitford, 138 S. Ct. 1916 (2018). "[P]oliticians pass many

statutes with an eye toward securing their elections and giving
their party a leg up on the competition. Gerrymandered

districts are no different in kind." Alexander & Prakash,

Tempest in an Empty Teapot, at 7.

¶52 The Wisconsin Constitution, like its federal

counterpart, "clearly contemplates districting by political

entities, . . . and unsurprisingly . . . [districting] turns out

to be root-and-branch a matter of politics." Vieth, 541 U.S. at

285 (citations omitted). For the same reasons cited by the
United States Supreme Court, we "have no license to reallocate

29
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political power between the two major political parties,"

because "no legal standards [exist] to limit and direct [our]

decisions." Rucho, 139 S. Ct. at 2507. The Wisconsin

Constitution contains "no plausible grant of authority" to the

judiciary to determine whether maps are fair to the major

parties and the task of redistricting is expressly assigned to

the legislature. Id. Adjudicating claims of "too much"

partisanship in the redistricting process would recast this

court as a policymaking body rather than a law-declaring one.

2. The Wisconsin Constitution Says Nothing About Partisan
Gerrymandering
¶53 The United States Supreme Court has been unable to

identify "what it is in the Constitution that . . . might be

offended by partisan gerrymandering." Lowenstein, Vieth's Gap,

at 369. We are told if we look hard enough, we will find a

right to partisan fairness in Article I, Sections 1, 3, 4, or 22

of the Wisconsin Constitution. Having searched in earnest, we

conclude the right does not exist. As the United States Supreme
Court explained when it considered a partisan gerrymandering

challenge to Wisconsin's current state legislative maps, courts

are "not responsible for vindicating generalized partisan

preferences." Gill, 138 S. Ct. at 1933.

¶54 The first section in the Wisconsin Constitution's

Declaration of Rights states: "All people are born equally free

and independent, and have certain inherent rights; among these

are life, liberty and the pursuit of happiness; to secure these
rights, governments are instituted, deriving their just powers

30
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from the consent of the governed." Wis. Const. art. I, § 1.

This section enshrines a first principle of our nation's

founding: "[T]he only source of political power is in the

people; . . . they are sovereign, that is to say, the aggregate

community, the accumulated will of the people, is sovereign[.]"

Cunningham, 81 Wis. at 497.

¶55 Article I, Section 1 of the Wisconsin Constitution has

nothing to say about partisan gerrymanders. "The idea that

partisan gerrymandering undermines popular sovereignty because

the legislature rather than the people selects representatives

is rhetorical hyperbole masked as constitutional argument. When

legislatures draw districts, they in no way select who will

occupy the resulting seats." Alexander & Prakash, Tempest in an

Empty Teapot, at 43. Voters retain their freedom to choose

among candidates irrespective of how district lines are drawn.

Id.

¶56 Contriving a partisan gerrymandering claim from the

text of the Wisconsin Constitution (aside from overstepping our
judicial role) would require us to indulge a fiction——that

partisan affiliation is permanent and invariably dictates how a

voter casts every ballot. Of course, political affiliation "is

not an immutable characteristic, but may shift from one election

to the next[.]" Vieth, 541 U.S. at 287. "[V]oters can——and

often do——move from one party to the other[.]" Davis, 478 U.S.

at 156. Not only is political affiliation changeable, but self-

identified partisans can——and do——vote for a different party's
candidates.

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¶57 If the constitution were misinterpreted to make

changeable characteristics relevant factors in evaluating

redistricting plans, "we fail to see why it demands only a

partisan political mix." Alexander & Prakash, Tempest in an

Empty Teapot, at 21. "[W]hy would a Constitution that never

mentions political parties, much less Republicans[] [and]

Democrats . . . grant special status to partisan identity?" Id.

If we opened the floodgates, what would stop claims seeking

proportional representation for "gun owners" or "vegetarians"?

Id. Nothing distinguishes partisan affiliation from hundreds——

perhaps thousands——of other variables. Id. at 22.

Dispositively, none of these factors are mentioned in the text

of the constitution.

¶58 Nothing supports the notion that Article I, Section 1

of the Wisconsin Constitution was originally understood——or has

ever been interpreted——to regulate partisanship in

redistricting. After discussing the concept of popular

sovereignty in Cunningham, Justice Pinney declared: "The rules
of apportionment and the restrictions upon the power of the

legislature are very simple and brief." 81 Wis. at 511. He

then proceeded to discuss only those requirements found in

Article IV of the Wisconsin Constitution. Id. Regulation of

partisanship is not among them.

¶59 Likewise, Article I, Sections 3 and 4 of the Wisconsin

Constitution do not inform redistricting challenges. These

sections state:

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Section 3. Every person may freely speak, write and
publish his sentiments on all subjects, being
responsible for the abuse of that right, and no laws
shall be passed to restrain or abridge the liberty of
speech or of the press. In all criminal prosecutions
or indictments for libel, the truth may be given in
evidence, and if it shall appear to the jury that the
matter charged as libelous be true, and was published
with good motives and for justifiable ends, the party
shall be acquitted; and the jury shall have the right
to determine the law and the fact.

Section 4. The right of the people peaceably to
assemble, to consult for the common good, and to
petition the government, or any department thereof,
shall never be abridged.
Collectively, these sections protect four related freedoms:

(1) freedom of speech; (2) freedom of the press; (3) freedom of

assembly; and (4) freedom of petition. The First Amendment of

the United States Constitution also secures these rights.

¶60 Nothing about the shape of a district infringes

anyone's ability to speak, publish, assemble, or petition. Even

after the most severe partisan gerrymanders, citizens remain

free to "run for office, express their political views, endorse

and campaign for their favorite candidates, vote, and otherwise

influence the political process through their expression."

Radogno v. Ill. State Bd. of Elections, No. 11-CV-04884, 2011 WL

5025251 at *7 (N.D. Ill. Oct. 21, 2011) (quoted source omitted).

¶61 Parties urging us to consider partisan fairness appear

to desire districts drawn in a manner ensuring their political

speech will find a receptive audience; however, nothing in

either constitution gives rise to such a claim. "The first

amendment's protection of the freedom of association and of the
rights to run for office, have one's name on the ballot, and

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present one's views to the electorate do not also include

entitlement to success in those endeavors. The carefully

guarded right to expression does not carry with it any right to

be listened to, believed or supported in one's views."

Washington v. Finlay, 664 F.2d 913, 927–28 (4th Cir. 1981).

Associational rights guarantee the freedom to participate in the

political process; they do not guarantee a favorable outcome.

See Badham v. Eu, 694 F. Supp. 664, 675 (N.D. Cal. 1988). As

the United States Supreme Court has explained, "[n]one of our

cases establishes an individual's right to have a 'fair shot' at

winning[.]" New York State Bd. of Elections V. Torres, 552

U.S. 196, 205 (2008). Nor does the constitution.

¶62 Article I, Section 22 of the Wisconsin Constitution

provides: "[t]he blessings of a free government can only be

maintained by a firm adherence to justice, moderation,

temperance, frugality and virtue, and by frequent recurrence to

fundamental principles." Wis. Const. art. I, § 22. To

fabricate a legal standard of partisan "fairness"——§ 22 does not
supply one——would represent anything but "moderation" or

"temperance[.]" Whatever operative effect Section 22 may have,

it cannot constitute an open invitation to the judiciary to

rewrite duly enacted law by imposing our subjective policy

preferences in the name of "justice[.]"

¶63 Unlike the Declaration of Rights, Article IV,

Sections 3, 4, and 5 of the Wisconsin Constitution express a

series of discrete requirements governing redistricting. These
are the only Wisconsin constitutional limits we have ever

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recognized on the legislature's discretion to redistrict. The

last time we implemented a judicial remedy for an

unconstitutional redistricting plan, we acknowledged Article IV

as the exclusive repository of state constitutional limits on

redistricting:

[T]he Wisconsin constitution itself provides a
standard of reapportionment 'meet for judicial
judgment.' The legislature shall reapportion
'according to the number of inhabitants' subject to
some geographical and political unit limitations in
execution of this standard. We need not descend into
the 'thicket' to fashion standards whole-cloth.
Zimmerman I, 22 Wis. 2d at 562 (emphasis added) (quoted sources

omitted). In other words, the standards under the Wisconsin

Constitution that govern redistricting are delineated in Article

IV. To construe Article I, Sections 1, 3, 4, or 22 as a

reservoir of additional requirements would violate axiomatic

principles of interpretation, see James, __ Wis. 2d __, ¶¶21–22,

while plunging this court into the political thicket lurking

beyond its constitutional boundaries. Zimmerman I, 22

Wis. 2d at 562.

C. We Will Utilize a "Least-Change" Approach

¶64 The constitutional confines of our judicial authority

must guide our exercise of power in affording the Petitioners a

remedy for their claims. The existing maps were adopted by the

legislature, signed by the governor, and survived judicial

review by the federal courts. See Gill, 138 S. Ct. 1916;

Baldus, 862 F. Supp. 2d 860. Treading further than necessary to
remedy their current legal deficiencies, as many parties urge us

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to do, would intrude upon the constitutional prerogatives of the

political branches and unsettle the constitutional allocation of

power.

¶65 For the paramount purpose of preserving liberty, the

Wisconsin Constitution embodies a structural separation of

powers among the three branches of government, restraining this

court from exercising anything but judicial power. "No

political truth is certainly of greater intrinsic value, or is

stamped with the authority of more enlightened patrons of

liberty" than the separation of powers. The Federalist No. 47,

at 301 (James Madison); see also The Federalist No. 51, at 321–

22 (James Madison) ("[The] separate and distinct exercise of the

different powers of government . . . is admitted on all hands to

be essential to the preservation of liberty."). "While the

separation of powers may prevent us from righting every wrong,

it does so in order to ensure that we do not lose liberty."

Morrison v. Olson, 487 U.S. 654, 710 (1988) (Scalia, J.,

dissenting).
¶66 This court's precedent declares that the legislature's

enactment of a redistricting plan is subject to presentment and

a gubernatorial veto. Zimmerman I, 22 Wis. 2d at 559. If the

legislature and the governor reach an impasse, the judiciary has

a duty to remedy the constitutional defects in the existing

plan. See Zimmerman II, 23 Wis. 2d 606 (implementing a

judicially-created plan). But a duty to remedy a constitutional

deficiency is not a prerogative to make law. See Cunningham, 81
Wis. at 482–83 (majority opinion) (describing the lawmaking

36
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prerogative).

¶67 While courts sometimes declare statutes

unconstitutional and may enjoin their enforcement, typically the

judiciary does not order government officials to enforce a

modified, constitutional version of the statute. See generally

Gimbel Bros. v. Milwaukee Boston Store, 161 Wis. 489, 496, 154

N.W. 998 (1915) (citing 1 James High, A Treatise on the Law of

Injunctions § 2 (edition and year not specified in the

citation)) ("While the power to issue mandatory injunctions is

vested in courts of equity, it is a power which is sparingly

used."). Courts issue mandatory injunctions, an equitable

remedy, "with extreme caution" and "only in cases of equitable

cognizance[.]" 1 James High, A Treatise on the Law of

Injunctions § 2 (4th ed. 1905) (emphasis added).

¶68 Redistricting litigation presents a unique problem.

Unlike the constitutional monarchies of old England, which could

exist in the absence of Parliament, our republican form of

government presupposes the existence of a legislature. U.S.
Const. art. IV, § 4 ("The United States shall guarantee to every

State in this Union a Republican Form of Government[.]"). If

the legislature and the governor reach an impasse, merely

declaring the maps unconstitutional and enjoining elections

pursuant to them creates an intractable impediment to conducting

elections, imperiling our republican form of government.

Judicial action becomes appropriate to prevent a constitutional

crisis. But we must "limit the solution to the problem." See
Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320,

37
 No. 2021AP1450-OA

328 (2006).

¶69 Court involvement in redistricting, as in any other

case, is judicial in nature. In Jensen v. Wisconsin Elections

Board, we stated: "Courts called upon to perform redistricting

are, of course, judicially legislating, that is, writing the law

rather than interpreting it, which is not their usual——and

usually not their proper——role." 249 Wis. 2d 706, ¶10. With

few exceptions confined to the judicial sphere——none of which

are relevant to this case——we have no power to "judicially

legislate."6 "Safeguarding constitutional limitations on the

exercise of legislative power is particularly important in light

of its awesome sweep." Fabick v. Evers, 2021 WI 28, ¶55, 396

Wis. 2d 231, 956 N.W.2d 856 (Rebecca Grassl Bradley, J.,

concurring). The people vested the power in the legislature——

not the executive and certainly not the judiciary. Id.

"Because the people gave the legislature its power to make laws,

the legislature alone must exercise it." Id., ¶56.

¶70 "From the very nature of things, the judicial power
cannot legislate nor supervise the making of laws." League of

Women Voters of Wis. v. Evers, 2019 WI 75, ¶35, 387 Wis. 2d 511,

929 N.W.2d 209 (quoting State ex rel. Rose v. Sup. Ct. of

Milwaukee Cnty., 105 Wis. 651, 675, 81 N.W. 1046 (1900)). By

design, the judicial power has long been kept distinct from the

6We have limited legislative power to regulate certain
subject matter related to the court system. See, e.g., Rao v.
WMA Sec., Inc., 2008 WI 73, ¶35, 310 Wis. 2d 623, 752
N.W.2d 220.

38
 No. 2021AP1450-OA

legislative power. See Neil Gorsuch, A Republic, If You Can

Keep It 52–53 (Forum Trade Paperback ed., 2020) (2019) ("To the

founders, the legislative and judicial powers were distinct by

nature and their separation was among the most important

liberty-protecting devices of the constitutional design, an

independent right of the people essential to the preservation of

all other rights later enumerated in the Bill of Rights.").

¶71 We have the power to provide a judicial remedy but not

to legislate. We have no authority to act as a "super-

legislature" by inserting ourselves into the actual lawmaking

function. Flynn v. Dep't of Admin., 216 Wis. 2d 521, 528–29,

576 N.W.2d 245 (1998) ("If we are to maintain the public's

confidence in the integrity and independence of the judiciary,

we must exercise that power with great restraint, always resting

on constitutional principles, not judicial will. We may differ

with the legislature's choices, as we did and do here, but must

never rest our decision on that basis lest we become no more

than a super-legislature."). Courts "lack the authority to make
the political decisions that the Legislature and the Governor

can make through their enactment of redistricting

legislation[.]" Hippert v. Ritchie, 813 N.W.2d 374, 380 (Minn.

Spec. Redistricting Panel 2012) (citing LaComb v. Growe, 541

F. Supp. 145, 151 (D. Minn. 1982), aff'd sub nom. Orwoll v.

LaComb, 456 U.S. 966). Stated otherwise, "[o]ur only guideposts

are the strict legal requirements."7 In re Legislative

7The judiciary lacks the institutional competency to make
the kind of factual determinations necessary to properly

39
 No. 2021AP1450-OA

Districting of the State, 805 A.2d 292, 298 (Md. 2002) (emphasis

added).

¶72 Because our power to issue a mandatory injunction does

not encompass rewriting duly enacted law, our judicial remedy

"should reflect the least change" necessary for the maps to

comport with relevant legal requirements. See Wright v. City of

Albany, 306 F. Supp. 2d 1228, 1237 (M.D. Ga. 2003) (citations

omitted). Using the existing maps "as a template" and

implementing only those remedies necessary to resolve

constitutional or statutory deficiencies confines our role to

its proper adjudicative function, ensuring we fulfill our role

as apolitical and neutral arbiters of the law.8 See Baumgart,

consider various extra-legal factors. In re Legislative
Districting of the State, 805 A.2d 292, 298 (Md. 2002) ("When
the Court drafts the plan, it may not take into account the same
political considerations as the Governor and the Legislature.
Judges are forbidden to be partisan politicians. Nor can the
Court stretch the constitutional criteria in order to give
effect to broader political judgments, such as . . . the
preservation of communities of interest. More basic, it is not
for the Court to define what a community of interest is and
where its boundaries are, and it is not for the Court to
determine which regions deserve special consideration and which
do not. . . . Our instruction to the consultants was to prepare
for our consideration a redistricting plan that conformed to
federal constitutional requirements, the Federal Voting Rights
Act, and the requirements of Article III, § 4 of the Maryland
Constitution.").
8 The legislature asks us to use the maps it passed during
this redistricting cycle as a starting point, characterizing
them as an expression of "the policies and preferences of the
State[.]" Legislature Br. at 16 (quoting White v. Weiser, 412
U.S. 783, 795 (1973)). The legislature's argument fails because
the recent legislation did not survive the political process.
The existing plans are codified as statutes, without a sunset
provision, and have not been supplanted by new law.

40
 No. 2021AP1450-OA

2002 WL 34127471, at *7 ("The court undertook its redistricting

endeavor in the most neutral way it could conceive——by taking

the 1992 reapportionment plan as a template and adjusting it for

population deviations."); see also Robert H. Bork, The Tempting

of America: The Political Seduction of the Law 88–89 (First

Touchstone ed. 1991) (1990) (describing how Robert H. Bork, as

special master in a redistricting case, drew lines without any

consideration of the partisan effect of his remedy). A least-

change approach is nothing more than a convenient way to

describe the judiciary's properly limited role in redistricting.

¶73 The least-change approach is far from a novel idea;

many courts call it the "minimum change doctrine," reflecting

its general acceptance among reasonable jurists. It was applied

in numerous cases during the last two redistricting cycles.

See, e.g., Crumly v. Cobb Cnty. Bd. of Elections & Voter

Registration, 892 F. Supp. 2d 1333, 1345 (N.D. Ga. 2012) ("In

preparing the draft map, the Court began with the existing map

drawn by Judge Carnes in 2002. The Court followed the doctrine
of minimum change[.]"); Martin v. Augusta-Richmond Cnty., Ga.,

Comm'n, No. CV 112-058, 2012 WL 2339499, at *3 (S.D. Ga. June

19, 2012) ("Essentially, the Court is required to change only

the faulty portions of the benchmark plan, as subtly as

possible, in order to make the new plan constitutional. Keeping

the minimum change doctrine in mind, the Court only made changes

it deemed necessary to guarantee substantial equality and to

honor traditional redistricting concerns." (Internal citation
omitted)); Stenger v. Kellet, No. 4:11-cv-2230, 2012 WL 601017,

41
 No. 2021AP1450-OA

at *3 (E.D. Mo. Feb. 23, 2012) ("A frequently used model in

reapportioning districts is to begin with the current boundaries

and change them as little as possible while making equal the

population of the districts. This is called the 'least change'

or 'minimal change' method . . . . The 'least change' method is

advantageous because it maintains the continuity of

representation for each district and is by far the simplest way

to reapportion[.]"); Below v. Gardner, 963 A.2d 785, 794 (N.H.

2002) ("[W]e use as our benchmark the existing senate districts

because the senate districting plan enacted in 1992 is the last

validly enacted plan and is the clearest expression of the

legislature's intent." (Quotation marks and quoted source

omitted)); Alexander v. Taylor, 51 P.3d 1204, 1211 (Okla. 2002)

("A court, as a general rule, should be guided by the

legislative policies underlying the existing plan. The starting

point for analysis, therefore, is the 1991 Plan."); Bodker v.

Taylor, No. 1:02-cv-999, 2002 WL 32587312, at *5 (N.D. Ga. June

5, 2002) ("The court notes . . . that its plan represents only a
small, though constitutionally necessary, change in the district

lines in accordance with the minimum change doctrine."); Markham

v. Fulton Cnty. Bd. of Registrations & Elections, No. 1:02-cv-

1111, 2002 WL 32587313, at *6 (N.D. Ga. May 29, 2002) ("Keeping

the minimum change doctrine in mind, the Court made only the

changes it deemed necessary to guarantee substantial equality

and to honor traditional redistricting concerns.").

¶74 In declaring this court's role in resolving
redistricting cases, we are mindful that "Wisconsin adheres to

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the concept of a nonpartisan judiciary." SCR 60.06(2)(a). "In

the debate over the Wisconsin Constitution, objections to an

elected judiciary had centered upon the dangers of partisanship.

The debate was resolved with the mandate that elections for

state courts be distinctly non-partisan in character." Ellen

Langill, Levi Hubbell and the Wisconsin Judiciary: A Dilemma in

Legal Ethics and Non-Partisan Judicial Elections, 81 Marq. L.

Rev. 985, 985 (1998). The Wisconsin Constitution discourages

judicial partisanship. Wis. Const. art. IV, § 9 ("There shall

be no election for a justice or judge at the partisan general

election for state or county officer, nor within 30 days either

before or after such election."). Similarly, the Judicial Code

of Conduct prohibits judges from "be[ing] swayed by partisan

interests[.]" SCR 60.04(1)(b).

¶75 To dive into the deepest of "political thicket[s],"9 as

redistricting has been described, with the intention of doing

anything more than securing legal rights would be profoundly

incompatible with Wisconsin's commitment to a nonpartisan
judiciary. If a simple majority of this court opted to draw

maps from scratch, thereby fundamentally altering Wisconsin's

political landscape for years, it would significantly "increase

the political pressures on this court in a partisan way that is

9 Colegrove v. Green, 328 U.S. 549, 556 (1946) (plurality),
abrogation recognized by Evenwel v. Abbott, 577 U.S. 937 (2016)
("Courts ought not to enter this political thicket. The remedy
for unfairness in districting is to secure State legislatures
that will apportion properly, or to invoke the ample powers of
Congress.").

43
 No. 2021AP1450-OA

totally inconsistent with our jobs as [a] nonpartisan

judiciary." Wisconsin Supreme Court Open Administrative

Conference (Open Administrative Conference), at 33:36 (Jan. 22,

2009) (statements of Roggensack, J.),

https://wiseye.org/2009/01/22/supreme-court-open-administrative-

conference-3/.

¶76 Many intervenors have argued the 2011 maps entrenched

a Republican Party advantage, so using them as a starting point

perpetuates a partisan gerrymander. In other words, these

intervenors argue we must tip the partisan balance to benefit

one party in order to avoid accusations of partisanship. We

reject this demand to "[s]imply undo[] the work of one political

party for the benefit of another[.]" Henderson v. Perry, 399

F. Supp. 2d 756, 768 (E.D. Tex. 2005), rev'd in part on other

grounds sub nom., League of United Latin Am. Citizens v. Perry,

548 U.S. 399, 420 (2006) (plurality). Endeavoring to rebalance

the allocation of districts between the two major parties would

be a decidedly nonjudicial exercise of partisanship by the
court. Instead, we adopt a neutral standard. While the

application of neutral standards inevitably benefits one side or

the other in any case, it does not place our thumb on any

partisan scale, as some intervenors urge us to do.

¶77 "Putting courts into politics, and compelling judges

to become politicians, in many jurisdictions has almost

destroyed the traditional respect for the Bench." Roscoe Pound,

The Causes of Popular Dissatisfaction with the Administration of
Justice (1906), as reprinted in Roscoe Pound Kindles the Spark

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 No. 2021AP1450-OA

of Reform, 57 A.B.A. J. 348, 351 (1971). A least-change

approach safeguards the long-term institutional legitimacy of

this court by removing us from the political fray and ensuring

we act as judges rather than political actors.

¶78 The judiciary has been repeatedly subject to "purely

political attacks" by people who "did not get the result from

the court . . . [they] wanted." Patience Drake Roggensack,

Tough Talk and the Institutional Legitimacy of Our Courts,

Hallows Lecture (Mar. 7, 2017), in Marq. Law., Fall 2017, at 45,

46. These often partisan onslaughts threaten the

"[i]nstitutional legitimacy" of the judiciary, which, in turn,

threatens the "rule of law" itself. Id. By utilizing the

least-change approach, we do not endorse the policy choices of

the political branches; rather, we simply remedy the

malapportionment claims. Attempting to redress the criticisms

of the current maps advanced by multiple intervenors would

amount to a judicial replacement of the law enacted by the

people's elected representatives with the policy preferences of
unelected interest groups, an act totally inconsistent with our

republican form of democracy.

¶79 We close by addressing Article IV, Section 3 of the

Wisconsin Constitution, which says, in each redistricting cycle,

"the legislature shall apportion and district anew[.]"

(Emphasis added.) Focusing on the word "anew," an intervenor

and an amicus curiae argue the court must make maps from

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scratch.10 Although the proponents of this interpretation

attempt to ground their argument in the provision's text, they

miss the forest for the trees. Read as a whole, the provision

means the legislature must implement a redistricting plan each

cycle and the language cannot reasonably be read to require the

court to make maps at all, let alone from scratch.

V. CONCLUSION

¶80 This case illustrates the extraordinary danger of

asking the judiciary to exercise "FORCE" and "WILL" instead of

legal "judgment." The Federalist No. 78, at 465 (Alexander

Hamilton). Manufacturing a standard of political "fairness" by

which to draw legislative maps in accordance with the subjective

preferences of judges would refashion this court as a committee

of oligarchs with political power superior to both the

legislature and the governor. See In re Review of the Code of

Judicial Ethics, SCR Chapter 60, 169 Wis. 2d xv, xxv (1992)

(Day, J., concurring, joined by a majority) ("Tyranny need not

be dressed in a military uniform, it can also wear a black
robe!"). Judges must refuse to become "philosopher kings

empowered to 'fix' things according to the dictates of what we

fancy is our superior insight[.]" Tyler v. Hillsdale Cnty.

Sheriff's Dep't, 837 F.3d 678, 707 (6th Cir. 2016) (Batchelder,

J., concurring in part).

¶81 In this case, we will implement judicial remedies only

to the extent necessary to remedy the violation of a justiciable

10 BLOC Br. at 31–36; Whitford Amicus Br. at 5–6.

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 No. 2021AP1450-OA

and cognizable right found in the United States Constitution,

the VRA, or Article IV, Sections 3, 4, or 5 of the Wisconsin

Constitution. We will not consider the partisan makeup of

districts because it does not implicate any justiciable or

cognizable right. We adopt the least-change approach to

remedying any constitutional or statutory infirmities in the

existing maps because the constitution precludes the judiciary

from interfering with the lawful policy choices of the

legislature.

By the court.——Rights declared.

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 No. 2021AP1450-OA.bh

¶82 BRIAN HAGEDORN, J. (concurring). To the extent

feasible, a court's role in redistricting should be modest and

restrained. We are not the branch of government assigned the

constitutional responsibility to "apportion and district anew"

after each decennial census; the legislature is.1 The job of the

judiciary is to decide cases based on the law.2 Here, the laws

passed in 2011 establishing legislative and congressional

districts cannot govern future elections as written due to

population shifts. Accordingly, our role is appropriately

limited to altering current district boundaries only as needed

to comply with legal requirements.3 The majority opinion so

concludes, and I join it in almost all respects.4

1 Wis. Const. art. IV, § 3; Jensen v. Wis. Elections Bd.,
2002 WI 13, ¶6, 249 Wis. 2d 706, 639 N.W.2d 537.
2 Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶1,
393 Wis. 2d 38, 946 N.W.2d 35.
3 Upham v. Seamon, 456 U.S. 37, 43 (1982) ("Whenever a
district court is faced with entering an interim reapportionment
order that will allow elections to go forward it is faced with
the problem of 'reconciling the requirements of the Constitution
with the goals of state political policy.' An appropriate
reconciliation of these two goals can only be reached if the
district court's modifications of a state plan are limited to
those necessary to cure any constitutional or statutory defect."
(citation omitted)); White v. Weiser, 412 U.S. 783, 795 (1973)
("In fashioning a reapportionment plan or in choosing among
plans, a district court should not pre-empt the legislative task
nor 'intrude upon state policy any more than necessary.'"
(quoting another source)).
4 I concur in the majority's conclusions that: (1) remedial
maps must comply with the United States Constitution; the Voting
Rights Act; and Article IV, Sections 3, 4, and 5 of the
Wisconsin Constitution; (2) we should not consider the partisan
makeup of districts; and (3) our relief should modify existing
maps under a least-change approach. I join the entirety of the
majority opinion except ¶¶8, 69-72, and 81. The paragraphs I do
1
 No. 2021AP1450-OA.bh

¶83 Where the political process has failed and modified

maps are needed before the next election, the court's function

is to formulate a remedy——one tailored toward fixing the legal

deficiencies.5 The majority opinion asserts that only legal

requirements may be considered in constructing a fitting remedy.

That is not quite correct. Legal standards establish the need

for a remedy and constrain the remedies we may impose, but they

are not the only permissible judicial considerations when

constructing a proper remedy.6 For example, one universally

recognized redistricting criterion is communities of interest.7

It is not a legal requirement, but it may nonetheless be an

not join contain language that would foreclose considerations
that could be entirely proper in light of the equitable nature
of a judicial remedy in redistricting. I address this below.

The dissent uses the term "majority/lead opinion" to
reflect that not all paragraphs of the court's opinion reflect
the opinion of four justices. While this is true, I use
"majority opinion" for ease of use and to convey that the
opinion is a majority except in the limited area of disagreement
with the paragraphs I do not join.
5North Carolina v. Covington, 137 S. Ct. 1624, 1625 (2017)
(per curiam) ("Relief in redistricting cases is 'fashioned in
the light of well-known principles of equity.'" (quoting
Reynolds v. Sims, 377 U.S. 533, 585 (1964))); New York v.
Cathedral Acad., 434 U.S. 125, 129 (1977) ("[I]n constitutional
adjudication as elsewhere, equitable remedies are a special
blend of what is necessary, what is fair, and what is workable."
(quoting another source)).
6Covington, 137 S. Ct. at 1625 (explaining that a court in
a redistricting action "must undertake an 'equitable weighing
process' to select a fitting remedy for the legal violations it
has identified" and noting "there is much for a court to weigh"
(quoting another source)).
7 See Abrams v. Johnson, 521 U.S. 74, 99-100 (1997).

2
 No. 2021AP1450-OA.bh

appropriate, useful, and neutral factor to weigh.8 Suppose we

receive multiple proposed maps that comply with all relevant

legal requirements, and that have equally compelling arguments

for why the proposed map most aligns with current district

boundaries. In that circumstance, we still must exercise

judgment to choose the best alternative. Considering

communities of interest (or other traditional redistricting

criteria) may assist us in doing so.9 In other words, while a

remedy must be tailored to curing legal violations, a court is

not necessarily limited to considering legal rights and

requirements alone when formulating a remedy.

¶84 This does not mean our remedial powers are without

guardrails.10 And this is where the dissent errs. The dissent

argues we can take over the responsibility of the legislature

entirely, discard policy judgments we don't like, and craft a

new law from scratch consistent with our own policy concerns.

8Id. (noting with approval that a federal district court
properly considered traditional redistricting criteria
"includ[ing] maintaining core districts and communities of
interest" when adopting a redistricting plan).
9Another example of a traditional and neutral redistricting
criterion that may assist us, but does not implicate a legal
right per se, is the goal of minimizing the number of voters who
must wait six years between voting for their state senator. See
Prosser v. Elections Bd., 793 F. Supp. 859, 864 (W.D. Wis.
1992).
10Schroeder v. Richardson, 101 Wis. 529, 531, 78 N.W. 178
(1899) ("[W]hile the power of a court of equity is quite broad
where a remedy is called for and legal remedies do not meet the
situation, it does not extend so far as to clothe the court with
power to substitute judicial notions of justice for the written
law.").

3
 No. 2021AP1450-OA.bh

The reader should look past pleas for fairness and see this for

what it is: a claim of dangerously broad judicial power to

fashion state policy. According to the dissent, this court

should simply ignore the law on the books——one the dissent makes

clear it is not fond of——and draft a new one more to its liking.

¶85 The majority opinion aptly explains that our judicial

role forecloses this; our remedial powers are not so unbounded.11

It is appropriate for us to start with the laws currently on the

books because they were passed in accordance with the

constitutional process and reflect the policy choices the people

made through their elected representatives.12 Our task is

therefore rightly focused on making only necessary modifications

to accord with legal requirements.13 A least-change approach is

the most consistent, neutral, and appropriate use of our limited

Whitcomb v. Chavis, 403 U.S. 124, 161 (1971) ("The
11

remedial powers of an equity court must be adequate to the task,
but they are not unlimited.").

Laws do not become any less authoritative simply because
12

newly-elected politicians disapprove of them. This court has no
license to ignore laws based on our own personal policy
disagreements or those of today's elected officials. The law
changes by legislation, not by elections. See Vos, 393
Wis. 2d 38, ¶1.

It appears that we also used the pre-existing statutory
13

maps as our starting point in State ex rel. Reynolds v.
Zimmerman, 23 Wis. 2d 606, 128 N.W.2d 16 (1964). While we did
not expressly adopt a least-change approach, the similarities
between the remedial maps and the pre-existing statutory maps
are striking. For example, of the 33 senate districts the court
drew, 31 consisted of some or all of the same counties as the
parallel predecessor districts. Compare Reynolds, 23 Wis. 2d at
617-18 with Wis. Stat. § 4.02 (1963-64). In contrast, only two
districts——the 28th and the 31st——contained none of the same
counties as they did under the prior maps. Id.

4
 No. 2021AP1450-OA.bh

judicial power to remedy the constitutional violations in this

case.14

¶86 We asked the parties to brief whether we should use a

least-change approach, and if not, what approach we should use.

The main alternative we received15 was an entreaty to use this as

an opportunity to rearrange district boundaries with the goal of

reversing what the dissent calls "an obsolete partisan agenda."16

As the majority opinion explains, the Wisconsin Constitution

does not preclude the legislature from drawing districts with

partisan interests in mind.17 In reality, we are being asked to

make a political judgment cloaked in the veneer of neutrality.

Namely, we are being asked to conclude that the current maps are

likely to result in the election of too many representatives of

one party, so we should affirmatively and aggressively redesign

maps that are likely to result in the election of more members

of a different political party. The petition here——that we

should use our equitable authority to reallocate political power

The legislature, on the other hand, may decide for itself
14

whether to defer to prior maps when enacting new districts into
law. The Wisconsin Constitution gives the legislature wide
discretion to draft new maps from scratch based on the policy
considerations it chooses. Wis. Const. art. IV, §§ 1, 3.

The Legislature suggested we start with their proposed
15

maps. But those maps, if not enacted into law, are mere
proposals deserving no special weight.
16 Dissent, ¶114.

The majority opinion concludes a claim for partisan
17

gerrymandering is neither cognizable nor justiciable under the
Wisconsin Constitution. I agree and join the majority's
holdings and analysis explaining why this is so.

5
 No. 2021AP1450-OA.bh

in Wisconsin——is not a neutral undertaking. It stretches far

beyond a proper, focused, and impartial exercise of our limited

judicial power.

¶87 With this in view, parties are invited to submit

congressional and state legislative maps that comply with all

relevant legal requirements, and that endeavor to minimize

deviation from existing law.18 Parties should explain in their

proposals why their maps comply with the law, and how their maps

are the most consistent with existing boundaries. Parties

should not present arguments regarding the partisan makeup of

proposed districts. While other, traditional redistricting

criteria may prove helpful and may be discussed, our primary

concern is modifying only what we must to ensure the 2022

elections are conducted under districts that comply with all

relevant state and federal laws.

The
18 Wisconsin Constitution explicitly requires the
legislature to draw new state assembly and state senate
districts after each census. Wis. Const. art. IV, § 3. This
section does not refer to congressional districts. The parties
dispute whether other provisions of the Wisconsin Constitution
have anything to say about congressional districts. Regardless
of the answer to that question, we have explained that
"congressional reapportionment and state legislative
redistricting are primarily state, not federal, prerogatives,"
and that "the United States Constitution and principles of
federalism and comity dictate that the states' role is primary."
Jensen, 249 Wis. 2d 706, ¶5. Where judicial action is
necessary, this includes the primary role of state supreme
courts. Id., ¶11. Accordingly, it is fitting for us to address
congressional malapportionment claims as well, whether under
state or federal law.

6
 No. 2021AP1450-OA.rfd

¶88 REBECCA FRANK DALLET, J. (dissenting).

Redistricting is an "inherently political and legislative——not

judicial——task," even when judges do it. See Jensen v. Wis.

Elections Bd., 2002 WI 13, ¶10, 249 Wis. 2d 706, 639 N.W.2d 537

(per curiam). That is one reason why I said that the federal

courts, comprised of judges insulated from partisan politics by

lifetime appointments, are best suited to handle redistricting

cases. See Johnson v. WEC, No. 2021AP1450-OA, unpublished

order, at 15-16 (Wis. Sept. 22, 2021) (Dallet, J., dissenting).

But now that we have stepped out of our traditional judicial

role and into the "the political thicket" of redistricting, it

is vital that this court remain neutral and nonpartisan. See

Evenwel v. Abbott, 136 S. Ct. 1120, 1123 (2016). The majority1

all but guarantees that we cannot. First, the majority

adopts 2011's "sharply partisan" maps as the template for its

"least-change" approach. See Baldus v. Members of Wis. Gov't

Accountability Bd., 849 F. Supp. 2d 840, 844 (E.D. Wis. 2012).

And second, it effectively insulates future maps from being
challenged as extreme partisan gerrymanders. The upshot of

those two decisions, neither of which is politically neutral, is

to elevate outdated partisan choices over neutral redistricting

criteria. That outcome has potentially devastating consequences

for representative government in Wisconsin. I therefore

dissent.

1I refer to Justice Rebecca Grassl Bradley's opinion as the
"majority/lead opinion," because a majority of the court does
not join it in its entirety. I refer to the "majority" only
when discussing conclusions in the majority/lead opinion that
garnered four votes.
1
 No. 2021AP1450-OA.rfd
I

¶89 The majority/lead opinion's adoption of a "least-

change" approach to evaluating or crafting remedial maps does

not "remov[e] us from the political fray and ensur[e] we act as

judges rather than political actors." Majority/lead op., ¶77.

It does the opposite, inserting the court directly into politics

by ratifying outdated partisan political choices. In effect, a

least-change approach that starts with the 2011 maps nullifies

voters' electoral decisions since then. In that way, adopting a

least-change approach is an inherently political choice. Try as

it might, the majority is fooling no one by proclaiming its

decision is neutral and apolitical.

¶90 Although no court in Wisconsin, state or federal, has

ever adopted a least-change approach, the majority/lead opinion

would have you believe that other jurisdictions commonly use

such an approach when starting from legislatively drawn maps.

But the cases it cites provide virtually no support for this

approach. One simply involves a state's supreme court approving

the trial court's selection of a congressional map. Alexander

v. Taylor, 51 P.3d 1204, 1211 (Okla. 2002). All but one of the

remaining cases began with court-drawn maps or involved local

maps drawn for county boards and commissions. See Below v.

Gardner, 963 A.2d 785, 794 (N.H. 2002). The bottom line is that

the least-change approach has no "general acceptance among

reasonable jurists" when the court's starting point is a

legislatively drawn map. See majority/lead op., ¶73.
¶91 To be sure, there may be limited circumstances in

which a least-change approach is appropriate. For example, when
2
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a court is redrawing maps based on a prior court-drawn plan, it

may make sense to make fewer changes since the existing maps

should already reflect neutral redistricting principles.

See, e.g., Hippert v. Ritchie, 813 N.W.2d 374, 380 (Minn.

Special Redistricting Panel 2012) (explaining that the panel

utilizes a least-change strategy "where feasible"); see also

Zachman v. Kiffmeyer, No. C0-01-160, unpublished order, at 6

(Minn. Special Redistricting Panel Mar. 19, 2002) (adopting the

plan that the Hippert court used as its template). Another

situation where minimizing changes may be appropriate is when a

court finds localized problems with a plan validly enacted

through the political process. See Baldus, 849 F. Supp. 2d

at 859-60 (E.D. Wis. 2012) (holding that two Milwaukee-area

assembly districts violated the Voting Rights Act, but

emphasizing that "the re-drawing of lines for [those districts]

must occur within the combined outer boundaries of those two

districts" to avoid disrupting the otherwise valid state map).

¶92 Here, however, we are dealing with neither of those

situations. We are adopting statewide maps to replace a 2011
plan that the parties all agree is now unconstitutional. More

to the point, however, the 2011 map was enacted using a "sharply

partisan methodology" by a legislature no longer in power and a

governor who the voters have since rejected. See id.

at 844, 851 (adding that it was "almost laughable" that anyone

would assert that those maps "were not influenced by partisan

factors"). The partisan character of the 2011 maps is evident

both in the process by which they were drawn——"under a cloak of

3
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secrecy," totally excluding the minority political party2——and in

their departure from neutral traditional redistricting criteria.

See id. at 850 (explaining that the court shared "in many

respects" plaintiffs' expert's concerns that the 2011 maps

contained "excessive shifts in population, disregard for core

district populations, arbitrary partisan motivations related to

compactness, and unnecessary disenfranchisement").

¶93 It is one thing for the current legislature to

entrench a past legislature's partisan choices for another

2At the outset of the 2011 redistricting process, "the
Republican legislative leadership announced to members of the
Democratic minority that the Republicans would be provided
unlimited funds to hire counsel and consultants" to assist in
redistricting, while "Democrats . . . would not receive any
funding." Baldus, 849 F. Supp. 2d at 844-45. One of the
drafters met with "every single Republican member of the State
Assembly," but "[h]e did not meet with any Democrats." Id. at
845. Before each meeting, the participants were required to
sign confidentiality agreements. Id. Another drafter held
meetings "with the Republican members [of Congress]," who
"expressed their desire to draw districts that would maximize
the chances for Republicans to be elected." Id. at 846. In
addition to keeping the plan secret from Democratic legislators,
"[e]very effort was made to keep this work out of the public
eye." Id. at 845.

4
 No. 2021AP1450-OA.rfd

decade.3 It is another thing entirely for this court to do the

same. For starters, the least-change approach is not the

"neutral standard" the majority/lead opinion portrays it as.

Rather, applying that approach to 2011's maps affirmatively

perpetuates the partisan agenda of politicians no longer in

power. It doesn't matter which political party benefits from

the 2011 maps, only that we cannot start with them and maintain

judicial neutrality. Moreover, a least-change approach risks

entrenching 2011's partisan agenda in future redistricting

cycles. If the party that benefits from the maps adopted in

this case controls only the legislature for the next

redistricting cycle, it has every incentive to ensure an

impasse. After all, an impasse will result in the court

changing the maps as little as possible——thus preserving that

party's hold on power. The point is, the least-change approach

is anything but a "neutral standard." Majority/lead op., ¶76.

The majority/lead opinion hints that a least-change
3

approach is appropriate because the 2011 maps were "codified as
statutes, without a sunset provision, and have not been
supplanted by new law." Majority/lead op., ¶72 n.8. But both
the Wisconsin and U.S. Constitutions require that all maps be
redrawn every ten years to account for population shifts since
the prior census. See Wis. Const. art. IV, § 3 (requiring the
legislature to "apportion and district anew the members of the
senate and assembly" in the first session after each census);
see also Reynolds v. Sims, 377 U.S. 533 (1964); Baker v. Carr,
369 U.S. 186 (1962). These are the sunset provisions. In this
respect, the 2011 maps are unlike an ordinary unconstitutional
statute, since they were enacted without any expectation of
longevity. Indeed, at this point they are a practical nullity.
Accordingly, the majority/lead opinion's comparisons to the
typical remedies when a court finds a statute unconstitutional
are inapt. See id., ¶¶67, 72 & n.8. And the fact that the maps
have "not been supplanted by new law," id., ¶72 n.8, is
precisely the reason why the court is redistricting at all. It
is hardly a reason to treat the prior maps as a valid template.

5
 No. 2021AP1450-OA.rfd

¶94 True neutrality could be achieved by instead adhering

to the neutral factors supplied by the state and federal

constitutions, the Voting Rights Act, and traditional

redistricting criteria. The population equality (i.e., "one

person, one vote") principles in the state and federal

constitutions and the federal Voting Rights Act, 52

U.S.C. § 10301(a), are universally acknowledged as politically

neutral and central to any redistricting plan. Likewise for the

remaining requirements of the Wisconsin Constitution,

compactness, contiguity, and respect for political subdivision

boundaries. Wis. Const. art. IV, §§ 3, 4. In addition to these

constitutional and statutory baselines, neutral factors include

other "traditional redistricting criteria" such as compactness,4

preserving communities of interest, and minimizing "senate

disenfranchisement."5 E.g., Baumgart v. Wendelberger,

No. 01-C-0121, 2002 WL 34127471, at *3 (E.D. Wis. May 30, 2002).

¶95 The traditional redistricting criteria, however, are

glaringly absent from the majority/lead opinion. A charitable

4Unlike the Wisconsin Constitution, the U.S. Constitution
does not impose a compactness requirement on congressional
districts. Nonetheless, compactness is one of the traditional
redistricting criteria applied by courts drawing congressional
maps or reviewing legislatively-drawn ones. See, e.g.,
Baldus, 849 F. Supp. 2d at 850; Prosser v. Elections Bd., 793
F. Supp. 859, 863 (W.D. Wis. 1992).
5Senate disenfranchisement occurs when a voter is shifted
from an odd-numbered senate district (which votes only in
midterm election years) to an even-numbered senate district
(which votes only in presidential election years), thereby
delaying for two years the voter's ability to vote for her state
senator. See Baumgart v. Wendelberger, No. 01-C-0121, 2002 WL
34127471, at *3 (E.D. Wis. May 30, 2002).

6
 No. 2021AP1450-OA.rfd

read of the majority/lead opinion is that whatever factors it

doesn't discuss——preserving communities of interest and

minimizing senate disenfranchisement, for example——are

sufficiently baked into the 2011 maps such that we can simply

rebalance the populations of existing districts and call it a

day. But, as mentioned previously, there is good reason to

doubt that the 2011 maps meaningfully balanced any of the

traditional redistricting criteria.

¶96 For one thing, while the 2011 maps were attacked in

federal court for failing to satisfy some of the traditional

redistricting criteria, the federal court examined those

criteria only to the extent needed to justify constitutionally

suspect population deviations between districts. See

Baldus, 849 F. Supp. 2d at 849-52. As a result, the federal

court made no finding, for example, that the prior maps

adequately accounted for communities of interest. In fact, the

federal court noted that it shared many of plaintiffs' expert's

concerns that the maps did not do so. See id. at 851.

¶97 For another thing, even if the 2011 maps reflected the
traditional redistricting criteria when they were adopted, we

cannot assume that they still reflect those criteria today.

Population shifts over the last ten years may have expanded or

altered existing communities of interest, and various ways of

equalizing the populations of state legislative districts may

result in unnecessary senate disenfranchisement. This is why

even when other courts use a least-change approach, they

acknowledge that traditional redistricting criteria might still
require more substantial changes. See, e.g., Alexander, 51 P.3d

7
 No. 2021AP1450-OA.rfd

at 1211 (starting with the prior legislatively enacted map but

considering "[w]idely recognized neutral redistricting criteria"

including core retention, communities of interest, and avoiding

incumbent pairing); Hippert, 813 N.W.2d at 380-82, 385-86 (using

"a least-change strategy where feasible" alongside

considerations of communities of interest and incumbent

residences).

¶98 In this case we are adopting new maps, not reviewing

legislatively enacted ones. We should therefore ensure that the

maps we adopt are the "best that c[an] be managed" under all

relevant criteria, especially since we know that there is no

single dispositive factor in crafting districts. See Prosser v.

Elections Bd., 793 F. Supp. 859, 863 (W.D. Wis. 1992); see also

Baldus, 849 F. Supp. 2d at 850 (explaining that "factors like

homogeneity of needs and interests, compactness, contiguity, and

avoidance of breaking up counties, towns, villages, wards, and

neighborhoods," not just population equality, "are all necessary

to achieve" a representative democracy). Adopting the best maps

possible based on all the relevant criteria protects our
neutrality and ensures that the resulting districts foster a

representative democracy. That is, in part, why the last three

federal courts to draw Wisconsin's districts took a similar

tack. See Baumgart, 2002 WL 34127471, at *2 ("The

reapportionment of state legislative districts requires

balancing of several disparate goals."); Prosser, 793 F. Supp.

at 865 ("The issue for us is therefore remedy: not, [i]s some

enacted plan constitutional? But, [w]hat plan shall we as a
court of equity promulgate in order to rectify the admitted

8
 No. 2021AP1450-OA.rfd

constitutional violation? What is the best plan?"); Wis. State

AFL-CIO v. Elections Bd., 543 F. Supp. 630, 637 (E.D. Wis. 1982)

(discussing the traditional redistricting criteria before

adopting the court's own plan, without deference to the last set

of maps adopted by the legislature). Along the way, we may have

to make fewer changes in some places, and more changes in

others. See Robert Yablon, Gerrylaundering, 97 N.Y.U. L. Rev.

(forthcoming 2022) (explaining that in redistricting "we should

not reflexively embrace the past for the sake of stability," but

"we also should not reflexively embrace change above all else").

But resorting to a least-change approach does not help us

balance the relevant factors.

¶99 More concerning than its silence regarding the

traditional redistricting criteria is the possibility that the

majority/lead opinion will prioritize its atextual least-change

approach over the text of the Wisconsin Constitution. The

Wisconsin Constitution imposes several substantive requirements

on assembly districts, including that they be in "as compact

form as practicable." Wis. Const. art. IV, § 4. The
majority/lead opinion's reasoning suggests that, despite that

constitutional directive and even if a more compact set of

population-equalizing assembly maps is "practicable," the court

is free to adopt a less compact set of maps simply because they

make fewer changes to the 2011 plan. That cannot be right. The

least-change principle is found nowhere in the Wisconsin or U.S.

Constitutions. Constitutionally mandated criteria do not take a

back seat to extra-constitutional methods like least-change.
See Yablon, supra (explaining that nothing would "license the

9
 No. 2021AP1450-OA.rfd

legislature to adopt a map that subordinates the[] criteria [of

the Wisconsin Constitution] to an extra-legal preference" for

minimal changes to the previous maps).

¶100 Likewise, the text of the Wisconsin Constitution

provides no support for the majority's hierarchical distinctions

between its various criteria. Nowhere does the Constitution

relegate to "secondary importance" the requirements of

compactness, contiguity, and respect for political subdivision

boundaries found in Article IV, § 4. Contra majority/lead

op., ¶34 (citing Wis. State AFL-CIO, 543 F. Supp. at 635). And

the majority offers no legitimate explanation for why some

constitutional requirements are more important than others. The

source it cites for this supposed primary/secondary

distinction——Wisconsin State AFL-CIO——is of no help because that

case found the distinction in an Illinois case citing the

Illinois Constitution. See Wis. Stat. AFL-CIO, 543 F. Supp.

at 635 (citing People ex rel. Scott v. Grivetti, 277 N.E.2d 881

(Ill. 1971)). Just as we cannot allow an atextual approach,

such as least-change, to supersede the Constitution's text, we
cannot pretend that some constitutional provisions are more

important than others.

¶101 Finally, the majority fails to flesh out exactly what

a least-change approach entails, thus leaving the parties with

little actual guidance. What exactly, should the parties change

the least? Does "least change" refer to the fewest changes to

districts' boundary lines? The fewest number of people moved

from one district to the next? Moreover, based on recent
population shifts, what is the feasibility of a least-change

10
 No. 2021AP1450-OA.rfd

approach? Hippert, 813 N.W.2d at 381 ("[P]opulation shifts

within the state, however, sometimes [render] a least-change

approach . . . not feasible."). For example, Dane County has

gained more than 73,000 residents since the last census——more

than the optimal population of an entire assembly district.6

Meanwhile, Milwaukee County and many of the state's rural areas

have seen slow growth or outright declines in population.7 These

population shifts suggest that the 2011 district lines,

particularly on a legislative level, may not provide a very

useful template for crafting a remedial plan.

II

¶102 In an unnecessary and sweeping overreach, the majority

effectively insulates future maps from constitutional attack by

holding that excessive partisan gerrymandering claims are not

viable under the Wisconsin Constitution. It gets there by

answering a constitutional question that we never asked, that

the parties did not brief, and that is immaterial to this case.8

The majority seems to think that, because it fails to "find a

right to partisan fairness in . . . the Wisconsin Constitution,"

the court cannot consider, for any reason, the partisan effects

of remedial maps. Majority/lead op., ¶53. But there is no

6 See https://www.census.gov/quickfacts/fact/table/milwaukee
countywisconsin,danecountywisconsin,marinettecountywisconsin/PST
045219.
7 See id.
8 The question we actually asked was whether the "partisan
makeup of districts [is] a valid factor for us to consider in
evaluating or creating new maps." Johnson v. WEC,
No. 2021AP1450-OA, unpublished order, at 2 (Wis. Oct. 14, 2021).

11
 No. 2021AP1450-OA.rfd

logical connection between these conclusions. In fact,

willfully blinding the court to the partisan makeup of districts

increases the risk that we will adopt a partisan gerrymander.

A

¶103 The majority's gratuitous discussion of whether claims

of extreme partisan gerrymandering are cognizable under the

Wisconsin Constitution starts with a flawed reading of the

United States Supreme Court's decision in Rucho v. Common Cause,

139 S. Ct. 2484 (2019). There, the Court held that excessive

partisan-gerrymandering claims were not justiciable under the

federal constitution because there were no judicially manageable

standards by which federal courts could determine that

gerrymandering had gone too far. Id. at 2498-2502 (clarifying

that the Court does "not condone excessive partisan

gerrymandering"). The Court observed, however, that this

remained an open question under state constitutions. Id.

at 2507-08. It should be obvious that here, because we have no

partisan gerrymandering claim before us, Rucho is irrelevant.

Several parties have urged us not to adopt a map tantamount to a

partisan gerrymander, and some have pointed out that Wisconsin's

current legislative and congressional districts are the result

12
 No. 2021AP1450-OA.rfd

of a "sharply partisan methodology."9 See Baldus, 849

F. Supp. 2d at 844. But nobody argues that we should strike

down any existing map on the basis that it is an extreme

partisan gerrymander. Without an excessive partisan-

gerrymandering claim before us, there is no reason for the

majority to issue an advisory opinion about whether such claims

are cognizable under the Wisconsin Constitution.

¶104 That said, even if someone had brought such a claim,

the majority is wrong that determining when partisan

gerrymandering has gone too far is a non-justiciable political

question under the Wisconsin Constitution. It is not, as the

majority claims, "obvious[ly]" impossible to develop judicially

manageable standards for judging when partisan gerrymandering is

excessive. Indeed, other state courts have done it. See League

of Women Voters of Pa. v. Pennsylvania, 178 A.3d 737, 814, 821

(Pa. 2018) (holding that claims of extreme partisan

gerrymandering are cognizable under the Pennsylvania

Constitution and striking down the state's congressional map on

that basis); Common Cause v. Lewis, No. 18CVS014001, 2019
WL 4569584, at *2-3 (N.C. Super. Ct. Sept. 3, 2019) (striking

down state legislative maps as "extreme partisan

The majority mischaracterizes this argument as advocating
9

a "proportional party representation" requirement. See
majority/lead op., ¶¶42, 47. No party has suggested that the
court should radically reform our system of government to ensure
the political parties are represented in proportion to their
percentage of the statewide vote. In fact, the only party that
argues for a constitutional requirement that the court consider
partisan metrics acknowledges that proportional representation
by political party is unattainable given single-member districts
and the political geography of Wisconsin.

13
 No. 2021AP1450-OA.rfd

gerrymandering"). And the federal courts had done it before

Rucho. See, e.g., Ohio A. Philip Randolph Inst. v.

Householder, 373 F. Supp. 3d 978, 1078 (S.D. Ohio 2019)

(concluding that "workable standards, which contain limiting

principles, exist so that courts can adjudicate [partisan]

gerrymandering claims just as they have adjudicated other types

of gerrymandering claims"), vacated and remanded sub nom. Chabot

v. Ohio A. Philip Randolph Inst., 140 S. Ct. 102 (2019); League

of Women Voters of Mich. v. Benson, 373 F. Supp. 3d 867, 911-12

(E.D. Mich. 2019) (explaining that "lower federal courts have

formulated judicially-manageable standards for adjudicating

partisan gerrymandering claims"), vacated and remanded sub nom.

Chatfield v. League of Women Voters of Mich., 140 S. Ct. 429

(2019). There is no reason why we could not develop similar

standards to judge such claims in Wisconsin.

¶105 In any case, there is no need for us to decide this

question now. We have no claim of excessive partisan

gerrymandering before us. We should wait until we do and then

decide——with the benefit of full briefing from the parties——
whether our Constitution protects a practice that is

"incompatible with democratic principles." See Ariz. State

Legis. v. Ariz. Ind. Redistricting Comm'n, 135 S. Ct. 2652, 2658

(2015).

B

¶106 Although the majority's rejection of extreme partisan-

gerrymandering claims has no effect on the outcome of this case,
it likely has far-reaching consequences for future redistricting

14
 No. 2021AP1450-OA.rfd

cycles. Discarding a potential limitation on partisan

gerrymandering gives future legislators and governors a green

light to engage in a practice that robs the people of their most

important power——to select their elected leaders. See The

Federalist No. 37, at 4 (James Madison) ("The genius of

republican liberty seems to demand on one side, not only that

all power should be derived from the people, but that those

[e]ntrusted with it should be kept in independence on the

people.").

¶107 Extreme partisan gerrymandering strikes at the

foundation of that power. Representative government demands

"that the voters should choose their representatives, not the

other way around." Ariz. State Legis., 135 S. Ct. at 2677

(internal quotation marks omitted). Extreme partisan

gerrymandering turns that on its head. It allows a party in

power to draw district lines that guarantee its hold on power

for a decade or more, no matter what the voters choose.

¶108 No problem, the majority says, "[e]ven after the most

severe partisan gerrymanders, citizens remain free" to run for
office, express their views, and vote for the candidates of

their choice. Majority/lead op., ¶60. But the problem with

extreme partisan gerrymandering isn't that it literally denies

people the right to vote or run for office. It's that extreme

gerrymandering distorts the political process so thoroughly that

those rights can become meaningless. No matter how warped the

process becomes, post-Rucho, the federal courts cannot

intervene. Now, the majority all but guarantees that we won't
either.

15
 No. 2021AP1450-OA.rfd
C

¶109 The majority's misapplication of Rucho leads it to

conflate how the court might analyze legislatively drawn maps

with how it should select or draw remedial ones. That error is

evident from the start, as the majority frames the analysis

around the question of whether we "should judge maps for

partisan fairness," regardless of who draws them. Majority/lead

op., ¶39. But "who draws them" makes all the difference. There

is a significant difference between second-guessing the partisan

fairness of a map drawn by an inherently partisan legislature,

which "would have the virtue of political legitimacy," and our

task here, which is to "pick[] the [plan] (or devis[e] our own)

most consistent with judicial neutrality." See Prosser, 793 F.

Supp. at 867. We are not asked to determine if maps enacted by

the legislature through the normal legislative process amount to

an unconstitutional partisan gerrymander. Cf. Rucho, 139 S. Ct.

at 2507. Rather, we are adopting maps because that process has

failed. In doing so, we must act consistent with our role as a

non-partisan institution and avoid choosing maps designed to

benefit one political party over all others. See Prosser, 793

F. Supp. at 867. The people rightly expect courts to redistrict

in neutral ways.

¶110 The majority claims that considering partisanship for

any reason is inconsistent with judicial neutrality. That all-

or-nothing position distorts the nuanced reality of the court's

role in redistricting. Other courts' redistricting experience
shows that partisanship is just another one of the many factors

a court must balance when enacting remedial maps.
16
 No. 2021AP1450-OA.rfd

¶111 The last three courts to tackle redistricting in

Wisconsin all considered partisan effects alongside other

generally accepted neutral factors when evaluating and choosing

remedial maps. See Baumgart, 2002 WL 34127471, at *3-4

(rejecting maps proposed by the parties on the grounds that they

were drawn to preserve or obtain partisan advantage);

Prosser, 793 F. Supp. at 867-68, 870-71 (analyzing the partisan

effects of several proposals before ultimately adopting a court-

drawn plan that was "the least partisan"); Wis. State

AFL-CIO, 543 F. Supp. at 634. Those courts considered the

partisan effects of their decisions not to enact their

subjective view of what is politically fair but because courts,

unlike legislatures, should not behave like political entities:

Judges should not select a plan that seeks partisan
advantage——that seeks to change the ground rules so
that one party can do better than it would do under a
plan drawn up by persons having no political agenda——
even if they would not be entitled to invalidate an
enacted plan that did so.
Prosser, 793 F. Supp. at 867; see also Baumgart, 2002

WL 34127471, at *3 (following Prosser); Jensen, 249

Wis. 2d 706, ¶12 (quoting Prosser). The Indiana Supreme Court

likewise declined to enact "a plan that represents one political

party's ideas of how district boundaries should be drawn

[because doing so] does not conform to the principle of judicial

independence and neutrality." Peterson v. Borst, 786

N.E.2d 668, 675 (Ind. 2003).

¶112 Indeed, although it sounds contradictory, the only way

for the court to avoid unintentionally selecting maps designed
to benefit one political party over others is by considering the

17
 No. 2021AP1450-OA.rfd

maps' likely partisan effects. The United States Supreme Court

has suggested as much, explaining that taking a "politically

mindless approach" to redistricting may lead to "grossly

gerrymandered results," "whether intended or not." Gaffney v.

Cummings, 412 U.S. 735, 753 (1973). Refusing to consider

partisan effects only increases the risk that the court will be

used, intentionally or not, to achieve partisan ends. This is

especially true when our starting point is 2011's indisputably

partisan maps.

III

¶113 I close with a lingering question that the

majority/lead opinion surprisingly leaves unaddressed: Exactly

what maps are we talking about——congressional and state

legislative maps or only the latter? There is evidence in the

majority/lead opinion to support both answers. On the one hand,

the majority/lead opinion begins by discussing the legislature's

duty under Article IV, § 3 of the Wisconsin Constitution "to

apportion and district anew the members of the senate and

assembly," and later explains that this requirement does not

apply to congressional districts. See majority/lead op., ¶¶1,

13 & n.4. That suggests only state legislative maps are at

play. On the other hand, the majority/lead opinion identifies

redistricting principles applicable to congressional maps under

the federal constitution, but without stating that it intends to

draw new congressional maps. See id. ¶¶24-25. Similarly, the

majority/lead opinion states at different times that it intends
to remedy the "malapportionment" of "each legislative district,"

18
 No. 2021AP1450-OA.rfd

id., ¶4 (emphasis added), but also that "any judicial remedy" in

this case will be confined "to making the minimum changes

necessary in order to conform the existing congressional and

state legislative redistricting plans to constitutional and

statutory requirements." Id., ¶8 (emphasis added). At least

two parties, the Hunter Plaintiffs and the Congressmen, have

suggested that they intend to litigate what, if anything, the

Wisconsin Constitution has to say about congressional

redistricting, but so far the court has no motion or other

briefing on that question. So it is unclear from the start what

the majority/lead opinion is even addressing.

IV

¶114 The majority repeatedly protests that any approach

other than its preferred one would undermine our non-partisan

role and imperil the legitimacy and independence of the

judiciary. But the neutral principles supplied by the U.S. and

Wisconsin Constitutions, the Voting Rights Act, and the

traditional redistricting criteria can preserve our independence

while still guiding the parties and the court towards resolving

this case. The majority deals a striking blow to representative

government in Wisconsin by ignoring those neutral principles and

committing the court to an approach that prioritizes an obsolete

partisan agenda. I therefore dissent.

¶115 I am authorized to state that Justices ANN WALSH

BRADLEY and JILL J. KAROFSKY join this dissent.

19
No. 2021AP1450-OA.rfd