December 1, 2021
by Matthew Rothschild, Executive Director
On Tuesday, the rightwing justices on the Wisconsin Supreme Court made a terrible ruling on redistricting.
They decided they were going to use the hyper-partisan maps of 2011 as their baseline, and that they would take a “least-change” approach in redrawing those old maps.
That’s a fine how do you do, since a federal panel of judges had ruled in 2016 that those 2011 maps were unconstitutional and that no one in Wisconsin should have to endure another election under such rigged maps.
So now we’re going to have to endure at least a decade more of such elections?
Laughably, the majority on the Wisconsin Supreme Court said that by “using the existing maps ‘as a template’ and implementing only those remedies necessary to resolve constitutional or statutory deficiencies,” they are “ensuring we fulfill our role as apolitical and neutral arbiters of the law.”
Hardly.
What they are doing, instead, is handing the Republicans an early Christmas present, which will keep on giving for a decade or more to come.
As Justice Rebecca Frank Dallet noted in her dissent, “That outcome has potentially devastating consequences for representative government in Wisconsin.”
She wrote that the “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.” Tartly, she added: “Try as it might, the majority is fooling no one by proclaiming its decision is neutral and apolitical.”
In actuality, she said, this approach “perpetuates the partisan agenda of politicians no longer in power … In effect, a least-change approach that starts with the 2011 maps nullifies voters' electoral decisions since then.”
Dallet also pointed out that “no court in Wisconsin, state or federal, has ever adopted a least-change approach.” For that matter, she added, “The least-change principle is found nowhere in the Wisconsin or U.S. Constitutions.”
She argued that this ruling could set a precedent that would be hopelessly self-perpetuating.
“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,” she wrote. “After all, an impasse will result in the court changing the maps as little as possible—thus preserving that party's hold on power.”
She concluded: “The majority deals a striking blow to representative government in Wisconsin.”
I hope that Dallet’s brilliant dissent will form the basis for a new majority opinion on redistricting if and when the Wisconsin Supreme Court flips to a liberal majority.
Meantime, I can only hope that a federal court will see the folly in the Wisconsin Supreme Court’s approach and find a way to give us fairer maps this time around.