What all that might look like, and if you have some idea, is there a way to streamline it,
is there, what are some of the ways that if we get to that point, we might want to think
about handling it at that stage?
Yes, Your Honor, and if the court decides to go down the gerrymandering route, whether
it's partisan or anti-competitive or both, I think the structure that the court has already
set up in designating two panels to adjudicate what I understand to be very different claims.
But related, obviously, you know, our claim, you know, we've already established that
our claim has, you know, well-worn, we've seen from other states.
And I don't take a position on the anti-competitive gerrymandering claim, which I understand to
be a novel claim under Wisconsin law.
But I do think that two different panels can adjudicate those claims as a matter of liability
if it turns out that the map is deemed either a partisan gerrymander or an anti-competitive
gerrymander or both.
I think at that point, either this court or those courts can decide to consolidate for
purposes of remedy so that we're not having dueling remedy maps for the state of Wisconsin.
Let me ask you about that, because if I understood your answer to Justice Crawford's question
and to Justice Dallas' questions about the remedy and who would draw the maps, you said
the three judge panels would.
You can see where I'm going, right?
We could end up with two maps, and that seems like a bad idea.
And that's the existing structure, I think, is a function of having two different courts
appointed for two different claims.
How would we get those, how would you said either the three judge panels could draw the
maps or we could?
How would we get the maps back at that point?
How would the remedy come back to us?
Well the remedy could come back to you on appeal from either court, from any court.
That has to happen.
Yeah, that would have to happen.
But at the same time, this court is certainly within its purview and certainly within this
court experience to adjudicate the remedy itself.
It did so in Johnson, it was prepared to do so in Clark.
If the court decides that that's the route it wants to take.
The kind of complexity that comes from the fact of having two different panels adjudicating
two different claims, your honor absolutely is correct to point out, well then what if
we end up with two different remedies that we then have to kind of pick between or adjudicate?
That wasn't what happened in Clark or Johnson because those were only in front of us.
They weren't going back to a three judge panel.
Those were very different.
Those are postured completely differently.
Well both Johnson and Clark contemplated that the remedy phase of which map do we select
would happen before this court.
And I believe this court has the authority to say, yeah, that's what we do.
We certainly can do that in the context of the separation of powers claim and it could
even decide to do that in the context of a gerrymandering claim down the line.
If the court instead decides to give the remedy phase over to the circuit court as well then
I think this court has other tools at disposal to manage the docket to make sure that perhaps
this case is below are consolidated for purposes of remedy and coming to a single map that resolves
whatever the outstanding liability is at that point.
Can they be consolidated though prior to remedy?
Doesn't this court under 80501 have the authority to do that and would you agree that they're
related claims?
Absolutely this court has the authority to consolidate and to manage the docket.
I don't think they necessarily have to be.
They are related because they are both challenging the same map.
I don't want to speak to the anti-competitive gerrymandering claims since I understand
it to be a novel claim that is not already entrenched in it.
Regardless of the claim, we're looking at similar evidence.
You're making similar accusations about the 2011 maps and whether they are extreme partisan
gerrymanders or extreme anti-competitive, those things both would seem to relate to
one another.
Absolutely your honor and it is well within this court's purview to decide to consolidate.
We of course envision our claim and I don't have a position on how similar a different
their claim is to ours.
We understand the kinds of evidence that we would want to bring and we think would be
relevant to a partisan gerrymandering claim based on established law.
So I don't want to necessarily intertwine the two not having enough information about
how that would work but certainly this court has the authority to do that whenever there's
multiple challenges to the same map.
And council I understand that you didn't brief the other or haven't argued the other case
but it sounds like your position is that those two claims are not incompatible in the
sense that it's either one or the other but they could be both.
Is that correct?
That is my understanding of that claim is that it's not necessarily incompatible with
a partisan gerrymandering claim.
A partisan gerrymander could also be an anti-competitive gerrymander.
A district can be competitive in a primary or a general so I think there are many ways
to slice that so that they're not fundamentally at odds with one another.
Okay.
Go ahead.
Okay.
Thank you.
In terms of the burden of proof or the standard that's being applied here is the lower court
going to have to make a determination as to the statewide map for these congressional
districts or is it going to be obliged to look district by district and make findings
as to each separate congressional district.
How is that supposed to work?
So I think the traditional way is for the district by district approach in terms of liability
to decide that certain districts are configured in a way that is a what we would argue is
a partisan gerrymander but in making that determination the court can consider statewide
evidence.
Thank you.
Part of the problem here is we're kind of, I don't mean to be disparaging but making
it up on the fly here.
And I'm interested in the law here.
I mean I read your briefs and obviously there's a lot of discussion here about mechanics and
remedy and those sorts of things.
I want you to put aside the separation of powers argument for a minute and just focus
on this.
Could you, your argument on why this is actually a thing which it hasn't been for 170 years
ago and I rejected it explicitly on the same grounds in Johnson when we did ask the parties
to brief every legal claim.
We did ask whether we should consider partisan impact and we explicitly held that there is
no legal basis for this claim but your argument is a little like we got some free government,
we got some free press, we got freedom of the assembly, sprinkle in a little bit of salt
and pepper and you know equal, we're all inherently equal, ergo districts can't be favored one
party over the other too much which means I don't know what, nobody really knows what
that means.
I don't know how it fits with the next case.
Help me out walk me through as precisely as you can, your logic from something on the
law that gets me to a test that's based something on the law that is actually supposed
to be adjudicated or dealt with below as opposed to just, it sounds a lot like this is unfair,
please stop unfair things, bad things are happening, constitution must stop that, you
know, please stop in court and stop bad things from happening.
Help me see why that's not what's going on here.
So your honor, I'll start with the language in Clark as it specifically held from a majority
of this court that partisan gerrymandering remains an important and an unresolved area
of Wisconsin law.
So what we are asking is the court to resolve it and in resolving it, it can look at the
various provisions of article one that we have pointed to, all of which center on democratic
self-governance and equality under the law, that is antithetical to the idea that politicians
get to choose their voters or that the deck is stacked with a thumb on the scale or a
fist on the scale in favor of one party over another to the arbitrary disadvantage of the
disfavored party.
At this test that the courts would apply is exactly the test that other courts have
deemed, have seen fit to apply and been able to apply.
The fact that there is not a bright line rule that says as a binary, this is a partisan
gerrymander and this is not, is not unique to the partisan gerrymandering context.
Courts adjudicate the protection context frankly in the undue burden context all the time,
when does something amount to a violation because it is just too much and I litigate
undue burden claims all the time and that is a really just, it's always a weighing of
the facts and it's always a judicial determination of making some of those hard calls in the absence
of bright line rules but those are the exact time questions and answers that this court
and all courts are equipped to make and they do it every day.
So do you think that, you think taking, having partisan motivations is fine with drawing
maps as long as it's just not too effective?
I mean, so let's just go back to, for example, our Johnson litigation.
We asked for submissions from a variety of different parties and let me submit to you
that every map we got had a lot of partisan motivations behind it within the least changed
principle we announced.
Pretty clear that Governor Revers map, for example, was trying to make district one much
more democratic than had been before within the limits and the congressmen submitted map
that was trying to do some things and up north and district three.
So whether I'm right or wrong on that, just file a track with me for a moment.
There clearly were partisan motivations behind it.
Is that fine as long as the whole map just isn't too democratic or too republican and
why is that the standard that derives somewhere from the law?
Because the law basically, the fact, the law recognizes that partisan actors, political
actors will have political motives.
It specifically says that judicial actors will not and cannot and need to make clear
to make certain to not veer down that path.
But when the law does recognize that political actors will have political motives and it
doesn't sever the political actors from the redistricting process for that reason.
But in allowing, in disallowing for extreme partisan gerrymandering, what it says is,
we cannot allow those political motives.
Specifically, this court looks at the free government provision, for instance.
The idea of temperance and moderation cannot allow the self interest of those
in power to essentially be at the expense of the citizens.
Such that it is essentially canceling out the majority will and
not being responsive to the vote of the citizens in the end.
I want to roll up just on the intent portion of your intent effects test that
you're that potentially disgusting.
I know you have the other one subordinating the traditional redistricting principles.
So you seem to be making two different arguments on what this court did.
One, you're complaining from a separation of powers perspective that we blindly
adopted a 2011 map without regard to what went into that map.
And that was problematic.
And then you're also arguing at the same time that this court,
with regard to the partisan gerrymandering claim,
actually had all the intentions of the 2011 map,
which we didn't consider or say anywhere in our opinion.
We didn't actually have evidence before us about what went into the 2011 map.
But you're saying we borrowed that, so which is it?
I think they're saying the same thing, Your Honor,
that in adopting the 2011 map through the least changed principle and
refusing to look at the partisan effects of that map,
this court blindly deferred to a legally defunct principle based on a legally
defunct principle that this court said was unlawful in Clark and
outside the bounds of the judicial role.
That's not what intent means.
Intent means what you intend to do, want to do, right?
So you might be arguing that was the effect of it.
But what you're arguing is that Justice Dalit,
Chief Justice Krowski and myself, who were in the majority adopting that,
and I know a couple of my colleagues dissented from the underlying principle of least change.
When you're arguing that our intent in that case was actually to adopt
all of the partisan motivations in the 2011 map when we did that,
is that the principle you're suggesting to us?
I think the intent in that case, which is spelled out in this court's Johnson opinion,
was to adopt the 2011 map and everything that went into and
resulted from it without the other considerations.
That's not what we said.
We actually said what our motivation was.
We didn't say our motivation was partisan interest at all.
In fact, we said exactly the opposite.
So how could possibly you satisfy an intent test
that we had an intention to make a map that was overly sympathetic to Republicans
when, in fact, we said we were not looking at that at all.
We said what our intent was in that opinion.
Right, and I'm not suggesting that the court had some nefarious intent,
but the court said exactly what it said in this opinion,
which is our intent, is to calcify in place whatever happened in 2011 with that map.
The inputs, the outputs, the effects, with blind deference to all of that,
we are essentially channeling that in, funneling that in,
and adopting all of that as much as we possibly can to a 95% degree of certainty
going forward.
But not partisan motivation.
That's not what the word intent means.
Like in any kind of intent, you're looking at what did they mean to do?
What were they considering?
I understand your consideration at the practical effect of that
is deferring to the political judgments that went into that in 2011,
which my understanding was more or less an effort to keep the incumbents in power.
Maybe now we can, you know, who knows?
I don't know what all the details of that are, but whatever that was,
that wasn't before us.
We didn't have that before us when we were dealing with that.
The word intent means you meant to do something.
And what we, we said what we meant to do.
We said we don't mean to do anything for partisan advantage.
In fact, we mean to exclude that entirely from our consideration.
So you can't meet an intent effects test when this court adopt,
if we're looking at what this court meant to do,
when this court said we're not in considering partisan motivation.
There go, we weren't intending to do that.
Respectfully, Your Honor, I think that's in Clark,
this court made clear that that's actually not,
that when the court did what it did,
did what it intended to do, which was adopt wholesale,
that previous map, it erred in not considering all of the inputs
and the effects of that map.
And that not necessarily that it was, you know,
linking arms with all of the map drawers,
but that in blindly deferring to that map,
it therefore channeled, channeled in that entire process,
both intent and the effects.
Council, we're banking in.
Let me just, I just want to follow up.
I mean, essentially what least change is,
is least change says we are going to bake in
whatever the political motivations were of that 2011 legislature.
And we're going to bake it in for perpetuity.
If it's least changed from the 2011 maps,
and we continue to follow least change in 2021,
and in 2031, and 2041, and 2051,
it all links back to what happened in 2011.
Correct, Your Honor.
Let me ask you some questions.
I just had, can I ask one question on least change?
I was not here at the time.
I was adopted.
But when we're doing constitutional interpretation,
looking at constitutional harm,
we're looking at the words of the Constitution,
we're looking at history, precedent.
Where does this least change come from?
Because I've tried to find it somewhere,
and I cannot find it in Wisconsin constitutional jurisprudence.
Do you know where that comes from?
I think this Court held in Clark that it doesn't come from anywhere.
It is an extra constitutional concept
that cannot be allowed to supersede
the actual constitutional requirements for redistricting.
And that's why Clark struck down least change.
I understand that my interveners,
are here to argue against Clark and argue for least change.
But that issue has already been resolved
by binding precedent at this Court,
and all we ask is for this Court to apply that precedent
to the ongoing maps that continue,
that Wisconsin voters continue to vote on in future elections.
Let me ask you some questions.
We talked about, we've talked about a lot of things,
so let me direct you to,
we talked about this case going back for fact finding.
To the three judge panel.
I just want to ask some questions about some of that fact finding.
How is a Court supposed to know,
and these concerns were brought up in Johnson and Juan,
these concerns are laid out in the Rucho majority.
Am I saying that right?
Do we say Rucho, Rucho?
Rucho, Rucho, okay.
All right, and Kayla.
I don't know him either, so.
Be clear.
How do we know,
so these concerns were laid out in Johnson and Juan,
and they were laid out in the Rucho majority,
and they've been laid out in other cases.
And their questions are like,
how do you know when a map is too partisan?
How do you know when it has crossed the line
of going from constitutional to unconstitutional?
So, Your Honor, I've litigated partisan gerrymandering cases
in other states,
and some of the most probative evidence
comes from the expert analyses of the maps themselves.
And I'll specifically point to two kinds of evidence
that we have often seen.
One is the efficiency gap analysis,
which I know this was born in Wisconsin,
which really looks at the extent to which
the map wastes votes of one party versus another,
which courts have deemed a really reliable
way of determining how extreme is this
compared to previous Wisconsin maps
and maps across the country.
How far down the scale?
Are we talking about efficiency gap of seven?
Are we talking about an efficiency gap of 35?
And that I think has been a really useful metric
in other states.
And the other piece of expert analysis
that I think has been extremely helpful to courts
is the outlier analysis.
Your Honor mentioned looking at a bunch of simulated maps
that don't take partisanship into effect.
How often, if you're looking just at the political geography
of the state and using that as the inputs,
how often do you come up with a map
that even approximates this kind of a split,
or this kind of a partisan impact?
And then you can see whether it's an extreme outlier or not.
Those are just two of the pieces of evidence
that in addition to any direct and other
circumstantial evidence that is available
on a state-specific or map-specific basis.
And I want to, and so those are some of the tools
that courts have used.
To Justice Haggadorn's concern about,
well, in this particular case, what happens since there's,
you know, there's different map drawers or different stages.
All of those questions go into like,
well, what kind of evidence would plaintiffs be able
to reduce at the lower court
if we get to that fact-finding provision?
It does not come to the question of whether or not
partisan gerrymandering is a thing
that is cognizable under Wisconsin law.
Let me just ask a couple other questions
regarding the fact-finding.
Wisconsin's political geography is interesting.
Every state's political geography is interesting.
We tend to have two urban centers, obviously here,
and in Milwaukee where Democrats tend to be clustered,
as opposed to the more rural areas of our state.
How is that taken into account?
Just the political geography that is special,
unique to Wisconsin?
Yeah, and I think that specifically that the court
will look at traditional districting principles,
such as compactness and communities and counties
and things like that, but I think that's especially
where that efficiency gap comes in.
And again, I'll point the court to the Pennsylvania decision.
And the Pennsylvania partisan gerrymandering says,
like, look, we can understand that there's,
given the technology that we have,
given the way that states that people reside,
that there are ways to kind of check the boxes
of things like compactness and county splits
and still create very, very slanted maps.
And that's why these tools, such as the efficiency gap,
are able to smoke that out to make sure
that we're not using the political geography
to manipulate votes before votes are actually cast.
And I just have one more question along these lines,
which is we don't register by party affiliation in Wisconsin.
So what evidence or information do you,
would you be asking the experts and then the court
to look at when it's making the determination,
how is a court supposed to,
or what evidence would you look at in that situation?
Yeah, courts and political scientists routinely look
at the political voting patterns of precinct basis.
So they look at historical voting patterns.
And that's something that these experts
and courts around the country have examined for many years,
not just in the partisan gerrymandering context,
but in any kind of vote dilution claim,
when you're trying to figure out what are the candidates of choice,
and how are maps being drawn in a way that's meant
to suppress a certain one viewpoint versus another?
Council, we've already talked to think about articles,
one section, one of the Wisconsin Constitution.
But I'm just wondering about your take on this.
The respondents argued that the Wisconsin Constitution
does not have a provision addressing partisan gerrymandering.
Like other states do.
Other than article one, section one,
do you have a response to that argument?
Well, we point it to multiple provisions of article one
for our partisan gerrymandering claim.
And while it is true that the Wisconsin Constitution
does not use the words partisan gerrymandering,
that makes only make sense because the Wisconsin Constitution
speaks in principles and not in particulars.
It also does not use the words racial gerrymandering,
or mal apportionment, or many of the other things
that this court has found to be an equal protection violation
because it is meant to apply those principles
to the facts of a given claim.
When it comes to the other states, yes,
there are states like Florida or Ohio,
which specifically contain constitutional provisions
barring unlawful partisan intent or partisan gerrymandering.
But there are also states like North Carolina or Pennsylvania
or New Mexico that also do not use the words
partisan gerrymandering, but have clauses very similar
to the equal protection clause that we're talking about here,
or free and equal election clauses that are more,
that are more, sound more in principle
and that are applied to those particulars.
Thank you.
Council, when we are looking at the,
and this is more of a remand question,
assuming that we get there,
you just were speaking about
looking at the efficiency gap
and I'm curious, given the passage of time here,
and how, you know, we don't have partisan registration in Wisconsin,
is the correct data set to look at the 2010 data
or the 2027 data, or 2026 data?
You know, I'm just curious about
the fact that a lot of time has passed
from the sort of original sin that the plaintiffs are claiming here,
which is the 2010 map.
Can you respond to that?
Even if this court decides to employ an intent element in the analysis
that does look back at the original map drawers intent,
courts would also look at the effects of that map
and the ongoing effects of that map.
And the current effects.
The current effects.
And that is traditionally in the case in partisan,
again, not just partisan gerrymandering.
Any kind of vote dilution claims.
The courts and political scientists traditionally look to the most recent,
all at four, six, eight years of election results
to decide to look at a kind of a spate of elections
to determine what has been the entrenched effect,
if any, of the challenge map.
And isn't the big question on the effects test
that we are looking at is whether partisanship
substantially dilutes a group, the disfavored groups right to vote?
Isn't that at the core of the effects test?
Absolutely, Your Honor.
Okay.
Because we haven't talked a lot about voting in this.
But that is what we are looking at.
Is that right?
Whether someone's right to vote has been so substantially diluted
that there is a constitutional harm.
Absolutely.
Okay.
So that is the ultimate in the effects question,
question that we want to ask.
That is the ultimate question is whether or not the map has drawn,
imposes such a thumb, and I get on to say,
a fist on the scale in favor of one party over another
that essentially is deciding elections before votes are cast.
Well, the right to vote is my right to go to a place
or mail in a ballot and vote.
But you are conflating the effect of a vote
with the right to vote.
I see those as two different things.
In Wisconsin, we have pretty liberal laws regarding your ability to vote.
You can mail in ballots, you can go to your place
and vote your right to vote.
You are really arguing that the person's right to vote is
not allowed to vote?
No, it's dilution.
That's what I asked.
They have the right to vote.
But my question was, is it so substantially diluted
that there is a constitutional harm?
Well, okay.
Then that is conflating a right to vote with the effect of your vote.
So in the vote dilution context, and again,
we can take it out of the partisan gerrymandering question for a second.
In any vote dilution claim, and these are part and parcel of state
federal courts across the country for decades,
the question is not just whether somebody had the ability
to put a vote in the ballot box and have it counted.
But courts have held that when it comes to vote dilution,
it's about having a meaningful opportunity to vote,
and a meaningful opportunity to translate your vote into power,
not just to be able to show up at the ballot box,
but to actually have an effect with your vote.
And that is the essence of any vote dilution claim,
including our partisan gerrymandering claim.
We've never held that though.
This court has never found a case to be a part of a map
to be a partisan gerrymander.
It is held that it is an unresolved issue of Wisconsin law.
We've never held that.
There's something like your votes being diluted
if you can't elect the candidate of your choice.
We've never held that before, right?
Wisconsin federal courts have certainly talked about it
in the Voting Rights Act context.
Sure.
I'm saying we're talking about this is an entirely Wisconsin law claim.
So Wisconsin has never recognized what you just outlined.
I agree, Your Honor, this court has made very clear
that partisan gerrymandering remains
an unresolved and important issue of Wisconsin.
Has anyone ever asked us straight on to resolve that question
before you're doing that here today?
I believe that this is the first time that has come to this court.
I know that there was a partisan gerrymandering claim
in Gill in federal court, last cycle.
But again, in the Johnson case, there was no partisan gerrymandering claim.
The only claim was a malaportionment claim.
Aren't you here last year?
Didn't you file a petition for original action asking us to do this very thing?
We did, Your Honor.
And the court denied that petition for original action
without issuing any opinion or judgment.
So having exercised this discretion to not accept that procedural vehicle,
we then exercised our right to go through them.
And Johnson, we explicitly asked all the parties to that case,
write us every single legal issue in the Wisconsin Constitution
that needs to govern our adjudication,
including the impact of partisanship on any maps we'd adopt.
And we explicitly invited that claim,
and we did not, and we answered that question.
Did we not?
In Johnson 1.
In Johnson 1, in paragraph 8, the court said that it decided
that it's not going to be looking at partisan effect,
and it is not going to deem partisan claims just dishable,
despite the fact that there was not a partisan gerrymandering claim
before the court.
But as Your Honor knows, Justice Hagenard,
the concurrence did not join that paragraph 8.
So that was only a three-
That is true, but not accurate.
I did not join paragraph 8, but I was very clear
that I joined the holding on that question,
and I wrote explicitly saying that.
So while I did not join paragraph 8,
there was no doubt about my joining that issue.
So true, it didn't join paragraph 8,
but I don't think it would be fair or accurate at all to suggest
that that wasn't a holding of Johnson 1.
Absolutely, Your Honor.
And I guess all I have to go on is what the majority of this court held in Clark,
which is that it remains an unresolved and important issue
of Wisconsin law.
That is not my opinion.
That is this court's opinion.
Is that an issue in Clark?
The issue of partisan gerrymandering?
No, which is why it did seem that it was not deciding
that partisan gerrymandering claim.
That was one of the questions brought to the court,
but it decided not to take up that question
and specifically said we are not deciding today
whether or not partisan gerrymandering is.
So any of those comments are probably a question.
So any of those comments were probably dicta.
They were not at the legal issue.
That was being addressed at that point.
That was a remedial question about how the court would exercise its powers
after the violation, which simply focused on the constitutional
contiguity question, right?
Well, there's two different things that the court said.
One is that the court said in Clark that we are not addressing
what we believe to be an unresolved issue of Wisconsin law.
That is partisan gerrymandering.
So I'm taking the majority of the court at its word
that is an unresolved issue of Wisconsin law that we, of course,
are asking in the alternative the court resolved today.
But the other part of Johnson that specifically overrules
lease change as pre-expressed in any of the Johnson opinions,
I don't believe anybody here has argued that that part is dicta.
That is what binds Wisconsin with this court and Wisconsin courts
when it comes to court-drawn maps,
and it is a court-drawn map that continues to affect elections
in Congress for Wisconsin going forward,
and that's the court-drawn map that we're saying needs to be
revisited in light of the holding in Clark.
Are there any other questions?
I think we're good.
Thank you, Your Honor.
I'm not seeing any.
It is 1028.
We're going to take a quick break.
I might recommend you guys make sure your Uber apps are working.
Your Uber Eats apps are working for lunch.
We'll take a break at lunch, but it might be somewhat
shortened.
I don't want anyone to get hangry in here.
So maybe just think forward a little bit.
We'll take a quick break and try to get back in 10 minutes or so.
Thank you.