1 00:00:00,000 --> 00:00:04,000 Or give me a comfortable seat, that's all. 2 00:01:00,000 --> 00:01:02,000 I just wanted to thank you very much. 3 00:01:02,000 --> 00:01:04,000 I just wanted to thank you very much. 4 00:01:04,000 --> 00:01:06,000 I just wanted to thank you very much. 5 00:01:06,000 --> 00:01:08,000 I just wanted to thank you very much. 6 00:01:08,000 --> 00:01:10,000 I just wanted to thank you very much. 7 00:01:10,000 --> 00:01:12,000 I just wanted to thank you very much. 8 00:01:12,000 --> 00:01:14,000 I just wanted to thank you very much. 9 00:01:14,000 --> 00:01:16,000 I just wanted to thank you very much. 10 00:01:16,000 --> 00:01:18,000 I just wanted to thank you very much. 11 00:01:18,000 --> 00:01:20,000 I just wanted to thank you very much. 12 00:01:20,000 --> 00:01:22,000 I just wanted to thank you very much. 13 00:01:22,000 --> 00:01:24,000 I just wanted to thank you very much. 14 00:01:24,000 --> 00:01:26,000 I just wanted to thank you very much. 15 00:01:26,000 --> 00:01:28,000 I just wanted to thank you very much. 16 00:01:28,000 --> 00:01:30,000 I just wanted to thank you very much. 17 00:01:30,000 --> 00:01:32,000 I just wanted to thank you very much. 18 00:01:32,000 --> 00:01:34,000 I just wanted to thank you very much. 19 00:01:34,000 --> 00:01:36,000 I just wanted to thank you very much. 20 00:01:36,000 --> 00:01:38,000 I just wanted to thank you very much. 21 00:01:38,000 --> 00:01:40,000 I just wanted to thank you very much. 22 00:01:40,000 --> 00:01:42,000 I just wanted to thank you very much. 23 00:01:42,000 --> 00:01:44,000 I just wanted to thank you very much. 24 00:01:44,000 --> 00:01:46,000 I just wanted to thank you very much. 25 00:01:46,000 --> 00:01:48,000 I just wanted to thank you very much. 26 00:01:48,000 --> 00:01:50,000 I just wanted to thank you very much. 27 00:01:50,000 --> 00:01:52,000 I just wanted to thank you very much. 28 00:01:52,000 --> 00:01:54,000 I just wanted to thank you very much. 29 00:01:54,000 --> 00:01:56,000 I just wanted to thank you very much. 30 00:01:56,000 --> 00:01:58,000 I just wanted to thank you very much. 31 00:01:58,000 --> 00:02:00,000 I just wanted to thank you very much. 32 00:02:00,000 --> 00:02:02,000 I just wanted to thank you very much. 33 00:02:02,000 --> 00:02:04,000 I just wanted to thank you very much. 34 00:02:04,000 --> 00:02:06,000 I just wanted to thank you very much. 35 00:02:06,000 --> 00:02:08,000 I just wanted to thank you very much. 36 00:02:08,000 --> 00:02:10,000 I just wanted to thank you very much. 37 00:02:10,000 --> 00:02:12,000 I just wanted to thank you very much. 38 00:02:12,000 --> 00:02:14,000 I just wanted to thank you very much. 39 00:02:14,000 --> 00:02:16,000 I just wanted to thank you very much. 40 00:02:16,000 --> 00:02:18,000 I just wanted to thank you very much. 41 00:02:18,000 --> 00:02:20,000 I just wanted to thank you very much. 42 00:02:20,000 --> 00:02:22,000 I just wanted to thank you very much. 43 00:02:22,000 --> 00:02:24,000 I just wanted to thank you very much. 44 00:02:24,000 --> 00:02:26,000 I just wanted to thank you very much. 45 00:02:26,000 --> 00:02:28,000 I just wanted to thank you very much. 46 00:02:28,000 --> 00:02:30,000 I just wanted to thank you very much. 47 00:02:30,000 --> 00:02:32,000 I just wanted to thank you very much. 48 00:02:32,000 --> 00:02:34,000 I just wanted to thank you very much. 49 00:02:34,000 --> 00:02:36,000 I just wanted to thank you very much. 50 00:02:36,000 --> 00:02:38,000 I just wanted to thank you very much. 51 00:02:38,000 --> 00:02:40,000 I just wanted to thank you very much. 52 00:02:40,000 --> 00:02:42,000 I just wanted to thank you very much. 53 00:02:42,000 --> 00:02:44,000 I just wanted to thank you very much. 54 00:02:44,000 --> 00:02:46,000 I just wanted to thank you very much. 55 00:02:46,000 --> 00:02:48,000 I just wanted to thank you very much. 56 00:02:48,000 --> 00:02:50,000 I just wanted to thank you very much. 57 00:02:50,000 --> 00:02:52,000 I just wanted to thank you very much. 58 00:02:52,000 --> 00:02:54,000 I just wanted to thank you very much. 59 00:02:54,000 --> 00:02:56,000 I just wanted to thank you very much. 60 00:02:56,000 --> 00:02:58,000 I just wanted to thank you very much. 61 00:02:58,000 --> 00:03:00,000 I just wanted to thank you very much. 62 00:03:00,000 --> 00:03:02,000 I just wanted to thank you very much. 63 00:03:02,000 --> 00:03:04,000 I just wanted to thank you very much. 64 00:03:04,000 --> 00:03:06,000 I just wanted to thank you very much. 65 00:03:06,000 --> 00:03:08,000 I just wanted to thank you very much. 66 00:03:08,000 --> 00:03:10,000 I just wanted to thank you very much. 67 00:03:10,000 --> 00:03:12,000 I just wanted to thank you very much. 68 00:03:12,000 --> 00:03:14,000 I just wanted to thank you very much. 69 00:03:14,000 --> 00:03:16,000 I just wanted to thank you very much. 70 00:03:16,000 --> 00:03:18,000 I just wanted to thank you very much. 71 00:03:18,000 --> 00:03:20,000 I just wanted to thank you very much. 72 00:03:20,000 --> 00:03:22,000 I just wanted to thank you very much. 73 00:03:22,000 --> 00:03:24,000 I just wanted to thank you very much. 74 00:03:24,000 --> 00:03:26,000 I just wanted to thank you very much. 75 00:03:26,000 --> 00:03:28,000 I just wanted to thank you very much. 76 00:03:28,000 --> 00:03:30,000 I just wanted to thank you very much. 77 00:03:30,000 --> 00:03:32,000 I just wanted to thank you very much. 78 00:03:32,000 --> 00:03:34,000 I just wanted to thank you very much. 79 00:03:34,000 --> 00:03:36,000 I just wanted to thank you very much. 80 00:03:36,000 --> 00:03:38,000 I just wanted to thank you very much. 81 00:03:38,000 --> 00:03:40,000 I just wanted to thank you very much. 82 00:03:40,000 --> 00:03:42,000 I just wanted to thank you very much. 83 00:03:42,000 --> 00:03:44,000 I just wanted to thank you very much. 84 00:03:44,000 --> 00:03:46,000 I just wanted to thank you very much. 85 00:03:46,000 --> 00:03:48,000 I just wanted to thank you very much. 86 00:03:48,000 --> 00:03:50,000 I just wanted to thank you very much. 87 00:03:50,000 --> 00:03:52,000 I just wanted to thank you very much. 88 00:03:52,000 --> 00:03:54,000 I just wanted to thank you very much. 89 00:03:54,000 --> 00:03:56,000 I just wanted to thank you very much. 90 00:03:56,000 --> 00:03:58,000 I just wanted to thank you very much. 91 00:03:58,000 --> 00:04:00,000 I just wanted to thank you very much. 92 00:04:00,000 --> 00:04:02,000 I just wanted to thank you very much. 93 00:04:02,000 --> 00:04:04,000 I just wanted to thank you very much. 94 00:04:04,000 --> 00:04:06,000 I just wanted to thank you very much. 95 00:04:08,000 --> 00:04:29,160 I've been like 96 00:04:29,160 --> 00:04:39,160 It's like a loaded mac and cheese, I don't know why they're not. 97 00:04:39,160 --> 00:04:43,160 Just mac and cheese pizza, do you want to get that? 98 00:04:43,160 --> 00:04:48,160 You're done with cheese for a little while? 99 00:04:48,160 --> 00:04:49,160 Yeah. 100 00:04:49,160 --> 00:05:10,160 We're going to be nice and we're going to be here about as well. 101 00:05:10,160 --> 00:05:23,160 I think we're in this kind of system all day. 102 00:05:23,160 --> 00:05:29,160 What do you think about some of the sandwiches for a comprehensive and obvious? 103 00:05:29,160 --> 00:05:36,160 Do you guys care what it is? 104 00:05:36,160 --> 00:05:54,160 I'm having the opportunity to press the board. 105 00:05:54,160 --> 00:05:55,160 Yeah. 106 00:05:55,160 --> 00:06:05,160 It helps. 107 00:06:05,160 --> 00:06:09,160 Do you think there's stuff in the room? 108 00:06:09,160 --> 00:06:16,160 I think there's a reasonable... 109 00:06:16,160 --> 00:06:24,160 Are you going to stay in the closet and finish your flight? 110 00:06:24,160 --> 00:06:32,160 I think I missed this. 111 00:06:32,160 --> 00:06:34,160 It's not your case. 112 00:06:34,160 --> 00:06:37,160 You don't have to be through hell. 113 00:06:37,160 --> 00:06:43,160 You're an audience, you're a spectator. 114 00:06:43,160 --> 00:06:48,160 What do you mean it's true? 115 00:06:48,160 --> 00:06:53,160 It'll be probably between cases. 116 00:06:53,160 --> 00:06:57,160 Which means it's going to be like, let's say let's break it down. 117 00:06:57,160 --> 00:07:01,160 I think it's going to be done by you. 118 00:07:01,160 --> 00:07:07,160 I think both of those front records are going to take these guys off. 119 00:07:07,160 --> 00:07:10,160 What? 120 00:07:10,160 --> 00:07:15,160 It's going to be too great. 121 00:07:15,160 --> 00:07:18,160 How are you 15? 122 00:07:18,160 --> 00:07:21,160 I'm different. 123 00:07:21,160 --> 00:07:24,160 I thought you said the entire thing. 124 00:07:24,160 --> 00:07:28,160 It's going to be a matter of time between the schedule for when there are you. 125 00:07:28,160 --> 00:07:31,160 There are you, so you're starting by now. 126 00:07:31,160 --> 00:07:32,160 Right. 127 00:07:32,160 --> 00:07:33,160 Exactly. 128 00:07:33,160 --> 00:07:36,160 We still have four. 129 00:07:36,160 --> 00:07:39,160 I don't think that would be possible. 130 00:07:39,160 --> 00:07:42,160 We've said it. 131 00:07:42,160 --> 00:07:47,160 Perhaps they're going to talk about it. 132 00:07:47,160 --> 00:07:50,160 Yeah. 133 00:07:50,160 --> 00:07:53,160 Yeah. 134 00:07:53,160 --> 00:07:56,160 Yeah. 135 00:07:56,160 --> 00:07:58,160 Yeah. 136 00:07:58,160 --> 00:08:01,160 Yeah. 137 00:08:01,160 --> 00:08:04,160 Yeah. 138 00:08:04,160 --> 00:08:08,160 Yeah. 139 00:08:09,160 --> 00:08:12,160 Yeah. 140 00:08:12,160 --> 00:08:15,160 Yeah. 141 00:08:15,160 --> 00:08:18,160 Yeah. 142 00:08:18,160 --> 00:08:21,160 Yeah. 143 00:08:21,160 --> 00:08:25,160 Yeah. 144 00:08:25,160 --> 00:08:28,160 Yeah. 145 00:08:28,160 --> 00:08:31,160 Yeah. 146 00:08:31,160 --> 00:08:38,160 Yeah. 147 00:08:38,160 --> 00:08:41,160 Yeah. 148 00:08:41,160 --> 00:08:44,160 Yeah. 149 00:08:44,160 --> 00:08:49,160 Yeah. 150 00:08:49,160 --> 00:08:54,160 Yeah. 151 00:08:54,160 --> 00:08:59,160 Yeah. 152 00:08:59,160 --> 00:09:02,160 It's not true. 153 00:09:02,160 --> 00:09:05,160 But to repair you did everything. 154 00:09:05,160 --> 00:09:15,160 It's a good talk for an outdoor artist. 155 00:09:15,160 --> 00:09:18,160 My flight's at like 4.20. 156 00:09:18,160 --> 00:09:20,160 I guess it's a question, though. 157 00:09:20,160 --> 00:09:22,160 Whether I also stay with a whole man, 158 00:09:22,160 --> 00:09:25,160 I think that I have a contact with. 159 00:09:26,160 --> 00:09:29,160 We're going to figure that out. 160 00:09:47,160 --> 00:09:49,160 I find like a three-minute aerializer. 161 00:09:49,160 --> 00:09:52,160 It's so similar to each other. 162 00:09:56,160 --> 00:09:59,160 Three major airlines are very similar to each other. 163 00:09:59,160 --> 00:10:03,160 No opinion on Alaska. 164 00:10:03,160 --> 00:10:06,160 And just like going to Seattle is Alaska. 165 00:10:06,160 --> 00:10:09,160 Yeah. 166 00:10:09,160 --> 00:10:12,160 Yeah. 167 00:10:12,160 --> 00:10:14,160 Yes, sir. 168 00:10:26,160 --> 00:10:29,160 Yeah. 169 00:10:29,160 --> 00:10:31,160 All rise. 170 00:10:31,160 --> 00:10:33,160 Hear ye, hear ye, hear ye. 171 00:10:33,160 --> 00:10:36,160 The Wisconsin Supreme Court is back in session. 172 00:10:36,160 --> 00:10:39,160 The Honorable Chief Justice Joe Grazne presiding. 173 00:10:39,160 --> 00:10:41,160 Your silence is commanded. 174 00:10:41,160 --> 00:10:42,160 Hey, everybody. 175 00:10:42,160 --> 00:10:43,160 Welcome back. 176 00:10:43,160 --> 00:10:48,160 Go ahead and have a seat. 177 00:10:48,160 --> 00:10:50,160 At long last year. 178 00:10:50,160 --> 00:10:53,160 Can I ask you something as you're taking the podium? 179 00:10:53,160 --> 00:10:55,160 Sometimes when people are splitting up arguments, 180 00:10:55,160 --> 00:10:57,160 they're each taking an issue. 181 00:10:57,160 --> 00:10:59,160 You were going to start with that, weren't you? 182 00:10:59,160 --> 00:11:00,160 You weren't going to. 183 00:11:00,160 --> 00:11:01,160 Okay. 184 00:11:01,160 --> 00:11:03,160 Are you each going to take an issue or not? 185 00:11:03,160 --> 00:11:05,160 Just so that we can save some questions? 186 00:11:05,160 --> 00:11:06,160 Yes, sir. 187 00:11:06,160 --> 00:11:07,160 Mr. Stakeholder. 188 00:11:07,160 --> 00:11:09,160 No, you're in our group. 189 00:11:09,160 --> 00:11:11,160 All three of us are ready for all your questions. 190 00:11:11,160 --> 00:11:12,160 All right. 191 00:11:12,160 --> 00:11:14,160 We will let the argument unfold, however it's most helpful. 192 00:11:14,160 --> 00:11:15,160 Oh, cool. 193 00:11:15,160 --> 00:11:16,160 Okay. 194 00:11:16,160 --> 00:11:17,160 That's great. 195 00:11:17,160 --> 00:11:21,160 You're ready whenever you are. 196 00:11:21,160 --> 00:11:22,160 Good morning. 197 00:11:22,160 --> 00:11:25,160 May I please the court tailor me in on behalf of the Wisconsin 198 00:11:25,160 --> 00:11:26,160 Legislature. 199 00:11:26,160 --> 00:11:30,160 Four and a half years ago, this court adopted the governor's 200 00:11:30,160 --> 00:11:34,160 proposed remedy for the then-malaportioned congressional 201 00:11:34,160 --> 00:11:35,160 districts. 202 00:11:35,160 --> 00:11:40,160 The court held unequivocally that that remedy complied with all 203 00:11:40,160 --> 00:11:43,160 applicable state and federal laws. 204 00:11:43,160 --> 00:11:47,160 Nothing has changed since then that could warrant re-entering 205 00:11:47,160 --> 00:11:51,160 the political thicket of congressional redistricting and 206 00:11:51,160 --> 00:11:56,160 putting this court's injunction on trial in a circuit court. 207 00:11:56,160 --> 00:12:00,160 This court can affirm the dismissal of plaintiffs' complaint 208 00:12:00,160 --> 00:12:04,160 on these simple grounds without reaching the merits, which is 209 00:12:04,160 --> 00:12:08,160 that the circuit court was exactly right that it could not 210 00:12:08,160 --> 00:12:12,160 unwind this court's final judgment in Johnson, too. 211 00:12:12,160 --> 00:12:17,160 Likewise, this court could affirm simply by holding 212 00:12:17,160 --> 00:12:21,160 plaintiffs waited too long to bring this suit in circuit court 213 00:12:21,160 --> 00:12:26,160 just as the Illinois Supreme Court held last year for the 214 00:12:26,160 --> 00:12:30,160 districting challenge in Illinois. 215 00:12:30,160 --> 00:12:35,160 Nor would there be any reason for this court, for the circuit 216 00:12:35,160 --> 00:12:39,160 court, to unwind the Johnson II injunction. 217 00:12:39,160 --> 00:12:43,160 As to plaintiff's separation of powers arguments, the circuit 218 00:12:43,160 --> 00:12:47,160 court was exactly right that plaintiffs' arguments re-write 219 00:12:47,160 --> 00:12:51,160 this court's words in Clark to say something that this court did not 220 00:12:51,160 --> 00:12:52,160 say. 221 00:12:52,160 --> 00:12:56,160 The court needs no more authority than Clark itself to know that 222 00:12:56,160 --> 00:13:02,160 at least changes remedy is not categorically unconstitutional. 223 00:13:02,160 --> 00:13:03,160 That's cool. 224 00:13:03,160 --> 00:13:06,160 I want to go back to Clark, which I haven't set up to this point, 225 00:13:06,160 --> 00:13:07,160 but I'll say no. 226 00:13:07,160 --> 00:13:10,160 It was a well-written opinion. 227 00:13:10,160 --> 00:13:12,160 Indeed, your honor. 228 00:13:12,160 --> 00:13:14,160 Thank you. 229 00:13:14,160 --> 00:13:15,160 Appreciate it. 230 00:13:15,160 --> 00:13:19,160 Fishing for compliments this morning. 231 00:13:19,160 --> 00:13:23,160 It was really clear in 63 that at least changes on workable 232 00:13:23,160 --> 00:13:24,160 in practice. 233 00:13:24,160 --> 00:13:26,160 It went through the whole analysis about it being 234 00:13:26,160 --> 00:13:29,160 unworkable on all the reasons it was unworkable. 235 00:13:29,160 --> 00:13:34,160 You know, I certainly recall vividly sitting in this courtroom 236 00:13:34,160 --> 00:13:41,160 as we talked about the peanuts analogy of Lucy moving the 237 00:13:41,160 --> 00:13:46,160 football away from Charlie Brown because no one who was 238 00:13:46,160 --> 00:13:50,160 advocating for least change in this courtroom could agree to what 239 00:13:50,160 --> 00:13:51,160 it meant. 240 00:13:51,160 --> 00:13:54,160 Was at least change as far as the number of people, the population 241 00:13:54,160 --> 00:13:56,160 in the district was at least change as to the lines. 242 00:13:56,160 --> 00:14:02,160 Were we trying to least change as to municipalities? 243 00:14:03,160 --> 00:14:08,160 It didn't work. 244 00:14:08,160 --> 00:14:11,160 There was nothing in the Constitution as Justice Taylor 245 00:14:11,160 --> 00:14:13,160 brought out a little while ago. 246 00:14:13,160 --> 00:14:15,160 There was nothing in Wisconsin law. 247 00:14:15,160 --> 00:14:17,160 There was nothing in Wisconsin. 248 00:14:17,160 --> 00:14:19,160 That brought it forward. 249 00:14:19,160 --> 00:14:24,160 That could be relied on to be the basis for it. 250 00:14:24,160 --> 00:14:28,160 And paragraph 63 of Clark just says as illustrated across the 251 00:14:28,160 --> 00:14:31,160 course of the Johnson litigation, least change is 252 00:14:31,160 --> 00:14:32,160 unworkable on practice. 253 00:14:32,160 --> 00:14:36,160 As such, we overrule any portion of Johnson 1, Johnson 2 and 254 00:14:36,160 --> 00:14:39,160 Johnson 3 that mandate at least change approach. 255 00:14:39,160 --> 00:14:45,160 I would like to know what else could a judge or justice 256 00:14:45,160 --> 00:14:50,160 possibly write in an opinion to say this is, we are 257 00:14:50,160 --> 00:14:51,160 overturning this. 258 00:14:51,160 --> 00:14:54,160 This does not apply going forward. 259 00:14:54,160 --> 00:14:55,160 This was wrong. 260 00:14:55,160 --> 00:14:57,160 It was unworkable in practice. 261 00:14:57,160 --> 00:15:00,160 I don't know how much clearer I could have done it. 262 00:15:00,160 --> 00:15:03,160 But apparently there's something else I should have done. 263 00:15:03,160 --> 00:15:06,160 What do you suggest that was? 264 00:15:06,160 --> 00:15:08,160 Chief Justice Croft's view took the words right out of my 265 00:15:08,160 --> 00:15:11,160 mouth which is that we're not going to apply this going 266 00:15:11,160 --> 00:15:12,160 forward. 267 00:15:12,160 --> 00:15:17,160 But the court's discussion about how least changes is 268 00:15:17,160 --> 00:15:21,160 unworkable is not synonymous with a holding that least changes 269 00:15:21,160 --> 00:15:25,160 what's unconstitutional when applied in Johnson 2. 270 00:15:25,160 --> 00:15:28,160 And as for Justice Taylor's question about where this 271 00:15:28,160 --> 00:15:31,160 least changes approach comes from, I think some table setting 272 00:15:31,160 --> 00:15:33,160 is really important here. 273 00:15:33,160 --> 00:15:36,160 You receive Justice Taylor an answer about Clark and the 274 00:15:36,160 --> 00:15:38,160 state constitution. 275 00:15:38,160 --> 00:15:41,160 Clark involved the state house districts. 276 00:15:41,160 --> 00:15:44,160 Of course, we are here about the congressional districts. 277 00:15:44,160 --> 00:15:47,160 And so to the question of where a least changes approach might 278 00:15:47,160 --> 00:15:50,160 come from, I would point the court to the federal constitution 279 00:15:50,160 --> 00:15:54,160 here in this case, which assigns power to the legislature for 280 00:15:54,160 --> 00:15:56,160 redistricting, not courts. 281 00:15:56,160 --> 00:16:00,160 And when the last enacted plan by the legislature is Act 44, 282 00:16:00,160 --> 00:16:04,160 of course the elections clause could anticipate this. 283 00:16:04,160 --> 00:16:07,160 But we said, sorry to interrupt you. 284 00:16:07,160 --> 00:16:12,160 But we said that those maps, because they did not, the 285 00:16:12,160 --> 00:16:16,160 population had shifted obviously in the ten years, those maps 286 00:16:16,160 --> 00:16:21,160 could no longer be, they violated federal law. 287 00:16:21,160 --> 00:16:23,160 They violated federal constitution. 288 00:16:23,160 --> 00:16:25,160 Those maps were no longer in effect, they couldn't be. 289 00:16:25,160 --> 00:16:29,160 Well, Your Honor, I think that mistakes the nature of the 290 00:16:29,160 --> 00:16:34,160 judicial power, which is when the court examined Act 44 and 291 00:16:34,160 --> 00:16:39,160 held Act 44 was unconstitutionally malapportioned, the court 292 00:16:39,160 --> 00:16:43,160 was not striking down the law or erasing it from the Wisconsin 293 00:16:43,160 --> 00:16:44,160 statutes. 294 00:16:44,160 --> 00:16:49,160 The court was remedying the malapportionment of those districts. 295 00:16:49,160 --> 00:16:53,160 Those districts are still the law on the books today with the 296 00:16:53,160 --> 00:16:57,160 additional layer of this court's injunction remedying the 297 00:16:57,160 --> 00:17:00,160 malapportionment of those districts at the margin. 298 00:17:00,160 --> 00:17:04,160 And as for the deference to the legislature and whether that 299 00:17:04,160 --> 00:17:07,160 could possibly work a constitutional violation in a 300 00:17:07,160 --> 00:17:11,160 congressional redistricting case, any such rule would come as an 301 00:17:11,160 --> 00:17:14,160 enormous surprise, I would think, to the U.S. Supreme Court. 302 00:17:14,160 --> 00:17:16,160 But states have done it. 303 00:17:16,160 --> 00:17:20,160 State courts have looked at the issue of judicial ability. 304 00:17:20,160 --> 00:17:24,160 We have ten courts now that have come up with a standard. 305 00:17:24,160 --> 00:17:29,160 None of those Supreme Court decisions have been overturned. 306 00:17:29,160 --> 00:17:31,160 They've not been accepted on cert. 307 00:17:31,160 --> 00:17:33,160 They have not been accepted on a stay. 308 00:17:33,160 --> 00:17:40,160 So we see state courts coming up with standards to measure whether 309 00:17:40,160 --> 00:17:44,160 votes have been improperly and unconstitutionally and 310 00:17:44,160 --> 00:17:46,160 substantially deluded. 311 00:17:46,160 --> 00:17:51,160 How do we not have that same ability like these other state 312 00:17:51,160 --> 00:17:53,160 courts, state Supreme Courts have had? 313 00:17:53,160 --> 00:17:56,160 And your honor, I do have arguments in response to the 314 00:17:56,160 --> 00:17:58,160 partisan gerrymandering claim and other states have done it. 315 00:17:58,160 --> 00:18:01,160 But I would like to finish my point on justice for Obscis. 316 00:18:01,160 --> 00:18:04,160 The least changes approach and the very separate claim that 317 00:18:04,160 --> 00:18:06,160 plaintiffs have said they've brought here. 318 00:18:06,160 --> 00:18:10,160 And as for what state courts have done, let me start with the 319 00:18:10,160 --> 00:18:11,160 U.S. Supreme Court. 320 00:18:11,160 --> 00:18:14,160 In cases like white against wiser, the U.S. Supreme Court 321 00:18:14,160 --> 00:18:17,160 reversed a court for refusing to defer to the political 322 00:18:17,160 --> 00:18:21,160 judgments of the Texas legislature in a Malaportionment case. 323 00:18:21,160 --> 00:18:25,160 And then state courts as diverse as courts in Minnesota, 324 00:18:25,160 --> 00:18:29,160 Oklahoma, South Carolina, and New Hampshire have all done 325 00:18:29,160 --> 00:18:31,160 exactly what this court did. 326 00:18:31,160 --> 00:18:32,160 Let me ask you some of that. 327 00:18:32,160 --> 00:18:36,160 We are not talking about maps that the legislature put in place. 328 00:18:36,160 --> 00:18:38,160 The legislature put in place maps. 329 00:18:38,160 --> 00:18:40,160 The governor vetoed those maps. 330 00:18:40,160 --> 00:18:45,160 You are talking about a legislature from 2011. 331 00:18:45,160 --> 00:18:46,160 Correct. 332 00:18:46,160 --> 00:18:50,160 And just as courts in New Hampshire, Oklahoma and all the 333 00:18:50,160 --> 00:18:53,160 other states I just listed off deferred to the same sort of 334 00:18:53,160 --> 00:18:57,160 maps, these are impasse cases, Malaportionment cases, and those 335 00:18:57,160 --> 00:19:02,160 courts say we are going to defer to the last enacted map. 336 00:19:02,160 --> 00:19:06,160 Because that is the last enacted map by the people's representatives 337 00:19:06,160 --> 00:19:09,160 and our job here is to remedy Malaportionment. 338 00:19:09,160 --> 00:19:12,160 It is not to strike a new political balance. 339 00:19:12,160 --> 00:19:15,160 We should talk about the people's representatives, right? 340 00:19:15,160 --> 00:19:17,160 Because if you start with Article 1, Section 1 of our 341 00:19:17,160 --> 00:19:21,160 Constitution, which says that the government derives its power 342 00:19:21,160 --> 00:19:25,160 from the consent of the governed, from the people, yes? 343 00:19:25,160 --> 00:19:26,160 Yes. 344 00:19:26,160 --> 00:19:27,160 Yes. 345 00:19:27,160 --> 00:19:28,160 Okay. 346 00:19:28,160 --> 00:19:31,160 And in your view that means the legislature, not the court, 347 00:19:31,160 --> 00:19:34,160 that they should be deciding this issue of redistricting the 348 00:19:34,160 --> 00:19:37,160 2011 legislature in this case, right? 349 00:19:37,160 --> 00:19:38,160 Yes. 350 00:19:38,160 --> 00:19:41,160 Because that legislature, if I'm understanding your argument, 351 00:19:41,160 --> 00:19:42,160 was elected by the people. 352 00:19:42,160 --> 00:19:44,160 They're closest to the people. 353 00:19:44,160 --> 00:19:47,160 They can be held accountable by the people. 354 00:19:47,160 --> 00:19:48,160 Yes. 355 00:19:48,160 --> 00:19:49,160 Okay. 356 00:19:49,160 --> 00:19:52,160 This is where I have some issues. 357 00:19:52,160 --> 00:19:58,160 The legislature that passed those original maps wasn't any old 358 00:19:58,160 --> 00:20:01,160 legislature, right? 359 00:20:01,160 --> 00:20:06,160 The legislature that passed that maps, they came from districts that 360 00:20:06,160 --> 00:20:13,160 many people claimed were the most gerrymandered in the entire 361 00:20:13,160 --> 00:20:14,160 country. 362 00:20:14,160 --> 00:20:18,160 They were, as some say, a prime example of representatives 363 00:20:18,160 --> 00:20:22,160 choosing their voters rather than the other way around, rather than 364 00:20:22,160 --> 00:20:24,160 voters choosing their representatives. 365 00:20:24,160 --> 00:20:29,160 And because of those maps, many people felt that their votes were 366 00:20:29,160 --> 00:20:32,160 diluted, that they weren't representative of the people. 367 00:20:32,160 --> 00:20:34,160 They said that they felt like those districts lacked in 368 00:20:34,160 --> 00:20:35,160 representation. 369 00:20:35,160 --> 00:20:37,160 People felt like those maps weren't fair. 370 00:20:37,160 --> 00:20:39,160 Some people even called those maps rigged. 371 00:20:39,160 --> 00:20:44,160 And the legislators that came from those districts came from rigged 372 00:20:44,160 --> 00:20:45,160 maps. 373 00:20:45,160 --> 00:20:51,160 It is that legislature, those representatives from those 374 00:20:51,160 --> 00:20:54,160 districts described as extremely gerrymandered that drafted the 375 00:20:54,160 --> 00:20:56,160 maps that we are talking about today. 376 00:20:56,160 --> 00:21:01,160 The maps that got baked in in 2021. 377 00:21:01,160 --> 00:21:05,160 And if I'm understanding your argument that underlies change, 378 00:21:05,160 --> 00:21:10,160 which you're ardently defending, those maps, the baked in ones from 379 00:21:10,160 --> 00:21:16,160 the 2011 legislature, would go forward into perpetuity indefinitely. 380 00:21:16,160 --> 00:21:20,160 And I don't understand how that is not unconstitutional. 381 00:21:20,160 --> 00:21:25,160 Well, your Honor, whether we agree with it or not, the U.S. 382 00:21:25,160 --> 00:21:29,160 Constitution assigns redistricting authority to the legislature, 383 00:21:29,160 --> 00:21:34,160 because 250 years ago, when we declared revolution, we said 384 00:21:34,160 --> 00:21:37,160 the people decide through their elected representatives. 385 00:21:37,160 --> 00:21:39,160 And there are two solutions for that. 386 00:21:39,160 --> 00:21:41,160 Either of which plaintiffs could pursue. 387 00:21:41,160 --> 00:21:44,160 First, they could lobby Congress because, of course, 388 00:21:44,160 --> 00:21:49,160 Congress likewise has power under the elections clause to stop what 389 00:21:49,160 --> 00:21:52,160 some have said should not have happened in 2011. 390 00:21:52,160 --> 00:21:57,160 Or, like Florida, like New York, like Ohio, plaintiffs could do the 391 00:21:57,160 --> 00:22:01,160 hard work of creating a constitutional amendment and saying 392 00:22:01,160 --> 00:22:04,160 any politics in redistricting is forbidden. 393 00:22:04,160 --> 00:22:10,160 Any desire to send Speaker Paul Ryan back to Congress is forbidden. 394 00:22:10,160 --> 00:22:11,160 They have not done that. 395 00:22:11,160 --> 00:22:16,160 And so, yes, as we stand here today, the only neutral way for this 396 00:22:16,160 --> 00:22:19,160 court to have proceeded in a malapportionment case about 397 00:22:19,160 --> 00:22:24,160 congressional districts was to just defer to the existing political 398 00:22:24,160 --> 00:22:28,160 and policy choices, like sending senior statesmen, 399 00:22:28,160 --> 00:22:32,160 be it Speaker Ryan, or Representative Obie back to Congress, 400 00:22:32,160 --> 00:22:36,160 and lessen until there's a change from Congress itself or a 401 00:22:36,160 --> 00:22:39,160 constitutional change to the Wisconsin Constitution. 402 00:22:39,160 --> 00:22:44,160 And that is regardless of how much constitutional harm is caused 403 00:22:44,160 --> 00:22:46,160 to an individual's right to vote. 404 00:22:46,160 --> 00:22:48,160 Is that what you're saying? 405 00:22:48,160 --> 00:22:53,160 Your Honor, as Justice Ziegler explained, every individual in Wisconsin 406 00:22:53,160 --> 00:22:58,160 can go into vote on election day or mail in their ballot 407 00:22:58,160 --> 00:23:01,160 and cast an equally weighted vote. 408 00:23:01,160 --> 00:23:03,160 That's been true in Wisconsin, by the way. 409 00:23:03,160 --> 00:23:05,160 That's not what gerrymandering allows. 410 00:23:05,160 --> 00:23:10,160 Is it gerrymandering is the legislature determining their 411 00:23:10,160 --> 00:23:18,160 voters and assigning, treating a class of voters as unfavored. 412 00:23:18,160 --> 00:23:27,160 And that can have the impact of deluding in individuals right to vote. 413 00:23:27,160 --> 00:23:31,160 So they vote, yes, they go in and vote, but they're votes meaningless 414 00:23:31,160 --> 00:23:36,160 because politicians have determined who their voters are. 415 00:23:36,160 --> 00:23:41,160 And that would seem to me so contrary to the language of our 416 00:23:41,160 --> 00:23:45,160 Constitution, which elevates the sovereignty of the people. 417 00:23:45,160 --> 00:23:50,160 That politicians have no power without the people. 418 00:23:50,160 --> 00:23:54,160 Your Honor, your Honor, our founders risk their lives so that our representatives 419 00:23:54,160 --> 00:24:00,160 who we elect can represent the people, not a king, and with all due respect, 420 00:24:00,160 --> 00:24:05,160 not courts, because the Wisconsin Constitution provides this court no 421 00:24:05,160 --> 00:24:09,160 judicially manageable standards to decide that loyal Republicans 422 00:24:09,160 --> 00:24:13,160 and loyal Democrats have this super constitutional right. 423 00:24:13,160 --> 00:24:15,160 Other courts have done it. 424 00:24:15,160 --> 00:24:17,160 They have done it, Your Honor, and I'm so glad you asked that question 425 00:24:17,160 --> 00:24:22,160 because there is no free and fair elections clause in Wisconsin's Constitution. 426 00:24:22,160 --> 00:24:26,160 And there is no Florida Fair District's amendment saying 427 00:24:26,160 --> 00:24:29,160 considering incumbents is forbidden. 428 00:24:29,160 --> 00:24:32,160 And even in states that have done it, even in North Carolina 429 00:24:32,160 --> 00:24:35,160 with the free and fair elections clause, I'd urge this court not to take 430 00:24:35,160 --> 00:24:36,160 my words for it. 431 00:24:36,160 --> 00:24:38,160 Go look at the Supreme Court opinions in that case. 432 00:24:38,160 --> 00:24:41,160 They threw up their hands, Justice Taylor, and they said, 433 00:24:41,160 --> 00:24:45,160 we understand this is a political problem, and this is hotly debated 434 00:24:45,160 --> 00:24:49,160 at kitchen tables and in academic classrooms. 435 00:24:49,160 --> 00:24:53,160 But what we can't do as a court is solve that problem because even the 436 00:24:53,160 --> 00:24:56,160 free and fair elections clause doesn't give us the tools to do so. 437 00:24:56,160 --> 00:25:00,160 So our Constitution is different in that we, 438 00:25:00,160 --> 00:25:04,160 there is a provision that says there is a remedy for wrongs. 439 00:25:04,160 --> 00:25:10,160 Section 9 says every person is entitled to a certain remedy in the laws 440 00:25:10,160 --> 00:25:17,160 for all injuries or wrongs, which he may receive in his person's property 441 00:25:17,160 --> 00:25:21,160 or character he ought to obtain justice freely. 442 00:25:21,160 --> 00:25:24,160 So that is unique to our Constitution. 443 00:25:24,160 --> 00:25:30,160 Our task is to interpret our Constitution to evaluate legislation 444 00:25:30,160 --> 00:25:36,160 to see if it poses a constitutional harm to these rights. 445 00:25:36,160 --> 00:25:39,160 So it's just very hard. 446 00:25:39,160 --> 00:25:45,160 I think your argument is challenging when I look at the cons, 447 00:25:45,160 --> 00:25:50,160 our own Constitution and the language of that Constitution and the embodiment 448 00:25:50,160 --> 00:25:54,160 of the sovereignty of people. 449 00:25:54,160 --> 00:25:57,160 Government has no power without the people. 450 00:25:57,160 --> 00:26:01,160 So if a class of voters, 451 00:26:01,160 --> 00:26:06,160 if their vote is being deluded or infringed upon, 452 00:26:06,160 --> 00:26:12,160 that seems to me to violate these principles of the people being sovereign 453 00:26:12,160 --> 00:26:17,160 because we have been elevated the power politicians above 454 00:26:17,160 --> 00:26:22,160 individuals' right to choose their government. 455 00:26:22,160 --> 00:26:28,160 Your Honor, the question assumes the answer to the question I thought we were all here 456 00:26:28,160 --> 00:26:34,160 to address today, which is, is there a right to Republican districts 457 00:26:34,160 --> 00:26:37,160 or Democratic districts in the Wisconsin Constitution? 458 00:26:37,160 --> 00:26:39,160 That's not the framing, though. 459 00:26:39,160 --> 00:26:45,160 You're framing it in a certain way that I think is not how I'm seeing it. 460 00:26:45,160 --> 00:26:51,160 I'm looking at our state Constitution and I am pondering as we do with all legislation 461 00:26:51,160 --> 00:26:54,160 that we review, the concept of judicial review. 462 00:26:54,160 --> 00:26:57,160 Is there a constitutional harm here? 463 00:26:57,160 --> 00:26:59,160 That's what I'm looking at. 464 00:26:59,160 --> 00:27:04,160 I'm not looking at, it's not up to us to imbue our policy choices. 465 00:27:04,160 --> 00:27:07,160 That's very clearly belongs to the legislature. 466 00:27:07,160 --> 00:27:11,160 What I'm looking at is there a constitutional harm here, 467 00:27:11,160 --> 00:27:17,160 and I'm sure you agree that the right to vote is the most precious constitutional right we have. 468 00:27:17,160 --> 00:27:20,160 We have Wisconsin case law that says that. 469 00:27:20,160 --> 00:27:23,160 It is the most precious right. 470 00:27:23,160 --> 00:27:25,160 Isn't that our inquiry? 471 00:27:25,160 --> 00:27:32,160 Is there a constitutional harm here in infringing or diluting an individual's right to vote? 472 00:27:32,160 --> 00:27:34,160 That seems to be the question. 473 00:27:34,160 --> 00:27:36,160 Yes, three points, Your Honor. 474 00:27:36,160 --> 00:27:41,160 First, Wisconsin was ahead of the curb in terms of the right to vote in the Cunningham case. 475 00:27:41,160 --> 00:27:47,160 In Cunningham, this court did something decades, perhaps a century before the Supreme Court did in Westbury, 476 00:27:47,160 --> 00:27:52,160 which it said that right to vote is so precious that we in Wisconsin are going to ensure 477 00:27:52,160 --> 00:27:58,160 that you have a numerically equally weighted vote back in, I think, it was 1892. 478 00:27:58,160 --> 00:28:04,160 And no one here disputes that this court could not adjudicate a claim of malapportionment 479 00:28:04,160 --> 00:28:06,160 just as the court did in Johnson. 480 00:28:06,160 --> 00:28:13,160 The second point, beyond that, the right to vote is not a right to get the election outcomes you want. 481 00:28:13,160 --> 00:28:20,160 The very nature of the political branches is that someone loses and someone wins on election day. 482 00:28:20,160 --> 00:28:24,160 And when it comes to who decides what those districts look like, 483 00:28:24,160 --> 00:28:30,160 the Wisconsin Constitution gives this court no judicially manageable standard to override 484 00:28:30,160 --> 00:28:34,160 what the federal Constitution says, which is that the legislature does get to decide. 485 00:28:34,160 --> 00:28:40,160 And it was okay in remedying malapportionment to defer to those legislative choices. 486 00:28:40,160 --> 00:28:44,160 A good case on that is the McGraill case where it certainly involved the right to vote. 487 00:28:44,160 --> 00:28:48,160 It involved whether you could be identified by party on a ballot, 488 00:28:48,160 --> 00:28:53,160 whether someone knew I was a Republican or a Democrat or the Constitution Party or something else, 489 00:28:53,160 --> 00:28:55,160 and this court deferred. 490 00:28:55,160 --> 00:29:02,160 Well, courts do apply substantiality of harm all the time. 491 00:29:02,160 --> 00:29:07,160 We weigh that, whether it be in civil criminal cases. 492 00:29:07,160 --> 00:29:13,160 We are applying those standards and not set out necessarily in the Constitution. 493 00:29:13,160 --> 00:29:18,160 But it seems to me that we're looking at, is there a substantial dilution? 494 00:29:18,160 --> 00:29:20,160 Is there a substantial harm here? 495 00:29:20,160 --> 00:29:24,160 And of course, do that all the time in jurisquivents. 496 00:29:24,160 --> 00:29:30,160 We are always looking at harms and weighing whether there's a substantiality issue. 497 00:29:30,160 --> 00:29:33,160 Your Honor, I suppose that brings me to the third point, 498 00:29:33,160 --> 00:29:40,160 which is whether a plaintiff might be able to establish there is a cognizable harm in some case. 499 00:29:40,160 --> 00:29:46,160 Later on, this court could leave unresolved whether it wants to overrule Johnson I. 500 00:29:46,160 --> 00:29:51,160 But in this particular case, plaintiffs have not done the hard work 501 00:29:51,160 --> 00:29:57,160 to walk back what were more than three dozen paragraphs in addition to Justice Hagedorn's concurrence, 502 00:29:57,160 --> 00:30:03,160 explaining that the Constitution, as it sits today and as it sat then, 503 00:30:03,160 --> 00:30:08,160 does not give the court the tools to adjudicate those kinds of thorny claims. 504 00:30:08,160 --> 00:30:11,160 So that's why we have a remedy for every wrong. 505 00:30:11,160 --> 00:30:17,160 Every person is entitled to a certain remedy in the laws for all injuries. 506 00:30:17,160 --> 00:30:22,160 Because your Honor, plaintiffs have not identified what the constitutional wrong is at this time. 507 00:30:22,160 --> 00:30:25,160 Vote dilution is not a constitutional wrong. 508 00:30:25,160 --> 00:30:31,160 When our Constitution explicitly says it is the people who choose their government, 509 00:30:31,160 --> 00:30:35,160 the only mechanism by which they do that is the right to vote. 510 00:30:35,160 --> 00:30:38,160 And no one disputes that the districts are equally apportioned. 511 00:30:38,160 --> 00:30:40,160 They can cast an equally weighted vote. 512 00:30:40,160 --> 00:30:44,160 So it does not matter the extent of a partisan gerrymandering. 513 00:30:44,160 --> 00:30:51,160 It does not matter the extent of the harm that is caused by a disfavored group. 514 00:30:51,160 --> 00:30:55,160 It sounds to me like you're saying an extreme gerrymandering. 515 00:30:55,160 --> 00:30:59,160 An extreme partisan gerrymandering is constitutional. 516 00:30:59,160 --> 00:31:01,160 Your Honor, understanding that is your argument? 517 00:31:01,160 --> 00:31:06,160 Your Honor, I am not sure at this point in time how to define an extreme partisan gerrymander 518 00:31:06,160 --> 00:31:11,160 versus a sort of partisan gerrymander versus we wanted to send Speaker Ryan back to Congress. 519 00:31:11,160 --> 00:31:17,160 Would you say five percent, double digits, ten percent, fifteen percent? 520 00:31:17,160 --> 00:31:22,160 I think we certainly have districts across the state that hit those numbers. 521 00:31:22,160 --> 00:31:23,160 We do, Your Honor. 522 00:31:23,160 --> 00:31:27,160 And I can't tell you that District two, for example, 523 00:31:27,160 --> 00:31:31,160 here where we stand today is an extreme partisan gerrymander. 524 00:31:31,160 --> 00:31:35,160 The representative there won by 70 to 30 percent vote in 2024. 525 00:31:35,160 --> 00:31:43,160 There's every reason to think he did so because Republicans, or because Democrats are densely populated in the Madison area. 526 00:31:43,160 --> 00:31:45,160 Right, there could become happiness for sure. 527 00:31:45,160 --> 00:31:49,160 But you look at some of the other districts and the way they're drawn. 528 00:31:49,160 --> 00:31:55,160 What I'm almost hearing you say is that there's not a constitutional claim for extreme partisan gerrymandering 529 00:31:55,160 --> 00:31:57,160 under the Wisconsin Constitution. 530 00:31:57,160 --> 00:32:01,160 If that's what it boils down to, tell us. 531 00:32:01,160 --> 00:32:07,160 Your Honor, right now the Wisconsin Constitution does not define with any level of judicial certainty 532 00:32:07,160 --> 00:32:10,160 what an extreme partisan gerrymander would be. 533 00:32:10,160 --> 00:32:15,160 And in states that have been displeased with that constitutional reality, 534 00:32:15,160 --> 00:32:20,160 that they have amended their constitutions with clear rules that courts can apply. 535 00:32:20,160 --> 00:32:28,160 The Utah case, the New York case, the Florida case that plaintiffs have brought to you all involve either 536 00:32:28,160 --> 00:32:35,160 reticulated statutes or constitutional amendments saying we, we extirpate politics from redistricting. 537 00:32:35,160 --> 00:32:45,160 Oh, Council, Council, your opposing council has urged us to adopt New Mexico and Pennsylvania's cases. 538 00:32:45,160 --> 00:32:50,160 Anna, it took the opportunity on break to take a look at their constitutional provisions. 539 00:32:50,160 --> 00:32:56,160 You mentioned earlier that Wisconsin does not have a free and equal elections clause. 540 00:32:56,160 --> 00:33:04,160 But the courts in those cases did point to and reference, and the New Mexico and Pennsylvania constitutions 541 00:33:04,160 --> 00:33:09,160 do specifically have free and equal elections clause. 542 00:33:09,160 --> 00:33:14,160 Do you think that has any impact on whether we should follow Pennsylvania and New Mexico? 543 00:33:14,160 --> 00:33:20,160 I do, and I think, I can't remember if it's the Pennsylvania decision or the first North Carolina decision 544 00:33:20,160 --> 00:33:22,160 that explores the history of that clause. 545 00:33:22,160 --> 00:33:23,160 It's extremely interesting. 546 00:33:23,160 --> 00:33:25,160 They're in other state constitutions. 547 00:33:25,160 --> 00:33:29,160 They are very specific to elections and your ability to go cast a vote. 548 00:33:29,160 --> 00:33:36,160 And so there was far more history in those cases to connect that constitutional text admittedly broad 549 00:33:36,160 --> 00:33:39,160 with a right to have fairer districts. 550 00:33:39,160 --> 00:33:43,160 However, one expert might describe define fairer districts. 551 00:33:43,160 --> 00:33:47,160 Here, the history points in entirely the opposite direction. 552 00:33:47,160 --> 00:33:49,160 There's precious little of it in the briefs here. 553 00:33:49,160 --> 00:33:52,160 There were more than 100 pages about it in Johnson. 554 00:33:52,160 --> 00:33:57,160 And the history boils down to this state's constitutional convention in 1848. 555 00:33:57,160 --> 00:33:59,160 There was a lot of talk about gerrymandering. 556 00:33:59,160 --> 00:34:05,160 And there was a lot of discussion about whether the way Wisconsin's first congressional districts had been drawn 557 00:34:05,160 --> 00:34:09,160 was fair to have a very compact district in the southeast of the state 558 00:34:09,160 --> 00:34:13,160 and the sprawling district capturing 20 counties and the rest of the state. 559 00:34:13,160 --> 00:34:17,160 And the solution to that then answers the question before this court now. 560 00:34:17,160 --> 00:34:22,160 The solution was the people voted through their delegates at the convention 561 00:34:22,160 --> 00:34:24,160 and then through ratifying the Constitution. 562 00:34:24,160 --> 00:34:31,160 And that's been the unchanged history for over 100 years in this state until 2011 563 00:34:31,160 --> 00:34:34,160 when parties started bringing partisan gerrymandering claims. 564 00:34:34,160 --> 00:34:42,160 Council, I wanted to just follow up with the Chief Justice's question about the 2011 maps. 565 00:34:42,160 --> 00:34:56,160 My recollection of the history here is that I think Democrats controlled the legislature entirely from 2006 to 2010. 566 00:34:56,160 --> 00:34:58,160 There was a Democratic governor at that time. 567 00:34:58,160 --> 00:35:04,160 Then in the 2010 elections Republicans won the governorship in both houses of the legislature 568 00:35:04,160 --> 00:35:08,160 and using maps that were in place at that time. 569 00:35:08,160 --> 00:35:18,160 And then it was that legislature which actually enacted the law that we are dealing with here at 44 in 2011. 570 00:35:18,160 --> 00:35:24,160 And so it was not the quote rigged maps or any later maps that were enacted, 571 00:35:24,160 --> 00:35:28,160 for example, after our Johnson decision that are at issue here. 572 00:35:28,160 --> 00:35:33,160 But that was in fact a series, a legislature that was chosen with maps that clearly were quite competitive 573 00:35:33,160 --> 00:35:36,160 and led to both Republicans and Democrats controlling both chambers. 574 00:35:36,160 --> 00:35:37,160 Is that accurate? 575 00:35:37,160 --> 00:35:39,160 Yeah, the points well taken, your honor. 576 00:35:39,160 --> 00:35:44,160 And the finish, the point I would say those, the maps that others have called rigged, 577 00:35:44,160 --> 00:35:49,160 I won't endorse that language today, have since also been replaced through the democratic process 578 00:35:49,160 --> 00:35:52,160 where the legislature passed maps and the Democratic governor signed them. 579 00:35:52,160 --> 00:35:56,160 But yes, for purposes of the congressional districts which we're here to talk about today, 580 00:35:56,160 --> 00:35:59,160 the Congress members didn't enact that map. 581 00:35:59,160 --> 00:36:04,160 The people's representatives in the small districts that make up the state legislature did. 582 00:36:04,160 --> 00:36:08,160 And that's exactly what the Constitution has envisioned would happen until 1787. 583 00:36:08,160 --> 00:36:12,160 And so to bring us back to what was going on in Johnson. 584 00:36:12,160 --> 00:36:16,160 In Johnson, the court was not enacting a new map. 585 00:36:16,160 --> 00:36:19,160 The court was doing what it always does, Justice Taylor. 586 00:36:19,160 --> 00:36:25,160 It was remedying a constitutional wrong of malapportionment and going no further. 587 00:36:25,160 --> 00:36:27,160 And it must. 588 00:36:27,160 --> 00:36:32,160 It was a standard that has no, it's not embedded in Wisconsin law. 589 00:36:32,160 --> 00:36:33,160 Your honor. 590 00:36:33,160 --> 00:36:38,160 It comes from a federal case, which comes from an interpretation of voting rights act. 591 00:36:38,160 --> 00:36:44,160 There's just no, I wasn't here when it was done, but it seems disconnected. 592 00:36:44,160 --> 00:36:48,160 Your honor, if the standard your honor is referring to is the least changes standard. 593 00:36:48,160 --> 00:36:53,160 That's the approach the U.S. Supreme Court has taken to redistricting cases always. 594 00:36:53,160 --> 00:36:56,160 And for purposes of this congressional redistricting case, 595 00:36:56,160 --> 00:37:01,160 certainly that standard is allowable under the elections clause, 596 00:37:01,160 --> 00:37:05,160 lest this court rest from the legislature, it's the legislature. 597 00:37:05,160 --> 00:37:07,160 What was supposed to change the least? 598 00:37:07,160 --> 00:37:08,160 Pardon? 599 00:37:08,160 --> 00:37:13,160 What was supposed to change the least and least change? 600 00:37:13,160 --> 00:37:18,160 Well, for a malapportionment case, I think the way the opinion shook out in Johnson II 601 00:37:18,160 --> 00:37:20,160 for the congressional districts makes perfect sense. 602 00:37:20,160 --> 00:37:22,160 We looked at core retention scores. 603 00:37:22,160 --> 00:37:27,160 We moved the fewest number of people to repopulate with people the districts. 604 00:37:27,160 --> 00:37:30,160 Of course, other parties in Johnson had differing arguments, 605 00:37:30,160 --> 00:37:36,160 but your honor, back to the first question, whether or not your honor thought that was 606 00:37:36,160 --> 00:37:42,160 unworkable to use core retention, a metric that legislators use all the time, 607 00:37:42,160 --> 00:37:46,160 isn't the same as the argument plaintiffs have brought this court, 608 00:37:46,160 --> 00:37:51,160 which is they are asking this court to hold it's not just unworkable. 609 00:37:51,160 --> 00:37:58,160 It's unconstitutional to defer to the legislature when remedying a malapportionment claim. 610 00:37:58,160 --> 00:38:04,160 And I can think of a rule no better suited for an elections clause problem than to say, 611 00:38:04,160 --> 00:38:09,160 in a malapportionment case, it's the courts and not the legislature that must decide 612 00:38:09,160 --> 00:38:11,160 what the political balance should be in districts. 613 00:38:11,160 --> 00:38:18,160 That is really, I think, disingenuous reading of more. 614 00:38:18,160 --> 00:38:21,160 That's not what Moore said. 615 00:38:21,160 --> 00:38:31,160 Moore said that certainly state courts can utilize traditional principles of judicial review 616 00:38:31,160 --> 00:38:35,160 in reviewing the actions of their legislature. 617 00:38:35,160 --> 00:38:41,160 What we're not supposed to do is go outside the bounds of judicial review. 618 00:38:41,160 --> 00:38:44,160 We do not make policy here. 619 00:38:44,160 --> 00:38:47,160 We don't consider that. 620 00:38:47,160 --> 00:38:52,160 We consider the Constitution and the text of our Constitution, 621 00:38:52,160 --> 00:38:54,160 and whether there's a constitutional harm. 622 00:38:54,160 --> 00:38:59,160 And that was very clearly stated in Moore. 623 00:38:59,160 --> 00:39:10,160 In Rucho itself, the majority looks to state courts to address some of these issues of gerrymandered districts. 624 00:39:10,160 --> 00:39:21,160 So there's nothing unusual or strange about this court examining whether an act of the legislature causes a constitutional harm. 625 00:39:21,160 --> 00:39:23,160 It's what we do every day. 626 00:39:23,160 --> 00:39:25,160 It's our function. 627 00:39:25,160 --> 00:39:37,160 Well, the elections clause point I was reading was about how it would be highly unusual to hold that this court is prohibited from using the last enacted maps as a starting point. 628 00:39:37,160 --> 00:39:41,160 From using a lease changes approach, because that's what the Supreme Court did in white. 629 00:39:41,160 --> 00:39:48,160 It's what the Minnesota Supreme Court did in hip hurt in the Oklahoma case, in the South Carolina case, in the New Hampshire case, I'm sure there are more. 630 00:39:48,160 --> 00:39:55,160 And so that remedial approach would be highly unusual, because the court isn't enacting a new map. 631 00:39:55,160 --> 00:39:59,160 It's remedying mal apportionment in a lease changes way. 632 00:39:59,160 --> 00:40:03,160 Surely that's allowable under the elections clause. 633 00:40:03,160 --> 00:40:17,160 Now separate and apart from that, as for the partisan gerrymandering claim, no court has ever held to a final judgment that the map is a partisan gerrymandered or that partisan gerrymandering is a cognizable claim 634 00:40:17,160 --> 00:40:19,160 under the Wisconsin Constitution. 635 00:40:19,160 --> 00:40:28,160 And so I do think it puts the cart before the horse to say plaintiffs have presented a constitutional harm, partisan gerrymandering, don't we have to remedy it? 636 00:40:28,160 --> 00:40:38,160 First, we have to ask, have plaintiffs done the hard work to present this court with new text and new history and new reasons not already rejected in Johnson 1? 637 00:40:38,160 --> 00:40:41,160 Okay, I want to take you back to this already rejected in Johnson 1. 638 00:40:41,160 --> 00:40:46,160 Johnson 1 did not have the claim of extreme partisan gerrymandering in front of us. 639 00:40:46,160 --> 00:40:51,160 What was in front of us was a map, creating a map. 640 00:40:51,160 --> 00:40:56,160 And the question that was asked is should this court, in doing so, consider partisanship? 641 00:40:56,160 --> 00:40:58,160 That is a very different question. 642 00:40:59,160 --> 00:41:08,160 Partisanship, no one here is saying or thinking that partisanship doesn't come into play when the legislature makes maps. 643 00:41:08,160 --> 00:41:09,160 Of course it does. 644 00:41:09,160 --> 00:41:19,160 We're talking about a claim that it has gone so far that extreme partisanship has gone so far so as to dilute the vote. 645 00:41:19,160 --> 00:41:26,160 And that claim can be, they're making the claim of that that can be found in our Constitution. 646 00:41:26,160 --> 00:41:32,160 Those important rights to democracy and the democracy principle that's set forth in their brief. 647 00:41:32,160 --> 00:41:38,160 So when you sit here and say, we already decided in Johnson 1, I was there and we didn't decide it. 648 00:41:38,160 --> 00:41:45,160 And they may have been in an opinion that the majority wrote and oftentimes things are in our opinions that aren't squarely in front of the court. 649 00:41:46,160 --> 00:41:48,160 We give that what we give it. 650 00:41:48,160 --> 00:41:51,160 But it was not an issue that has ever been brought to our court. 651 00:41:51,160 --> 00:41:56,160 Aside from, as was pointed out, we did not take a vehicle of an original action petition. 652 00:41:56,160 --> 00:42:04,160 This case was filed in the circuit court just like every other case starts out in the circuit court and usually in our district. 653 00:42:04,160 --> 00:42:13,160 So I want to push back on that and it seems like you're giving an awful lot of reliance on a couple of statements, 654 00:42:13,160 --> 00:42:17,160 a couple of paragraphs about an issue that was not squarely in front of the court. 655 00:42:17,160 --> 00:42:18,160 Yes, Your Honor. 656 00:42:18,160 --> 00:42:22,160 So to take one of your last points first and then to address the heart of what was an issue at Johnson 1, 657 00:42:22,160 --> 00:42:28,160 the fact that this case started in circuit court, I actually think irrespective of a debate on partisan fairness, 658 00:42:28,160 --> 00:42:34,160 is the easiest grounds to say, while we might reconsider it or while we might consider it in another case, 659 00:42:34,160 --> 00:42:41,160 we can't consider it in this case because this injunction exists by virtue of an exercise of our original jurisdiction. 660 00:42:41,160 --> 00:42:46,160 And now a circuit court has been asked to put that injunction on trial. 661 00:42:46,160 --> 00:42:49,160 And that turns upside down the judicial. 662 00:42:49,160 --> 00:42:55,160 Aren't they being asked to issue a declaratory judgment and don't courts issue declaratory judgments all the time? 663 00:42:55,160 --> 00:42:57,160 Well, initially, no, Your Honor. 664 00:42:57,160 --> 00:42:58,160 The complaint is very clear. 665 00:42:58,160 --> 00:43:01,160 They wanted the circuit court to enjoin this court's injunction. 666 00:43:01,160 --> 00:43:07,160 And it's up to this court to decide whether it wishes that to continue not just in this case, but in all future cases. 667 00:43:07,160 --> 00:43:12,160 As for the declaratory judgment, the same fundamental problem still persists. 668 00:43:12,160 --> 00:43:16,160 Like academically, that sure sounds like an advisory proceeding. 669 00:43:16,160 --> 00:43:22,160 Because there's nothing that the court could do alongside the declaratory judgment to enjoin this court's injunction. 670 00:43:22,160 --> 00:43:23,160 But second. 671 00:43:23,160 --> 00:43:30,160 I know I want to make a second point, but it sort of feels like what you would have your friends on the other side do is just 672 00:43:30,160 --> 00:43:34,160 chase their tails around indefinitely. 673 00:43:34,160 --> 00:43:40,160 I mean, they have come at this several different ways to be fair. 674 00:43:40,160 --> 00:43:44,160 They have asked for, let's see, reconsideration. 675 00:43:44,160 --> 00:43:48,160 They filed a motion for relief from the judgment. 676 00:43:48,160 --> 00:43:51,160 They filed an original action. 677 00:43:51,160 --> 00:43:55,160 And then they filed the complaint in circuit court. 678 00:43:55,160 --> 00:43:59,160 I may have left out something actually. 679 00:44:00,160 --> 00:44:04,160 I feel like it wouldn't matter which way they came at this. 680 00:44:04,160 --> 00:44:06,160 You would say, no, that's not good enough. 681 00:44:06,160 --> 00:44:07,160 And they have tried. 682 00:44:07,160 --> 00:44:10,160 They have come at it at least three or four different ways. 683 00:44:10,160 --> 00:44:12,160 Your Honor, I disagree. 684 00:44:12,160 --> 00:44:18,160 I think they came at it with a motion for reconsideration or a motion for relief from judgment. 685 00:44:18,160 --> 00:44:24,160 And I don't think there's any dispute that that's actually the most typical way for this court to address. 686 00:44:24,160 --> 00:44:28,160 It's pending or its final injunctions was to reopen Johnson itself. 687 00:44:28,160 --> 00:44:35,160 Then they came at it just like the Clark petitioners and asked this court to revisit its original jurisdiction 688 00:44:35,160 --> 00:44:38,160 injunction with another original jurisdiction action. 689 00:44:38,160 --> 00:44:45,160 And that this court denied those requests doesn't mean that then we can invert the hierarchy of the judicial branch 690 00:44:45,160 --> 00:44:51,160 in this state and allow a circuit court to put your injunction on trial. 691 00:44:51,160 --> 00:44:53,160 But it goes back to justice. 692 00:44:53,160 --> 00:44:55,160 I'm not seeing it. 693 00:44:55,160 --> 00:44:57,160 It's a declaratory judgment. 694 00:44:57,160 --> 00:44:58,160 Well, sure. 695 00:44:58,160 --> 00:45:04,160 They would be declaring that this court acted unconstitutionally in 2022 in Johnson 2. 696 00:45:04,160 --> 00:45:11,160 I can find no authority and plaintiffs have pointed to no authority of any court, any circuit court in this state 697 00:45:11,160 --> 00:45:13,160 having ever done so. 698 00:45:13,160 --> 00:45:20,160 How about a trial court that declares something our court did was unconstitutional in the criminal setting? 699 00:45:20,160 --> 00:45:29,160 What if a trial court said what if there was a violation of the constitution and we said it didn't occur and it goes back 700 00:45:29,160 --> 00:45:35,160 and we later learned that the council was ineffective and all of a sudden there's an issue in front of the court. 701 00:45:35,160 --> 00:45:44,160 I mean, there's a myriad of ways in which cases that we have found to be constitutional or that we have ruled on 702 00:45:44,160 --> 00:45:48,160 then are potentially later found otherwise. 703 00:45:48,160 --> 00:45:54,160 I mean, what you're basically saying is that once we decide something, no one else can ever review it, including us. 704 00:45:54,160 --> 00:45:55,160 No, you're honored. 705 00:45:55,160 --> 00:45:56,160 This court can. 706 00:45:56,160 --> 00:46:02,160 And while I don't want to devolve into a discussion of habeas, what a habeas case is asking is actually for a separate writ. 707 00:46:02,160 --> 00:46:04,160 I'm not even talking habeas. 708 00:46:04,160 --> 00:46:07,160 I'm just talking about ineffective assistance of council in our state. 709 00:46:07,160 --> 00:46:13,160 I think I could probably find cases where that's happened, where this court has said that something was constitutional 710 00:46:13,160 --> 00:46:15,160 and it later turns out that actually it wasn't. 711 00:46:15,160 --> 00:46:16,160 Right. 712 00:46:16,160 --> 00:46:23,160 There's a well trodden collateral attack often called writs of habeas corpus on final criminal judgments, but that's not undoing the criminal judgment. 713 00:46:23,160 --> 00:46:27,160 It's granting a writ of habeas corpus for purposes of this case, your honor. 714 00:46:27,160 --> 00:46:35,160 Of course, this court could exercise its original jurisdiction again if it wanted to just as it did in Clark. 715 00:46:35,160 --> 00:46:40,160 So long as that original action was pursuant to the usual norms of judicial procedure. 716 00:46:40,160 --> 00:46:43,160 So, council, let me just pick up on that point. 717 00:46:43,160 --> 00:46:54,160 Because if we were to find that there's a justiciable claim here and to remand it to the three judge panel to take evidence 718 00:46:54,160 --> 00:47:03,160 and determine whether the illegal standard for that claim is met and to find a constitutional violation, 719 00:47:04,160 --> 00:47:20,160 I'm just not following you in determining why it is that this three judge panel does not have jurisdiction or the authority to hold such a trial and draw such a conclusion 720 00:47:20,160 --> 00:47:30,160 on the evidence based on something that was said in Johnson 2 in which such a claim was not squarely in front of the court. 721 00:47:30,160 --> 00:47:32,160 Can you answer that please? 722 00:47:32,160 --> 00:47:33,160 Yes, your honor. 723 00:47:33,160 --> 00:47:44,160 So, first, on the most fundamental procedural point, I'm not aware of a circuit court putting on trial a final injunction of this court in another case, right? 724 00:47:44,160 --> 00:47:46,160 The circuit court would have to read that. 725 00:47:46,160 --> 00:47:48,160 It's not putting an injunction on trial. 726 00:47:48,160 --> 00:47:57,160 It is looking at the maps that are currently in place and making a determination about whether there's a partisan gerrymander in those maps. 727 00:47:57,160 --> 00:48:04,160 The issue that this court did not consider because it had no evidence at that point of partisan gerrymandering. 728 00:48:04,160 --> 00:48:18,160 Why are you saying that the Wisconsin law or the Wisconsin Constitution would prohibit an examination of that issue now for maps that are going to be used for future elections? 729 00:48:19,160 --> 00:48:23,160 The maps, just to be very clear, are and they exist by virtue of it. 730 00:48:23,160 --> 00:48:24,160 They were adopted by this court. 731 00:48:24,160 --> 00:48:25,160 I understand that. 732 00:48:25,160 --> 00:48:34,160 They were adopted by this court without consideration for whether the maps were created with the partisan gerrymandering. 733 00:48:34,160 --> 00:48:35,160 Sure. 734 00:48:35,160 --> 00:48:39,160 So, to answer that question directly, and Justice Dowd, I apologize the heart of your question directly. 735 00:48:39,160 --> 00:48:41,160 I, too, was here in Johnson. 736 00:48:41,160 --> 00:48:49,160 And the parties were asked because some parties had raised whether the Wisconsin Constitution requires districts to be politically fair. 737 00:48:49,160 --> 00:48:54,160 And the parties submitted, as I mentioned, over 100 pages of briefing on that question. 738 00:48:54,160 --> 00:49:07,160 And there are more than three dozen paragraphs of legal analysis in the Johnson 1 opinion about why we cannot find anywhere in the Wisconsin Constitution a right to political fairness. 739 00:49:07,160 --> 00:49:17,160 And all the questions that such a right should it proceed in court cases would raise as opposed to should it proceed in the halls of Congress with anti-partisan gerrymandering legislation. 740 00:49:17,160 --> 00:49:27,160 And you don't see any sunlight between a right to political fairness and a claim that something is so unfair, it is violative of our Constitution. 741 00:49:27,160 --> 00:49:35,160 Political fairness sounds to me like, you know what, if you've got a Republican in charge, they might draw the maps more, a little more Republican, a Democrat, the same thing. 742 00:49:35,160 --> 00:49:43,160 That is not, how can that possibly be the same thing as this is so unfair, it rises to a level of a constitutional harm. 743 00:49:43,160 --> 00:49:48,160 Which is extreme partisan gerrymandering, which is what we're being asked about, not political fairness. 744 00:49:48,160 --> 00:49:53,160 Well, your honor, again, having litigated these cases, the difference between the two is not clear. 745 00:49:53,160 --> 00:49:58,160 And that is why you see states like Florida saying, we're just not considering it at all. 746 00:49:58,160 --> 00:50:02,160 It's either considered, there's either politics in the map or there's not. 747 00:50:02,160 --> 00:50:11,160 But there's no way to assess in a judicially manageable way, whether there's just enough politics but not too much. 748 00:50:11,160 --> 00:50:19,160 Because what that means is in the eye of the beholder absent some constitutional direction that this is too much and this is just enough. 749 00:50:19,160 --> 00:50:22,160 It feels like what you're asking us to do is to stick our hat in the sand. 750 00:50:22,160 --> 00:50:24,160 I'm not your honor. 751 00:50:24,160 --> 00:50:26,160 It feels that way. 752 00:50:26,160 --> 00:50:31,160 I am not your honor, but I want to be emphatic about this. 753 00:50:31,160 --> 00:50:33,160 This is the adversarial system. 754 00:50:33,160 --> 00:50:40,160 And plaintiffs have to come to this court with arguments in history, just as you remarked in your concurrence in the MMC case, 755 00:50:40,160 --> 00:50:51,160 that maybe there's some history yet to be discovered out there that shows there's a right to partisan gerrymandering or shows there's this right living in Wisconsin's equal protection clause. 756 00:50:51,160 --> 00:50:53,160 But it's not there in these briefs. 757 00:50:53,160 --> 00:50:59,160 And as much as it pains me to say it, I would urge the court to compare these briefs to the briefs and clerk. 758 00:50:59,160 --> 00:51:08,160 And the arguments that led this court and clerk that were historically rooted, they grappled with old precedents that weren't about mortgages or farmland, 759 00:51:08,160 --> 00:51:11,160 but about districts themselves and what contiguity meant. 760 00:51:11,160 --> 00:51:14,160 It helped that the words contiguity were there. 761 00:51:14,160 --> 00:51:17,160 Well, your honor, I'm never going to get it. 762 00:51:17,160 --> 00:51:25,160 I can't concede that my contiguity argument is not one I still think about every day and I do think it's kind of... 763 00:51:25,160 --> 00:51:28,160 But boy, was that a well-fought fight, your honor. 764 00:51:28,160 --> 00:51:29,160 And it was there. 765 00:51:29,160 --> 00:51:30,160 It was there. 766 00:51:30,160 --> 00:51:33,160 And that is an express requirement in the Constitution. 767 00:51:33,160 --> 00:51:37,160 But the Constitution isn't about... 768 00:51:37,160 --> 00:51:41,160 Constitution isn't about express requirements, right? 769 00:51:41,160 --> 00:51:43,160 The Constitution is written broadly. 770 00:51:43,160 --> 00:51:49,160 You're talking about a document that came right after that in 1848, right? 771 00:51:49,160 --> 00:51:54,160 And it set broad principles that Justice Taylor has been talking about. 772 00:51:54,160 --> 00:51:59,160 So it's not... we don't look for every single... 773 00:51:59,160 --> 00:52:01,160 It's not... this isn't connecting the dots. 774 00:52:01,160 --> 00:52:04,160 Like, can we find the word here and then it means something... 775 00:52:04,160 --> 00:52:07,160 And if we don't find the exact word here, the principle must not exist. 776 00:52:07,160 --> 00:52:11,160 And I think the legal scholars lay this out really well in their amicus brief. 777 00:52:11,160 --> 00:52:15,160 I think Justice Penny laid it out really well in his concurrence in Cunningham, 778 00:52:15,160 --> 00:52:18,160 which is that there are broad principles throughout the Wisconsin Constitution, 779 00:52:18,160 --> 00:52:23,160 and not all of those principles allows this court to subject legislative action to strict scrutiny. 780 00:52:23,160 --> 00:52:29,160 In the McGrail case about the ballots, the legislative action was okay because it was reasonable, 781 00:52:29,160 --> 00:52:31,160 even though it affected the right to vote. 782 00:52:31,160 --> 00:52:37,160 And if we go back to 1848, the messy work of what the district should look like 783 00:52:37,160 --> 00:52:42,160 was done by the political branches and the delegates and then later the people's representatives. 784 00:52:42,160 --> 00:52:48,160 And so there's just no similar history that was as was at issue in Clark 785 00:52:48,160 --> 00:52:53,160 to allow this court to invite this court to step into that political thicket now. 786 00:52:53,160 --> 00:52:58,160 I mean, deciding what is fair, whether it's extremely unfair, 787 00:52:58,160 --> 00:53:03,160 or fair has plagued the federal courts for so long until we get to Rucho, 788 00:53:03,160 --> 00:53:07,160 and it's likewise plagued the state courts absent some bright line rule. 789 00:53:07,160 --> 00:53:08,160 Doesn't that show us something? 790 00:53:08,160 --> 00:53:16,160 The fact that these issues have been raised repeatedly and that courts have struggled with them repeatedly, 791 00:53:16,160 --> 00:53:20,160 doesn't that in some sense show that there is a problem? 792 00:53:20,160 --> 00:53:27,160 There is a problem that is infecting our political landscape, not just in Wisconsin, 793 00:53:27,160 --> 00:53:29,160 but probably across the country. 794 00:53:29,160 --> 00:53:32,160 Voters struggle with that. 795 00:53:32,160 --> 00:53:37,160 You could pick just about anybody off the street in Wisconsin and ask them, 796 00:53:37,160 --> 00:53:45,160 do you think legislators should be able to draw a map in a way that locks in a particular political party, 797 00:53:45,160 --> 00:53:47,160 they would say no. 798 00:53:47,160 --> 00:53:50,160 Doesn't it show us that there is some underlying problem there? 799 00:53:50,160 --> 00:53:53,160 The fact that courts have struggled with this for decades now? 800 00:53:53,160 --> 00:53:55,160 I think two things are true at once. 801 00:53:55,160 --> 00:54:01,160 Some voters could think there is a problem and that courts have struggled with it so much, 802 00:54:01,160 --> 00:54:04,160 means that it's not the court's problem to solve. 803 00:54:04,160 --> 00:54:08,160 And instead it's been Congress's problem to solve, for example, in the 1840s, 804 00:54:08,160 --> 00:54:14,160 when Congress required single member congressional districts as a bulwark to gerrymandering, 805 00:54:14,160 --> 00:54:18,160 it's a problem for voters to solve with fair districts amendments, 806 00:54:18,160 --> 00:54:22,160 it's a problem for Congress potentially to solve now later on. 807 00:54:22,160 --> 00:54:29,160 Congress is constantly asked, by the way, to pass legislation to eliminate partisan gerrymandering. 808 00:54:29,160 --> 00:54:30,160 Congress passed. 809 00:54:30,160 --> 00:54:34,160 And it's a hard thing to accomplish when you have a gerrymandered body. 810 00:54:34,160 --> 00:54:36,160 But let me just turn to another point. 811 00:54:36,160 --> 00:54:41,160 I want to return to a point you made a few minutes ago about distinguishing our case 812 00:54:41,160 --> 00:54:47,160 from other courts that have found a justiciable claim for partisan gerrymandering, 813 00:54:47,160 --> 00:54:49,160 such as New Mexico. 814 00:54:49,160 --> 00:54:53,160 And it seemed to me you were leaning pretty heavily into the fact that 815 00:54:53,160 --> 00:54:58,160 the New Mexico Constitution, just as one example, has an explicit clause 816 00:54:58,160 --> 00:55:01,160 protecting free and equal elections. 817 00:55:01,160 --> 00:55:05,160 No, I think the New Mexico case rests on their equal protection clause 818 00:55:05,160 --> 00:55:06,160 and their history. 819 00:55:06,160 --> 00:55:09,160 It was a different state that you were in Pennsylvania and in North Carolina. 820 00:55:09,160 --> 00:55:10,160 Okay, thank you. 821 00:55:10,160 --> 00:55:11,160 In any event. 822 00:55:11,160 --> 00:55:17,160 The point I wanted to raise is, is it your belief that because the Wisconsin Constitution 823 00:55:17,160 --> 00:55:22,160 lacks an explicit clause protecting fair and equal elections, 824 00:55:22,160 --> 00:55:29,160 that therefore the Wisconsin Constitution has no protection for fair and equal elections? 825 00:55:29,160 --> 00:55:31,160 No, Your Honor, that's not our position. 826 00:55:31,160 --> 00:55:38,160 Because clearly, constitutions are generally composed of broad principles 827 00:55:38,160 --> 00:55:48,160 and this Constitution in Wisconsin is replete with phrases that point to the importance of popular sovereignty, 828 00:55:48,160 --> 00:55:50,160 the consent of the governed. 829 00:55:50,160 --> 00:55:51,160 Correct? 830 00:55:51,160 --> 00:55:52,160 Correct. 831 00:55:52,160 --> 00:55:58,160 So how is that different in substance than another state constitution 832 00:55:58,160 --> 00:56:02,160 that includes a clause such as fair and equal elections? 833 00:56:02,160 --> 00:56:13,160 Aren't those protections inherent in the clauses that protect popular sovereignty in Wisconsin? 834 00:56:13,160 --> 00:56:18,160 Well, as I mentioned before, there is a unique history to a free and equal elections clause 835 00:56:18,160 --> 00:56:22,160 and what those were, the evils that were perpetuated before America, 836 00:56:22,160 --> 00:56:27,160 that those were meant to guard against, specific to voting in elections. 837 00:56:27,160 --> 00:56:32,160 But in Wisconsin, just as everywhere else for these federal congressional districts, 838 00:56:32,160 --> 00:56:36,160 there is an absolute equality requirement at this point. 839 00:56:36,160 --> 00:56:42,160 You know, this court was asked to entertain an original action last year because the congressional districts 840 00:56:42,160 --> 00:56:44,160 deviated by one additional person. 841 00:56:44,160 --> 00:56:53,160 And as this court said in Cunningham, that promise of equality of an equally weighted vote, 842 00:56:54,160 --> 00:56:57,160 that is how people effectuate their right to vote. 843 00:56:57,160 --> 00:56:59,160 That is how votes are not diluted. 844 00:56:59,160 --> 00:57:02,160 And of course, Wisconsin protects that. 845 00:57:02,160 --> 00:57:07,160 And also, through our separation of powers, Wisconsin protects the right to vote. 846 00:57:07,160 --> 00:57:12,160 The founders assigned congressional redistricting power to the legislature 847 00:57:12,160 --> 00:57:15,160 and keeping with the people's representatives who are closest to them, 848 00:57:15,160 --> 00:57:21,160 the legislature now in these territorial districts can carry out the will of the people. 849 00:57:22,160 --> 00:57:26,160 Now, as for court struggling with this, Justice Crawford, 850 00:57:26,160 --> 00:57:30,160 I think it's very telling that even coming here today, council 851 00:57:30,160 --> 00:57:33,160 equivocated about what their test would be. 852 00:57:33,160 --> 00:57:36,160 And if council can't identify what their test would be, 853 00:57:36,160 --> 00:57:40,160 to me that's proof positive that there is no judicially manageable standard 854 00:57:40,160 --> 00:57:42,160 hiding in a Wisconsin constitution. 855 00:57:42,160 --> 00:57:43,160 I would agree with you. 856 00:57:43,160 --> 00:57:48,160 It's frustrating that they have articulated a test and I certainly wish they would have. 857 00:57:48,160 --> 00:57:53,160 That being said, let's talk about workability going forward in the event 858 00:57:53,160 --> 00:57:58,160 that we find both of the claims, both the partisan and anti-competitive 859 00:57:58,160 --> 00:58:01,160 gerrymandering cognizable. 860 00:58:01,160 --> 00:58:06,160 What are your thoughts about consolidating the gerrymandering claims 861 00:58:06,160 --> 00:58:10,160 and having just one trial? 862 00:58:10,160 --> 00:58:15,160 Again, it's inconceivable to me that there could be a trial in this posture, 863 00:58:15,160 --> 00:58:19,160 but to take your question, assuming all of that, of course, 864 00:58:19,160 --> 00:58:21,160 I think the cases would need to be consolidated. 865 00:58:21,160 --> 00:58:25,160 I've participated, other councils can participate in, for example, 866 00:58:25,160 --> 00:58:27,160 the Alabama congressional redistricting case. 867 00:58:27,160 --> 00:58:32,160 Those were consolidated at the trial court for purposes of trial proceedings. 868 00:58:32,160 --> 00:58:36,160 And again, I can't really conceive of how you have a new injunction 869 00:58:36,160 --> 00:58:40,160 in joining this courts injunction, but of course you only want to do that one time 870 00:58:40,160 --> 00:58:44,160 versus two times, and so they should proceed together. 871 00:58:44,160 --> 00:58:47,160 But I don't want to lose sight of my latch as point two. 872 00:58:47,160 --> 00:58:51,160 We're talking about a lot of procedure, a lot of costs, 873 00:58:51,160 --> 00:58:55,160 and we are well over halfway into the decennial, 874 00:58:55,160 --> 00:59:00,160 and as federal courts and other courts have held, or the Illinois Supreme Court just held, 875 00:59:00,160 --> 00:59:04,160 sometimes plaintiffs are just too late because congressional districts, 876 00:59:04,160 --> 00:59:06,160 the census is about to come. 877 00:59:06,160 --> 00:59:10,160 And the prejudice here, well, let me start with it. 878 00:59:10,160 --> 00:59:13,160 The delay, I think, is clear from Brennan. 879 00:59:13,160 --> 00:59:17,160 The plaintiffs waited arguably 15 years to challenge Act 44 880 00:59:17,160 --> 00:59:18,160 as unconstitutional. 881 00:59:18,160 --> 00:59:21,160 They waited four and a half years since the, or they waited three years 882 00:59:21,160 --> 00:59:23,160 since the congressional districts were settled. 883 00:59:23,160 --> 00:59:25,160 But I do want to point to the prejudice point, 884 00:59:25,160 --> 00:59:28,160 or I do want to discuss the prejudice point, Justice Protece, 885 00:59:28,160 --> 00:59:30,160 because it goes to the trial and everything. 886 00:59:30,160 --> 00:59:32,160 Will that be costly? Absolutely. 887 00:59:32,160 --> 00:59:36,160 But what's also costly and what's recognized in these cases we've cited 888 00:59:36,160 --> 00:59:40,160 on our latch's argument is the ensuing cost to the state, 889 00:59:40,160 --> 00:59:42,160 to the counties, and to voters. 890 00:59:42,160 --> 00:59:47,160 Should this court agree that the congressional districts need to change again? 891 00:59:47,160 --> 00:59:51,160 Maybe it's before the 2028 elections or the 2030 elections. 892 00:59:51,160 --> 00:59:54,160 And then, of course, the congressional districts will change again in 2032. 893 00:59:54,160 --> 00:59:58,160 Can't the congressional maps change anytime? 894 00:59:58,160 --> 01:00:00,160 How can your latches argue in a process?