WEBVTT 00:00.000 --> 00:04.000 Or give me a comfortable seat, that's all. 01:00.000 --> 01:02.000 I just wanted to thank you very much. 01:02.000 --> 01:04.000 I just wanted to thank you very much. 01:04.000 --> 01:06.000 I just wanted to thank you very much. 01:06.000 --> 01:08.000 I just wanted to thank you very much. 01:08.000 --> 01:10.000 I just wanted to thank you very much. 01:10.000 --> 01:12.000 I just wanted to thank you very much. 01:12.000 --> 01:14.000 I just wanted to thank you very much. 01:14.000 --> 01:16.000 I just wanted to thank you very much. 01:16.000 --> 01:18.000 I just wanted to thank you very much. 01:18.000 --> 01:20.000 I just wanted to thank you very much. 01:20.000 --> 01:22.000 I just wanted to thank you very much. 01:22.000 --> 01:24.000 I just wanted to thank you very much. 01:24.000 --> 01:26.000 I just wanted to thank you very much. 01:26.000 --> 01:28.000 I just wanted to thank you very much. 01:28.000 --> 01:30.000 I just wanted to thank you very much. 01:30.000 --> 01:32.000 I just wanted to thank you very much. 01:32.000 --> 01:34.000 I just wanted to thank you very much. 01:34.000 --> 01:36.000 I just wanted to thank you very much. 01:36.000 --> 01:38.000 I just wanted to thank you very much. 01:38.000 --> 01:40.000 I just wanted to thank you very much. 01:40.000 --> 01:42.000 I just wanted to thank you very much. 01:42.000 --> 01:44.000 I just wanted to thank you very much. 01:44.000 --> 01:46.000 I just wanted to thank you very much. 01:46.000 --> 01:48.000 I just wanted to thank you very much. 01:48.000 --> 01:50.000 I just wanted to thank you very much. 01:50.000 --> 01:52.000 I just wanted to thank you very much. 01:52.000 --> 01:54.000 I just wanted to thank you very much. 01:54.000 --> 01:56.000 I just wanted to thank you very much. 01:56.000 --> 01:58.000 I just wanted to thank you very much. 01:58.000 --> 02:00.000 I just wanted to thank you very much. 02:00.000 --> 02:02.000 I just wanted to thank you very much. 02:02.000 --> 02:04.000 I just wanted to thank you very much. 02:04.000 --> 02:06.000 I just wanted to thank you very much. 02:06.000 --> 02:08.000 I just wanted to thank you very much. 02:08.000 --> 02:10.000 I just wanted to thank you very much. 02:10.000 --> 02:12.000 I just wanted to thank you very much. 02:12.000 --> 02:14.000 I just wanted to thank you very much. 02:14.000 --> 02:16.000 I just wanted to thank you very much. 02:16.000 --> 02:18.000 I just wanted to thank you very much. 02:18.000 --> 02:20.000 I just wanted to thank you very much. 02:20.000 --> 02:22.000 I just wanted to thank you very much. 02:22.000 --> 02:24.000 I just wanted to thank you very much. 02:24.000 --> 02:26.000 I just wanted to thank you very much. 02:26.000 --> 02:28.000 I just wanted to thank you very much. 02:28.000 --> 02:30.000 I just wanted to thank you very much. 02:30.000 --> 02:32.000 I just wanted to thank you very much. 02:32.000 --> 02:34.000 I just wanted to thank you very much. 02:34.000 --> 02:36.000 I just wanted to thank you very much. 02:36.000 --> 02:38.000 I just wanted to thank you very much. 02:38.000 --> 02:40.000 I just wanted to thank you very much. 02:40.000 --> 02:42.000 I just wanted to thank you very much. 02:42.000 --> 02:44.000 I just wanted to thank you very much. 02:44.000 --> 02:46.000 I just wanted to thank you very much. 02:46.000 --> 02:48.000 I just wanted to thank you very much. 02:48.000 --> 02:50.000 I just wanted to thank you very much. 02:50.000 --> 02:52.000 I just wanted to thank you very much. 02:52.000 --> 02:54.000 I just wanted to thank you very much. 02:54.000 --> 02:56.000 I just wanted to thank you very much. 02:56.000 --> 02:58.000 I just wanted to thank you very much. 02:58.000 --> 03:00.000 I just wanted to thank you very much. 03:00.000 --> 03:02.000 I just wanted to thank you very much. 03:02.000 --> 03:04.000 I just wanted to thank you very much. 03:04.000 --> 03:06.000 I just wanted to thank you very much. 03:06.000 --> 03:08.000 I just wanted to thank you very much. 03:08.000 --> 03:10.000 I just wanted to thank you very much. 03:10.000 --> 03:12.000 I just wanted to thank you very much. 03:12.000 --> 03:14.000 I just wanted to thank you very much. 03:14.000 --> 03:16.000 I just wanted to thank you very much. 03:16.000 --> 03:18.000 I just wanted to thank you very much. 03:18.000 --> 03:20.000 I just wanted to thank you very much. 03:20.000 --> 03:22.000 I just wanted to thank you very much. 03:22.000 --> 03:24.000 I just wanted to thank you very much. 03:24.000 --> 03:26.000 I just wanted to thank you very much. 03:26.000 --> 03:28.000 I just wanted to thank you very much. 03:28.000 --> 03:30.000 I just wanted to thank you very much. 03:30.000 --> 03:32.000 I just wanted to thank you very much. 03:32.000 --> 03:34.000 I just wanted to thank you very much. 03:34.000 --> 03:36.000 I just wanted to thank you very much. 03:36.000 --> 03:38.000 I just wanted to thank you very much. 03:38.000 --> 03:40.000 I just wanted to thank you very much. 03:40.000 --> 03:42.000 I just wanted to thank you very much. 03:42.000 --> 03:44.000 I just wanted to thank you very much. 03:44.000 --> 03:46.000 I just wanted to thank you very much. 03:46.000 --> 03:48.000 I just wanted to thank you very much. 03:48.000 --> 03:50.000 I just wanted to thank you very much. 03:50.000 --> 03:52.000 I just wanted to thank you very much. 03:52.000 --> 03:54.000 I just wanted to thank you very much. 03:54.000 --> 03:56.000 I just wanted to thank you very much. 03:56.000 --> 03:58.000 I just wanted to thank you very much. 03:58.000 --> 04:00.000 I just wanted to thank you very much. 04:00.000 --> 04:02.000 I just wanted to thank you very much. 04:02.000 --> 04:04.000 I just wanted to thank you very much. 04:04.000 --> 04:06.000 I just wanted to thank you very much. 04:08.000 --> 04:29.160 I've been like 04:29.160 --> 04:39.160 It's like a loaded mac and cheese, I don't know why they're not. 04:39.160 --> 04:43.160 Just mac and cheese pizza, do you want to get that? 04:43.160 --> 04:48.160 You're done with cheese for a little while? 04:48.160 --> 04:49.160 Yeah. 04:49.160 --> 05:10.160 We're going to be nice and we're going to be here about as well. 05:10.160 --> 05:23.160 I think we're in this kind of system all day. 05:23.160 --> 05:29.160 What do you think about some of the sandwiches for a comprehensive and obvious? 05:29.160 --> 05:36.160 Do you guys care what it is? 05:36.160 --> 05:54.160 I'm having the opportunity to press the board. 05:54.160 --> 05:55.160 Yeah. 05:55.160 --> 06:05.160 It helps. 06:05.160 --> 06:09.160 Do you think there's stuff in the room? 06:09.160 --> 06:16.160 I think there's a reasonable... 06:16.160 --> 06:24.160 Are you going to stay in the closet and finish your flight? 06:24.160 --> 06:32.160 I think I missed this. 06:32.160 --> 06:34.160 It's not your case. 06:34.160 --> 06:37.160 You don't have to be through hell. 06:37.160 --> 06:43.160 You're an audience, you're a spectator. 06:43.160 --> 06:48.160 What do you mean it's true? 06:48.160 --> 06:53.160 It'll be probably between cases. 06:53.160 --> 06:57.160 Which means it's going to be like, let's say let's break it down. 06:57.160 --> 07:01.160 I think it's going to be done by you. 07:01.160 --> 07:07.160 I think both of those front records are going to take these guys off. 07:07.160 --> 07:10.160 What? 07:10.160 --> 07:15.160 It's going to be too great. 07:15.160 --> 07:18.160 How are you 15? 07:18.160 --> 07:21.160 I'm different. 07:21.160 --> 07:24.160 I thought you said the entire thing. 07:24.160 --> 07:28.160 It's going to be a matter of time between the schedule for when there are you. 07:28.160 --> 07:31.160 There are you, so you're starting by now. 07:31.160 --> 07:32.160 Right. 07:32.160 --> 07:33.160 Exactly. 07:33.160 --> 07:36.160 We still have four. 07:36.160 --> 07:39.160 I don't think that would be possible. 07:39.160 --> 07:42.160 We've said it. 07:42.160 --> 07:47.160 Perhaps they're going to talk about it. 07:47.160 --> 07:50.160 Yeah. 07:50.160 --> 07:53.160 Yeah. 07:53.160 --> 07:56.160 Yeah. 07:56.160 --> 07:58.160 Yeah. 07:58.160 --> 08:01.160 Yeah. 08:01.160 --> 08:04.160 Yeah. 08:04.160 --> 08:08.160 Yeah. 08:09.160 --> 08:12.160 Yeah. 08:12.160 --> 08:15.160 Yeah. 08:15.160 --> 08:18.160 Yeah. 08:18.160 --> 08:21.160 Yeah. 08:21.160 --> 08:25.160 Yeah. 08:25.160 --> 08:28.160 Yeah. 08:28.160 --> 08:31.160 Yeah. 08:31.160 --> 08:38.160 Yeah. 08:38.160 --> 08:41.160 Yeah. 08:41.160 --> 08:44.160 Yeah. 08:44.160 --> 08:49.160 Yeah. 08:49.160 --> 08:54.160 Yeah. 08:54.160 --> 08:59.160 Yeah. 08:59.160 --> 09:02.160 It's not true. 09:02.160 --> 09:05.160 But to repair you did everything. 09:05.160 --> 09:15.160 It's a good talk for an outdoor artist. 09:15.160 --> 09:18.160 My flight's at like 4.20. 09:18.160 --> 09:20.160 I guess it's a question, though. 09:20.160 --> 09:22.160 Whether I also stay with a whole man, 09:22.160 --> 09:25.160 I think that I have a contact with. 09:26.160 --> 09:29.160 We're going to figure that out. 09:47.160 --> 09:49.160 I find like a three-minute aerializer. 09:49.160 --> 09:52.160 It's so similar to each other. 09:56.160 --> 09:59.160 Three major airlines are very similar to each other. 09:59.160 --> 10:03.160 No opinion on Alaska. 10:03.160 --> 10:06.160 And just like going to Seattle is Alaska. 10:06.160 --> 10:09.160 Yeah. 10:09.160 --> 10:12.160 Yeah. 10:12.160 --> 10:14.160 Yes, sir. 10:26.160 --> 10:29.160 Yeah. 10:29.160 --> 10:31.160 All rise. 10:31.160 --> 10:33.160 Hear ye, hear ye, hear ye. 10:33.160 --> 10:36.160 The Wisconsin Supreme Court is back in session. 10:36.160 --> 10:39.160 The Honorable Chief Justice Joe Grazne presiding. 10:39.160 --> 10:41.160 Your silence is commanded. 10:41.160 --> 10:42.160 Hey, everybody. 10:42.160 --> 10:43.160 Welcome back. 10:43.160 --> 10:48.160 Go ahead and have a seat. 10:48.160 --> 10:50.160 At long last year. 10:50.160 --> 10:53.160 Can I ask you something as you're taking the podium? 10:53.160 --> 10:55.160 Sometimes when people are splitting up arguments, 10:55.160 --> 10:57.160 they're each taking an issue. 10:57.160 --> 10:59.160 You were going to start with that, weren't you? 10:59.160 --> 11:00.160 You weren't going to. 11:00.160 --> 11:01.160 Okay. 11:01.160 --> 11:03.160 Are you each going to take an issue or not? 11:03.160 --> 11:05.160 Just so that we can save some questions? 11:05.160 --> 11:06.160 Yes, sir. 11:06.160 --> 11:07.160 Mr. Stakeholder. 11:07.160 --> 11:09.160 No, you're in our group. 11:09.160 --> 11:11.160 All three of us are ready for all your questions. 11:11.160 --> 11:12.160 All right. 11:12.160 --> 11:14.160 We will let the argument unfold, however it's most helpful. 11:14.160 --> 11:15.160 Oh, cool. 11:15.160 --> 11:16.160 Okay. 11:16.160 --> 11:17.160 That's great. 11:17.160 --> 11:21.160 You're ready whenever you are. 11:21.160 --> 11:22.160 Good morning. 11:22.160 --> 11:25.160 May I please the court tailor me in on behalf of the Wisconsin 11:25.160 --> 11:26.160 Legislature. 11:26.160 --> 11:30.160 Four and a half years ago, this court adopted the governor's 11:30.160 --> 11:34.160 proposed remedy for the then-malaportioned congressional 11:34.160 --> 11:35.160 districts. 11:35.160 --> 11:40.160 The court held unequivocally that that remedy complied with all 11:40.160 --> 11:43.160 applicable state and federal laws. 11:43.160 --> 11:47.160 Nothing has changed since then that could warrant re-entering 11:47.160 --> 11:51.160 the political thicket of congressional redistricting and 11:51.160 --> 11:56.160 putting this court's injunction on trial in a circuit court. 11:56.160 --> 12:00.160 This court can affirm the dismissal of plaintiffs' complaint 12:00.160 --> 12:04.160 on these simple grounds without reaching the merits, which is 12:04.160 --> 12:08.160 that the circuit court was exactly right that it could not 12:08.160 --> 12:12.160 unwind this court's final judgment in Johnson, too. 12:12.160 --> 12:17.160 Likewise, this court could affirm simply by holding 12:17.160 --> 12:21.160 plaintiffs waited too long to bring this suit in circuit court 12:21.160 --> 12:26.160 just as the Illinois Supreme Court held last year for the 12:26.160 --> 12:30.160 districting challenge in Illinois. 12:30.160 --> 12:35.160 Nor would there be any reason for this court, for the circuit 12:35.160 --> 12:39.160 court, to unwind the Johnson II injunction. 12:39.160 --> 12:43.160 As to plaintiff's separation of powers arguments, the circuit 12:43.160 --> 12:47.160 court was exactly right that plaintiffs' arguments re-write 12:47.160 --> 12:51.160 this court's words in Clark to say something that this court did not 12:51.160 --> 12:52.160 say. 12:52.160 --> 12:56.160 The court needs no more authority than Clark itself to know that 12:56.160 --> 13:02.160 at least changes remedy is not categorically unconstitutional. 13:02.160 --> 13:03.160 That's cool. 13:03.160 --> 13:06.160 I want to go back to Clark, which I haven't set up to this point, 13:06.160 --> 13:07.160 but I'll say no. 13:07.160 --> 13:10.160 It was a well-written opinion. 13:10.160 --> 13:12.160 Indeed, your honor. 13:12.160 --> 13:14.160 Thank you. 13:14.160 --> 13:15.160 Appreciate it. 13:15.160 --> 13:19.160 Fishing for compliments this morning. 13:19.160 --> 13:23.160 It was really clear in 63 that at least changes on workable 13:23.160 --> 13:24.160 in practice. 13:24.160 --> 13:26.160 It went through the whole analysis about it being 13:26.160 --> 13:29.160 unworkable on all the reasons it was unworkable. 13:29.160 --> 13:34.160 You know, I certainly recall vividly sitting in this courtroom 13:34.160 --> 13:41.160 as we talked about the peanuts analogy of Lucy moving the 13:41.160 --> 13:46.160 football away from Charlie Brown because no one who was 13:46.160 --> 13:50.160 advocating for least change in this courtroom could agree to what 13:50.160 --> 13:51.160 it meant. 13:51.160 --> 13:54.160 Was at least change as far as the number of people, the population 13:54.160 --> 13:56.160 in the district was at least change as to the lines. 13:56.160 --> 14:02.160 Were we trying to least change as to municipalities? 14:03.160 --> 14:08.160 It didn't work. 14:08.160 --> 14:11.160 There was nothing in the Constitution as Justice Taylor 14:11.160 --> 14:13.160 brought out a little while ago. 14:13.160 --> 14:15.160 There was nothing in Wisconsin law. 14:15.160 --> 14:17.160 There was nothing in Wisconsin. 14:17.160 --> 14:19.160 That brought it forward. 14:19.160 --> 14:24.160 That could be relied on to be the basis for it. 14:24.160 --> 14:28.160 And paragraph 63 of Clark just says as illustrated across the 14:28.160 --> 14:31.160 course of the Johnson litigation, least change is 14:31.160 --> 14:32.160 unworkable on practice. 14:32.160 --> 14:36.160 As such, we overrule any portion of Johnson 1, Johnson 2 and 14:36.160 --> 14:39.160 Johnson 3 that mandate at least change approach. 14:39.160 --> 14:45.160 I would like to know what else could a judge or justice 14:45.160 --> 14:50.160 possibly write in an opinion to say this is, we are 14:50.160 --> 14:51.160 overturning this. 14:51.160 --> 14:54.160 This does not apply going forward. 14:54.160 --> 14:55.160 This was wrong. 14:55.160 --> 14:57.160 It was unworkable in practice. 14:57.160 --> 15:00.160 I don't know how much clearer I could have done it. 15:00.160 --> 15:03.160 But apparently there's something else I should have done. 15:03.160 --> 15:06.160 What do you suggest that was? 15:06.160 --> 15:08.160 Chief Justice Croft's view took the words right out of my 15:08.160 --> 15:11.160 mouth which is that we're not going to apply this going 15:11.160 --> 15:12.160 forward. 15:12.160 --> 15:17.160 But the court's discussion about how least changes is 15:17.160 --> 15:21.160 unworkable is not synonymous with a holding that least changes 15:21.160 --> 15:25.160 what's unconstitutional when applied in Johnson 2. 15:25.160 --> 15:28.160 And as for Justice Taylor's question about where this 15:28.160 --> 15:31.160 least changes approach comes from, I think some table setting 15:31.160 --> 15:33.160 is really important here. 15:33.160 --> 15:36.160 You receive Justice Taylor an answer about Clark and the 15:36.160 --> 15:38.160 state constitution. 15:38.160 --> 15:41.160 Clark involved the state house districts. 15:41.160 --> 15:44.160 Of course, we are here about the congressional districts. 15:44.160 --> 15:47.160 And so to the question of where a least changes approach might 15:47.160 --> 15:50.160 come from, I would point the court to the federal constitution 15:50.160 --> 15:54.160 here in this case, which assigns power to the legislature for 15:54.160 --> 15:56.160 redistricting, not courts. 15:56.160 --> 16:00.160 And when the last enacted plan by the legislature is Act 44, 16:00.160 --> 16:04.160 of course the elections clause could anticipate this. 16:04.160 --> 16:07.160 But we said, sorry to interrupt you. 16:07.160 --> 16:12.160 But we said that those maps, because they did not, the 16:12.160 --> 16:16.160 population had shifted obviously in the ten years, those maps 16:16.160 --> 16:21.160 could no longer be, they violated federal law. 16:21.160 --> 16:23.160 They violated federal constitution. 16:23.160 --> 16:25.160 Those maps were no longer in effect, they couldn't be. 16:25.160 --> 16:29.160 Well, Your Honor, I think that mistakes the nature of the 16:29.160 --> 16:34.160 judicial power, which is when the court examined Act 44 and 16:34.160 --> 16:39.160 held Act 44 was unconstitutionally malapportioned, the court 16:39.160 --> 16:43.160 was not striking down the law or erasing it from the Wisconsin 16:43.160 --> 16:44.160 statutes. 16:44.160 --> 16:49.160 The court was remedying the malapportionment of those districts. 16:49.160 --> 16:53.160 Those districts are still the law on the books today with the 16:53.160 --> 16:57.160 additional layer of this court's injunction remedying the 16:57.160 --> 17:00.160 malapportionment of those districts at the margin. 17:00.160 --> 17:04.160 And as for the deference to the legislature and whether that 17:04.160 --> 17:07.160 could possibly work a constitutional violation in a 17:07.160 --> 17:11.160 congressional redistricting case, any such rule would come as an 17:11.160 --> 17:14.160 enormous surprise, I would think, to the U.S. Supreme Court. 17:14.160 --> 17:16.160 But states have done it. 17:16.160 --> 17:20.160 State courts have looked at the issue of judicial ability. 17:20.160 --> 17:24.160 We have ten courts now that have come up with a standard. 17:24.160 --> 17:29.160 None of those Supreme Court decisions have been overturned. 17:29.160 --> 17:31.160 They've not been accepted on cert. 17:31.160 --> 17:33.160 They have not been accepted on a stay. 17:33.160 --> 17:40.160 So we see state courts coming up with standards to measure whether 17:40.160 --> 17:44.160 votes have been improperly and unconstitutionally and 17:44.160 --> 17:46.160 substantially deluded. 17:46.160 --> 17:51.160 How do we not have that same ability like these other state 17:51.160 --> 17:53.160 courts, state Supreme Courts have had? 17:53.160 --> 17:56.160 And your honor, I do have arguments in response to the 17:56.160 --> 17:58.160 partisan gerrymandering claim and other states have done it. 17:58.160 --> 18:01.160 But I would like to finish my point on justice for Obscis. 18:01.160 --> 18:04.160 The least changes approach and the very separate claim that 18:04.160 --> 18:06.160 plaintiffs have said they've brought here. 18:06.160 --> 18:10.160 And as for what state courts have done, let me start with the 18:10.160 --> 18:11.160 U.S. Supreme Court. 18:11.160 --> 18:14.160 In cases like white against wiser, the U.S. Supreme Court 18:14.160 --> 18:17.160 reversed a court for refusing to defer to the political 18:17.160 --> 18:21.160 judgments of the Texas legislature in a Malaportionment case. 18:21.160 --> 18:25.160 And then state courts as diverse as courts in Minnesota, 18:25.160 --> 18:29.160 Oklahoma, South Carolina, and New Hampshire have all done 18:29.160 --> 18:31.160 exactly what this court did. 18:31.160 --> 18:32.160 Let me ask you some of that. 18:32.160 --> 18:36.160 We are not talking about maps that the legislature put in place. 18:36.160 --> 18:38.160 The legislature put in place maps. 18:38.160 --> 18:40.160 The governor vetoed those maps. 18:40.160 --> 18:45.160 You are talking about a legislature from 2011. 18:45.160 --> 18:46.160 Correct. 18:46.160 --> 18:50.160 And just as courts in New Hampshire, Oklahoma and all the 18:50.160 --> 18:53.160 other states I just listed off deferred to the same sort of 18:53.160 --> 18:57.160 maps, these are impasse cases, Malaportionment cases, and those 18:57.160 --> 19:02.160 courts say we are going to defer to the last enacted map. 19:02.160 --> 19:06.160 Because that is the last enacted map by the people's representatives 19:06.160 --> 19:09.160 and our job here is to remedy Malaportionment. 19:09.160 --> 19:12.160 It is not to strike a new political balance. 19:12.160 --> 19:15.160 We should talk about the people's representatives, right? 19:15.160 --> 19:17.160 Because if you start with Article 1, Section 1 of our 19:17.160 --> 19:21.160 Constitution, which says that the government derives its power 19:21.160 --> 19:25.160 from the consent of the governed, from the people, yes? 19:25.160 --> 19:26.160 Yes. 19:26.160 --> 19:27.160 Yes. 19:27.160 --> 19:28.160 Okay. 19:28.160 --> 19:31.160 And in your view that means the legislature, not the court, 19:31.160 --> 19:34.160 that they should be deciding this issue of redistricting the 19:34.160 --> 19:37.160 2011 legislature in this case, right? 19:37.160 --> 19:38.160 Yes. 19:38.160 --> 19:41.160 Because that legislature, if I'm understanding your argument, 19:41.160 --> 19:42.160 was elected by the people. 19:42.160 --> 19:44.160 They're closest to the people. 19:44.160 --> 19:47.160 They can be held accountable by the people. 19:47.160 --> 19:48.160 Yes. 19:48.160 --> 19:49.160 Okay. 19:49.160 --> 19:52.160 This is where I have some issues. 19:52.160 --> 19:58.160 The legislature that passed those original maps wasn't any old 19:58.160 --> 20:01.160 legislature, right? 20:01.160 --> 20:06.160 The legislature that passed that maps, they came from districts that 20:06.160 --> 20:13.160 many people claimed were the most gerrymandered in the entire 20:13.160 --> 20:14.160 country. 20:14.160 --> 20:18.160 They were, as some say, a prime example of representatives 20:18.160 --> 20:22.160 choosing their voters rather than the other way around, rather than 20:22.160 --> 20:24.160 voters choosing their representatives. 20:24.160 --> 20:29.160 And because of those maps, many people felt that their votes were 20:29.160 --> 20:32.160 diluted, that they weren't representative of the people. 20:32.160 --> 20:34.160 They said that they felt like those districts lacked in 20:34.160 --> 20:35.160 representation. 20:35.160 --> 20:37.160 People felt like those maps weren't fair. 20:37.160 --> 20:39.160 Some people even called those maps rigged. 20:39.160 --> 20:44.160 And the legislators that came from those districts came from rigged 20:44.160 --> 20:45.160 maps. 20:45.160 --> 20:51.160 It is that legislature, those representatives from those 20:51.160 --> 20:54.160 districts described as extremely gerrymandered that drafted the 20:54.160 --> 20:56.160 maps that we are talking about today. 20:56.160 --> 21:01.160 The maps that got baked in in 2021. 21:01.160 --> 21:05.160 And if I'm understanding your argument that underlies change, 21:05.160 --> 21:10.160 which you're ardently defending, those maps, the baked in ones from 21:10.160 --> 21:16.160 the 2011 legislature, would go forward into perpetuity indefinitely. 21:16.160 --> 21:20.160 And I don't understand how that is not unconstitutional. 21:20.160 --> 21:25.160 Well, your Honor, whether we agree with it or not, the U.S. 21:25.160 --> 21:29.160 Constitution assigns redistricting authority to the legislature, 21:29.160 --> 21:34.160 because 250 years ago, when we declared revolution, we said 21:34.160 --> 21:37.160 the people decide through their elected representatives. 21:37.160 --> 21:39.160 And there are two solutions for that. 21:39.160 --> 21:41.160 Either of which plaintiffs could pursue. 21:41.160 --> 21:44.160 First, they could lobby Congress because, of course, 21:44.160 --> 21:49.160 Congress likewise has power under the elections clause to stop what 21:49.160 --> 21:52.160 some have said should not have happened in 2011. 21:52.160 --> 21:57.160 Or, like Florida, like New York, like Ohio, plaintiffs could do the 21:57.160 --> 22:01.160 hard work of creating a constitutional amendment and saying 22:01.160 --> 22:04.160 any politics in redistricting is forbidden. 22:04.160 --> 22:10.160 Any desire to send Speaker Paul Ryan back to Congress is forbidden. 22:10.160 --> 22:11.160 They have not done that. 22:11.160 --> 22:16.160 And so, yes, as we stand here today, the only neutral way for this 22:16.160 --> 22:19.160 court to have proceeded in a malapportionment case about 22:19.160 --> 22:24.160 congressional districts was to just defer to the existing political 22:24.160 --> 22:28.160 and policy choices, like sending senior statesmen, 22:28.160 --> 22:32.160 be it Speaker Ryan, or Representative Obie back to Congress, 22:32.160 --> 22:36.160 and lessen until there's a change from Congress itself or a 22:36.160 --> 22:39.160 constitutional change to the Wisconsin Constitution. 22:39.160 --> 22:44.160 And that is regardless of how much constitutional harm is caused 22:44.160 --> 22:46.160 to an individual's right to vote. 22:46.160 --> 22:48.160 Is that what you're saying? 22:48.160 --> 22:53.160 Your Honor, as Justice Ziegler explained, every individual in Wisconsin 22:53.160 --> 22:58.160 can go into vote on election day or mail in their ballot 22:58.160 --> 23:01.160 and cast an equally weighted vote. 23:01.160 --> 23:03.160 That's been true in Wisconsin, by the way. 23:03.160 --> 23:05.160 That's not what gerrymandering allows. 23:05.160 --> 23:10.160 Is it gerrymandering is the legislature determining their 23:10.160 --> 23:18.160 voters and assigning, treating a class of voters as unfavored. 23:18.160 --> 23:27.160 And that can have the impact of deluding in individuals right to vote. 23:27.160 --> 23:31.160 So they vote, yes, they go in and vote, but they're votes meaningless 23:31.160 --> 23:36.160 because politicians have determined who their voters are. 23:36.160 --> 23:41.160 And that would seem to me so contrary to the language of our 23:41.160 --> 23:45.160 Constitution, which elevates the sovereignty of the people. 23:45.160 --> 23:50.160 That politicians have no power without the people. 23:50.160 --> 23:54.160 Your Honor, your Honor, our founders risk their lives so that our representatives 23:54.160 --> 24:00.160 who we elect can represent the people, not a king, and with all due respect, 24:00.160 --> 24:05.160 not courts, because the Wisconsin Constitution provides this court no 24:05.160 --> 24:09.160 judicially manageable standards to decide that loyal Republicans 24:09.160 --> 24:13.160 and loyal Democrats have this super constitutional right. 24:13.160 --> 24:15.160 Other courts have done it. 24:15.160 --> 24:17.160 They have done it, Your Honor, and I'm so glad you asked that question 24:17.160 --> 24:22.160 because there is no free and fair elections clause in Wisconsin's Constitution. 24:22.160 --> 24:26.160 And there is no Florida Fair District's amendment saying 24:26.160 --> 24:29.160 considering incumbents is forbidden. 24:29.160 --> 24:32.160 And even in states that have done it, even in North Carolina 24:32.160 --> 24:35.160 with the free and fair elections clause, I'd urge this court not to take 24:35.160 --> 24:36.160 my words for it. 24:36.160 --> 24:38.160 Go look at the Supreme Court opinions in that case. 24:38.160 --> 24:41.160 They threw up their hands, Justice Taylor, and they said, 24:41.160 --> 24:45.160 we understand this is a political problem, and this is hotly debated 24:45.160 --> 24:49.160 at kitchen tables and in academic classrooms. 24:49.160 --> 24:53.160 But what we can't do as a court is solve that problem because even the 24:53.160 --> 24:56.160 free and fair elections clause doesn't give us the tools to do so. 24:56.160 --> 25:00.160 So our Constitution is different in that we, 25:00.160 --> 25:04.160 there is a provision that says there is a remedy for wrongs. 25:04.160 --> 25:10.160 Section 9 says every person is entitled to a certain remedy in the laws 25:10.160 --> 25:17.160 for all injuries or wrongs, which he may receive in his person's property 25:17.160 --> 25:21.160 or character he ought to obtain justice freely. 25:21.160 --> 25:24.160 So that is unique to our Constitution. 25:24.160 --> 25:30.160 Our task is to interpret our Constitution to evaluate legislation 25:30.160 --> 25:36.160 to see if it poses a constitutional harm to these rights. 25:36.160 --> 25:39.160 So it's just very hard. 25:39.160 --> 25:45.160 I think your argument is challenging when I look at the cons, 25:45.160 --> 25:50.160 our own Constitution and the language of that Constitution and the embodiment 25:50.160 --> 25:54.160 of the sovereignty of people. 25:54.160 --> 25:57.160 Government has no power without the people. 25:57.160 --> 26:01.160 So if a class of voters, 26:01.160 --> 26:06.160 if their vote is being deluded or infringed upon, 26:06.160 --> 26:12.160 that seems to me to violate these principles of the people being sovereign 26:12.160 --> 26:17.160 because we have been elevated the power politicians above 26:17.160 --> 26:22.160 individuals' right to choose their government. 26:22.160 --> 26:28.160 Your Honor, the question assumes the answer to the question I thought we were all here 26:28.160 --> 26:34.160 to address today, which is, is there a right to Republican districts 26:34.160 --> 26:37.160 or Democratic districts in the Wisconsin Constitution? 26:37.160 --> 26:39.160 That's not the framing, though. 26:39.160 --> 26:45.160 You're framing it in a certain way that I think is not how I'm seeing it. 26:45.160 --> 26:51.160 I'm looking at our state Constitution and I am pondering as we do with all legislation 26:51.160 --> 26:54.160 that we review, the concept of judicial review. 26:54.160 --> 26:57.160 Is there a constitutional harm here? 26:57.160 --> 26:59.160 That's what I'm looking at. 26:59.160 --> 27:04.160 I'm not looking at, it's not up to us to imbue our policy choices. 27:04.160 --> 27:07.160 That's very clearly belongs to the legislature. 27:07.160 --> 27:11.160 What I'm looking at is there a constitutional harm here, 27:11.160 --> 27:17.160 and I'm sure you agree that the right to vote is the most precious constitutional right we have. 27:17.160 --> 27:20.160 We have Wisconsin case law that says that. 27:20.160 --> 27:23.160 It is the most precious right. 27:23.160 --> 27:25.160 Isn't that our inquiry? 27:25.160 --> 27:32.160 Is there a constitutional harm here in infringing or diluting an individual's right to vote? 27:32.160 --> 27:34.160 That seems to be the question. 27:34.160 --> 27:36.160 Yes, three points, Your Honor. 27:36.160 --> 27:41.160 First, Wisconsin was ahead of the curb in terms of the right to vote in the Cunningham case. 27:41.160 --> 27:47.160 In Cunningham, this court did something decades, perhaps a century before the Supreme Court did in Westbury, 27:47.160 --> 27:52.160 which it said that right to vote is so precious that we in Wisconsin are going to ensure 27:52.160 --> 27:58.160 that you have a numerically equally weighted vote back in, I think, it was 1892. 27:58.160 --> 28:04.160 And no one here disputes that this court could not adjudicate a claim of malapportionment 28:04.160 --> 28:06.160 just as the court did in Johnson. 28:06.160 --> 28:13.160 The second point, beyond that, the right to vote is not a right to get the election outcomes you want. 28:13.160 --> 28:20.160 The very nature of the political branches is that someone loses and someone wins on election day. 28:20.160 --> 28:24.160 And when it comes to who decides what those districts look like, 28:24.160 --> 28:30.160 the Wisconsin Constitution gives this court no judicially manageable standard to override 28:30.160 --> 28:34.160 what the federal Constitution says, which is that the legislature does get to decide. 28:34.160 --> 28:40.160 And it was okay in remedying malapportionment to defer to those legislative choices. 28:40.160 --> 28:44.160 A good case on that is the McGraill case where it certainly involved the right to vote. 28:44.160 --> 28:48.160 It involved whether you could be identified by party on a ballot, 28:48.160 --> 28:53.160 whether someone knew I was a Republican or a Democrat or the Constitution Party or something else, 28:53.160 --> 28:55.160 and this court deferred. 28:55.160 --> 29:02.160 Well, courts do apply substantiality of harm all the time. 29:02.160 --> 29:07.160 We weigh that, whether it be in civil criminal cases. 29:07.160 --> 29:13.160 We are applying those standards and not set out necessarily in the Constitution. 29:13.160 --> 29:18.160 But it seems to me that we're looking at, is there a substantial dilution? 29:18.160 --> 29:20.160 Is there a substantial harm here? 29:20.160 --> 29:24.160 And of course, do that all the time in jurisquivents. 29:24.160 --> 29:30.160 We are always looking at harms and weighing whether there's a substantiality issue. 29:30.160 --> 29:33.160 Your Honor, I suppose that brings me to the third point, 29:33.160 --> 29:40.160 which is whether a plaintiff might be able to establish there is a cognizable harm in some case. 29:40.160 --> 29:46.160 Later on, this court could leave unresolved whether it wants to overrule Johnson I. 29:46.160 --> 29:51.160 But in this particular case, plaintiffs have not done the hard work 29:51.160 --> 29:57.160 to walk back what were more than three dozen paragraphs in addition to Justice Hagedorn's concurrence, 29:57.160 --> 30:03.160 explaining that the Constitution, as it sits today and as it sat then, 30:03.160 --> 30:08.160 does not give the court the tools to adjudicate those kinds of thorny claims. 30:08.160 --> 30:11.160 So that's why we have a remedy for every wrong. 30:11.160 --> 30:17.160 Every person is entitled to a certain remedy in the laws for all injuries. 30:17.160 --> 30:22.160 Because your Honor, plaintiffs have not identified what the constitutional wrong is at this time. 30:22.160 --> 30:25.160 Vote dilution is not a constitutional wrong. 30:25.160 --> 30:31.160 When our Constitution explicitly says it is the people who choose their government, 30:31.160 --> 30:35.160 the only mechanism by which they do that is the right to vote. 30:35.160 --> 30:38.160 And no one disputes that the districts are equally apportioned. 30:38.160 --> 30:40.160 They can cast an equally weighted vote. 30:40.160 --> 30:44.160 So it does not matter the extent of a partisan gerrymandering. 30:44.160 --> 30:51.160 It does not matter the extent of the harm that is caused by a disfavored group. 30:51.160 --> 30:55.160 It sounds to me like you're saying an extreme gerrymandering. 30:55.160 --> 30:59.160 An extreme partisan gerrymandering is constitutional. 30:59.160 --> 31:01.160 Your Honor, understanding that is your argument? 31:01.160 --> 31:06.160 Your Honor, I am not sure at this point in time how to define an extreme partisan gerrymander 31:06.160 --> 31:11.160 versus a sort of partisan gerrymander versus we wanted to send Speaker Ryan back to Congress. 31:11.160 --> 31:17.160 Would you say five percent, double digits, ten percent, fifteen percent? 31:17.160 --> 31:22.160 I think we certainly have districts across the state that hit those numbers. 31:22.160 --> 31:23.160 We do, Your Honor. 31:23.160 --> 31:27.160 And I can't tell you that District two, for example, 31:27.160 --> 31:31.160 here where we stand today is an extreme partisan gerrymander. 31:31.160 --> 31:35.160 The representative there won by 70 to 30 percent vote in 2024. 31:35.160 --> 31:43.160 There's every reason to think he did so because Republicans, or because Democrats are densely populated in the Madison area. 31:43.160 --> 31:45.160 Right, there could become happiness for sure. 31:45.160 --> 31:49.160 But you look at some of the other districts and the way they're drawn. 31:49.160 --> 31:55.160 What I'm almost hearing you say is that there's not a constitutional claim for extreme partisan gerrymandering 31:55.160 --> 31:57.160 under the Wisconsin Constitution. 31:57.160 --> 32:01.160 If that's what it boils down to, tell us. 32:01.160 --> 32:07.160 Your Honor, right now the Wisconsin Constitution does not define with any level of judicial certainty 32:07.160 --> 32:10.160 what an extreme partisan gerrymander would be. 32:10.160 --> 32:15.160 And in states that have been displeased with that constitutional reality, 32:15.160 --> 32:20.160 that they have amended their constitutions with clear rules that courts can apply. 32:20.160 --> 32:28.160 The Utah case, the New York case, the Florida case that plaintiffs have brought to you all involve either 32:28.160 --> 32:35.160 reticulated statutes or constitutional amendments saying we, we extirpate politics from redistricting. 32:35.160 --> 32:45.160 Oh, Council, Council, your opposing council has urged us to adopt New Mexico and Pennsylvania's cases. 32:45.160 --> 32:50.160 Anna, it took the opportunity on break to take a look at their constitutional provisions. 32:50.160 --> 32:56.160 You mentioned earlier that Wisconsin does not have a free and equal elections clause. 32:56.160 --> 33:04.160 But the courts in those cases did point to and reference, and the New Mexico and Pennsylvania constitutions 33:04.160 --> 33:09.160 do specifically have free and equal elections clause. 33:09.160 --> 33:14.160 Do you think that has any impact on whether we should follow Pennsylvania and New Mexico? 33:14.160 --> 33:20.160 I do, and I think, I can't remember if it's the Pennsylvania decision or the first North Carolina decision 33:20.160 --> 33:22.160 that explores the history of that clause. 33:22.160 --> 33:23.160 It's extremely interesting. 33:23.160 --> 33:25.160 They're in other state constitutions. 33:25.160 --> 33:29.160 They are very specific to elections and your ability to go cast a vote. 33:29.160 --> 33:36.160 And so there was far more history in those cases to connect that constitutional text admittedly broad 33:36.160 --> 33:39.160 with a right to have fairer districts. 33:39.160 --> 33:43.160 However, one expert might describe define fairer districts. 33:43.160 --> 33:47.160 Here, the history points in entirely the opposite direction. 33:47.160 --> 33:49.160 There's precious little of it in the briefs here. 33:49.160 --> 33:52.160 There were more than 100 pages about it in Johnson. 33:52.160 --> 33:57.160 And the history boils down to this state's constitutional convention in 1848. 33:57.160 --> 33:59.160 There was a lot of talk about gerrymandering. 33:59.160 --> 34:05.160 And there was a lot of discussion about whether the way Wisconsin's first congressional districts had been drawn 34:05.160 --> 34:09.160 was fair to have a very compact district in the southeast of the state 34:09.160 --> 34:13.160 and the sprawling district capturing 20 counties and the rest of the state. 34:13.160 --> 34:17.160 And the solution to that then answers the question before this court now. 34:17.160 --> 34:22.160 The solution was the people voted through their delegates at the convention 34:22.160 --> 34:24.160 and then through ratifying the Constitution. 34:24.160 --> 34:31.160 And that's been the unchanged history for over 100 years in this state until 2011 34:31.160 --> 34:34.160 when parties started bringing partisan gerrymandering claims. 34:34.160 --> 34:42.160 Council, I wanted to just follow up with the Chief Justice's question about the 2011 maps. 34:42.160 --> 34:56.160 My recollection of the history here is that I think Democrats controlled the legislature entirely from 2006 to 2010. 34:56.160 --> 34:58.160 There was a Democratic governor at that time. 34:58.160 --> 35:04.160 Then in the 2010 elections Republicans won the governorship in both houses of the legislature 35:04.160 --> 35:08.160 and using maps that were in place at that time. 35:08.160 --> 35:18.160 And then it was that legislature which actually enacted the law that we are dealing with here at 44 in 2011. 35:18.160 --> 35:24.160 And so it was not the quote rigged maps or any later maps that were enacted, 35:24.160 --> 35:28.160 for example, after our Johnson decision that are at issue here. 35:28.160 --> 35:33.160 But that was in fact a series, a legislature that was chosen with maps that clearly were quite competitive 35:33.160 --> 35:36.160 and led to both Republicans and Democrats controlling both chambers. 35:36.160 --> 35:37.160 Is that accurate? 35:37.160 --> 35:39.160 Yeah, the points well taken, your honor. 35:39.160 --> 35:44.160 And the finish, the point I would say those, the maps that others have called rigged, 35:44.160 --> 35:49.160 I won't endorse that language today, have since also been replaced through the democratic process 35:49.160 --> 35:52.160 where the legislature passed maps and the Democratic governor signed them. 35:52.160 --> 35:56.160 But yes, for purposes of the congressional districts which we're here to talk about today, 35:56.160 --> 35:59.160 the Congress members didn't enact that map. 35:59.160 --> 36:04.160 The people's representatives in the small districts that make up the state legislature did. 36:04.160 --> 36:08.160 And that's exactly what the Constitution has envisioned would happen until 1787. 36:08.160 --> 36:12.160 And so to bring us back to what was going on in Johnson. 36:12.160 --> 36:16.160 In Johnson, the court was not enacting a new map. 36:16.160 --> 36:19.160 The court was doing what it always does, Justice Taylor. 36:19.160 --> 36:25.160 It was remedying a constitutional wrong of malapportionment and going no further. 36:25.160 --> 36:27.160 And it must. 36:27.160 --> 36:32.160 It was a standard that has no, it's not embedded in Wisconsin law. 36:32.160 --> 36:33.160 Your honor. 36:33.160 --> 36:38.160 It comes from a federal case, which comes from an interpretation of voting rights act. 36:38.160 --> 36:44.160 There's just no, I wasn't here when it was done, but it seems disconnected. 36:44.160 --> 36:48.160 Your honor, if the standard your honor is referring to is the least changes standard. 36:48.160 --> 36:53.160 That's the approach the U.S. Supreme Court has taken to redistricting cases always. 36:53.160 --> 36:56.160 And for purposes of this congressional redistricting case, 36:56.160 --> 37:01.160 certainly that standard is allowable under the elections clause, 37:01.160 --> 37:05.160 lest this court rest from the legislature, it's the legislature. 37:05.160 --> 37:07.160 What was supposed to change the least? 37:07.160 --> 37:08.160 Pardon? 37:08.160 --> 37:13.160 What was supposed to change the least and least change? 37:13.160 --> 37:18.160 Well, for a malapportionment case, I think the way the opinion shook out in Johnson II 37:18.160 --> 37:20.160 for the congressional districts makes perfect sense. 37:20.160 --> 37:22.160 We looked at core retention scores. 37:22.160 --> 37:27.160 We moved the fewest number of people to repopulate with people the districts. 37:27.160 --> 37:30.160 Of course, other parties in Johnson had differing arguments, 37:30.160 --> 37:36.160 but your honor, back to the first question, whether or not your honor thought that was 37:36.160 --> 37:42.160 unworkable to use core retention, a metric that legislators use all the time, 37:42.160 --> 37:46.160 isn't the same as the argument plaintiffs have brought this court, 37:46.160 --> 37:51.160 which is they are asking this court to hold it's not just unworkable. 37:51.160 --> 37:58.160 It's unconstitutional to defer to the legislature when remedying a malapportionment claim. 37:58.160 --> 38:04.160 And I can think of a rule no better suited for an elections clause problem than to say, 38:04.160 --> 38:09.160 in a malapportionment case, it's the courts and not the legislature that must decide 38:09.160 --> 38:11.160 what the political balance should be in districts. 38:11.160 --> 38:18.160 That is really, I think, disingenuous reading of more. 38:18.160 --> 38:21.160 That's not what Moore said. 38:21.160 --> 38:31.160 Moore said that certainly state courts can utilize traditional principles of judicial review 38:31.160 --> 38:35.160 in reviewing the actions of their legislature. 38:35.160 --> 38:41.160 What we're not supposed to do is go outside the bounds of judicial review. 38:41.160 --> 38:44.160 We do not make policy here. 38:44.160 --> 38:47.160 We don't consider that. 38:47.160 --> 38:52.160 We consider the Constitution and the text of our Constitution, 38:52.160 --> 38:54.160 and whether there's a constitutional harm. 38:54.160 --> 38:59.160 And that was very clearly stated in Moore. 38:59.160 --> 39:10.160 In Rucho itself, the majority looks to state courts to address some of these issues of gerrymandered districts. 39:10.160 --> 39:21.160 So there's nothing unusual or strange about this court examining whether an act of the legislature causes a constitutional harm. 39:21.160 --> 39:23.160 It's what we do every day. 39:23.160 --> 39:25.160 It's our function. 39:25.160 --> 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. 39:37.160 --> 39:41.160 From using a lease changes approach, because that's what the Supreme Court did in white. 39:41.160 --> 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. 39:48.160 --> 39:55.160 And so that remedial approach would be highly unusual, because the court isn't enacting a new map. 39:55.160 --> 39:59.160 It's remedying mal apportionment in a lease changes way. 39:59.160 --> 40:03.160 Surely that's allowable under the elections clause. 40:03.160 --> 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 40:17.160 --> 40:19.160 under the Wisconsin Constitution. 40:19.160 --> 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? 40:28.160 --> 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? 40:38.160 --> 40:41.160 Okay, I want to take you back to this already rejected in Johnson 1. 40:41.160 --> 40:46.160 Johnson 1 did not have the claim of extreme partisan gerrymandering in front of us. 40:46.160 --> 40:51.160 What was in front of us was a map, creating a map. 40:51.160 --> 40:56.160 And the question that was asked is should this court, in doing so, consider partisanship? 40:56.160 --> 40:58.160 That is a very different question. 40:59.160 --> 41:08.160 Partisanship, no one here is saying or thinking that partisanship doesn't come into play when the legislature makes maps. 41:08.160 --> 41:09.160 Of course it does. 41:09.160 --> 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. 41:19.160 --> 41:26.160 And that claim can be, they're making the claim of that that can be found in our Constitution. 41:26.160 --> 41:32.160 Those important rights to democracy and the democracy principle that's set forth in their brief. 41:32.160 --> 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. 41:38.160 --> 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. 41:46.160 --> 41:48.160 We give that what we give it. 41:48.160 --> 41:51.160 But it was not an issue that has ever been brought to our court. 41:51.160 --> 41:56.160 Aside from, as was pointed out, we did not take a vehicle of an original action petition. 41:56.160 --> 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. 42:04.160 --> 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, 42:13.160 --> 42:17.160 a couple of paragraphs about an issue that was not squarely in front of the court. 42:17.160 --> 42:18.160 Yes, Your Honor. 42:18.160 --> 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, 42:22.160 --> 42:28.160 the fact that this case started in circuit court, I actually think irrespective of a debate on partisan fairness, 42:28.160 --> 42:34.160 is the easiest grounds to say, while we might reconsider it or while we might consider it in another case, 42:34.160 --> 42:41.160 we can't consider it in this case because this injunction exists by virtue of an exercise of our original jurisdiction. 42:41.160 --> 42:46.160 And now a circuit court has been asked to put that injunction on trial. 42:46.160 --> 42:49.160 And that turns upside down the judicial. 42:49.160 --> 42:55.160 Aren't they being asked to issue a declaratory judgment and don't courts issue declaratory judgments all the time? 42:55.160 --> 42:57.160 Well, initially, no, Your Honor. 42:57.160 --> 42:58.160 The complaint is very clear. 42:58.160 --> 43:01.160 They wanted the circuit court to enjoin this court's injunction. 43:01.160 --> 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. 43:07.160 --> 43:12.160 As for the declaratory judgment, the same fundamental problem still persists. 43:12.160 --> 43:16.160 Like academically, that sure sounds like an advisory proceeding. 43:16.160 --> 43:22.160 Because there's nothing that the court could do alongside the declaratory judgment to enjoin this court's injunction. 43:22.160 --> 43:23.160 But second. 43:23.160 --> 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 43:30.160 --> 43:34.160 chase their tails around indefinitely. 43:34.160 --> 43:40.160 I mean, they have come at this several different ways to be fair. 43:40.160 --> 43:44.160 They have asked for, let's see, reconsideration. 43:44.160 --> 43:48.160 They filed a motion for relief from the judgment. 43:48.160 --> 43:51.160 They filed an original action. 43:51.160 --> 43:55.160 And then they filed the complaint in circuit court. 43:55.160 --> 43:59.160 I may have left out something actually. 44:00.160 --> 44:04.160 I feel like it wouldn't matter which way they came at this. 44:04.160 --> 44:06.160 You would say, no, that's not good enough. 44:06.160 --> 44:07.160 And they have tried. 44:07.160 --> 44:10.160 They have come at it at least three or four different ways. 44:10.160 --> 44:12.160 Your Honor, I disagree. 44:12.160 --> 44:18.160 I think they came at it with a motion for reconsideration or a motion for relief from judgment. 44:18.160 --> 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. 44:24.160 --> 44:28.160 It's pending or its final injunctions was to reopen Johnson itself. 44:28.160 --> 44:35.160 Then they came at it just like the Clark petitioners and asked this court to revisit its original jurisdiction 44:35.160 --> 44:38.160 injunction with another original jurisdiction action. 44:38.160 --> 44:45.160 And that this court denied those requests doesn't mean that then we can invert the hierarchy of the judicial branch 44:45.160 --> 44:51.160 in this state and allow a circuit court to put your injunction on trial. 44:51.160 --> 44:53.160 But it goes back to justice. 44:53.160 --> 44:55.160 I'm not seeing it. 44:55.160 --> 44:57.160 It's a declaratory judgment. 44:57.160 --> 44:58.160 Well, sure. 44:58.160 --> 45:04.160 They would be declaring that this court acted unconstitutionally in 2022 in Johnson 2. 45:04.160 --> 45:11.160 I can find no authority and plaintiffs have pointed to no authority of any court, any circuit court in this state 45:11.160 --> 45:13.160 having ever done so. 45:13.160 --> 45:20.160 How about a trial court that declares something our court did was unconstitutional in the criminal setting? 45:20.160 --> 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 45:29.160 --> 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. 45:35.160 --> 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 45:44.160 --> 45:48.160 then are potentially later found otherwise. 45:48.160 --> 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. 45:54.160 --> 45:55.160 No, you're honored. 45:55.160 --> 45:56.160 This court can. 45:56.160 --> 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. 46:02.160 --> 46:04.160 I'm not even talking habeas. 46:04.160 --> 46:07.160 I'm just talking about ineffective assistance of council in our state. 46:07.160 --> 46:13.160 I think I could probably find cases where that's happened, where this court has said that something was constitutional 46:13.160 --> 46:15.160 and it later turns out that actually it wasn't. 46:15.160 --> 46:16.160 Right. 46:16.160 --> 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. 46:23.160 --> 46:27.160 It's granting a writ of habeas corpus for purposes of this case, your honor. 46:27.160 --> 46:35.160 Of course, this court could exercise its original jurisdiction again if it wanted to just as it did in Clark. 46:35.160 --> 46:40.160 So long as that original action was pursuant to the usual norms of judicial procedure. 46:40.160 --> 46:43.160 So, council, let me just pick up on that point. 46:43.160 --> 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 46:54.160 --> 47:03.160 and determine whether the illegal standard for that claim is met and to find a constitutional violation, 47:04.160 --> 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 47:20.160 --> 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. 47:30.160 --> 47:32.160 Can you answer that please? 47:32.160 --> 47:33.160 Yes, your honor. 47:33.160 --> 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? 47:44.160 --> 47:46.160 The circuit court would have to read that. 47:46.160 --> 47:48.160 It's not putting an injunction on trial. 47:48.160 --> 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. 47:57.160 --> 48:04.160 The issue that this court did not consider because it had no evidence at that point of partisan gerrymandering. 48:04.160 --> 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? 48:19.160 --> 48:23.160 The maps, just to be very clear, are and they exist by virtue of it. 48:23.160 --> 48:24.160 They were adopted by this court. 48:24.160 --> 48:25.160 I understand that. 48:25.160 --> 48:34.160 They were adopted by this court without consideration for whether the maps were created with the partisan gerrymandering. 48:34.160 --> 48:35.160 Sure. 48:35.160 --> 48:39.160 So, to answer that question directly, and Justice Dowd, I apologize the heart of your question directly. 48:39.160 --> 48:41.160 I, too, was here in Johnson. 48:41.160 --> 48:49.160 And the parties were asked because some parties had raised whether the Wisconsin Constitution requires districts to be politically fair. 48:49.160 --> 48:54.160 And the parties submitted, as I mentioned, over 100 pages of briefing on that question. 48:54.160 --> 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. 49:07.160 --> 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. 49:17.160 --> 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. 49:27.160 --> 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. 49:35.160 --> 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. 49:43.160 --> 49:48.160 Which is extreme partisan gerrymandering, which is what we're being asked about, not political fairness. 49:48.160 --> 49:53.160 Well, your honor, again, having litigated these cases, the difference between the two is not clear. 49:53.160 --> 49:58.160 And that is why you see states like Florida saying, we're just not considering it at all. 49:58.160 --> 50:02.160 It's either considered, there's either politics in the map or there's not. 50:02.160 --> 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. 50:11.160 --> 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. 50:19.160 --> 50:22.160 It feels like what you're asking us to do is to stick our hat in the sand. 50:22.160 --> 50:24.160 I'm not your honor. 50:24.160 --> 50:26.160 It feels that way. 50:26.160 --> 50:31.160 I am not your honor, but I want to be emphatic about this. 50:31.160 --> 50:33.160 This is the adversarial system. 50:33.160 --> 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, 50:40.160 --> 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. 50:51.160 --> 50:53.160 But it's not there in these briefs. 50:53.160 --> 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. 50:59.160 --> 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, 51:08.160 --> 51:11.160 but about districts themselves and what contiguity meant. 51:11.160 --> 51:14.160 It helped that the words contiguity were there. 51:14.160 --> 51:17.160 Well, your honor, I'm never going to get it. 51:17.160 --> 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... 51:25.160 --> 51:28.160 But boy, was that a well-fought fight, your honor. 51:28.160 --> 51:29.160 And it was there. 51:29.160 --> 51:30.160 It was there. 51:30.160 --> 51:33.160 And that is an express requirement in the Constitution. 51:33.160 --> 51:37.160 But the Constitution isn't about... 51:37.160 --> 51:41.160 Constitution isn't about express requirements, right? 51:41.160 --> 51:43.160 The Constitution is written broadly. 51:43.160 --> 51:49.160 You're talking about a document that came right after that in 1848, right? 51:49.160 --> 51:54.160 And it set broad principles that Justice Taylor has been talking about. 51:54.160 --> 51:59.160 So it's not... we don't look for every single... 51:59.160 --> 52:01.160 It's not... this isn't connecting the dots. 52:01.160 --> 52:04.160 Like, can we find the word here and then it means something... 52:04.160 --> 52:07.160 And if we don't find the exact word here, the principle must not exist. 52:07.160 --> 52:11.160 And I think the legal scholars lay this out really well in their amicus brief. 52:11.160 --> 52:15.160 I think Justice Penny laid it out really well in his concurrence in Cunningham, 52:15.160 --> 52:18.160 which is that there are broad principles throughout the Wisconsin Constitution, 52:18.160 --> 52:23.160 and not all of those principles allows this court to subject legislative action to strict scrutiny. 52:23.160 --> 52:29.160 In the McGrail case about the ballots, the legislative action was okay because it was reasonable, 52:29.160 --> 52:31.160 even though it affected the right to vote. 52:31.160 --> 52:37.160 And if we go back to 1848, the messy work of what the district should look like 52:37.160 --> 52:42.160 was done by the political branches and the delegates and then later the people's representatives. 52:42.160 --> 52:48.160 And so there's just no similar history that was as was at issue in Clark 52:48.160 --> 52:53.160 to allow this court to invite this court to step into that political thicket now. 52:53.160 --> 52:58.160 I mean, deciding what is fair, whether it's extremely unfair, 52:58.160 --> 53:03.160 or fair has plagued the federal courts for so long until we get to Rucho, 53:03.160 --> 53:07.160 and it's likewise plagued the state courts absent some bright line rule. 53:07.160 --> 53:08.160 Doesn't that show us something? 53:08.160 --> 53:16.160 The fact that these issues have been raised repeatedly and that courts have struggled with them repeatedly, 53:16.160 --> 53:20.160 doesn't that in some sense show that there is a problem? 53:20.160 --> 53:27.160 There is a problem that is infecting our political landscape, not just in Wisconsin, 53:27.160 --> 53:29.160 but probably across the country. 53:29.160 --> 53:32.160 Voters struggle with that. 53:32.160 --> 53:37.160 You could pick just about anybody off the street in Wisconsin and ask them, 53:37.160 --> 53:45.160 do you think legislators should be able to draw a map in a way that locks in a particular political party, 53:45.160 --> 53:47.160 they would say no. 53:47.160 --> 53:50.160 Doesn't it show us that there is some underlying problem there? 53:50.160 --> 53:53.160 The fact that courts have struggled with this for decades now? 53:53.160 --> 53:55.160 I think two things are true at once. 53:55.160 --> 54:01.160 Some voters could think there is a problem and that courts have struggled with it so much, 54:01.160 --> 54:04.160 means that it's not the court's problem to solve. 54:04.160 --> 54:08.160 And instead it's been Congress's problem to solve, for example, in the 1840s, 54:08.160 --> 54:14.160 when Congress required single member congressional districts as a bulwark to gerrymandering, 54:14.160 --> 54:18.160 it's a problem for voters to solve with fair districts amendments, 54:18.160 --> 54:22.160 it's a problem for Congress potentially to solve now later on. 54:22.160 --> 54:29.160 Congress is constantly asked, by the way, to pass legislation to eliminate partisan gerrymandering. 54:29.160 --> 54:30.160 Congress passed. 54:30.160 --> 54:34.160 And it's a hard thing to accomplish when you have a gerrymandered body. 54:34.160 --> 54:36.160 But let me just turn to another point. 54:36.160 --> 54:41.160 I want to return to a point you made a few minutes ago about distinguishing our case 54:41.160 --> 54:47.160 from other courts that have found a justiciable claim for partisan gerrymandering, 54:47.160 --> 54:49.160 such as New Mexico. 54:49.160 --> 54:53.160 And it seemed to me you were leaning pretty heavily into the fact that 54:53.160 --> 54:58.160 the New Mexico Constitution, just as one example, has an explicit clause 54:58.160 --> 55:01.160 protecting free and equal elections. 55:01.160 --> 55:05.160 No, I think the New Mexico case rests on their equal protection clause 55:05.160 --> 55:06.160 and their history. 55:06.160 --> 55:09.160 It was a different state that you were in Pennsylvania and in North Carolina. 55:09.160 --> 55:10.160 Okay, thank you. 55:10.160 --> 55:11.160 In any event. 55:11.160 --> 55:17.160 The point I wanted to raise is, is it your belief that because the Wisconsin Constitution 55:17.160 --> 55:22.160 lacks an explicit clause protecting fair and equal elections, 55:22.160 --> 55:29.160 that therefore the Wisconsin Constitution has no protection for fair and equal elections? 55:29.160 --> 55:31.160 No, Your Honor, that's not our position. 55:31.160 --> 55:38.160 Because clearly, constitutions are generally composed of broad principles 55:38.160 --> 55:48.160 and this Constitution in Wisconsin is replete with phrases that point to the importance of popular sovereignty, 55:48.160 --> 55:50.160 the consent of the governed. 55:50.160 --> 55:51.160 Correct? 55:51.160 --> 55:52.160 Correct. 55:52.160 --> 55:58.160 So how is that different in substance than another state constitution 55:58.160 --> 56:02.160 that includes a clause such as fair and equal elections? 56:02.160 --> 56:13.160 Aren't those protections inherent in the clauses that protect popular sovereignty in Wisconsin? 56:13.160 --> 56:18.160 Well, as I mentioned before, there is a unique history to a free and equal elections clause 56:18.160 --> 56:22.160 and what those were, the evils that were perpetuated before America, 56:22.160 --> 56:27.160 that those were meant to guard against, specific to voting in elections. 56:27.160 --> 56:32.160 But in Wisconsin, just as everywhere else for these federal congressional districts, 56:32.160 --> 56:36.160 there is an absolute equality requirement at this point. 56:36.160 --> 56:42.160 You know, this court was asked to entertain an original action last year because the congressional districts 56:42.160 --> 56:44.160 deviated by one additional person. 56:44.160 --> 56:53.160 And as this court said in Cunningham, that promise of equality of an equally weighted vote, 56:54.160 --> 56:57.160 that is how people effectuate their right to vote. 56:57.160 --> 56:59.160 That is how votes are not diluted. 56:59.160 --> 57:02.160 And of course, Wisconsin protects that. 57:02.160 --> 57:07.160 And also, through our separation of powers, Wisconsin protects the right to vote. 57:07.160 --> 57:12.160 The founders assigned congressional redistricting power to the legislature 57:12.160 --> 57:15.160 and keeping with the people's representatives who are closest to them, 57:15.160 --> 57:21.160 the legislature now in these territorial districts can carry out the will of the people. 57:22.160 --> 57:26.160 Now, as for court struggling with this, Justice Crawford, 57:26.160 --> 57:30.160 I think it's very telling that even coming here today, council 57:30.160 --> 57:33.160 equivocated about what their test would be. 57:33.160 --> 57:36.160 And if council can't identify what their test would be, 57:36.160 --> 57:40.160 to me that's proof positive that there is no judicially manageable standard 57:40.160 --> 57:42.160 hiding in a Wisconsin constitution. 57:42.160 --> 57:43.160 I would agree with you. 57:43.160 --> 57:48.160 It's frustrating that they have articulated a test and I certainly wish they would have. 57:48.160 --> 57:53.160 That being said, let's talk about workability going forward in the event 57:53.160 --> 57:58.160 that we find both of the claims, both the partisan and anti-competitive 57:58.160 --> 58:01.160 gerrymandering cognizable. 58:01.160 --> 58:06.160 What are your thoughts about consolidating the gerrymandering claims 58:06.160 --> 58:10.160 and having just one trial? 58:10.160 --> 58:15.160 Again, it's inconceivable to me that there could be a trial in this posture, 58:15.160 --> 58:19.160 but to take your question, assuming all of that, of course, 58:19.160 --> 58:21.160 I think the cases would need to be consolidated. 58:21.160 --> 58:25.160 I've participated, other councils can participate in, for example, 58:25.160 --> 58:27.160 the Alabama congressional redistricting case. 58:27.160 --> 58:32.160 Those were consolidated at the trial court for purposes of trial proceedings. 58:32.160 --> 58:36.160 And again, I can't really conceive of how you have a new injunction 58:36.160 --> 58:40.160 in joining this courts injunction, but of course you only want to do that one time 58:40.160 --> 58:44.160 versus two times, and so they should proceed together. 58:44.160 --> 58:47.160 But I don't want to lose sight of my latch as point two. 58:47.160 --> 58:51.160 We're talking about a lot of procedure, a lot of costs, 58:51.160 --> 58:55.160 and we are well over halfway into the decennial, 58:55.160 --> 59:00.160 and as federal courts and other courts have held, or the Illinois Supreme Court just held, 59:00.160 --> 59:04.160 sometimes plaintiffs are just too late because congressional districts, 59:04.160 --> 59:06.160 the census is about to come. 59:06.160 --> 59:10.160 And the prejudice here, well, let me start with it. 59:10.160 --> 59:13.160 The delay, I think, is clear from Brennan. 59:13.160 --> 59:17.160 The plaintiffs waited arguably 15 years to challenge Act 44 59:17.160 --> 59:18.160 as unconstitutional. 59:18.160 --> 59:21.160 They waited four and a half years since the, or they waited three years 59:21.160 --> 59:23.160 since the congressional districts were settled. 59:23.160 --> 59:25.160 But I do want to point to the prejudice point, 59:25.160 --> 59:28.160 or I do want to discuss the prejudice point, Justice Protece, 59:28.160 --> 59:30.160 because it goes to the trial and everything. 59:30.160 --> 59:32.160 Will that be costly? Absolutely. 59:32.160 --> 59:36.160 But what's also costly and what's recognized in these cases we've cited 59:36.160 --> 59:40.160 on our latch's argument is the ensuing cost to the state, 59:40.160 --> 59:42.160 to the counties, and to voters. 59:42.160 --> 59:47.160 Should this court agree that the congressional districts need to change again? 59:47.160 --> 59:51.160 Maybe it's before the 2028 elections or the 2030 elections. 59:51.160 --> 59:54.160 And then, of course, the congressional districts will change again in 2032. 59:54.160 --> 59:58.160 Can't the congressional maps change anytime? 59:58.160 --> 01:00:00.160 How can your latches argue in a process?