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be based on the fact that you relied on settled maps

2
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when tomorrow the legislature could change these maps.

3
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But, well, oh, good question.

4
00:00:07,660 --> 00:00:10,620
So there's a real difference between the legislature

5
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like in Tennessee or Texas deciding

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we're not just going to change the maps,

7
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we're going to appropriate millions of dollars

8
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for the state to change the maps midstream.

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What the cases are discussing is that when courts

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require the changing of the maps,

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the state has to find those millions of dollars

12
00:00:26,860 --> 00:00:29,660
to change them now and then to change them again

13
00:00:29,660 --> 00:00:32,300
after the census and changing those districts

14
00:00:32,300 --> 00:00:33,860
in such a short amount of time results

15
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to real prejudice outside of this courtroom.

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And it also results in-

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And what is that exactly?

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00:00:38,940 --> 00:00:40,140
Can you develop that a bit?

19
00:00:40,140 --> 00:00:43,260
Okay, so a congressional map doesn't just exist on paper,

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00:00:43,260 --> 00:00:46,580
it exists in computers and you assign voters

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00:00:46,580 --> 00:00:48,860
to different districts so that when that voter

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shows up to the voting booth or when they check

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00:00:50,820 --> 00:00:52,580
their mailbox, they get the right ballot

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00:00:52,580 --> 00:00:53,780
for their district.

25
00:00:53,780 --> 00:00:56,460
That can cost millions of dollars to hype up

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00:00:56,460 --> 00:00:57,620
and, you know, across the case-

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So there's a cost associated with changing maps,

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is that what you mean by prejudice?

29
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Yes, and that's-

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So the correction of a constitutional violation

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because it costs money, it should be not remedied?

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You're on are no different than Brennan,

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the court is in any latches analysis,

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even in constitutional cases is highly aware

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of the prejudice for late filed claims.

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Nothing stopped plaintiffs from filing a lawsuit in 2011

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or filing a lawsuit in 2021 or 2022 or 2023 or 2024,

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alleging these maps were unconstitutional.

39
00:01:31,700 --> 00:01:33,980
And so yes, just as was the case

40
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with the Alabama congressional districts

41
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and the Florida districts and the Illinois districts,

42
00:01:38,460 --> 00:01:40,700
sometimes the challenge just comes too late.

43
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And that's especially true here

44
00:01:43,020 --> 00:01:45,420
where the legal arguments are very underdeveloped,

45
00:01:45,420 --> 00:01:48,420
they are not different than the arguments presented in Johnson.

46
00:01:48,420 --> 00:01:51,020
And so one way this court can decide this case

47
00:01:51,100 --> 00:01:53,980
is just like the Alabama court decided chestnut,

48
00:01:53,980 --> 00:01:56,940
which is to say, well, consider your arguments later,

49
00:01:56,940 --> 00:02:00,140
Alabama courts absolutely considered those arguments later

50
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after the last census,

51
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but we're not going to consider them now

52
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because of the prejudice.

53
00:02:04,700 --> 00:02:07,380
And it's not just monetary prejudice, just one more point.

54
00:02:07,380 --> 00:02:09,060
Okay, what's the other prejudice

55
00:02:09,060 --> 00:02:12,420
because you're not gonna sell me that costs are enough?

56
00:02:12,420 --> 00:02:14,900
You're on our, I'd urge you to read the decisions we've cited.

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It's a real cost to the state and to the taxpayers

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to change maps.

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But the second point is-

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The second point is, I assume everyone here is highly versed

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in where the districts are and who their representatives are,

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but not everyone in Wisconsin.

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Not all six, nearly six million Wisconsinites are that way.

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And the cases also discuss a prejudice

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to the everyday voter who has been in a district

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that looks one way for a while,

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and then all of a sudden they're switched

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into a new district that I would suspect

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is gonna look fairly different.

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Which could still happen tomorrow.

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00:02:47,620 --> 00:02:50,700
It could your honor, but that is the legislature's

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prerogative under the elections clause.

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00:02:53,020 --> 00:02:55,420
I also wanna point out you went back to 2011

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00:02:55,420 --> 00:02:56,980
for purposes of counting latches,

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00:02:56,980 --> 00:02:59,860
but you don't wanna go back to 2011 otherwise.

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00:02:59,860 --> 00:03:00,700
Sorry, what was that?

77
00:03:00,700 --> 00:03:03,820
You went back to 2011 for purposes of counting latches,

78
00:03:03,820 --> 00:03:05,140
I noticed.

79
00:03:05,140 --> 00:03:07,940
Well, your honor, if there are arguments,

80
00:03:07,940 --> 00:03:10,260
I heard, maybe I misheard today,

81
00:03:10,260 --> 00:03:12,300
but I heard today that the intent that matters

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00:03:12,300 --> 00:03:16,060
was the intent of the lawmakers who enacted Act 44.

83
00:03:16,060 --> 00:03:18,420
And so if that's true from,

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00:03:18,420 --> 00:03:20,860
here's a fourth kind of prejudice,

85
00:03:20,860 --> 00:03:22,620
there's a real evidentiary prejudice

86
00:03:22,620 --> 00:03:25,380
in waiting to bring a claim until 15 years later,

87
00:03:25,380 --> 00:03:27,380
because I don't know how we conduct discovery

88
00:03:27,380 --> 00:03:29,420
about what happened in 2011.

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00:03:29,420 --> 00:03:31,020
It happened 15 years ago.

90
00:03:32,820 --> 00:03:34,220
But you don't even,

91
00:03:34,220 --> 00:03:36,340
Justice Dalit, you don't have to take 2011.

92
00:03:36,340 --> 00:03:38,100
Brennan said two years was too late

93
00:03:38,100 --> 00:03:40,260
to challenge the line item veto.

94
00:03:40,260 --> 00:03:43,820
And here, these were well within two years

95
00:03:43,820 --> 00:03:45,860
of counting the time in which they were brought

96
00:03:45,860 --> 00:03:47,740
after our court case.

97
00:03:47,740 --> 00:03:49,300
I think we're a year and a half.

98
00:03:49,300 --> 00:03:50,620
I have to look at my math.

99
00:03:50,620 --> 00:03:52,100
Under a year and a half.

100
00:03:52,100 --> 00:03:57,100
Which we said in Clark was not undue delay.

101
00:03:57,700 --> 00:04:00,820
In Clark, you said it was not undue delay to wait.

102
00:04:00,820 --> 00:04:02,460
I have this here.

103
00:04:02,460 --> 00:04:05,500
So the Johnson decision was in March 2022.

104
00:04:05,500 --> 00:04:07,540
Clark was in August, 2023.

105
00:04:07,540 --> 00:04:09,820
So in Clark, you said it's not undue delay

106
00:04:09,820 --> 00:04:11,820
to wait 15 months to file a petition

107
00:04:11,820 --> 00:04:13,180
for an original action.

108
00:04:13,180 --> 00:04:15,220
And Brennan, you said latches is fact specific.

109
00:04:15,220 --> 00:04:17,220
So let's look at the facts of this case.

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00:04:17,220 --> 00:04:20,620
Which are, they waited 14 years since Act 44.

111
00:04:20,620 --> 00:04:21,940
Three years and four months

112
00:04:21,940 --> 00:04:24,100
since the final judgment in Johnson II.

113
00:04:24,100 --> 00:04:26,700
Nearly two years longer than the Clark petitioners

114
00:04:26,700 --> 00:04:28,620
waited to challenge Johnson II.

115
00:04:28,620 --> 00:04:31,020
And more than 18 months after the Clark decision.

116
00:04:31,020 --> 00:04:33,300
And to come back to my first point,

117
00:04:33,300 --> 00:04:35,220
if the plaintiffs are so sure

118
00:04:35,220 --> 00:04:38,980
that the circuit court could have undone

119
00:04:38,980 --> 00:04:40,620
this court's injunction,

120
00:04:40,660 --> 00:04:43,220
not just today, but the minute after Clark,

121
00:04:43,220 --> 00:04:46,100
they've offered no explanation

122
00:04:46,100 --> 00:04:48,340
for why they didn't go to the circuit court.

123
00:04:48,340 --> 00:04:51,420
There's no reason they had to act sequentially.

124
00:04:51,420 --> 00:04:54,260
I assume their arguments taken to the logical extent

125
00:04:54,260 --> 00:04:56,420
mean the circuit court has simultaneous jurisdiction.

126
00:04:56,420 --> 00:04:58,780
So they can file their motion for relief from judgment here.

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The same day they file their circuit court action.

128
00:05:01,100 --> 00:05:04,700
And they have not explained why they decided to wait

129
00:05:04,700 --> 00:05:09,700
until July of 2025 to challenge a final judgment issue.

130
00:05:10,940 --> 00:05:13,860
In March of 2022.

131
00:05:13,860 --> 00:05:15,860
And to say that that delay is reasonable.

132
00:05:15,860 --> 00:05:17,420
There's a reconsideration motion

133
00:05:17,420 --> 00:05:20,380
you're skipping over that was filed March 1st of 2024.

134
00:05:20,380 --> 00:05:21,980
Right, yes, yes.

135
00:05:21,980 --> 00:05:23,740
So they're not gonna count the time

136
00:05:23,740 --> 00:05:24,900
that they were actually challenging

137
00:05:24,900 --> 00:05:26,460
and even though that was denied.

138
00:05:26,460 --> 00:05:29,020
Sorry, you're on, when I said motion

139
00:05:29,020 --> 00:05:31,940
for to reopen the judgment, that's what I meant.

140
00:05:31,940 --> 00:05:35,780
I don't understand how they couldn't also have filed

141
00:05:35,780 --> 00:05:38,980
their circuit court action then or shortly thereafter.

142
00:05:39,980 --> 00:05:41,060
Good point.

143
00:05:42,140 --> 00:05:42,980
Okay.

144
00:05:43,980 --> 00:05:46,300
We're just passing a note to see if one of your.

145
00:05:46,300 --> 00:05:48,500
One of your colleagues may want to speak.

146
00:05:48,500 --> 00:05:49,340
So.

147
00:05:49,340 --> 00:05:50,180
Wants to speak.

148
00:05:50,180 --> 00:05:51,260
That's okay.

149
00:05:51,260 --> 00:05:52,940
But I'll give you an opportunity.

150
00:05:52,940 --> 00:05:54,500
I don't know if you want to wrap things up

151
00:05:54,500 --> 00:05:58,100
sort of bring your comments to your part to a close.

152
00:05:58,100 --> 00:05:58,940
Sure.

153
00:05:58,940 --> 00:06:00,540
I suppose I just want to get back

154
00:06:00,540 --> 00:06:01,580
to the heart of the questions

155
00:06:01,580 --> 00:06:04,220
which is we do think that in order to hold

156
00:06:04,220 --> 00:06:05,340
that the Johnson two map

157
00:06:05,340 --> 00:06:07,620
complied with all state and federal law.

158
00:06:07,620 --> 00:06:09,900
Of course, this court had to decide

159
00:06:09,900 --> 00:06:12,940
and consider in the more than three dozen paragraphs

160
00:06:12,940 --> 00:06:15,700
that Wisconsin law does not require

161
00:06:15,700 --> 00:06:18,300
politically fair districts.

162
00:06:18,300 --> 00:06:22,140
And just my last point is that I do think

163
00:06:22,140 --> 00:06:24,740
plaintiffs are setting the circuit court up for failure

164
00:06:24,740 --> 00:06:26,380
if this comes, goes back.

165
00:06:26,380 --> 00:06:28,700
They have not offered any standard

166
00:06:28,700 --> 00:06:31,260
for this court to then adopt and hand down.

167
00:06:31,260 --> 00:06:33,900
Justice Taylor, your earlier question about data.

168
00:06:33,900 --> 00:06:35,620
Yes, we have the data,

169
00:06:35,620 --> 00:06:37,980
but how do we count the one third

170
00:06:37,980 --> 00:06:39,700
of Wisconsin's independence?

171
00:06:39,700 --> 00:06:43,580
Where do they shake out in this new constitutional right?

172
00:06:43,580 --> 00:06:46,980
How do we count the voter who votes for Tammy Baldwin

173
00:06:46,980 --> 00:06:49,260
for Senate and her Republican candidate

174
00:06:49,260 --> 00:06:51,060
in Assembly District 99

175
00:06:51,060 --> 00:06:54,100
and the numerous other split ticket voters in this case?

176
00:06:54,100 --> 00:06:57,100
The search for neutrality is for congressional districts

177
00:06:57,100 --> 00:06:59,300
at least is what this court did in Johnson.

178
00:06:59,300 --> 00:07:01,820
It's to defer to the legislative judgments

179
00:07:01,820 --> 00:07:04,020
to remedy malapportionment and no more.

180
00:07:04,020 --> 00:07:06,860
And if you read closely the bomb guard decision

181
00:07:06,860 --> 00:07:09,420
and the prosser decision that was cited today,

182
00:07:09,420 --> 00:07:11,740
that's actually what those courts were doing.

183
00:07:11,740 --> 00:07:14,500
I'd urge the court to read to the end of prosser.

184
00:07:14,500 --> 00:07:17,140
What the court said there is we as a court

185
00:07:17,140 --> 00:07:20,780
will not upset the existing political landscape.

186
00:07:20,780 --> 00:07:22,940
We will not pair incumbents

187
00:07:22,940 --> 00:07:25,940
because that goes beyond our duties as a court.

188
00:07:25,940 --> 00:07:26,940
Thank you.

189
00:07:26,940 --> 00:07:27,780
Thank you.

190
00:07:28,780 --> 00:07:29,780
Mr. Salin.

191
00:07:35,780 --> 00:07:37,780
Thank you, Your Honor.

192
00:07:37,780 --> 00:07:40,780
I'm going to try to do something a little bit different.

193
00:07:40,780 --> 00:07:44,780
I hear there's a lot of sentiment on the bench

194
00:07:44,780 --> 00:07:48,780
for eventually perhaps considering recognizing

195
00:07:48,780 --> 00:07:50,780
and claim for partisan gerrymandering.

196
00:07:50,780 --> 00:07:52,780
I would like to make the case here

197
00:07:52,780 --> 00:07:55,780
that this is absolutely not the case

198
00:07:55,780 --> 00:07:58,780
where this court should go down this path.