Okay.
It does look like a problem.
Yeah.
Good morning everyone.
I'm Matt and I'm just going to go to Marshall.
This is a few minutes since I've been facing there.
I'm going to please be sure to go check and call around the site.
There's a little bit of a protocol.
If you've had any comment or food, it's not allowed with an ear ear.
It's not put that way or anything like that.
The water is okay.
Other than that, food is right.
When the dust has come out.
So we are talking about greenhouse.
We're talking about food.
We've got one example.
There's a little bit of this.
Any questions?
Oh, this is the ear.
There's a little bit of this.
There's a little bit of this.
There's a little bit of this.
There's a little bit of this.
There's a little bit of this.
There's a little bit of this.
There's a little bit of this.
There's a little bit of this.
There's a little bit of this.
There's a little bit of this.
There's a little bit of this.
There's a little bit of this.
There's a little bit of this.
There's a little bit of this.
There's a little bit of this.
There's a little bit of this.
There's a little bit of this.
There's a little bit of this.
the
Okay.
Okay.
Okay.
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Okay.
Okay.
Okay.
I think that's a good experience.
I think that's a great experience.
I think that's a great experience.
I think that's a great experience.
I think that's a great experience.
I think that's a great experience.
I think that's a great experience.
I think that's a great experience.
I think that's a great experience.
I think that's a great experience.
I think that's a great experience.
I think that's a great experience.
I think that's a great experience.
That's a great experience.
I think that's a great experience.
I think that's a great experience.
I think that would be an brand new thing.
I think that would be an
awesome experience this year.
I know.
Isn't it really fun now?
I know.
It's fun now.
It ends actually while the store is asleep.
This is what we are doing in our Engineering experience.
I'm hearting a lot of people.
They wouldn't have had a lot of time to do that.
I would like to thank you very much for that.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
Thank you.
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All rise.
Harry Harry Harry.
The Wisconsin Supreme Court is now in session.
The honorable Chief Justice Joe Kiroshki-Pursady.
Your silence is in.
Good morning everybody.
Go ahead and have a seat.
Welcome to everybody.
I just want to go through a couple of administrative things before we start today.
Number one, Justice Dowd is having a speaker issue.
Not to get too personal.
So we've turned the volume up on the sound system.
I think it's, I hope it's loud enough.
You just be really mindful of that when you're at the podium and you're speaking into the
speaker.
And if we can't hear you, I might just stop you and say, please raise the volume a little
bit.
Or as I would say to my kids, use your inside scream.
The second thing, as it relates to timing, there's a number of you that are arguing on
this side of the table, especially, I want to make sure that everyone gets their questions
answered and that you have a chance to answer those questions without feeling unduly rushed.
So we'll use the lights as guide posts, but we won't have strict adherence to them within
reason.
Having said that, we may go over the time.
I'm going to be mindful of what time it is on the clock and take breaks.
I want to try to mitigate misery in this room as much as possible for everyone involved.
So if I stop you in the middle, I'm going to try to stop anyone in the middle of a point
or an argument, but it's possible that it might stop you in the middle of your argument
depending on where we are, I'm just letting you know that ahead of time, just because
I want to be able to try to keep it pretty close to 90 minutes.
I think that is all I have preliminarily, so the first case that we have today is Elizabeth
Bothfeld versus the Wisconsin Elections Commission, and may I please have the appearances?
And I believe you're appearing pro-hakviche, yes, okay.
Welcome to the Wisconsin State Bar for the purposes of today's hearing.
Good morning, and welcome to the Wisconsin State Bar for the purposes of today's hearing.
Good morning, and this is what I have for timing, at least according to my sheet, is
25 minutes followed by 10, 10, 10, and then back to you for five.
All right, we are ready when you are.
Thank you, Your Honors.
Good morning, Madam Chief Justice, and may it please the court.
Wisconsin's congressional map was adopted based on the methodology that this court has
since overruled.
The map is therefore unlawful.
The Bothfeld plaintiff's separation of powers claim rests on three basic pillars that have
already been established by this court.
One, the map was adopted pursuant to a least change mandate.
This court said so in Johnson 2, where it selected the map because it quote, most complies
with our least change directive.
Two, least change is no longer good law.
This court said so in Clark, where it explained that least change is incompatible with the
judiciary's institutional obligations of neutrality and independence and expressly overruled
any portions of Johnson that mandate a least change approach.
And three, this court has the power to right this wrong.
Clark itself rejected virtually identical procedural obstacles and objections that
interveners advance here and confirmed that this court can and should require a lawful
replacement for an unlawful court-drawn map going forward.
Council, I want to take you from Johnson 2 to Johnson 1, okay?
Are you asking us to overturn Johnson 1?
I believe this court has already overruled the basis of Johnson 1, the least change map
that was the direction from Johnson 1, and it also overturned the map that was drawn pursuant
to that, I think by the logic, because it overturned the logic of the least change map,
we are now asking the court to finish that job and actually apply that to the ongoing
injunction that applies for congressional districts.
So some of us might think maybe Johnson 1 was only addressed in part.
Do you want to go on with that argument and tell us why you think it's already been overturned?
I mean, I think what this court did not mince any words in Clark when it said, we are here
by overruling any portion of Johnson 1, 2, or 3, that mandates a least change approach.
So there was nothing, there's nothing ambiguous about what it was doing when it talked about
wherever you find least change, whether it was mandated in Johnson 1 or adhered to in
Johnson 2, all of that has been overruled by this court.
So now the question is where you have just a single least change map left standing.
There's only one least change map left standing in Wisconsin.
Are we going with that map?
Is essentially resting on legal quicksand.
Let me push on that, Council.
So that's not what Clark said.
Clark did not say that least change could not be applied, right?
Would you agree with that?
Clark said that least change could be considered as part of traditional districting criteria,
but it could not be the mandate that overarches or drives the drawing of the map.
The court said it was overruled to the extent it was mandated as the methodology.
Did not say that least change was always an impermissible methodology.
Isn't that right?
Correct, John, I did not.
So that means that Johnson 1, that the holding in Johnson 1 is still good, that doesn't disturb
that at all.
There's nothing about Clark that overturned the use of least change as methodology.
Clark just doesn't control that.
It's true that this court decided it was going to adopt a different remedial program for
a new map in Clark if it ever got there, which it never did, but it didn't disturb the use
of it or say that that was somehow illegal.
That's a different argument you're making here today than was addressed in Clark, wouldn't
you say?
I believe that this court actually did explain why least change was not just wrong in principle
or policy, but wrong as a matter of law.
So let me talk a little bit about you frame your argument as a purely separation of powers
argument.
Would you agree that the United States Constitution gives the power to the legislature to draft
congressional districts?
It does.
It primarily gives that power to the legislative branches and to the political process, but
the political process failed this decade and has not been able to produce an inactive
map.
I understand that, right?
But your argument is premised on the idea that in order to vindicate the separation
of powers, the judiciary needs to take for itself the power that has been constitutionally
given to the legislature, because when we did least change, as you acknowledge, we were
deferring to the last democratically enacted maps that were put into law, right?
So they were based on the 2011 maps, which were passed by the legislature, signed by
the governor.
They're in the statute books.
In fact, they're still there.
They were still enacted law.
In this court said, we're going to defer to the policy judgments of the legislature.
We're not going to put our own policy judgments there.
Which the United States Constitution says that's the legislature's prerogative to do that.
And you're saying it's a violation of the separation of powers for this court to not
take that power for itself, but to defer to the legislature?
That is quite a creative argument to me.
In your honor, it's only a creative in the sense that this court has already made that
argument in Clark.
So two points in response to your question, your honor.
One is the court did not take any redistricting power here.
The redistricting power was given, was assigned to this court because the political process
failed.
This court had no choice but to engage in judicial redistricting.
Your argument is that when this court deferred to the decision of the legislature, that it
violated the separation of powers, when the Constitution gives those powers to the legislature
in the first instance.
And your honor, my argument is that Clark has already made that holding.
So when this court, in all of this court's debate about the least changed principle and
the consideration of partisan effects, the conversation has stemmed around, has centered
on what is the judiciary's role in redistricting, vis-a-vis the other political branches.
And in Johnson One, the court specifically invoked separation of powers to justify the
least change approach and argue that it was necessary to preserve the institutional legitimacy
of the court.
In Justice Dallas, Dallas dissent in Johnson One, the dissent also argued against least
change, again using the terms of separation of powers, saying that this court cannot start
with the prior maps and maintain judicial neutrality consistent with our role as a nonpartisan
institution.
So when Clark came in and talked about, well, now what is given, what we've now, what the
court ruled in Clark, what is the court's role in redistricting when it is, when the
task falls to it, and Clark made very clear, and if the court will allow, if I can just
quote from paragraph 71 of Clark, it speaks in the terms of separation of powers.
It bears repeating that courts can and should hold themselves to a different standard than
the legislature regarding the partisanship of remedial maps.
As a politically neutral and independent institution, we will take care to avoid selecting remedial
maps designed to advantage one political party over another.
Importantly, however, it is not possible to remain neutral and independent by failing
to consider partisan impact entirely.
By the very terms of Clark that I just read your honor, it was not possible for this court
to abide by the judiciary's twin duties of neutrality and independence by applying least
change and adopting all the partisan effects of the previous map and not considering its
own role in redistricting.
So least change, do you think least change is always problematic?
So for example, let's say you weren't here challenging the congressional maps, but you
were here challenging the legislative districts that have now been recently enacted into law.
So if we applied least change to that, we would defer to the recently enacted maps that were
signed into law.
When passed by the Republican legislature signed by the Democratic governor, lots of fighting,
obviously this court got in the middle of all that with Clark.
But your argument would, that would be unconstitutional to simply defer to the policy choices of the
legislature and signed by the governor with regard to legislative maps.
Well, our argument is that blind deference is unconstitutional and in contrary to the
principles in Clark.
In the example that your honor mentioned, where there is actually a legislative enactment
to consider and defer to, courts have often held in the redistricting context that you
can defer to the policy choices of the legislature to the extent they don't otherwise violate
the law.
Now here, there was no policy choice of the legislature in effect.
The old map had expired, everybody came into this court and agreed that it was no longer
operative law, and the question was, what is there left to defer to?
Well, that's not, the maps don't expire.
It was declared unconstitutional to the extent it was no longer reflecting proportion of
population, which United States mandate is required.
The Wisconsin Constitution says nothing about congressional redistricting.
It's still law, it's still in the books, it didn't go away.
The only thing we were trying to do was remedy a constitutional wrong, which was simply proportional
representation.
There was no, there's no expiration date on the law.
I mean, as a matter of federal constitutional law, that map could not remain in effect going
forward.
There was a constitutional sunset, and every party that came into this court acknowledged
that.
And when this court remedied the malapportionment violation, our argument is that per the discussion
in Clark and per the holding in Clark, it ended up creating a brand new legal violation
by really veering outside the judicial lane of neutrality and independence by adhering
to a previous legislature's policy views and failing to consider the part as an impact
of its own decision.
So, Council, I'm going to talk.
I was going to-
It's just to take it or instill going?
No, but I was going to-
Okay.
Council, I have a question.
I'm going to pull you back to Johnson One, okay?
And I think that there's clearly a difference of opinion as to whether or not Johnson One
has been overruled.
Let's assume for the sake of this argument right now that it has not.
Are you asking us then to overrule Johnson One regarding partisan gerrymandering?
Yes or no?
So I want to make very clear, Your Honor, that we have two claims before this court.
We know.
So, claimed on is the separation of powers claim, which I think we've been talking about here.
And when I talk about overruling what Clark has overruled in Johnson, it's expressly overruled
the least changed principle in Johnson about how to remedy it.
Let's talk about the partisan gerrymandering claim.
So the question about the partisan gerrymandering claim, which is our alternative claim.
Our argument there is that there was never actually a holding in Johnson One about partisan
gerrymandering saying that it is or is not just dishable.
And that is because there was no partisan gerrymandering claim before Johnson One.
While the court does, I believe in paragraph eight of Johnson One, say that it is not a
cognizable claim, that portion of Johnson One garnered only three votes from this court
and was not a majority opinion.
The only majority opinion from this court on the issue of partisan gerrymandering was
in Clark when the court specifically said that partisan gerrymandering remains an important
and unresolved issue of Wisconsin law.
And it specifically said it was not deciding whether or not such claims were just dishable.
So there is nothing, I don't believe there's anything in Johnson to overturn and to the
extent that there was, Clark has already done it by making the this court's holding clear.
All right, well, I'm looking at the congressman's brief, specifically pages 42, 43, 44.
When I look at page 43, the second full paragraph, it talks about that it's unsurprising that
nothing in this court's precedent establishes judicially manageable standards to adjudicate
the plaintiffs' partisan gerrymandering claims.
And then some pretty compelling arguments are made.
Can you please respond to those?
So there's kind of two issues when it comes to partisan gerrymandering.
One is has this court already kind of closed the door on that?
Our answer to that is no.
This court's answer to that is no.
And Clark had said it was an unresolved legal issue.
And then the next question is, well, now that it is unresolved, how should we resolve
it?
Is it a legally cognizable claim that has judicially manageable standards?
And our answer to that is absolutely yes.
The fact that the Supreme Court, the US Supreme Court has said that it's not just dishable
under federal law does not make, undeclate that it's not just dishable under state law.
Ten other state courts have found partisan gerrymandering, just dishable, under constitutional
provisions very similar to the ones that we rely upon here in Wisconsin.
There's no reason why Wisconsin could not adopt that, any one of those models that the
other state courts have adopted to make sure that it is protecting what is in Wisconsin
a far more robust right to democratic self-governance than is provided in the US Constitution.
Do those other states have the same constitutional language?
Many of them do, your honor, for instance, in states like Pennsylvania and North Carolina,
they had what we called free and equal elections clauses, which are very similar to the provisions
that we cite here, specifically the free government clause.
And in other states, such as New Mexico or Alaska, they rely on their state equal protection
clauses.
And here in Article 1 of the Wisconsin Constitution, we're looking at Section 1, 3, 4, and 22,
equal protection, free speech, free association, and free government provisions.
All of these provide independent and combined bases to find this fundamental principle of
democratic self-governance.
And all of them provide a basis to say that partisan gerrymandering is antithetical to
those fundamental principles.
So going back to that, then do you conceive of Article 1, Section 1 of the Wisconsin
Constitution as an equal protection provision?
I do, your honor.
I think we've been viewing the idea that the citizens are entitled to equal treatment
under the law and cannot be arbitrarily treated based on their viewpoint, based on their
residence, and that's how we are envisioning this claim as well, in addition to the free.
Do we then need to consider tiers of scrutiny?
I believe under this courts, so look, there are many ways that this court can, yes, so
if this court is going to conceive of this solely as an equal protection violation, then
you're going to have to think about what are the appropriate tiers of scrutiny.
But then again, but here again, there are many models for how to do this.
Justice Kagan's dissent in Rucho, which was then the same model was followed in states
like New Mexico and Alaska, where she basically provides a fundamental equal protection analysis.
Let's look at predominance when it comes to partisan vote dilution, the predominant
purpose, was that in fact the effect of the map, and is there any legislative justification
outside of sheer partisan dominance that would justify the configuration of these districts?
Is that the test that you're asking us to adopt?
So we are not pressing one specific test, we believe that this court has at its disposal,
the opportunity to look at any different, any model that it wants.
We have specifically pointed to the model from Pennsylvania, which is more of a traditional
subordination test and effects based test, but that is not the only way to map onto this
claim.
But based on the one that's in New Mexico, based on the one that's in Justice Kagan's
dissent, what are you recommending that we do?
What we have recommended in our papers is the test that's provided in Pennsylvania.
We think that's the most clear, it's a traditional subordination test, the extent to which traditional
districting principles have been subordinated to partisan advantage and partisan gain.
And the court has many in Pennsylvania, outlines a number of tools that courts can use as
both direct and circumstantial evidence to decide whether or not, essentially, the way
the map is drawn, stacks the deck in favor of one party or another to an extreme degree,
such that the decision is essentially made before a single ballot has been cast.
So if I'm understanding that method, are you only looking at a single map, or are as
opposed to if I think about Justice Kagan's dissent in Rucho, or if she's talking about
looking at, I think she uses an example of a thousand maps, and looking at where they
are on the curve, I'm not quite understanding if you adopt the punch of, if you're asking
us to adopt the punch of any model, if we adopt that model, what does that look like
exactly?
Are we just looking at the one map that is in front of us, or are we comparing it to
other maps?
So absolutely your honor, so obviously there's only one map in front of the court when it
comes to what we are, how we can prove that, how somebody can prove a partisan gerrymandering
claim, there are many different evidentiary ways to do that.
One of those that's typically used in partisan gerrymandering claims is this, the simulations
approach, right?
The using multiple maps to show would this ever have occurred based on the political, natural
political geography of the state, or was there some undue partisan intent that really was
skewing the map?
Well I understand that, but if I understand the Pennsylvania model, you're looking at
the map that is created and you're saying, has it been, has the, we're, if you're rank
ordering why you, why you created the map you did, is it subordinate to the constitutional
requirements or is it not?
I'm asking, are you just looking at that one map and at those requirements as it relates
to that one map?
I understand that you can look at a thousand maps, I understand you can look, we could
look at more than that, right, easily today.
But I'm not, I just want to make sure I understand how you envision that process, how that process,
if we adopted it, would work in the trial court in this case.
So I think the way it would work following the Pennsylvania model, which by the way is
spelled out really chapter and verse in that opinion, is that the court would essentially
look at the traditional districting criteria, the objective political geography of the state
and ask, to what extent do the district lines veer from the traditional districting, to
subordinate those, those traditional districting principles in service of some part as an advantage.
And the way you answer that question is by looking at evidence from computer simulation
maps, looking at statistics like the efficiency gap that shows wasted votes.
There are a number of models at the Supreme Court in Pennsylvania recognized that are able
to provide that evidence so we know what we're looking for when we're looking at this one
map.
So I'm advocating for that instead of the intent, effects and causation test that Justice
Kagan talked about in her Rucho descent.
So Your Honor, I don't want to overstate our advocacy for one model over another.
At this point, our number one argument is that this court can strike down this map as a matter
of law based on the law, it's already drafted in Clark.
But if the court decides to go down the partisan gerrymandering route, our argument there is
that that is actually, that is not, that is a traditional route that many states have
followed.
And this court can choose whatever it deems to be the best test that it sounds fit.
So I have suggested the Pennsylvania one, I believe that that the way that model has worked
out is very clear.
But the one that is provided by Justice Kagan's descent and has been used in states like New
Mexico is equally justiciable, is it standard, that is easily comprehended by courts and
applied by courts at all levels.
Yeah, I don't want to overstate the importance to us of figuring out which path we should
take in order to get this right.
So, Council, can I pull you, are you, I'm sorry, are you?
I was just musing.
You were just musing, okay, that's what we do periodically, you'll notice.
I would like to get back to the concept of justiciability, say that 20 times fast,
and look at our Constitution, what our Constitution says.
And you look at Article 1, Section 1, that people are sovereign, that government has
no power except through the consent of the governed.
We are interested as a state court in looking at these maps as whether they present a constitutional
harm to these principles of self-representation, of sovereignty of the people of the state
of Wisconsin, which is some through lines, throughout our Constitution, it's a beautiful
Constitution with very rich words, and it makes very clear that the people have the power,
not the politicians, it is the people.
So, when we're looking at justiciability, why we are so focused on what test do we apply,
assuming it's cognizable, right, assuming this claim, and you're saying it is, because
of these provisions in our state Constitution, so we have equal protection.
We have inherent rights.
We have free speech, the right to assembly, this court has a role in remedying wrongs.
So, what else are we looking at in terms of a test?
We have, you've identified, there's these different tests out there, ten states have
adopted some form of these tests.
We certainly want to make sure the test is manageable.
We want to make sure it's neutral.
But what other guidance do you suggest this court looked to when we are measuring whether
this map presents a constitutional harm?
I believe your honor, and I appreciate exactly what you said, I agree that the Wisconsin
Constitution makes no mistake that democratic self-governance is the very foundation.
And so, there is a wrong under with the Wisconsin Constitution that requires a remedy if the
court decides to go down the partisan gerrymandering approach.
And when it comes to what the test can be, like I said, we have advocated for the Pennsylvania
approach, which we believe is actually the most straightforward and easily easy to administer,
but I'm not trying to dissuade the court from what I think is also a straightforward
and easy to administer.
Well, let me ask you about that, because if you look at New Mexico, which I would say
has some very similar provisions on the sovereignty of the people, on the government having to
have the consent of the governed, they also apply a causation piece.
And that is because we recognize, I don't think anybody on this panel would say, the
state does not, that nobody would dispute.
The state has an important constitutional role in redistricting.
And so, isn't it, shouldn't it, wouldn't it be prudent of us to not just apply intent
effects, but then to give the state the opportunity to present, if there is a legitimate interest
that perhaps we're not thinking of, because that recognizes that the state does have important
role in redistricting.
I agree with that, Your Honor, and I think this court's equal protection jurisprudence
makes clear that the question would then be posed to the state, is there a legitimate
interest that justifies this deviation?
And I think actually under either test that this court adopts, the state would be given
that opportunity to prove that, no, no, what you're seeing from the data and from the evidence
is not the result of partisan gamesmanship, but is actually the result of some other legitimate
criteria.
I believe that the state would have that ability.
I don't think that the, I think either of these tests are difficult for plaintiffs to
prove intentionally difficult, and, but I think ultimately manageable for the court to decide
to make sure that it's not just striking down maps willy nilly, but is actually applying
a chapter in verse exactly what the rules are.
I have just one more question on this issue, and that is, do we not use in judging this,
just disability, do we not use the same data that the map makers used?
I mean, is that why it's quantifiable?
Because map makers are able to distill down to the household and predict what is, what
is the, not, we don't have party registration here, but what is the likely affiliation here?
And so does it make it quantifiable in this context because we have the data now that
we didn't have, our founders didn't have, even our grandfathers, did not have the data
that we have now to make these determinations?
I think certainly the tools that are available to courts to be able to discern what has happened.
These tools that are available to map drawers to discern, to figure out how to greet the
effects that they want are far more sophisticated, which is all the, all the more reason why
this court said in Clark that this court cannot afford to blind itself to those very true
realities that lawmakers are aware of when they are drawing maps.
When a court is drawing maps, it too needs to deal with the entire political, demographic,
factual, census-based reality to make sure that it's drawing maps that are fair and constitutional
for Wisconsin voters.
So you can tell we're trying to pull you across the line here because these cases are
complicated, right?
And if we find them to be just dishable, we need to be advising the three judges.
That should be.
So can you clearly tell us why you think the Pennsylvania test is straightforward?
We believe the Pennsylvania test is straightforward because it does not delve into the hearts
and minds of the map drawers and deciding which map drawers are most at issue.
It looks at the actual effects of the map itself to decide whether the maps abordinates
traditional constitutional principles to partisan advantage.
Can it be explained?
Can the deviations from traditional principles be explained by anything other than sheer
partisan gamesmanship?
So looking, I think, at the effects test that the Pennsylvania court emphasizes is perhaps
the, I would say, you know, the most straightforward way of determining this.
But again, I don't think that the court needs to shy away from looking at intent.
This is the kind of stuff that courts do all the time.
If it wanted to, probably, a more intent or causation-based approach.
Okay.
I want to take you through some procedural things here.
So let's say we were to find your claims just dishable.
I just want to go through kind of what that looks like.
Like how do you get from there to a new map?
Thank you, Your Honor.
So I'm just going to reiterate that, you know, so option number one is to strike down the
map as a matter of law because it's already been struck down as a matter of principle.
Let's go to option number two.
Option number two is to decide that Wisconsin's Constitution bars partisan gerrymandering
and develop a stand, and announce a standard that says, this is-
And I'm going to qualify you, not just bars partisan gerrymandering, isn't there some
extreme partisan gerrymandering, isn't that what we're really talking about?
I mean, you set it already that it's basically taking away, it's making a decision before
the election has even begun for the people in the district.
Exactly, Your Honor.
I'm using the word part of the gerrymandering is a shorthand for what courts have often
referred to as an extreme partisan gerrymander that is essentially an outlier and not explainable
by any other criteria.
Okay, so we find that, and then what?
And I think that this court has already discussed, I think it adopts the model that it seems
to be most fit for determining what is a partisan gerrymander, and then I think it would need
to remand back to the panel for a fact-finding, because as this court has already emphasized
in Clark that it is a very fact-intensive question.
And in your view, the circuit court then has the ability to grant a clearatory judgment
as to whether or not these maps actually meet the tests that we set forth.
Absolutely, Your Honor, and of course this court can make very clear what the authority
is of the circuit court, but the whole design of this three-judge panel was essentially
to be able to do this kind of work to sit and adjudicate facts that are about redistricting
maps and make the proper judgments for Wisconsin voters going forward.
Okay, and then what?
Let's say the circuit court says these maps are an extreme partisan gerrymander according
to the tests set forth, then what?
I think there's a remedial process, and that's not dissimilar to the remedial process
that this court has already laid out.
So you foresee us doing that remedial process?
I think the district, I think the panel could do that remedial process as well.
I think there's a little bit of a question depending on how the appeals work.
There might be an appeal of the liability order before it gets to a remedy, but ideally
we would say that any of this should have, all of this is judicial, just dishable within
the panel and can all be reviewed by this court on appeal after that.
Even though that's our order, aren't we the ones that would need to overturn our injunction
and or order that discussed the previous maps?
I don't think that's exclusively the case, Your Honor, certainly on instruction from
this court.
The panel could have the authority to revisit that injunction, and ultimately our argument
on both separation of powers and partisan gerrymandering is that the panel had the sitting
today, the panel had the job to look at this court's most recent precedent.
In our first separation of powers argument, that most recent precedent is Clark.
They had to apply Clark.
If this court were to decide that partisan gerrymandering is dishable, that would be
this most recent precedent.
So whether it's applying it to a map that was adopted by the legislature or adopted by
the court, the lower court's job is to apply this court's binding precedent.
And before we would adopt any map, the legislature would get a chance to also draw a map.
Is there purview unless they cannot do it or unless there's an unconstitutional violation
with their map, correct?
Absolutely, Your Honor.
And I want to make very clear, there is nothing, there has been nothing preventing the legislative
process from enacting a map since 2020, since 2021, the legislature can and should adopt
a map if it feels like that that's something it has the political capability to do and
nothing of this court is tying this hands.
In Johnson, the court specifically said that this map shall remain in place until the
legislature adopts a new map or a court holds otherwise.
Until number one happens, we are asking this court to hold otherwise.
Just a quick question to kind of add the facts to your arguments.
The map that is in place is a map that Governor Evers proposed, right?
The map that is placed is a map that was, the Governor Evers proposed pursuant to the
least change mandate that was in Johnson 1.
So all of the participants in the Johnson litigation were limited to a single map and
it was, they were told in advance that it would be judged based on that single criterion.
So what about Governor Evers' map is an extreme partisan gerrymander?
So your Honor, Governor Evers' map is essentially following the dictates of this court, it is
a least change map that is 95% identical to the 2011 map that this court cemented in
place pursuant to that least change mandate.
So by calling it Governor Evers' map, our position is that the 2011 map was a gerrymander
and it was calcified in place pursuant to this court's least change mandate.
Then that's a different question.
That 2011 is almost 15 years ago, right?
So why now?
Why isn't this barred by latches?
Your Honor, for the partisan gerrymandering claim, it's not barred by latches because it's
seeking only prospective relief.
The idea that the state of Wisconsin is prohibited from writing a wrong just because that wrong
has existed for a number of years is antithetical to the entire latches doctrine.
By that same logic, you know, Brown v. Board of Ed would have been latchesed out because
it was already sitting in decades' worth of segregation.
The different issue, but has Wisconsin ever had a map that meets the criteria that you
outline today?
Given that partisan bodies have drawn the maps under the Constitution, since the Constitution
that provision's been in existence, has Wisconsin ever had a partisan gerrymandered map?
Have we ever had a map that's good under your criteria?
Your Honor, I've not evaluated every map, congressional map that's been adopted.
I know many maps have been adopted by courts not pursuant to a least-change criterion.
As we saw, I'm Jensen.
We've seen in Prosser that the reports have said we actually do need to look at the partisan
effects of our map to make sure that we are applying traditional districting principles.
So I have no reason to believe that any of those maps would be unlawful.
We are only talking about the one map we have in place today, which was built pursuant to
a least-change principle that has since been debunked.
Council, whose intent are we looking at if we were to apply a test that had an intent
element to it?
Yeah.
It's a little tricky in this one, Your Honors, is normally you look at the map drawers'
intent.
And here, when it comes to the most recent intent, that intent from this court was laid
bare.
The intent was to adopt the intent, the effects, and everything as possible from the 2011 map.
So the court can look at the judicial record to know that the intent was to adopt the intent
of 2011, and that we even have a judicial record on the 2011 maps as well.
So in the baldest case, for instance, there is evidence and there is argument about what
exactly was that intent.
I want to announce that.
Go ahead, Jessica.
Thank you.
I'd like to return to the question of remedy, because it sounded to me like you were saying
a few minutes ago that we could somehow deputize that three-judge panel to overturn
an order by this court.
And that seems premature to me at a minimum until there is a factual record showing a
partisan gerrymandering.
It seems to me premature for this court to do anything of that nature and also quite
unprecedented.
The respondents make some of those arguments in their briefs.
So can you walk me through how it is you believe the circuit court versus this court could
adopt a remedy of a different map than is currently in place?
So I believe that the circuit court has the obligation to abide by this court's precedent.
So when it comes to our separation-
Not just precedent, but it is a judgment.
It is.
And in Johnson too, this court said that the map would stay in place until legislative
enactment or a court says otherwise.
Wisconsin has since adopted an entire judicial process through this three-judge panel that
is essentially intended to adjudicate these kinds of redistricting challenges.
If for instance we were here in 2032, and there was a three-judge panel case that was
designed by Wisconsin law to handle redistricting matters, I don't think we would say, well
that three-judge court has no power to enjoin the now old 2022 map in light of new law.
Of course, whatever the court's authority is, it is to apply the governing law from
this court to the judgment before it.
So I do think that the lower court always has the, not just the authority, but the obligation
to follow this court's precedent, which makes this an easy answer when it comes to
the separation of powers claim in the partisan gerrymandering context if this court's precedent
who tells the district, tells the circuit court that partisan gerrymandering is unlawful
and it needs to be adjudicated to make sure, to determine whether or not this challenged
map fails under that standard, then I think the court just needs to follow, the lower
court would just need to follow this court's precedent in order to do that.
I don't think it would be acting beyond it.
So in other words, that language in, I think it's in Johnson too, that says until a court
says otherwise something to that effect, you believe you interpret that language as allowing
a lower court, a three-judge panel in the circuit court, to based on a finding of a
constitutional violation, set those maps aside and adopt new maps.
By some process that we'll probably ask you further about, but so that's where you find
that authority is in that language in Johnson too, saying that until a court otherwise decides.
I think that language in Johnson too recognizes the authority.
I don't think that's the sole source of the authority.
The source of the authority is from long line of precedent starting with Cook v Cook, which
basically says that the lower court has an ability to, has an obligation to apply the
most recent binding precedent of this court.
If the most recent binding precedent of this court is that our own injunctions can be
reviewed according to a partisan gerrymandering standard, then the lower court has an obligation
to abide by that rule and adjudicate under that rule.
So that's something you're asking us to hold.
In the alternative to our initial claim, your honor, which is that we are asking you to hold
that this map already violates Wisconsin law as articulated in Clark, so that the lower
court does not need to go back and make any liability determinations.
This court has the ability to enjoin it on its own.
But I think Justice Cropper is asking you a very specific question about the holding
and you just use language about the injunction.
Are you asking that to be part of our holding to be that specific?
Are you just set aside the separation of powers argument?
If you're talking about an extreme partisan gerrymandering, that that's your argument
and that violates the Wisconsin Constitution, and if we agree with you and if that is our
holding.
Do we need to say more about the injunction that is in place in this case?
Because the or a court otherwise directs, are you saying that's us directing it here?
Which court is otherwise directing, or is it the three-judge panel?
I think it could be either, your honor, and specifically if this court were to determine
that extreme partisan gerrymandering is cognizable under Wisconsin law, it could then
remand to the lower court with instructions to evaluate this map, this injunction from
this court, under those principles.
And with that instruction, the court would have no other choice but to do that.
Okay, so what is a little narrow as it relates to this case, I understand what you're saying.
But what about Governor Evers' map is an extreme partisan gerrymander?
I want to be careful, your honor, about calling it Governor Evers' map.
Governor Evers is actually advocated for a people's commission process that produced
a different map.
The court accepted the map that he submitted, so you can call it what you would like today
I'm calling it Governor Evers' map that the court adopted.
So let's start with that.
What about that map requires this court to act because it is an extreme partisan gerrymander?
That map calcifies 95% in place the 2011 map that we believe is an extreme partisan gerrymander.
Of course on the posture that we have before this motion to dismiss, we don't have the
fact finding to be able to say this is the exact demonstrable evidence of that, but in
our complaint we allege that that map that is from 2011 and then we cemented in place
from this court in Johnson's to order is one of the most partisan skewed map in the country
under a variety of objective metrics.
So Council, it seems to me that your separation of powers argument is putting the cart before
the horse a bit.
It seems to be premised on an assumption that the maps that were adopted by this court were
in fact an extreme partisan gerrymander.
Doesn't that have to be proven first before that hurdle presents itself?
Not at all your honor.
So walk me through that.
Absolutely.
The separation of powers claim does not at all rest on whether or not the previous map
was right or wrong or an extreme partisan gerrymander or anything else.
The separation of powers claim, which I think is outlined in 70 and 71 of the court explains,
when the judiciary is charged with redistricting, it needs to engage in a certain process and
that process cannot include blind deference to a previous map.
It has to include consideration of the partisan effects of its map because the court is taking
ownership of its role in redistricting.
So this idea that the court can just kind of close its eyes and hold its nose and do
whatever the legislature did previously.
Let me just interrupt a moment because it seems to me that what the court was considering
there was a more prophylactic concern of avoiding a constitutional violation and not
saying there was a constitutional violation.
Am I incorrect in viewing it that way?
I mean, I think that the concern that this court expressed in Clark about least change
sounded in principles of separation of powers.
Like I said, specifically the court said, it is not possible to remain neutral and
independent by failing to consider partisan impact entirely.
And by definition, that means that it was not possible for this court to remain neutral
independent as it was its responsibility when they're the separation of powers when it used
that approach in Johnson.
So it's prophylactic in the sense that, yes, it's what should be done and it maps onto
what is our claim for prospective relief going forward.
If it is not possible for the court to abide by its twin obligations of neutrality and
independence by adopting a least change that doesn't look at partisan impact, that means
it was not possible.
And we are all living under that map going forward for 2026 and 2028 and 2030.
I'm going to follow up on a couple of questions that Justice Dalit asked you.
She walked you through and you laid out three steps, essentially, I guess maybe, yeah.
Starting with, if we found the map, if we ruled that an unconstitutional, extreme gerrymanders
just dishable, we would adopt a map for what that means, excuse me, we would adopt a test,
a model of maps on the brain.
We would adopt a model for what that meant exactly, we would remand it for fact-finding.
And then the fact-finders would do what they would do and then we talked a little bit about
remedy, which could be the fourth thing.
We have two cases in front of us.
Your friends are very patiently sitting in the front row behind you.
What should we do about that?
What if we also find that there is an anti-competitive claim that that also violates the Wisconsin
Constitution?
We have three, we have two, three-judge panels.
I assume that they are also going to come up here and say if you find that this is dishable,
you adopt a model, I don't want to take any of your argument away, you'll come up and
then do this, you'll remand it back for fact-finding.
Are we going to have two different panels, six different judges, having these hearings,
coming up with who knows how many different maps?
Can you help me think through-