Or give me a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
Thank you very much.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
They're not going to sell as much as I like.
They're not going to sell as much as I like.
They're not going to sell as much as I like.
They're not going to sell as much as I like.
They're not going to sell as much as I like.
Just mac and cheese pizza, you want to get that?
You're done with cheese for a little while.
Yeah.
Yeah.
I'm going to get some lunch over here.
So nice to sit down.
Which is probably going to be nice.
We're going to be here about as long as we can.
I don't know.
I don't know.
I mean, we don't have a dream, but we're in this kind of system all day.
We're in a lot of profiting.
What do you think?
What if you got some sandwiches for a computer in the office?
Yeah.
Do you guys care what it is?
It's the same thing?
No.
Yeah.
I'm having the opportunity to press the board.
Yeah.
Would you like your stuff in the room?
I think there's a reasonable...
Are you going to say it's going to be a combination of life?
Yeah.
I think I missed this.
Regular.
No one's going to know or care.
It's not your case.
You don't have to be through hell.
Right.
You're an audience.
You're a spectator.
You're a spectator.
What do you mean it's true?
It'll be probably a good tweet case.
Which means it's going to be like, let's say, let's break it down.
I think I'll be done by this.
I think I'll be done by this.
I think I'll be done by this.
I think I'll be done by this.
I thought you said the entire thing.
90 minutes is about a time between schedule
and when there are your systems.
That's why you were starting by now.
Right.
We still have four.
I think I'll be faster.
I'm going to talk about it.
Almost there.
CHATTER
CHATTER
CHATTER
CHATTER
CHATTER
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
I would like to thank you very much for being here.
Everybody welcome back.
At long last year, if you can ask you something as you're taking the podium, sometimes when
people are splitting up arguments, they're each taking an issue, you were going to start
with that, weren't you?
You weren't going to.
Okay, are you each going to take an issue or not, just so that we can save some questions
for Mr. Seith?
No, you're in our group.
All three of us are ready for all your questions.
You will let the argument unfold, however it's most helpful.
Oh, cool.
Okay, that's great.
Then we are ready whenever you are.
Good morning.
May I please the court tailor me in on behalf of the Wisconsin legislature?
Four and a half years ago, this court adopted the governor's proposed remedy for the then
malapportioned congressional districts.
The court held unequivocally that that remedy complied with all applicable state and federal
laws.
Nothing has changed since then that could warrant reentering the political thicket of congressional
redistricting and putting this court's injunction on trial in a circuit court.
This court can affirm the dismissal of plaintiffs complaint on these simple grounds without
reaching the merits, which is that the circuit court was exactly right that it could not
unwind this court's final judgment in Johnson too.
Likewise this court could affirm simply by holding plaintiffs waited too long to bring
this suit in circuit court just as the Illinois Supreme Court held last year for the districting
challenge in Illinois.
Where would there be any reason for this court, for the circuit court, to unwind the
Johnson too injunction?
As to plaintiff's separation of powers arguments, the circuit court was exactly right that plaintiffs
arguments rewrite this court's words in Clark to say something that this court did not say.
The court needs no more authority than Clark itself to know that at least changes remedy
is not categorically unconstitutional.
That's cool.
I want to go back to Clark, which I haven't set up to this point, but I'll say now it's
a well written opinion.
Indeed, your honor.
Thank you.
I appreciate it fishing for compliments this morning.
It was really clear in 63 that these changes are unworkable in practice.
It went through the whole analysis about it being unworkable and all the reasons it
was unworkable.
I certainly recall vividly sitting in this courtroom as we talked about the peanuts analogy of
Lucy moving the football away from Charlie Brown because no one who was advocating for
least change in this courtroom could agree to what it meant.
It was at least change as far as the number of people, the population, and the district
was at least change as to the lines where we were trying to least change as to municipalities.
It didn't work and there was nothing in the Constitution as Justice Taylor brought out
a little while ago.
There was nothing in Wisconsin law.
There was nothing in the Wisconsin Constitution that brought it forward that could be relied
on to be the basis for it.
In paragraph 63 of Clark just says, as illustrated across the course of the Johnson litigation,
least change is unworkable in practice.
As such, we overrule any portion of Johnson 1, Johnson 2 and Johnson 3 that mandate at
least change approach.
I would like to know, what else could a judge or justice possibly write in an opinion to
say, we are overturning this.
This does not apply going forward.
This was wrong.
It was unworkable in practice.
I don't know how much more clearer I could have done it, but apparently there's something
else I should have done.
What do you suggest that was?
Chief Justice Crossview took the words right out of my mouth, which is that we're not going
to apply this going forward.
But the court's discussion about how least changes is unworkable is not synonymous with
a holding that least changes what's unconstitutional when applied in Johnson 2.
And as for Justice Taylor's question about where this least changes approach comes from,
I think some table setting is really important here.
You receive Justice Taylor an answer about Clark and the state constitution.
Clark involved the state house districts.
Of course, we are here about the congressional districts.
And so to the question of where a least changes approach might come from, I would point the
court to the federal constitution here in this case, which assigns power to the legislature
for redistricting, not courts.
And when the last enacted plan by the legislature is Act 44, of course, the elections clause
could anticipate this.
But we said, I'm sorry to interrupt you, but we said that those maps, because they did
not, the population had shifted, obviously, in the ten years, those maps could no longer
be violated, they violated federal law, they violated the constitution.
Those maps were no longer in effect, they couldn't be.
Well, Your Honor, I think that mistakes the nature of the judicial power, which is when
the court examined Act 44 and held Act 44 was unconstitutionally malapportioned, the court
was not striking down the law or erasing it from the Wisconsin statutes.
The court was remedying the malapportionment of those districts.
Those districts are still the law on the books today with the additional layer of this court's
injunction remedying the malapportionment of those districts at the margin.
And as for the deference to the legislature and whether that could possibly work a constitutional
violation in a congressional redistricting case, any such rule would come as an enormous
surprise, I would think, to the U.S. Supreme Court, which states have done, state courts
have looked at the issue of judicial ability, we have ten courts now that have come up with
a standard, none of those Supreme Court decisions have been overturned, they've not
been accepted on cert, they have not been accepted on a stay.
So we see state courts coming up with standards to measure whether votes have been improperly
and unconstitutionally and substantially deluded.
How do we not have that same ability like these other state courts, state Supreme Court's
and your honor, I do have arguments in response to the partisan gerrymandering claim and other
states have done it, but I would like to finish my point on justice for Obscuse, the least
changes approach and the very separate claim that plaintiffs have said they've brought here.
And as for what state courts have done, let me start with the U.S. Supreme Court.
In cases like white against wiser, the U.S. Supreme Court reversed a court for refusing
to defer to the political judgments of the Texas legislature in a malapportionment case.
And then state courts as diverse as courts in Minnesota, Oklahoma, South Carolina, and
New Hampshire have all done exactly what this court did.
Let me ask you some of that.
We are not talking about maps that the legislature put in place.
The legislature put in place maps, the governor vetoed those maps.
You are talking about a legislature from 2011, correct.
And just as courts in New Hampshire, Oklahoma, and all the other states I just listed off
deferred to the same sort of maps, these are impasse cases, malapportionment cases.
And those courts say we are going to defer to the last enacted map because that is the
last enacted map by the people's representatives and our job here is to remedy malapportionment.
It's not to strike a new political balance.
We should talk about the people's representatives, right?
Because if you start with Article 1, Section 1 of our Constitution, which says that the
government derives its power from the consent of the governed, from the people, yes?
Yes.
Yes.
Okay.
And in your view, that means the legislature, not the court, that they should be deciding
this issue of redistricting the 2011 legislature in this case, right?
Yes.
Okay.
Because that legislature, if I'm understanding your argument, was elected by the people.
They're closest to the people.
They can be held accountable by the people.
Yes.
Yes.
Okay.
This is where I have some issues.
The legislature that passed those original maps wasn't any old legislature, right?
The legislature that passed that maps, they came from districts that many people claimed
were the most gerrymandered in the entire country.
They were, as some say, a prime example of representatives choosing their voters rather
than the other way around, rather than voters choosing their representatives.
And because of those maps, many people felt that their votes were diluted, that they weren't
representative of the people.
They said that they felt like those districts lacked in representation.
People felt like those maps weren't fair.
Some people even called those maps rigged.
That the legislators that came from those districts came from rigged maps.
It is that legislature, those representatives from those districts described as extremely
gerrymandered that drafted the maps that we are talking about today.
The maps that got baked in in 2021.
And if I'm understanding your argument that under these change, which you're ardently
defending, those maps, the baked in ones from the 2011 legislature, would go forward into
perpetuity indefinitely.
And I don't understand how that is not unconstitutional.
Well, you're honored whether we agree with it or not, the U.S. Constitution assigns redistricting
authority to the legislature.
Because 250 years ago, when we declared revolution, we said the people decide through their elected
representatives.
And there are two solutions for that, either of which plaintiffs could pursue.
First, they could lobby Congress because, of course, Congress likewise has power under
the elections clause to stop what some have said should not have happened in 2011.
Or like Florida, like New York, like Ohio, plaintiffs could do the hard work of creating
a constitutional amendment and saying any politics in redistricting is forbidden.
Any desire to send Speaker Paul Ryan back to Congress is forbidden.
They have not done that.
And so, yes, as we stand here today, the only neutral way for this court to have proceeded
in a malapportionment case about congressional districts was to just defer to the existing
political and policy choices, like sending senior statesmen, be it Speaker Ryan, or
Representative Obie back to Congress, and lessen until there's a change from Congress
itself or a constitutional change to the Wisconsin Constitution.
And that is regardless of how much constitutional harm is caused to an individual's right to
vote.
Your Honor, as Justice Ziegler explained, every individual in Wisconsin can go to vote
on election day or mail in their ballot and cast an equally weighted vote.
That's been true in Wisconsin, by the way, since-
That's not what gerrymandering allows.
Is it gerrymandering is the legislature determining their voters and assigning, treating a class
of voters as unfavored?
And that can have the impact of deluding in individuals' right to vote.
So they vote, yes, they go and vote, but they're votes meaningless because politicians have
determined who their voters are.
And that would seem to me so contrary to the language of our Constitution, which elevates
the sovereignty of the people, that politicians have no power without the people.
Your Honor, our founders risk their lives so that our representatives who we elect can
represent the people, not a king.
And with all due respect, not courts, because the Wisconsin Constitution provides this court
no judicially manageable standards to decide that loyal Republicans and loyal Democrats
have this super constitutional rights-
The courts have done it.
They have done it, Your Honor, and I'm so glad you asked that question, because there
is no free and fair elections clause in Wisconsin's Constitution.
And there is no Florida Fair District's amendment saying considering incumbents is forbidden.
And even in states that have done it, even in North Carolina with the free and fair elections
clause, I'd urge this court not to take my words for it, go look at the Supreme Court
opinions in that case.
They threw up their hands, Justice Taylor, and they said, we understand this is a political
problem.
And this is hotly debated at kitchen tables and in academic classrooms.
But what we can't do as a court is solve that problem, because even the free and fair
elections clause doesn't give us the tools to do so.
So our Constitution is different in that we, there is a provision that says there is a
remedy for wrongs, Section 9, it says every person is entitled to a certain remedy in
the laws for all injuries or wrongs, which he may receive in his person, proper character,
he ought to obtain justice freely.
So that is unique to our Constitution.
Our task is to interpret our Constitution to evaluate legislation to see if it poses
a constitutional harm to these rights.
So it's just very hard, I think your argument is challenging when I look at the, our own
Constitution and the language of that Constitution and the embodiment of the sovereignty of
people, government has no power without the people.
So if a class of voters, if their vote is being deluded or infringed upon, that seems to me
to violate these principles of the people being sovereign, because we have been elevated
the power politicians above individual's right to choose their government.
Your Honor, the question assumes the answer to the question I thought we were all here
to address today, which is, is there a right to Republican districts or Democratic districts
in the Wisconsin Constitution?
That's not the framing though, it's not, that's not, you're framing it in a certain way that
I think is not how I'm seeing it.
I'm looking at our state Constitution and I am pondering as we do with all legislation
that we review, the concept of judicial review.
Is there a constitutional harm here?
That's what I'm looking at.
I'm not looking at, it's not up to us to imbue our policy choices.
That's very clearly belongs to the legislature.
What I'm looking at is there a constitutional harm here, and I'm sure you agree that the
right to vote is the most precious constitutional right we have.
Wisconsin case law that says that, it is the most precious right.
So isn't that our inquiry, is there a constitutional harm here in infringing or deluding an individual's
right to vote?
That seems to be the question.
Yes, three points, Your Honor.
First, Wisconsin was ahead of the curb in terms of the right to vote in the Cunningham
case.
And in Cunningham, this court did something decades, perhaps a century before the Supreme
Court did in Westbury, which it said that right to vote is so precious that we in Wisconsin
are going to ensure that you have a numerically equally weighted vote back in, I think it
was 1892, and that, and no one here disputes that this court could not adjudicate a claim
of mal apportionment, just as the court did in Johnson.
The second point, beyond that, the right to vote is not a right to get the election outcomes
you want.
The very nature of the political branches is that someone loses and someone wins on election
day.
And when it comes to who decides what those districts look like, the Wisconsin Constitution
gives this court no judicially manageable standard to override what the federal Constitution
says, which is that the legislature does get to decide.
And it was okay in remedying mal apportionment to defer to those legislative choices.
A good case on that is the McGraill case where it certainly involved the right to
vote.
It involved whether you could be identified by party on a ballot, whether someone knew
I was a Republican or a Democrat or the Constitution party or something else, and this court
deferred.
Well, of course, courts do apply substantiality of harm all the time.
We weigh that, whether it be in civil criminal cases.
We are applying those standards and not set out necessarily in the Constitution.
But it seems to me that we're looking at, is there a substantial dilution?
Is there a substantial harm here?
And of course, do that all the time in jurisprudence.
We are always looking at harms and weighing whether there's a substantiality issue.
Your Honor, I suppose that brings me to the third point, which is whether a plaintiff might
be able to establish there is a cognizable harm in some case.
Later on, this court could leave unresolved whether it wants to overrule Johnson One.
But in this particular case, plaintiffs have not done the hard work to walk back what
were more than three dozen paragraphs in addition to Justice Hagedorn's concurrence explaining
that the Constitution, as it sits today and as it sat then, does not give the court the
tools to adjudicate those kinds of thorny claims.
So that's what you're looking at.
Why do we have a remedy for every wrong?
Every person is entitled to a certain remedy because of the laws for all injuries.
Because your Honor, plaintiffs have not identified what the constitutional wrong is at this time.
Vote dilution is not a constitutional wrong.
When our Constitution explicitly says it is the people who choose their government, the
only mechanism by which they do that is the right to vote.
And no one disputes that the districts are equally apportioned, they can cast an equally
weighted vote.
So it does not matter the extent of a partisan gerrymandering.
It does not matter the extent of the harm that is caused by a certain disfavored group.
It sounds to me like you're saying an extreme gerrymandering, an extreme partisan gerry
mander is constitutional.
Your Honor, understanding that is your argument?
Your Honor, I'm not sure at this point in time how to define an extreme partisan gerry
mander versus a sort of partisan gerrymander versus we wanted to send Speaker Ryan back
to Congress.
Would you say five percent, double digits, ten percent, fifteen percent?
I think we certainly have districts across the state that hit those numbers.
We do, Your Honor, and I can't tell you that district two, for example, here where
we stand today is an extreme partisan gerrymander.
The representative there, one by 70 to 30 percent vote in 2024.
There's every reason to think he did so because Democrats are densely populated in the Madison
area.
Right, there could become cackness, for sure.
But you look at some of the other districts and the way they're drawn.
What I'm almost hearing you say is that there's not a constitutional claim for extreme
partisan gerrymandering under the Wisconsin Constitution.
If that's what it boils down to, tell us.
Your Honor, right now the Wisconsin Constitution does not define with any level of judicial
certainty what an extreme partisan gerrymander would be and in states that have been displeased
with that constitutional reality that they have amended their constitutions with clear
rules that courts can apply.
The Utah case, the New York case, the Florida case that plaintiffs have brought to you all
involve either reticulated statutes or constitutional amendments saying we, we extirpate politics
from redistricting.
Oh, counsel, counsel, your opposing counsel, has urged us to adopt New Mexico and Pennsylvania's
cases.
It took the opportunity on break to take a look at their constitutional provisions.
You mentioned earlier that Wisconsin does not have a free and equal elections clause,
but the courts in those cases did point to and reference and the New Mexico and Pennsylvania
constitutions do specifically have free and equal elections clause.
Do you think that has any impact on whether we should follow Pennsylvania and New Mexico?
I do and I think, I can't remember if it's the Pennsylvania decision or the first North
Carolina decision that explores the history of that clause.
It's extremely interesting there in other state constitutions they are very specific
to elections and your ability to go cast a vote.
And so there was far more history in those cases to connect to that constitutional text
admittedly broad with a right to have fairer districts, however one expert might define
fairer districts.
Here the history points in entirely the opposite direction.
There's precious little of it in the briefs here.
There were more than 100 pages about it in Johnson and the history boils down to it.
This state's constitutional convention in 1848.
There was a lot of talk about gerrymandering and there was a lot of discussion about whether
the way Wisconsin's first congressional districts had been drawn was fair to have a very compact
district in the southeast of the state and the sprawling district capturing 20 counties
in the rest of the state.
And the solution to that then answers the question before this court now.
The solution was the people voted through their delegates at the convention and then
through ratifying the constitution and that's been the unchanged history for over 100 years
in this state until 2011 when parties started bringing partisan gerrymandering claims.
So I wanted to just follow up with the Chief Justice's question about the 2011 maps.
My recollection of the history here is that I think Democrats controlled the legislature
entirely from 2006 to 2006 to 2010.
There was a Democratic governor at that time.
Then in the 2010 elections Republicans won the governorship in both houses of the legislature
and using maps that were in place at that time and then it was that legislature which
actually enacted the law that we are dealing with here at 44 in 2011.
And so it was not the quote rigged maps or any later maps that were enacted for example
after our Johnson decision that are at issue here.
But that was in fact a series of legislature that was chosen with maps that clearly were
quite competitive and led to both Republicans and Democrats controlling both chambers.
Is that accurate?
Yeah the points well taken your honor and the finish the point I would say those the maps
that others have called rigged I won't endorse that language today have since also been replaced
through the democratic process where the legislature passed maps and the democratic governor
signed them.
But yes for purposes of the congressional districts which we're here to talk about today
the Congress members didn't enact that map.
The people's representatives in the small districts that make up the state legislature
did and that's exactly what the Constitution has envisioned would happen until 1787 and
so to bring us back to what was going on in Johnson.
In Johnson the court was not enacting a new map.
The court was doing what it always does Justice Taylor.
It was remedying a constitutional wrong of mal apportionment and going no further.
And it was a standard that has no it's not embedded in Wisconsin law.
It comes from a federal case which comes from an interpretation of voting rights act.
There's just no I wasn't here when it was done but it seems disconnected.
Your honor if the standard your honor is referring to as the least changes standard that's the
approach the US Supreme Court has taken to redistricting cases always and for purposes
of this congressional redistricting case certainly that standard is allowable under
the elections clause lest this court rest from the legislature.
It's the legislature.
Who was supposed to change the least?
Pardon?
What was supposed to change the least and least change?
For a mal apportionment case I think the way the opinion shook out in Johnson 2 for the
congressional districts makes perfect sense.
We looked at core retention scores.
We moved the fewest number of people to repopulate with people the districts.
Of course other parties in Johnson had differing arguments but your honor back to the first
question whether or not your honor thought that was unworkable to use core retention
a metric that you know legislators use all the time isn't the same as the argument plaintiffs
have brought this court which is they are asking this court to hold it's not just unworkable.
It's unconstitutional to defer to the legislature when remedying a mal apportionment claim.
And I can think of a rule no better suited for an elections clause problem than to say
in a mal apportionment case it's the courts and not the legislature that must decide what
the political balance should be in districts.
That is a really I think disingenuous reading of more right that's not what Moore said.
Moore said that certainly state courts can utilize traditional principles of judicial
review in reviewing the actions of their legislature.
What we're not supposed to do is go outside the bounds of judicial review it's not our
pot we do not make policy here we're not we don't consider that we consider the constitution
and the text of our constitution and whether there's a constitutional harm.
And that was very clearly stated in Moore in rucho itself the majority looks to state
courts to address some of these issues of gerrymandered districts.
So there's nothing unusual or strange about this court examining whether an act of the
legislature causes a constitutional harm it's what we do every day it's our function.
Well the elections clause point I was about how it would be a highly unusual to hold that
this court is prohibited from using the last enacted maps as a starting point from using
a lease changes approach because that's what the Supreme Court did in white 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 and so that remedial approach would
be highly unusual because the court isn't enacting a new map it's remedying mal apportionment
in a lease changes way surely that's allowable under the elections clause 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 or that partisan gerrymandering is
a cognizable claim under the Wisconsin Constitution 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 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
one okay I want to take you back to this already rejected in Johnson one Johnson one
did not have the claim of extreme partisan gerrymandering in front of us what was in
front of us was a map creating a map and the question that was asked is should this court
in doing so consider partisanship that is very different question partisanship no one
here is saying or thinking that you the partisanship doesn't come into play when we're make when
the legislature makes maps of course it does 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 and and that
claim can be the claim they're making the claim of that that can be found in our Constitution
those important rights to democracy and the democracy principle that set forth in their
briefs so when you sit here and say well we already decided in Johnson one I was there
and we didn't decide it and they may have it may have been an opinion that the majority
wrote and oftentimes things are in our opinions that aren't squarely in front of the court
we give that what weight we give it but it was not an issue that has ever been brought
to our court aside from as was pointed out we did not take a vehicle of an original action
petition this case was filed in the circuit court just like every other case starts out
in the circuit court and usually in our district 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 a couple of paragraphs
about an issue that was not squarely in front of the court yes turn or sort of take one
of your last points first and then to address the heart of what was an issue at Johnson
one the fact that this case started in circuit court I actually think irrespective of a debate
on partisan fairness is the easiest grounds to say while we might reconsider it or while
we might consider it in another case we can't consider it in this case because this injunction
exists by virtue of an exercise of our original jurisdiction and now a circuit court has been
asked to put that injunction on trial and that turns upside down this the judicial
are they being asked to issue a declaratory judgment and don't courts issue declaratory
judgments all the time well initially no you're honored the complaints very clear they wanted
the circuit court to enjoin this court's injunction 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 as for the declaratory
judgment the same fundamental problem still persists fear like academically that sure sounds
like an advisory proceeding because there's nothing that the court could do alongside the
declaratory judgment to enjoin this court's injunction but so I know you 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 taste chase their tails around indefinitely I mean they they have come at this several
different ways to be to be fair they have asked for let's see reconsideration they filed a motion
for relief from the judgment they filed an original action and then they filed the complaint
and circuit court I may have left out something actually like I did I feel like it wouldn't matter
which way they came at this you would say no that's not good enough and they have tried they have
come at it like at least three or four different ways your honor I disagree I think they come they
came at it with a motion for reconsideration or a motion for relief from judgment and I don't
think there's any dispute that that's actually the most typical way for this court to address
its pending or its final injunctions was to reopen Johnson itself then they came at it just like
the Clark petitioners and asked this court to revisit its original jurisdiction injunction with
another original jurisdiction action and and and that this court denied those requests doesn't
mean that then we can invert the hierarchy of the judicial branch in this state and allow a circuit
court to put your injunction on trial but it goes back to a justice I'm not seeing it it's it's a
declaratory judgment well sure they would be declaring that this court acted unconstitutionally in 2022
in Johnson too I I can find no authority and plaintiffs have pointed to no authority of any court any
circuit court in this state having ever done so how about a certain trial court that declares
something our court did did was unconstitutional in the criminal setting 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
and we later learned that the council was ineffective and all of a sudden there's an issue in in front
of the court I mean there's all there's a myriad of ways in which cases that we have found to be
constitutional or that we have ruled on then are potentially later found otherwise I mean what
you're basically saying is that once we decide something no one else can ever review it including
us no you're honored this court can and while I don't want to devolve into a discussion of habeas
what the what a habeas case is asking is actually for a separate writ they are not even talking
habeas I'm just talking about ineffective assistance the council in our state I think I
I could probably find cases where that's happened where this court has said that something was
constitutional and it later turns out that actually it wasn't right 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 it's granting a writ of habeas corpus for purposes of this case your honor of
course this court could exercise its original jurisdiction again if it wanted to just as it
did in Clark so long as that original action was pursuant to the usual norms of judicial procedure
so council let me just pick up on that point 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 and determine
whether the illegal standard for that claim is met and to find a constitutional violation
I'm just not following you in determining why it is that this this three-judge panel
does not have a jurisdiction or the authority to hold such a trial and draw such a conclusion
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 can you answer that please yes your honor so first on the on the most
fundamental procedural procedural point I'm not aware of a circuit court putting on trial a final
injunction of this court in another case right the circuit court would have to read it's not
putting an injunction on trial 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 an issue that this court did not
consider because it had no evidence at that point of partisan gerrymandering why 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 well the the maps just to be
very clear are in a fine they exist by they were adopted by this final judgment they were adopted
by this court without consideration for whether the maps were created with the partisan gerrymander
sure so to answer that question directly and justice dalot i apologize the heart of your
question directly i too was here in johnson and and the parties were asked because some parties had
raised whether the wisconsin constitution requires districts to be politically fair and the parties
submitted as i mentioned over a hundred pages of briefing on that question and there are more
than three dozen um paragraphs of legal analysis in the johnson one opinion about why we cannot
find anywhere in the wisconsin constitution a right to political fairness 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 and you don't see any any sunlight
between a right to political fairness and a claim that that something is so unfair it is
violated of our constitution political fairness sounds to me like you know what if you got a
republican in charge they might draw the maps more a little more republican a democrat the same thing
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 which is extreme partisan gerrymandering which is what we're being asked
about not political fairness well your honor again having litigated these cases the difference
between the two is not clear and that is why you see states like florida saying we're just not
considering it at all it's either considered it's there's either politics in the map or there's not
but there's no way there's no way to assess in a judicially manageable way whether there's
just enough politics but not too much 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 it's like what
you're asking us to do is to stick our hat in the sand and not your honor because it's not your
honor it feels that way i am not your honor but i i sure i want i want to be emphatic about this
this is the adversarial system and plaintiffs have to come to this court with arguments and history
justice ballot just as you remarked in your concurrence in the mcmc case that maybe just 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 but it's not there in these
briefs and as much as it pains me to say it i would urge the court to compare these briefs to the
briefs and clark and the arguments that led this court and clark that were historically rooted
they grappled with old precedents that weren't about mortgages or farmland but about districts
themselves and what continuity meant it helped that the words contiguity were there well your
honor i was never going to be there i can't i can't concede that my contiguity argument is not
one i still think about every day and i do think that but boy was not a well fought fight your
honor and and it was there it was there and that is an express requirement in the constitution
that this constitution isn't about
constitution isn't about express requirements right the constitution is written broadly
what you're talking about a document that came right after that in 1848 right and and it and it
and it set broad principles that justice taylor has been talking about so it's it's not we don't
look for every single it's it's not this isn't connecting the dots like can we find the word
here and then it means something and if we don't find the exact word here the principle must not
exist i think the legal scholars lay this out really well in their amicus brief i think justice
pennielated out really well in his concurrence and cunning him which is that there are broad
principles throughout the wisconsin constitution and not all of those principles allows this court
to subject legislative action to strict scrutiny um in the mcgrail case about the ballots the
legislative action was okay because it was reasonable even though it affected the right to vote
and if we go back to 1848 the messy work of whether the what the district should look like
was done by the political branches and the delegates and then later the people's representatives
and so there's just no similar history that was it as was that issue in clark to allow this court
or to to invite this court to step into that political thicket now i mean deciding what is fair
whether it's extremely unfair or fair has plagued the federal courts for so long until we get to
rucho and it's likewise plagued the state courts absent some bright light will show us something
the fact that these issues have been raised repeatedly and that courts have struggled with
them repeatedly doesn't that in some sense show that there is a problem there is a problem that
is infecting you know our political landscape not just in wisconsin but probably across the country
voters struggle with that i think any you could pick just about anybody off the street in wisconsin
and ask them do you think a legislator legislators should be able to draw a map in a way that
locks in a particular political party they would say no doesn't it show us that there is some
underlying problem there the fact that courts have struggled with this for decades now i i think
two things are true at once the that they're there some voters could think there is a problem
and that courts have struggled with it so much means that the that it's not the courts problem
to solve and instead it's been congress's problem to solve for example in the 1840s when congress
required single member congressional districts as a bulwark to gerrymandering it's a problem for
voters to solve with fair districts amendments it's a problem for congress potentially to solve
now later on it's congress is constantly asked by the way to pass legislation to eliminate partisan
gerrymandering congress passed and it's a hard thing to accomplish when you have a gerrymandered
body but let me just turn to another point i want to return to a point you made a few minutes ago
about distinguishing our case from other courts that have found a justiciable claim for partisan
gerrymandering such as new mexico and it seemed to me you were leaning pretty heavily into the fact
that the new mexico constitution just as one example has a explicit clause protecting free
and equal elections i know i think the new mexico case rests on their equal protection clause and
there it was a different state that you had sovania in north carolina okay thank you
in any event point i wanted to raise is is it your belief that because the wisconsin constitution
lacks an explicit clause protecting fair and equal elections that therefore the wisconsin
constitution has no protection for fair and equal elections no your honor that's not our position
because clearly constitutions are generally composed of broad principles and this constitution in
wisconsin is replete with phrases that point to the importance of popular sovereignty the consent
of the governed correct correct so how is that different in substance than another state constitution
that includes a clause such as fair and equal elections aren't those protections inherent
in the clauses that protect popular sovereignty in wisconsin i well as i mentioned before there
is a unique history to a free and equal elections clause and what those were the the evils that
were perpetuated before america that those were meant to guard against specific to voting in elections
but in wisconsin just as everywhere else for these federal congressional districts
there is an absolute equality requirement at this point you know this court was asked to
to entertain an original action last year because the congressional districts deviated by one
additional person and as this court said in cunning him that that that promise of equality
of an equally weighted vote that is how people effectuate their right to vote that is how votes
are not diluted and of course wisconsin protects that and also through our separation of powers
wisconsin protects the right to vote the founders assigned congressional redistricting power to
the legislature and keeping with the people's representatives who are closest to them the
legislature now in these territorial districts can carry out the will of the people
now as for port struggling with this justice crofford i think it's very telling that even
coming here today council equivocated about what their test would be and if council can't identify
what their test would be to me that's proof positive that there is no judicially manageable
standard hiding i would i would i would agree with you it's frustrating that they have an
articulated a test and i certainly wish they would have that being said um let's talk about workability
going forward in the event that we find um both of the claims both the partisan and anti-competitive
gerrymandering cognizable what are your thoughts about consolidating the gerrymandering claims
and having just one trial um again it's inconceivable to me that there could be a trial in this posture
but but to take your question you know assuming all of that of course i think the cases would need
to be consolidated um i've participated other councils can participated in for example the
alabama congressional redistricting case those were consolidated at the trial court for purposes
of trial proceedings um and again i can't really conceive of how you have a new injunction in joining
this courts injunction but of course you only want to do that one time versus two times and so they
should proceed together um but i don't want to lose sight of my latches point two we're talking
about a lot of procedure a lot of costs and we are well over halfway into the decennial
and as federal courts and other courts have held or the Illinois Supreme Court just held
sometimes plaintiffs are just too late because congressional districts that the census is about
to come and in the the prejudice here well let me start with the delay i think should is clear
from Brennan plaintiffs waited arguably 15 years to challenge act 44 is unconstitutional
they waited four and a half years since the or they waited three years since the congressional
districts were settled but i do want to point to the prejudice point uh or i do want to
discuss the prejudice point just as pro to say what's because it goes to the trial and everything
will that be costly absolutely but what's also costly and what's recognized in these cases we've
cited on our latches argument is the ensuing cost to the state to the counties and to voters
should this court agree that the congressional districts need to change again maybe it's before
the 2028 elections or the 2030 elections and then of course the congressional districts will change
again in 2032 well can't the congressional maps change anytime how how can your latches argument
a