WEBVTT 00:00.000 --> 00:05.000 Or give me a couple of people to see if that's all I want. 00:30.000 --> 00:34.000 I'll give you a couple of people to see if that's all I want. 00:34.000 --> 00:38.000 I'll give you a couple of people to see if that's all I want. 00:38.000 --> 00:42.000 I'll give you a couple of people to see if that's all I want. 00:42.000 --> 00:46.000 I'll give you a couple of people to see if that's all I want. 00:46.000 --> 00:50.000 I'll give you a couple of people to see if that's all I want. 00:50.000 --> 00:54.000 I'll give you a couple of people to see if that's all I want. 00:54.000 --> 00:58.000 I'll give you a couple of people to see if that's all I want. 00:58.000 --> 01:02.000 I'll give you a couple of people to see if that's all I want. 01:02.000 --> 01:06.000 I'll give you a couple of people to see if that's all I want. 01:06.000 --> 01:10.000 I'll give you a couple of people to see if that's all I want. 01:10.000 --> 01:14.000 I'll give you a couple of people to see if that's all I want. 01:14.000 --> 01:18.000 I'll give you a couple of people to see if that's all I want. 01:18.000 --> 01:22.000 I'll give you a couple of people to see if that's all I want. 01:22.000 --> 01:26.000 I'll give you a couple of people to see if that's all I want. 01:26.000 --> 01:30.000 I'll give you a couple of people to see if that's all I want. 01:30.000 --> 01:34.000 I'll give you a couple of people to see if that's all I want. 01:34.000 --> 01:38.000 I'll give you a couple of people to see if that's all I want. 01:38.000 --> 01:42.000 I'll give you a couple of people to see if that's all I want. 01:42.000 --> 01:46.000 I'll give you a couple of people to see if that's all I want. 01:46.000 --> 01:50.000 I'll give you a couple of people to see if that's all I want. 01:50.000 --> 01:54.000 I'll give you a couple of people to see if that's all I want. 01:54.000 --> 01:58.000 I'll give you a couple of people to see if that's all I want. 01:58.000 --> 02:02.000 I'll give you a couple of people to see if that's all I want. 02:02.000 --> 02:06.000 I'll give you a couple of people to see if that's all I want. 02:06.000 --> 02:10.000 I'll give you a couple of people to see if that's all I want. 02:10.000 --> 02:14.000 I'll give you a couple of people to see if that's all I want. 02:14.000 --> 02:18.000 I'll give you a couple of people to see if that's all I want. 02:18.000 --> 02:22.000 I'll give you a couple of people to see if that's all I want. 02:22.000 --> 02:26.000 I'll give you a couple of people to see if that's all I want. 02:26.000 --> 02:30.000 I'll give you a couple of people to see if that's all I want. 02:34.000 --> 02:38.000 I'll give you a couple of people to see if that's all I want. 02:38.000 --> 02:42.000 I'll give you a couple of people to see if that's all I want. 02:42.000 --> 02:46.000 Thank you very much. 03:12.000 --> 03:13.000 Yeah. 03:13.000 --> 03:14.000 Yeah. 03:14.000 --> 03:15.000 Yeah. 03:15.000 --> 03:16.000 Yeah. 03:16.000 --> 03:17.000 Yeah. 03:17.000 --> 03:18.000 Yeah. 03:18.000 --> 03:19.000 Yeah. 03:19.000 --> 03:20.000 Yeah. 03:20.000 --> 03:21.000 Yeah. 03:21.000 --> 03:22.000 Yeah. 03:22.000 --> 03:23.000 Yeah. 03:23.000 --> 03:24.000 Yeah. 03:24.000 --> 03:25.000 Yeah. 03:25.000 --> 03:26.000 Yeah. 03:26.000 --> 03:27.000 Yeah. 03:27.000 --> 03:28.000 Yeah. 03:28.000 --> 03:29.000 Yeah. 03:29.000 --> 03:30.000 Yeah. 03:30.000 --> 03:31.000 Yeah. 03:31.000 --> 03:32.000 Yeah. 03:32.000 --> 03:33.000 Yeah. 03:33.000 --> 03:34.000 Yeah. 03:34.000 --> 03:35.000 Yeah. 03:35.000 --> 03:36.000 Yeah. 03:36.000 --> 03:37.000 Yeah. 03:37.000 --> 03:38.000 Yeah. 03:38.000 --> 03:39.000 Yeah. 03:39.000 --> 03:40.000 Yeah. 03:40.000 --> 03:41.000 Yeah. 03:41.000 --> 03:42.000 Yeah. 03:42.000 --> 03:43.000 Yeah. 03:43.000 --> 03:50.000 Yeah. 03:50.000 --> 03:58.000 Yeah. 03:58.000 --> 04:11.000 Yeah. 04:11.000 --> 04:18.000 They're not going to sell as much as I like. 04:18.000 --> 04:23.000 They're not going to sell as much as I like. 04:23.000 --> 04:28.000 They're not going to sell as much as I like. 04:28.000 --> 04:34.000 They're not going to sell as much as I like. 04:34.000 --> 04:39.000 They're not going to sell as much as I like. 04:39.000 --> 04:43.000 Just mac and cheese pizza, you want to get that? 04:43.000 --> 04:47.000 You're done with cheese for a little while. 04:47.000 --> 04:51.000 Yeah. 04:51.000 --> 04:55.000 Yeah. 04:55.000 --> 05:01.000 I'm going to get some lunch over here. 05:01.000 --> 05:05.000 So nice to sit down. 05:05.000 --> 05:07.000 Which is probably going to be nice. 05:07.000 --> 05:12.000 We're going to be here about as long as we can. 05:12.000 --> 05:17.000 I don't know. 05:17.000 --> 05:20.000 I don't know. 05:20.000 --> 05:23.000 I mean, we don't have a dream, but we're in this kind of system all day. 05:23.000 --> 05:25.000 We're in a lot of profiting. 05:25.000 --> 05:26.000 What do you think? 05:26.000 --> 05:28.000 What if you got some sandwiches for a computer in the office? 05:28.000 --> 05:29.000 Yeah. 05:29.000 --> 05:30.000 Do you guys care what it is? 05:30.000 --> 05:31.000 It's the same thing? 05:31.000 --> 05:34.000 No. 05:34.000 --> 05:37.000 Yeah. 05:38.000 --> 05:47.000 I'm having the opportunity to press the board. 05:47.000 --> 05:51.000 Yeah. 05:51.000 --> 06:06.000 Would you like your stuff in the room? 06:07.000 --> 06:16.000 I think there's a reasonable... 06:16.000 --> 06:20.000 Are you going to say it's going to be a combination of life? 06:20.000 --> 06:23.000 Yeah. 06:23.000 --> 06:25.000 I think I missed this. 06:25.000 --> 06:29.000 Regular. 06:29.000 --> 06:32.000 No one's going to know or care. 06:32.000 --> 06:34.000 It's not your case. 06:34.000 --> 06:36.000 You don't have to be through hell. 06:36.000 --> 06:37.000 Right. 06:37.000 --> 06:38.000 You're an audience. 06:38.000 --> 06:39.000 You're a spectator. 06:39.000 --> 06:43.000 You're a spectator. 06:43.000 --> 06:48.000 What do you mean it's true? 06:48.000 --> 06:53.000 It'll be probably a good tweet case. 06:53.000 --> 06:57.000 Which means it's going to be like, let's say, let's break it down. 06:57.000 --> 07:00.000 I think I'll be done by this. 07:00.000 --> 07:10.000 I think I'll be done by this. 07:10.000 --> 07:15.000 I think I'll be done by this. 07:15.000 --> 07:20.000 I think I'll be done by this. 07:20.000 --> 07:23.000 I thought you said the entire thing. 07:23.000 --> 07:26.000 90 minutes is about a time between schedule 07:26.000 --> 07:28.000 and when there are your systems. 07:28.000 --> 07:32.000 That's why you were starting by now. 07:32.000 --> 07:33.000 Right. 07:33.000 --> 07:36.000 We still have four. 07:36.000 --> 07:39.000 I think I'll be faster. 07:39.000 --> 07:45.000 I'm going to talk about it. 07:45.000 --> 07:48.000 Almost there. 07:49.000 --> 07:56.000 CHATTER 07:56.000 --> 07:59.000 CHATTER 07:59.000 --> 08:03.000 CHATTER 08:03.000 --> 08:07.000 CHATTER 08:07.000 --> 08:15.000 CHATTER 08:15.000 --> 08:17.000 I would like to thank you very much for being here. 08:17.000 --> 08:18.000 I would like to thank you very much for being here. 08:18.000 --> 08:19.000 I would like to thank you very much for being here. 08:19.000 --> 08:20.000 I would like to thank you very much for being here. 08:20.000 --> 08:21.000 I would like to thank you very much for being here. 08:21.000 --> 08:22.000 I would like to thank you very much for being here. 08:22.000 --> 08:23.000 I would like to thank you very much for being here. 08:23.000 --> 08:24.000 I would like to thank you very much for being here. 08:24.000 --> 08:25.000 I would like to thank you very much for being here. 08:25.000 --> 08:26.000 I would like to thank you very much for being here. 08:26.000 --> 08:27.000 I would like to thank you very much for being here. 08:27.000 --> 08:28.000 I would like to thank you very much for being here. 08:28.000 --> 08:29.000 I would like to thank you very much for being here. 08:29.000 --> 08:30.000 I would like to thank you very much for being here. 08:30.000 --> 08:31.000 I would like to thank you very much for being here. 08:31.000 --> 08:32.000 I would like to thank you very much for being here. 08:45.000 --> 08:47.000 I would like to thank you very much for being here. 08:47.000 --> 08:48.000 I would like to thank you very much for being here. 08:48.000 --> 08:49.000 I would like to thank you very much for being here. 08:49.000 --> 08:50.000 I would like to thank you very much for being here. 08:50.000 --> 08:51.000 I would like to thank you very much for being here. 08:51.000 --> 08:52.000 I would like to thank you very much for being here. 08:52.000 --> 08:53.000 I would like to thank you very much for being here. 08:53.000 --> 08:54.000 I would like to thank you very much for being here. 08:54.000 --> 08:55.000 I would like to thank you very much for being here. 08:55.000 --> 08:56.000 I would like to thank you very much for being here. 08:56.000 --> 08:57.000 I would like to thank you very much for being here. 08:57.000 --> 08:58.000 I would like to thank you very much for being here. 08:58.000 --> 08:59.000 I would like to thank you very much for being here. 08:59.000 --> 09:00.000 I would like to thank you very much for being here. 09:00.000 --> 09:01.000 I would like to thank you very much for being here. 09:01.000 --> 09:02.000 I would like to thank you very much for being here. 09:15.000 --> 09:16.000 I would like to thank you very much for being here. 09:16.000 --> 09:17.000 I would like to thank you very much for being here. 09:17.000 --> 09:18.000 I would like to thank you very much for being here. 09:18.000 --> 09:19.000 I would like to thank you very much for being here. 09:19.000 --> 09:20.000 I would like to thank you very much for being here. 09:20.000 --> 09:21.000 I would like to thank you very much for being here. 09:21.000 --> 09:22.000 I would like to thank you very much for being here. 09:22.000 --> 09:23.000 I would like to thank you very much for being here. 09:23.000 --> 09:24.000 I would like to thank you very much for being here. 09:24.000 --> 09:25.000 I would like to thank you very much for being here. 09:25.000 --> 09:26.000 I would like to thank you very much for being here. 09:26.000 --> 09:27.000 I would like to thank you very much for being here. 09:27.000 --> 09:28.000 I would like to thank you very much for being here. 09:28.000 --> 09:29.000 I would like to thank you very much for being here. 09:29.000 --> 09:30.000 I would like to thank you very much for being here. 09:30.000 --> 09:31.000 I would like to thank you very much for being here. 09:45.000 --> 09:47.000 I would like to thank you very much for being here. 09:47.000 --> 09:48.000 I would like to thank you very much for being here. 09:48.000 --> 09:49.000 I would like to thank you very much for being here. 09:49.000 --> 09:50.000 I would like to thank you very much for being here. 09:50.000 --> 09:51.000 I would like to thank you very much for being here. 09:51.000 --> 09:52.000 I would like to thank you very much for being here. 09:52.000 --> 09:53.000 I would like to thank you very much for being here. 09:53.000 --> 09:54.000 I would like to thank you very much for being here. 09:54.000 --> 09:55.000 I would like to thank you very much for being here. 09:55.000 --> 09:56.000 I would like to thank you very much for being here. 09:56.000 --> 09:57.000 I would like to thank you very much for being here. 09:57.000 --> 09:58.000 I would like to thank you very much for being here. 09:58.000 --> 09:59.000 I would like to thank you very much for being here. 09:59.000 --> 10:00.000 I would like to thank you very much for being here. 10:00.000 --> 10:01.000 I would like to thank you very much for being here. 10:01.000 --> 10:02.000 I would like to thank you very much for being here. 10:15.000 --> 10:44.000 Everybody welcome back. 10:44.000 --> 10:53.500 At long last year, if you can ask you something as you're taking the podium, sometimes when 10:53.500 --> 10:57.860 people are splitting up arguments, they're each taking an issue, you were going to start 10:57.860 --> 10:59.220 with that, weren't you? 10:59.220 --> 11:00.220 You weren't going to. 11:00.220 --> 11:05.120 Okay, are you each going to take an issue or not, just so that we can save some questions 11:05.120 --> 11:06.120 for Mr. Seith? 11:06.120 --> 11:08.940 No, you're in our group. 11:08.940 --> 11:11.140 All three of us are ready for all your questions. 11:11.140 --> 11:13.940 You will let the argument unfold, however it's most helpful. 11:13.940 --> 11:14.940 Oh, cool. 11:14.940 --> 11:15.940 Okay, that's great. 11:15.940 --> 11:20.900 Then we are ready whenever you are. 11:20.900 --> 11:21.900 Good morning. 11:21.900 --> 11:25.860 May I please the court tailor me in on behalf of the Wisconsin legislature? 11:25.860 --> 11:32.360 Four and a half years ago, this court adopted the governor's proposed remedy for the then 11:32.360 --> 11:35.620 malapportioned congressional districts. 11:35.620 --> 11:41.740 The court held unequivocally that that remedy complied with all applicable state and federal 11:41.740 --> 11:43.740 laws. 11:43.740 --> 11:50.060 Nothing has changed since then that could warrant reentering the political thicket of congressional 11:50.060 --> 11:57.220 redistricting and putting this court's injunction on trial in a circuit court. 11:57.220 --> 12:02.760 This court can affirm the dismissal of plaintiffs complaint on these simple grounds without 12:02.800 --> 12:08.640 reaching the merits, which is that the circuit court was exactly right that it could not 12:08.640 --> 12:14.320 unwind this court's final judgment in Johnson too. 12:14.320 --> 12:19.800 Likewise this court could affirm simply by holding plaintiffs waited too long to bring 12:19.800 --> 12:27.160 this suit in circuit court just as the Illinois Supreme Court held last year for the districting 12:27.160 --> 12:30.640 challenge in Illinois. 12:30.640 --> 12:36.880 Where would there be any reason for this court, for the circuit court, to unwind the 12:36.880 --> 12:39.640 Johnson too injunction? 12:39.640 --> 12:45.960 As to plaintiff's separation of powers arguments, the circuit court was exactly right that plaintiffs 12:45.960 --> 12:51.960 arguments rewrite this court's words in Clark to say something that this court did not say. 12:51.960 --> 12:57.080 The court needs no more authority than Clark itself to know that at least changes remedy 12:57.080 --> 13:02.080 is not categorically unconstitutional. 13:02.080 --> 13:03.080 That's cool. 13:03.080 --> 13:07.080 I want to go back to Clark, which I haven't set up to this point, but I'll say now it's 13:07.080 --> 13:09.080 a well written opinion. 13:09.080 --> 13:12.080 Indeed, your honor. 13:12.080 --> 13:14.080 Thank you. 13:14.080 --> 13:19.320 I appreciate it fishing for compliments this morning. 13:19.320 --> 13:24.280 It was really clear in 63 that these changes are unworkable in practice. 13:24.280 --> 13:27.920 It went through the whole analysis about it being unworkable and all the reasons it 13:27.920 --> 13:30.760 was unworkable. 13:30.760 --> 13:39.560 I certainly recall vividly sitting in this courtroom as we talked about the peanuts analogy of 13:39.560 --> 13:47.400 Lucy moving the football away from Charlie Brown because no one who was advocating for 13:47.400 --> 13:51.200 least change in this courtroom could agree to what it meant. 13:51.200 --> 13:55.040 It was at least change as far as the number of people, the population, and the district 13:55.040 --> 14:03.720 was at least change as to the lines where we were trying to least change as to municipalities. 14:03.720 --> 14:12.120 It didn't work and there was nothing in the Constitution as Justice Taylor brought out 14:12.120 --> 14:13.120 a little while ago. 14:13.120 --> 14:14.960 There was nothing in Wisconsin law. 14:14.960 --> 14:22.680 There was nothing in the Wisconsin Constitution that brought it forward that could be relied 14:22.680 --> 14:24.640 on to be the basis for it. 14:24.640 --> 14:30.640 In paragraph 63 of Clark just says, as illustrated across the course of the Johnson litigation, 14:30.640 --> 14:32.360 least change is unworkable in practice. 14:32.360 --> 14:38.120 As such, we overrule any portion of Johnson 1, Johnson 2 and Johnson 3 that mandate at 14:38.120 --> 14:39.640 least change approach. 14:39.640 --> 14:47.720 I would like to know, what else could a judge or justice possibly write in an opinion to 14:47.720 --> 14:52.080 say, we are overturning this. 14:52.080 --> 14:54.520 This does not apply going forward. 14:54.520 --> 14:55.800 This was wrong. 14:55.800 --> 14:58.280 It was unworkable in practice. 14:58.280 --> 15:02.040 I don't know how much more clearer I could have done it, but apparently there's something 15:02.040 --> 15:04.920 else I should have done. 15:04.920 --> 15:06.600 What do you suggest that was? 15:06.600 --> 15:10.440 Chief Justice Crossview took the words right out of my mouth, which is that we're not going 15:10.440 --> 15:13.000 to apply this going forward. 15:13.000 --> 15:19.880 But the court's discussion about how least changes is unworkable is not synonymous with 15:19.880 --> 15:26.240 a holding that least changes what's unconstitutional when applied in Johnson 2. 15:26.240 --> 15:31.000 And as for Justice Taylor's question about where this least changes approach comes from, 15:31.000 --> 15:34.400 I think some table setting is really important here. 15:34.400 --> 15:39.400 You receive Justice Taylor an answer about Clark and the state constitution. 15:39.400 --> 15:41.760 Clark involved the state house districts. 15:41.760 --> 15:44.600 Of course, we are here about the congressional districts. 15:44.600 --> 15:49.120 And so to the question of where a least changes approach might come from, I would point the 15:49.120 --> 15:54.080 court to the federal constitution here in this case, which assigns power to the legislature 15:54.080 --> 15:56.920 for redistricting, not courts. 15:56.920 --> 16:03.240 And when the last enacted plan by the legislature is Act 44, of course, the elections clause 16:03.240 --> 16:04.240 could anticipate this. 16:04.240 --> 16:11.640 But we said, I'm sorry to interrupt you, but we said that those maps, because they did 16:11.640 --> 16:17.320 not, the population had shifted, obviously, in the ten years, those maps could no longer 16:17.320 --> 16:23.320 be violated, they violated federal law, they violated the constitution. 16:23.320 --> 16:25.320 Those maps were no longer in effect, they couldn't be. 16:25.320 --> 16:30.840 Well, Your Honor, I think that mistakes the nature of the judicial power, which is when 16:30.880 --> 16:39.160 the court examined Act 44 and held Act 44 was unconstitutionally malapportioned, the court 16:39.160 --> 16:44.840 was not striking down the law or erasing it from the Wisconsin statutes. 16:44.840 --> 16:49.840 The court was remedying the malapportionment of those districts. 16:49.840 --> 16:55.920 Those districts are still the law on the books today with the additional layer of this court's 16:55.920 --> 17:00.920 injunction remedying the malapportionment of those districts at the margin. 17:00.920 --> 17:06.600 And as for the deference to the legislature and whether that could possibly work a constitutional 17:06.600 --> 17:11.840 violation in a congressional redistricting case, any such rule would come as an enormous 17:11.840 --> 17:17.200 surprise, I would think, to the U.S. Supreme Court, which states have done, state courts 17:17.200 --> 17:23.760 have looked at the issue of judicial ability, we have ten courts now that have come up with 17:23.760 --> 17:29.680 a standard, none of those Supreme Court decisions have been overturned, they've not 17:29.680 --> 17:33.880 been accepted on cert, they have not been accepted on a stay. 17:33.880 --> 17:42.360 So we see state courts coming up with standards to measure whether votes have been improperly 17:42.360 --> 17:46.080 and unconstitutionally and substantially deluded. 17:46.080 --> 17:52.600 How do we not have that same ability like these other state courts, state Supreme Court's 17:53.040 --> 17:57.400 and your honor, I do have arguments in response to the partisan gerrymandering claim and other 17:57.400 --> 18:01.800 states have done it, but I would like to finish my point on justice for Obscuse, the least 18:01.800 --> 18:06.920 changes approach and the very separate claim that plaintiffs have said they've brought here. 18:06.920 --> 18:11.320 And as for what state courts have done, let me start with the U.S. Supreme Court. 18:11.320 --> 18:16.280 In cases like white against wiser, the U.S. Supreme Court reversed a court for refusing 18:16.280 --> 18:21.680 to defer to the political judgments of the Texas legislature in a malapportionment case. 18:21.680 --> 18:27.480 And then state courts as diverse as courts in Minnesota, Oklahoma, South Carolina, and 18:27.480 --> 18:30.760 New Hampshire have all done exactly what this court did. 18:30.760 --> 18:32.760 Let me ask you some of that. 18:32.760 --> 18:36.640 We are not talking about maps that the legislature put in place. 18:36.640 --> 18:41.360 The legislature put in place maps, the governor vetoed those maps. 18:41.360 --> 18:46.600 You are talking about a legislature from 2011, correct. 18:46.600 --> 18:52.040 And just as courts in New Hampshire, Oklahoma, and all the other states I just listed off 18:52.040 --> 18:57.320 deferred to the same sort of maps, these are impasse cases, malapportionment cases. 18:57.320 --> 19:03.880 And those courts say we are going to defer to the last enacted map because that is the 19:03.880 --> 19:09.360 last enacted map by the people's representatives and our job here is to remedy malapportionment. 19:09.360 --> 19:11.840 It's not to strike a new political balance. 19:11.840 --> 19:14.840 We should talk about the people's representatives, right? 19:14.840 --> 19:18.960 Because if you start with Article 1, Section 1 of our Constitution, which says that the 19:18.960 --> 19:25.160 government derives its power from the consent of the governed, from the people, yes? 19:25.160 --> 19:26.160 Yes. 19:26.160 --> 19:27.160 Yes. 19:27.160 --> 19:28.160 Okay. 19:28.160 --> 19:32.480 And in your view, that means the legislature, not the court, that they should be deciding 19:32.480 --> 19:37.280 this issue of redistricting the 2011 legislature in this case, right? 19:37.280 --> 19:38.280 Yes. 19:38.280 --> 19:39.280 Okay. 19:39.280 --> 19:42.760 Because that legislature, if I'm understanding your argument, was elected by the people. 19:42.760 --> 19:44.840 They're closest to the people. 19:44.840 --> 19:47.200 They can be held accountable by the people. 19:47.200 --> 19:48.200 Yes. 19:48.200 --> 19:49.200 Yes. 19:49.200 --> 19:50.200 Okay. 19:50.200 --> 19:52.680 This is where I have some issues. 19:52.680 --> 20:01.800 The legislature that passed those original maps wasn't any old legislature, right? 20:01.800 --> 20:09.160 The legislature that passed that maps, they came from districts that many people claimed 20:09.160 --> 20:14.520 were the most gerrymandered in the entire country. 20:14.520 --> 20:20.640 They were, as some say, a prime example of representatives choosing their voters rather 20:20.640 --> 20:24.960 than the other way around, rather than voters choosing their representatives. 20:24.960 --> 20:30.520 And because of those maps, many people felt that their votes were diluted, that they weren't 20:30.520 --> 20:32.000 representative of the people. 20:32.000 --> 20:35.280 They said that they felt like those districts lacked in representation. 20:35.280 --> 20:37.120 People felt like those maps weren't fair. 20:37.120 --> 20:41.040 Some people even called those maps rigged. 20:41.040 --> 20:46.920 That the legislators that came from those districts came from rigged maps. 20:46.920 --> 20:52.520 It is that legislature, those representatives from those districts described as extremely 20:52.520 --> 20:56.520 gerrymandered that drafted the maps that we are talking about today. 20:56.520 --> 21:01.800 The maps that got baked in in 2021. 21:01.800 --> 21:05.720 And if I'm understanding your argument that under these change, which you're ardently 21:05.720 --> 21:14.240 defending, those maps, the baked in ones from the 2011 legislature, would go forward into 21:14.240 --> 21:17.160 perpetuity indefinitely. 21:17.160 --> 21:20.280 And I don't understand how that is not unconstitutional. 21:20.280 --> 21:26.720 Well, you're honored whether we agree with it or not, the U.S. Constitution assigns redistricting 21:26.720 --> 21:29.280 authority to the legislature. 21:29.280 --> 21:35.760 Because 250 years ago, when we declared revolution, we said the people decide through their elected 21:35.760 --> 21:37.080 representatives. 21:37.080 --> 21:41.760 And there are two solutions for that, either of which plaintiffs could pursue. 21:41.760 --> 21:46.720 First, they could lobby Congress because, of course, Congress likewise has power under 21:46.720 --> 21:52.880 the elections clause to stop what some have said should not have happened in 2011. 21:52.880 --> 21:59.840 Or like Florida, like New York, like Ohio, plaintiffs could do the hard work of creating 21:59.840 --> 22:05.000 a constitutional amendment and saying any politics in redistricting is forbidden. 22:05.000 --> 22:10.240 Any desire to send Speaker Paul Ryan back to Congress is forbidden. 22:10.240 --> 22:11.240 They have not done that. 22:11.240 --> 22:17.560 And so, yes, as we stand here today, the only neutral way for this court to have proceeded 22:17.560 --> 22:23.880 in a malapportionment case about congressional districts was to just defer to the existing 22:23.880 --> 22:30.160 political and policy choices, like sending senior statesmen, be it Speaker Ryan, or 22:30.160 --> 22:35.120 Representative Obie back to Congress, and lessen until there's a change from Congress 22:35.120 --> 22:39.480 itself or a constitutional change to the Wisconsin Constitution. 22:39.480 --> 22:46.200 And that is regardless of how much constitutional harm is caused to an individual's right to 22:46.200 --> 22:47.200 vote. 22:48.200 --> 22:56.160 Your Honor, as Justice Ziegler explained, every individual in Wisconsin can go to vote 22:56.160 --> 23:01.320 on election day or mail in their ballot and cast an equally weighted vote. 23:01.320 --> 23:03.320 That's been true in Wisconsin, by the way, since- 23:03.320 --> 23:05.160 That's not what gerrymandering allows. 23:05.160 --> 23:14.520 Is it gerrymandering is the legislature determining their voters and assigning, treating a class 23:14.520 --> 23:18.920 of voters as unfavored? 23:18.920 --> 23:27.720 And that can have the impact of deluding in individuals' right to vote. 23:27.720 --> 23:33.960 So they vote, yes, they go and vote, but they're votes meaningless because politicians have 23:33.960 --> 23:36.200 determined who their voters are. 23:36.200 --> 23:44.000 And that would seem to me so contrary to the language of our Constitution, which elevates 23:44.000 --> 23:50.600 the sovereignty of the people, that politicians have no power without the people. 23:50.600 --> 23:56.240 Your Honor, our founders risk their lives so that our representatives who we elect can 23:56.240 --> 23:59.440 represent the people, not a king. 23:59.440 --> 24:04.680 And with all due respect, not courts, because the Wisconsin Constitution provides this court 24:04.680 --> 24:11.280 no judicially manageable standards to decide that loyal Republicans and loyal Democrats 24:11.280 --> 24:13.280 have this super constitutional rights- 24:13.280 --> 24:14.880 The courts have done it. 24:14.880 --> 24:18.160 They have done it, Your Honor, and I'm so glad you asked that question, because there 24:18.160 --> 24:22.520 is no free and fair elections clause in Wisconsin's Constitution. 24:22.520 --> 24:29.200 And there is no Florida Fair District's amendment saying considering incumbents is forbidden. 24:29.200 --> 24:33.680 And even in states that have done it, even in North Carolina with the free and fair elections 24:33.680 --> 24:37.120 clause, I'd urge this court not to take my words for it, go look at the Supreme Court 24:37.120 --> 24:38.560 opinions in that case. 24:38.560 --> 24:43.840 They threw up their hands, Justice Taylor, and they said, we understand this is a political 24:43.840 --> 24:44.840 problem. 24:44.840 --> 24:49.400 And this is hotly debated at kitchen tables and in academic classrooms. 24:49.400 --> 24:53.720 But what we can't do as a court is solve that problem, because even the free and fair 24:53.720 --> 24:56.720 elections clause doesn't give us the tools to do so. 24:56.720 --> 25:03.240 So our Constitution is different in that we, there is a provision that says there is a 25:03.240 --> 25:09.960 remedy for wrongs, Section 9, it says every person is entitled to a certain remedy in 25:09.960 --> 25:18.480 the laws for all injuries or wrongs, which he may receive in his person, proper character, 25:18.480 --> 25:21.200 he ought to obtain justice freely. 25:21.200 --> 25:24.120 So that is unique to our Constitution. 25:24.120 --> 25:33.440 Our task is to interpret our Constitution to evaluate legislation to see if it poses 25:33.440 --> 25:36.640 a constitutional harm to these rights. 25:36.640 --> 25:45.600 So it's just very hard, I think your argument is challenging when I look at the, our own 25:45.600 --> 25:53.640 Constitution and the language of that Constitution and the embodiment of the sovereignty of 25:53.640 --> 25:57.840 people, government has no power without the people. 25:57.840 --> 26:07.720 So if a class of voters, if their vote is being deluded or infringed upon, that seems to me 26:07.720 --> 26:15.560 to violate these principles of the people being sovereign, because we have been elevated 26:15.560 --> 26:22.760 the power politicians above individual's right to choose their government. 26:22.760 --> 26:28.800 Your Honor, the question assumes the answer to the question I thought we were all here 26:28.800 --> 26:36.480 to address today, which is, is there a right to Republican districts or Democratic districts 26:36.480 --> 26:37.480 in the Wisconsin Constitution? 26:37.480 --> 26:42.520 That's not the framing though, it's not, that's not, you're framing it in a certain way that 26:42.520 --> 26:45.120 I think is not how I'm seeing it. 26:45.120 --> 26:52.120 I'm looking at our state Constitution and I am pondering as we do with all legislation 26:52.120 --> 26:55.080 that we review, the concept of judicial review. 26:55.080 --> 26:57.400 Is there a constitutional harm here? 26:57.400 --> 26:59.040 That's what I'm looking at. 26:59.040 --> 27:04.800 I'm not looking at, it's not up to us to imbue our policy choices. 27:04.800 --> 27:07.960 That's very clearly belongs to the legislature. 27:07.960 --> 27:13.760 What I'm looking at is there a constitutional harm here, and I'm sure you agree that the 27:13.760 --> 27:17.480 right to vote is the most precious constitutional right we have. 27:17.960 --> 27:23.160 Wisconsin case law that says that, it is the most precious right. 27:23.160 --> 27:31.600 So isn't that our inquiry, is there a constitutional harm here in infringing or deluding an individual's 27:31.600 --> 27:32.600 right to vote? 27:32.600 --> 27:33.760 That seems to be the question. 27:33.760 --> 27:35.960 Yes, three points, Your Honor. 27:35.960 --> 27:40.760 First, Wisconsin was ahead of the curb in terms of the right to vote in the Cunningham 27:40.760 --> 27:41.760 case. 27:41.760 --> 27:45.480 And in Cunningham, this court did something decades, perhaps a century before the Supreme 27:45.520 --> 27:51.000 Court did in Westbury, which it said that right to vote is so precious that we in Wisconsin 27:51.000 --> 27:56.280 are going to ensure that you have a numerically equally weighted vote back in, I think it 27:56.280 --> 28:02.840 was 1892, and that, and no one here disputes that this court could not adjudicate a claim 28:02.840 --> 28:06.680 of mal apportionment, just as the court did in Johnson. 28:06.680 --> 28:12.360 The second point, beyond that, the right to vote is not a right to get the election outcomes 28:12.360 --> 28:13.360 you want. 28:13.360 --> 28:19.280 The very nature of the political branches is that someone loses and someone wins on election 28:19.280 --> 28:20.280 day. 28:20.280 --> 28:26.080 And when it comes to who decides what those districts look like, the Wisconsin Constitution 28:26.080 --> 28:31.600 gives this court no judicially manageable standard to override what the federal Constitution 28:31.600 --> 28:34.720 says, which is that the legislature does get to decide. 28:34.720 --> 28:40.120 And it was okay in remedying mal apportionment to defer to those legislative choices. 28:40.120 --> 28:44.200 A good case on that is the McGraill case where it certainly involved the right to 28:44.200 --> 28:45.200 vote. 28:45.200 --> 28:49.440 It involved whether you could be identified by party on a ballot, whether someone knew 28:49.440 --> 28:54.440 I was a Republican or a Democrat or the Constitution party or something else, and this court 28:54.440 --> 28:55.440 deferred. 28:55.440 --> 29:02.720 Well, of course, courts do apply substantiality of harm all the time. 29:02.720 --> 29:07.600 We weigh that, whether it be in civil criminal cases. 29:07.600 --> 29:13.800 We are applying those standards and not set out necessarily in the Constitution. 29:13.800 --> 29:19.000 But it seems to me that we're looking at, is there a substantial dilution? 29:19.000 --> 29:21.080 Is there a substantial harm here? 29:21.080 --> 29:24.240 And of course, do that all the time in jurisprudence. 29:24.240 --> 29:31.120 We are always looking at harms and weighing whether there's a substantiality issue. 29:31.120 --> 29:35.680 Your Honor, I suppose that brings me to the third point, which is whether a plaintiff might 29:35.760 --> 29:40.920 be able to establish there is a cognizable harm in some case. 29:40.920 --> 29:46.400 Later on, this court could leave unresolved whether it wants to overrule Johnson One. 29:46.400 --> 29:52.120 But in this particular case, plaintiffs have not done the hard work to walk back what 29:52.120 --> 29:57.680 were more than three dozen paragraphs in addition to Justice Hagedorn's concurrence explaining 29:57.680 --> 30:04.880 that the Constitution, as it sits today and as it sat then, does not give the court the 30:04.880 --> 30:08.200 tools to adjudicate those kinds of thorny claims. 30:08.200 --> 30:09.200 So that's what you're looking at. 30:09.200 --> 30:11.120 Why do we have a remedy for every wrong? 30:11.120 --> 30:17.680 Every person is entitled to a certain remedy because of the laws for all injuries. 30:17.680 --> 30:22.760 Because your Honor, plaintiffs have not identified what the constitutional wrong is at this time. 30:22.760 --> 30:25.680 Vote dilution is not a constitutional wrong. 30:25.680 --> 30:31.440 When our Constitution explicitly says it is the people who choose their government, the 30:31.440 --> 30:35.720 only mechanism by which they do that is the right to vote. 30:35.720 --> 30:39.200 And no one disputes that the districts are equally apportioned, they can cast an equally 30:39.200 --> 30:40.200 weighted vote. 30:40.200 --> 30:44.320 So it does not matter the extent of a partisan gerrymandering. 30:44.320 --> 30:51.200 It does not matter the extent of the harm that is caused by a certain disfavored group. 30:51.200 --> 30:56.760 It sounds to me like you're saying an extreme gerrymandering, an extreme partisan gerry 30:56.800 --> 30:59.280 mander is constitutional. 30:59.280 --> 31:01.720 Your Honor, understanding that is your argument? 31:01.720 --> 31:06.240 Your Honor, I'm not sure at this point in time how to define an extreme partisan gerry 31:06.240 --> 31:10.880 mander versus a sort of partisan gerrymander versus we wanted to send Speaker Ryan back 31:10.880 --> 31:12.080 to Congress. 31:12.080 --> 31:17.400 Would you say five percent, double digits, ten percent, fifteen percent? 31:17.400 --> 31:22.560 I think we certainly have districts across the state that hit those numbers. 31:22.560 --> 31:28.400 We do, Your Honor, and I can't tell you that district two, for example, here where 31:28.400 --> 31:31.720 we stand today is an extreme partisan gerrymander. 31:31.720 --> 31:36.280 The representative there, one by 70 to 30 percent vote in 2024. 31:36.280 --> 31:43.160 There's every reason to think he did so because Democrats are densely populated in the Madison 31:43.160 --> 31:44.160 area. 31:44.160 --> 31:46.240 Right, there could become cackness, for sure. 31:46.240 --> 31:49.800 But you look at some of the other districts and the way they're drawn. 31:49.800 --> 31:54.280 What I'm almost hearing you say is that there's not a constitutional claim for extreme 31:54.280 --> 31:57.720 partisan gerrymandering under the Wisconsin Constitution. 31:57.720 --> 32:01.880 If that's what it boils down to, tell us. 32:01.880 --> 32:07.520 Your Honor, right now the Wisconsin Constitution does not define with any level of judicial 32:07.520 --> 32:13.440 certainty what an extreme partisan gerrymander would be and in states that have been displeased 32:13.440 --> 32:18.600 with that constitutional reality that they have amended their constitutions with clear 32:18.600 --> 32:20.920 rules that courts can apply. 32:20.920 --> 32:26.640 The Utah case, the New York case, the Florida case that plaintiffs have brought to you all 32:26.640 --> 32:33.800 involve either reticulated statutes or constitutional amendments saying we, we extirpate politics 32:33.800 --> 32:34.800 from redistricting. 32:34.800 --> 32:43.960 Oh, counsel, counsel, your opposing counsel, has urged us to adopt New Mexico and Pennsylvania's 32:43.960 --> 32:44.960 cases. 32:45.960 --> 32:50.360 It took the opportunity on break to take a look at their constitutional provisions. 32:50.360 --> 32:56.720 You mentioned earlier that Wisconsin does not have a free and equal elections clause, 32:56.720 --> 33:02.960 but the courts in those cases did point to and reference and the New Mexico and Pennsylvania 33:02.960 --> 33:09.040 constitutions do specifically have free and equal elections clause. 33:09.040 --> 33:14.600 Do you think that has any impact on whether we should follow Pennsylvania and New Mexico? 33:14.600 --> 33:18.720 I do and I think, I can't remember if it's the Pennsylvania decision or the first North 33:18.720 --> 33:22.280 Carolina decision that explores the history of that clause. 33:22.280 --> 33:26.360 It's extremely interesting there in other state constitutions they are very specific 33:26.360 --> 33:29.360 to elections and your ability to go cast a vote. 33:29.360 --> 33:34.640 And so there was far more history in those cases to connect to that constitutional text 33:34.640 --> 33:41.560 admittedly broad with a right to have fairer districts, however one expert might define 33:41.560 --> 33:43.200 fairer districts. 33:43.200 --> 33:47.240 Here the history points in entirely the opposite direction. 33:47.240 --> 33:49.520 There's precious little of it in the briefs here. 33:49.520 --> 33:54.200 There were more than 100 pages about it in Johnson and the history boils down to it. 33:54.200 --> 33:57.280 This state's constitutional convention in 1848. 33:57.280 --> 34:01.760 There was a lot of talk about gerrymandering and there was a lot of discussion about whether 34:01.760 --> 34:07.480 the way Wisconsin's first congressional districts had been drawn was fair to have a very compact 34:07.480 --> 34:11.960 district in the southeast of the state and the sprawling district capturing 20 counties 34:11.960 --> 34:13.520 in the rest of the state. 34:13.520 --> 34:18.120 And the solution to that then answers the question before this court now. 34:18.120 --> 34:22.920 The solution was the people voted through their delegates at the convention and then 34:22.920 --> 34:29.640 through ratifying the constitution and that's been the unchanged history for over 100 years 34:29.640 --> 34:34.480 in this state until 2011 when parties started bringing partisan gerrymandering claims. 34:34.560 --> 34:43.040 So I wanted to just follow up with the Chief Justice's question about the 2011 maps. 34:43.040 --> 34:52.040 My recollection of the history here is that I think Democrats controlled the legislature 34:52.040 --> 34:55.720 entirely from 2006 to 2006 to 2010. 34:55.720 --> 34:58.880 There was a Democratic governor at that time. 34:58.880 --> 35:04.200 Then in the 2010 elections Republicans won the governorship in both houses of the legislature 35:04.200 --> 35:11.280 and using maps that were in place at that time and then it was that legislature which 35:11.280 --> 35:18.400 actually enacted the law that we are dealing with here at 44 in 2011. 35:18.400 --> 35:24.600 And so it was not the quote rigged maps or any later maps that were enacted for example 35:24.600 --> 35:28.000 after our Johnson decision that are at issue here. 35:28.000 --> 35:32.600 But that was in fact a series of legislature that was chosen with maps that clearly were 35:32.600 --> 35:36.520 quite competitive and led to both Republicans and Democrats controlling both chambers. 35:36.520 --> 35:37.520 Is that accurate? 35:37.520 --> 35:43.120 Yeah the points well taken your honor and the finish the point I would say those the maps 35:43.120 --> 35:47.720 that others have called rigged I won't endorse that language today have since also been replaced 35:47.720 --> 35:51.560 through the democratic process where the legislature passed maps and the democratic governor 35:51.560 --> 35:52.560 signed them. 35:52.560 --> 35:56.560 But yes for purposes of the congressional districts which we're here to talk about today 35:56.560 --> 35:59.480 the Congress members didn't enact that map. 35:59.480 --> 36:03.560 The people's representatives in the small districts that make up the state legislature 36:03.560 --> 36:08.960 did and that's exactly what the Constitution has envisioned would happen until 1787 and 36:08.960 --> 36:12.520 so to bring us back to what was going on in Johnson. 36:12.520 --> 36:17.120 In Johnson the court was not enacting a new map. 36:17.120 --> 36:19.840 The court was doing what it always does Justice Taylor. 36:19.840 --> 36:26.520 It was remedying a constitutional wrong of mal apportionment and going no further. 36:26.520 --> 36:33.320 And it was a standard that has no it's not embedded in Wisconsin law. 36:33.320 --> 36:39.560 It comes from a federal case which comes from an interpretation of voting rights act. 36:39.560 --> 36:44.320 There's just no I wasn't here when it was done but it seems disconnected. 36:44.320 --> 36:49.120 Your honor if the standard your honor is referring to as the least changes standard that's the 36:49.120 --> 36:54.600 approach the US Supreme Court has taken to redistricting cases always and for purposes 36:54.600 --> 36:59.720 of this congressional redistricting case certainly that standard is allowable under 36:59.720 --> 37:04.040 the elections clause lest this court rest from the legislature. 37:04.040 --> 37:05.040 It's the legislature. 37:05.040 --> 37:08.000 Who was supposed to change the least? 37:08.000 --> 37:09.000 Pardon? 37:09.000 --> 37:13.480 What was supposed to change the least and least change? 37:13.480 --> 37:17.960 For a mal apportionment case I think the way the opinion shook out in Johnson 2 for the 37:17.960 --> 37:20.120 congressional districts makes perfect sense. 37:20.120 --> 37:22.040 We looked at core retention scores. 37:22.040 --> 37:27.320 We moved the fewest number of people to repopulate with people the districts. 37:27.320 --> 37:32.200 Of course other parties in Johnson had differing arguments but your honor back to the first 37:32.200 --> 37:38.080 question whether or not your honor thought that was unworkable to use core retention 37:38.080 --> 37:45.120 a metric that you know legislators use all the time isn't the same as the argument plaintiffs 37:45.120 --> 37:51.440 have brought this court which is they are asking this court to hold it's not just unworkable. 37:51.480 --> 37:58.360 It's unconstitutional to defer to the legislature when remedying a mal apportionment claim. 37:58.360 --> 38:04.480 And I can think of a rule no better suited for an elections clause problem than to say 38:04.480 --> 38:09.280 in a mal apportionment case it's the courts and not the legislature that must decide what 38:09.280 --> 38:11.560 the political balance should be in districts. 38:11.560 --> 38:21.160 That is a really I think disingenuous reading of more right that's not what Moore said. 38:21.760 --> 38:30.240 Moore said that certainly state courts can utilize traditional principles of judicial 38:30.240 --> 38:35.080 review in reviewing the actions of their legislature. 38:35.080 --> 38:41.440 What we're not supposed to do is go outside the bounds of judicial review it's not our 38:41.440 --> 38:49.920 pot we do not make policy here we're not we don't consider that we consider the constitution 38:49.920 --> 38:54.640 and the text of our constitution and whether there's a constitutional harm. 38:54.640 --> 39:04.080 And that was very clearly stated in Moore in rucho itself the majority looks to state 39:04.080 --> 39:10.640 courts to address some of these issues of gerrymandered districts. 39:10.640 --> 39:18.000 So there's nothing unusual or strange about this court examining whether an act of the 39:18.000 --> 39:25.440 legislature causes a constitutional harm it's what we do every day it's our function. 39:25.440 --> 39:31.400 Well the elections clause point I was about how it would be a highly unusual to hold that 39:31.400 --> 39:37.640 this court is prohibited from using the last enacted maps as a starting point from using 39:37.640 --> 39:41.760 a lease changes approach because that's what the Supreme Court did in white it's what the 39:41.760 --> 39:45.800 Minnesota Supreme Court did in hip hurt in the Oklahoma case in the South Carolina case 39:45.800 --> 39:51.240 in the New Hampshire case I'm sure there are more and so that remedial approach would 39:51.240 --> 39:57.760 be highly unusual because the court isn't enacting a new map it's remedying mal apportionment 39:57.760 --> 40:04.320 in a lease changes way surely that's allowable under the elections clause now separate and 40:04.320 --> 40:10.960 apart from that as for the partisan gerrymandering claim no court has ever held to a final judgment 40:10.960 --> 40:15.440 that the map is a partisan gerrymandered or that or that partisan gerrymandering is 40:15.440 --> 40:21.600 a cognizable claim under the Wisconsin Constitution and so I do think it puts the cart before 40:21.600 --> 40:26.360 the horse to say plaintiffs have presented a constitutional harm partisan gerrymandering 40:26.360 --> 40:31.080 don't we have to remedy it first we have to ask have plaintiffs done the hard work to 40:31.080 --> 40:38.280 present this court with new text and new history and new reasons not already rejected in Johnson 40:38.280 --> 40:42.840 one okay I want to take you back to this already rejected in Johnson one Johnson one 40:42.840 --> 40:47.520 did not have the claim of extreme partisan gerrymandering in front of us what was in 40:47.520 --> 40:53.960 front of us was a map creating a map and the question that was asked is should this court 40:53.960 --> 41:00.360 in doing so consider partisanship that is very different question partisanship no one 41:00.360 --> 41:06.320 here is saying or thinking that you the partisanship doesn't come into play when we're make when 41:06.360 --> 41:11.920 the legislature makes maps of course it does we're talking about a claim that it has gone 41:11.920 --> 41:20.120 so far that extreme partisanship has gone so far so as to dilute the vote and and that 41:20.120 --> 41:26.560 claim can be the claim they're making the claim of that that can be found in our Constitution 41:26.560 --> 41:31.440 those important rights to democracy and the democracy principle that set forth in their 41:31.440 --> 41:36.720 briefs so when you sit here and say well we already decided in Johnson one I was there 41:36.720 --> 41:41.240 and we didn't decide it and they may have it may have been an opinion that the majority 41:41.240 --> 41:45.920 wrote and oftentimes things are in our opinions that aren't squarely in front of the court 41:45.920 --> 41:50.480 we give that what weight we give it but it was not an issue that has ever been brought 41:50.480 --> 41:55.440 to our court aside from as was pointed out we did not take a vehicle of an original action 41:55.440 --> 42:01.240 petition this case was filed in the circuit court just like every other case starts out 42:01.240 --> 42:07.880 in the circuit court and usually in our district so I want to push back on that and it seems 42:07.880 --> 42:14.200 like you're giving an awful lot of reliance on a couple of statements a couple of paragraphs 42:14.200 --> 42:18.520 about an issue that was not squarely in front of the court yes turn or sort of take one 42:18.520 --> 42:21.920 of your last points first and then to address the heart of what was an issue at Johnson 42:21.960 --> 42:26.560 one the fact that this case started in circuit court I actually think irrespective of a debate 42:26.560 --> 42:32.480 on partisan fairness is the easiest grounds to say while we might reconsider it or while 42:32.480 --> 42:37.800 we might consider it in another case we can't consider it in this case because this injunction 42:37.800 --> 42:43.560 exists by virtue of an exercise of our original jurisdiction and now a circuit court has been 42:43.560 --> 42:49.080 asked to put that injunction on trial and that turns upside down this the judicial 42:49.080 --> 42:54.040 are they being asked to issue a declaratory judgment and don't courts issue declaratory 42:54.040 --> 42:58.920 judgments all the time well initially no you're honored the complaints very clear they wanted 42:58.920 --> 43:03.640 the circuit court to enjoin this court's injunction and it's up to this court to decide whether it 43:03.640 --> 43:08.560 wishes that to continue not just in this case but in all future cases as for the declaratory 43:08.560 --> 43:14.240 judgment the same fundamental problem still persists fear like academically that sure sounds 43:14.240 --> 43:18.520 like an advisory proceeding because there's nothing that the court could do alongside the 43:18.520 --> 43:24.200 declaratory judgment to enjoin this court's injunction but so I know you want to make a 43:24.200 --> 43:30.080 second point but it sort of feels like what you would have your friends on the other side do is 43:30.080 --> 43:36.800 just taste chase their tails around indefinitely I mean they they have come at this several 43:36.800 --> 43:45.760 different ways to be to be fair they have asked for let's see reconsideration they filed a motion 43:45.760 --> 43:53.680 for relief from the judgment they filed an original action and then they filed the complaint 43:53.680 --> 44:03.280 and circuit court I may have left out something actually like I did I feel like it wouldn't matter 44:03.280 --> 44:07.480 which way they came at this you would say no that's not good enough and they have tried they have 44:07.480 --> 44:13.440 come at it like at least three or four different ways your honor I disagree I think they come they 44:13.600 --> 44:19.400 came at it with a motion for reconsideration or a motion for relief from judgment and I don't 44:19.400 --> 44:23.600 think there's any dispute that that's actually the most typical way for this court to address 44:23.600 --> 44:29.600 its pending or its final injunctions was to reopen Johnson itself then they came at it just like 44:29.600 --> 44:35.600 the Clark petitioners and asked this court to revisit its original jurisdiction injunction with 44:35.600 --> 44:42.080 another original jurisdiction action and and and that this court denied those requests doesn't 44:42.080 --> 44:46.640 mean that then we can invert the hierarchy of the judicial branch in this state and allow a circuit 44:46.640 --> 44:55.840 court to put your injunction on trial but it goes back to a justice I'm not seeing it it's it's a 44:55.840 --> 45:02.400 declaratory judgment well sure they would be declaring that this court acted unconstitutionally in 2022 45:02.400 --> 45:09.840 in Johnson too I I can find no authority and plaintiffs have pointed to no authority of any court any 45:09.920 --> 45:14.960 circuit court in this state having ever done so how about a certain trial court that declares 45:14.960 --> 45:22.160 something our court did did was unconstitutional in the criminal setting what if a trial court 45:22.160 --> 45:29.520 said what if there was a violation of the Constitution and we said it didn't occur and it goes back 45:29.520 --> 45:35.200 and we later learned that the council was ineffective and all of a sudden there's an issue in in front 45:35.280 --> 45:40.480 of the court I mean there's all there's a myriad of ways in which cases that we have found to be 45:41.680 --> 45:49.360 constitutional or that we have ruled on then are potentially later found otherwise I mean what 45:49.360 --> 45:53.760 you're basically saying is that once we decide something no one else can ever review it including 45:53.760 --> 45:59.040 us no you're honored this court can and while I don't want to devolve into a discussion of habeas 45:59.040 --> 46:03.920 what the what a habeas case is asking is actually for a separate writ they are not even talking 46:03.920 --> 46:08.240 habeas I'm just talking about ineffective assistance the council in our state I think I 46:08.240 --> 46:11.920 I could probably find cases where that's happened where this court has said that something was 46:11.920 --> 46:17.360 constitutional and it later turns out that actually it wasn't right there's a well trodden collateral 46:17.360 --> 46:21.840 attack often called writs of habeas corpus on final criminal judgments but that's not undoing 46:21.840 --> 46:27.280 the criminal judgment it's granting a writ of habeas corpus for purposes of this case your honor of 46:27.360 --> 46:33.840 course this court could exercise its original jurisdiction again if it wanted to just as it 46:33.840 --> 46:40.240 did in Clark so long as that original action was pursuant to the usual norms of judicial procedure 46:40.240 --> 46:47.440 so council let me just pick up on that point because if we were to find that there's a 46:47.520 --> 46:54.800 justiciable claim here and to remand it to the three-judge panel to take evidence and determine 46:54.800 --> 47:02.880 whether the illegal standard for that claim is met and to find a constitutional violation 47:04.000 --> 47:11.280 I'm just not following you in determining why it is that this this three-judge panel 47:12.080 --> 47:20.400 does not have a jurisdiction or the authority to hold such a trial and draw such a conclusion 47:20.400 --> 47:28.160 on the evidence based on something that was said in Johnson 2 in which such a claim was not squarely 47:28.160 --> 47:34.880 in front of the court can you answer that please yes your honor so first on the on the most 47:34.960 --> 47:41.280 fundamental procedural procedural point I'm not aware of a circuit court putting on trial a final 47:41.280 --> 47:45.680 injunction of this court in another case right the circuit court would have to read it's not 47:45.680 --> 47:51.680 putting an injunction on trial it is looking at the maps that are currently in place and making a 47:51.680 --> 47:59.200 determination about whether there's a partisan gerrymander in those maps an issue that this court did not 47:59.200 --> 48:05.280 consider because it had no evidence at that point of partisan gerrymandering why why are you 48:05.280 --> 48:12.080 saying that the wisconsin law or the wisconsin constitution would prohibit an examination of that 48:12.080 --> 48:20.000 issue now for maps that are going to be used for future elections well the the maps just to be 48:20.000 --> 48:26.080 very clear are in a fine they exist by they were adopted by this final judgment they were adopted 48:26.080 --> 48:33.840 by this court without consideration for whether the maps were created with the partisan gerrymander 48:33.840 --> 48:37.680 sure so to answer that question directly and justice dalot i apologize the heart of your 48:37.680 --> 48:43.680 question directly i too was here in johnson and and the parties were asked because some parties had 48:43.680 --> 48:50.080 raised whether the wisconsin constitution requires districts to be politically fair and the parties 48:50.080 --> 48:54.720 submitted as i mentioned over a hundred pages of briefing on that question and there are more 48:54.720 --> 49:02.560 than three dozen um paragraphs of legal analysis in the johnson one opinion about why we cannot 49:02.560 --> 49:08.400 find anywhere in the wisconsin constitution a right to political fairness and all the questions that 49:08.400 --> 49:13.840 such a right should it proceed in court cases would raise as opposed to should it proceed in the halls 49:13.840 --> 49:19.280 of congress with anti-partisan gerrymandering legislation and you don't see any any sunlight 49:19.360 --> 49:25.520 between a right to political fairness and a claim that that something is so unfair it is 49:25.520 --> 49:30.160 violated of our constitution political fairness sounds to me like you know what if you got a 49:30.160 --> 49:34.720 republican in charge they might draw the maps more a little more republican a democrat the same thing 49:35.440 --> 49:41.680 that is not how can that possibly be the same thing as this is so unfair it rises to a level of a 49:41.680 --> 49:46.160 constitutional harm which is extreme partisan gerrymandering which is what we're being asked 49:46.160 --> 49:51.520 about not political fairness well your honor again having litigated these cases the difference 49:51.520 --> 49:57.440 between the two is not clear and that is why you see states like florida saying we're just not 49:57.440 --> 50:02.400 considering it at all it's either considered it's there's either politics in the map or there's not 50:02.400 --> 50:08.640 but there's no way there's no way to assess in a judicially manageable way whether there's 50:08.640 --> 50:14.560 just enough politics but not too much because what that means is in the eye of the beholder absent 50:14.560 --> 50:19.200 some constitutional direction that this is too much and this is just enough it's like what 50:19.200 --> 50:24.640 you're asking us to do is to stick our hat in the sand and not your honor because it's not your 50:24.640 --> 50:31.040 honor it feels that way i am not your honor but i i sure i want i want to be emphatic about this 50:31.040 --> 50:36.480 this is the adversarial system and plaintiffs have to come to this court with arguments and history 50:36.480 --> 50:42.000 justice ballot just as you remarked in your concurrence in the mcmc case that maybe just maybe there's 50:42.000 --> 50:46.880 some history yet to be discovered out there that shows there's a right to partisan gerrymandering 50:46.880 --> 50:52.480 or shows there's this right living in wisconsin's equal protection clause but it's not there in these 50:52.480 --> 50:58.080 briefs and as much as it pains me to say it i would urge the court to compare these briefs to the 50:58.080 --> 51:04.000 briefs and clark and the arguments that led this court and clark that were historically rooted 51:04.000 --> 51:09.280 they grappled with old precedents that weren't about mortgages or farmland but about districts 51:09.360 --> 51:14.400 themselves and what continuity meant it helped that the words contiguity were there well your 51:14.400 --> 51:21.040 honor i was never going to be there i can't i can't concede that my contiguity argument is not 51:21.040 --> 51:27.440 one i still think about every day and i do think that but boy was not a well fought fight your 51:27.440 --> 51:32.800 honor and and it was there it was there and that is an express requirement in the constitution 51:33.360 --> 51:37.760 that this constitution isn't about 51:37.760 --> 51:43.120 constitution isn't about express requirements right the constitution is written broadly 51:43.120 --> 51:50.400 what you're talking about a document that came right after that in 1848 right and and it and it 51:50.400 --> 51:56.800 and it set broad principles that justice taylor has been talking about so it's it's not we don't 51:56.800 --> 52:01.680 look for every single it's it's not this isn't connecting the dots like can we find the word 52:01.680 --> 52:06.960 here and then it means something and if we don't find the exact word here the principle must not 52:06.960 --> 52:11.760 exist i think the legal scholars lay this out really well in their amicus brief i think justice 52:11.760 --> 52:16.160 pennielated out really well in his concurrence and cunning him which is that there are broad 52:16.160 --> 52:21.040 principles throughout the wisconsin constitution and not all of those principles allows this court 52:21.040 --> 52:26.720 to subject legislative action to strict scrutiny um in the mcgrail case about the ballots the 52:26.720 --> 52:31.600 legislative action was okay because it was reasonable even though it affected the right to vote 52:31.840 --> 52:37.520 and if we go back to 1848 the messy work of whether the what the district should look like 52:37.520 --> 52:42.960 was done by the political branches and the delegates and then later the people's representatives 52:42.960 --> 52:49.360 and so there's just no similar history that was it as was that issue in clark to allow this court 52:49.360 --> 52:56.480 or to to invite this court to step into that political thicket now i mean deciding what is fair 52:56.560 --> 53:02.640 whether it's extremely unfair or fair has plagued the federal courts for so long until we get to 53:02.640 --> 53:08.560 rucho and it's likewise plagued the state courts absent some bright light will show us something 53:08.560 --> 53:14.560 the fact that these issues have been raised repeatedly and that courts have struggled with 53:14.560 --> 53:22.240 them repeatedly doesn't that in some sense show that there is a problem there is a problem that 53:22.240 --> 53:29.440 is infecting you know our political landscape not just in wisconsin but probably across the country 53:29.440 --> 53:36.800 voters struggle with that i think any you could pick just about anybody off the street in wisconsin 53:36.800 --> 53:43.040 and ask them do you think a legislator legislators should be able to draw a map in a way that 53:43.040 --> 53:48.960 locks in a particular political party they would say no doesn't it show us that there is some 53:49.040 --> 53:54.000 underlying problem there the fact that courts have struggled with this for decades now i i think 53:54.000 --> 53:59.360 two things are true at once the that they're there some voters could think there is a problem 53:59.360 --> 54:03.600 and that courts have struggled with it so much means that the that it's not the courts problem 54:03.600 --> 54:09.760 to solve and instead it's been congress's problem to solve for example in the 1840s when congress 54:09.760 --> 54:15.840 required single member congressional districts as a bulwark to gerrymandering it's a problem for 54:15.840 --> 54:21.360 voters to solve with fair districts amendments it's a problem for congress potentially to solve 54:21.360 --> 54:27.840 now later on it's congress is constantly asked by the way to pass legislation to eliminate partisan 54:27.840 --> 54:33.120 gerrymandering congress passed and it's a hard thing to accomplish when you have a gerrymandered 54:33.600 --> 54:38.320 body but let me just turn to another point i want to return to a point you made a few minutes ago 54:38.320 --> 54:46.400 about distinguishing our case from other courts that have found a justiciable claim for partisan 54:46.400 --> 54:52.640 gerrymandering such as new mexico and it seemed to me you were leaning pretty heavily into the fact 54:52.640 --> 54:59.120 that the new mexico constitution just as one example has a explicit clause protecting free 54:59.120 --> 55:05.280 and equal elections i know i think the new mexico case rests on their equal protection clause and 55:05.280 --> 55:09.840 there it was a different state that you had sovania in north carolina okay thank you 55:10.560 --> 55:17.280 in any event point i wanted to raise is is it your belief that because the wisconsin constitution 55:17.280 --> 55:23.760 lacks an explicit clause protecting fair and equal elections that therefore the wisconsin 55:23.760 --> 55:31.520 constitution has no protection for fair and equal elections no your honor that's not our position 55:31.600 --> 55:40.480 because clearly constitutions are generally composed of broad principles and this constitution in 55:40.480 --> 55:49.280 wisconsin is replete with phrases that point to the importance of popular sovereignty the consent 55:49.280 --> 55:58.480 of the governed correct correct so how is that different in substance than another state constitution 55:58.560 --> 56:07.280 that includes a clause such as fair and equal elections aren't those protections inherent 56:07.280 --> 56:15.440 in the clauses that protect popular sovereignty in wisconsin i well as i mentioned before there 56:15.440 --> 56:20.960 is a unique history to a free and equal elections clause and what those were the the evils that 56:20.960 --> 56:26.880 were perpetuated before america that those were meant to guard against specific to voting in elections 56:27.440 --> 56:32.640 but in wisconsin just as everywhere else for these federal congressional districts 56:32.640 --> 56:37.920 there is an absolute equality requirement at this point you know this court was asked to 56:37.920 --> 56:43.040 to entertain an original action last year because the congressional districts deviated by one 56:43.040 --> 56:51.520 additional person and as this court said in cunning him that that that promise of equality 56:51.520 --> 56:58.080 of an equally weighted vote that is how people effectuate their right to vote that is how votes 56:58.080 --> 57:04.800 are not diluted and of course wisconsin protects that and also through our separation of powers 57:04.800 --> 57:10.720 wisconsin protects the right to vote the founders assigned congressional redistricting power to 57:10.720 --> 57:15.440 the legislature and keeping with the people's representatives who are closest to them the 57:15.440 --> 57:20.080 legislature now in these territorial districts can carry out the will of the people 57:21.680 --> 57:28.160 now as for port struggling with this justice crofford i think it's very telling that even 57:28.160 --> 57:34.480 coming here today council equivocated about what their test would be and if council can't identify 57:34.480 --> 57:39.680 what their test would be to me that's proof positive that there is no judicially manageable 57:39.680 --> 57:44.160 standard hiding i would i would i would agree with you it's frustrating that they have an 57:44.160 --> 57:51.040 articulated a test and i certainly wish they would have that being said um let's talk about workability 57:51.040 --> 57:58.480 going forward in the event that we find um both of the claims both the partisan and anti-competitive 57:58.480 --> 58:05.840 gerrymandering cognizable what are your thoughts about consolidating the gerrymandering claims 58:06.400 --> 58:14.320 and having just one trial um again it's inconceivable to me that there could be a trial in this posture 58:14.320 --> 58:19.840 but but to take your question you know assuming all of that of course i think the cases would need 58:19.840 --> 58:24.720 to be consolidated um i've participated other councils can participated in for example the 58:24.720 --> 58:30.000 alabama congressional redistricting case those were consolidated at the trial court for purposes 58:30.000 --> 58:36.720 of trial proceedings um and again i can't really conceive of how you have a new injunction in joining 58:36.720 --> 58:41.920 this courts injunction but of course you only want to do that one time versus two times and so they 58:41.920 --> 58:47.760 should proceed together um but i don't want to lose sight of my latches point two we're talking 58:47.840 --> 58:54.400 about a lot of procedure a lot of costs and we are well over halfway into the decennial 58:54.960 --> 59:00.000 and as federal courts and other courts have held or the Illinois Supreme Court just held 59:00.800 --> 59:05.840 sometimes plaintiffs are just too late because congressional districts that the census is about 59:05.840 --> 59:12.160 to come and in the the prejudice here well let me start with the delay i think should is clear 59:12.160 --> 59:18.160 from Brennan plaintiffs waited arguably 15 years to challenge act 44 is unconstitutional 59:18.160 --> 59:21.680 they waited four and a half years since the or they waited three years since the congressional 59:21.680 --> 59:26.320 districts were settled but i do want to point to the prejudice point uh or i do want to 59:26.320 --> 59:30.160 discuss the prejudice point just as pro to say what's because it goes to the trial and everything 59:30.160 --> 59:35.840 will that be costly absolutely but what's also costly and what's recognized in these cases we've 59:35.840 --> 59:42.480 cited on our latches argument is the ensuing cost to the state to the counties and to voters 59:43.040 --> 59:48.400 should this court agree that the congressional districts need to change again maybe it's before 59:48.400 --> 59:53.520 the 2028 elections or the 2030 elections and then of course the congressional districts will change 59:53.520 --> 59:59.760 again in 2032 well can't the congressional maps change anytime how how can your latches argument 59:59.760 --> 01:00:03.200 a