1
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Or give me a couple of people to see if that's all I want.

2
00:00:30,000 --> 00:00:34,000
I'll give you a couple of people to see if that's all I want.

3
00:00:34,000 --> 00:00:38,000
I'll give you a couple of people to see if that's all I want.

4
00:00:38,000 --> 00:00:42,000
I'll give you a couple of people to see if that's all I want.

5
00:00:42,000 --> 00:00:46,000
I'll give you a couple of people to see if that's all I want.

6
00:00:46,000 --> 00:00:50,000
I'll give you a couple of people to see if that's all I want.

7
00:00:50,000 --> 00:00:54,000
I'll give you a couple of people to see if that's all I want.

8
00:00:54,000 --> 00:00:58,000
I'll give you a couple of people to see if that's all I want.

9
00:00:58,000 --> 00:01:02,000
I'll give you a couple of people to see if that's all I want.

10
00:01:02,000 --> 00:01:06,000
I'll give you a couple of people to see if that's all I want.

11
00:01:06,000 --> 00:01:10,000
I'll give you a couple of people to see if that's all I want.

12
00:01:10,000 --> 00:01:14,000
I'll give you a couple of people to see if that's all I want.

13
00:01:14,000 --> 00:01:18,000
I'll give you a couple of people to see if that's all I want.

14
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I'll give you a couple of people to see if that's all I want.

15
00:01:22,000 --> 00:01:26,000
I'll give you a couple of people to see if that's all I want.

16
00:01:26,000 --> 00:01:30,000
I'll give you a couple of people to see if that's all I want.

17
00:01:30,000 --> 00:01:34,000
I'll give you a couple of people to see if that's all I want.

18
00:01:34,000 --> 00:01:38,000
I'll give you a couple of people to see if that's all I want.

19
00:01:38,000 --> 00:01:42,000
I'll give you a couple of people to see if that's all I want.

20
00:01:42,000 --> 00:01:46,000
I'll give you a couple of people to see if that's all I want.

21
00:01:46,000 --> 00:01:50,000
I'll give you a couple of people to see if that's all I want.

22
00:01:50,000 --> 00:01:54,000
I'll give you a couple of people to see if that's all I want.

23
00:01:54,000 --> 00:01:58,000
I'll give you a couple of people to see if that's all I want.

24
00:01:58,000 --> 00:02:02,000
I'll give you a couple of people to see if that's all I want.

25
00:02:02,000 --> 00:02:06,000
I'll give you a couple of people to see if that's all I want.

26
00:02:06,000 --> 00:02:10,000
I'll give you a couple of people to see if that's all I want.

27
00:02:10,000 --> 00:02:14,000
I'll give you a couple of people to see if that's all I want.

28
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I'll give you a couple of people to see if that's all I want.

29
00:02:18,000 --> 00:02:22,000
I'll give you a couple of people to see if that's all I want.

30
00:02:22,000 --> 00:02:26,000
I'll give you a couple of people to see if that's all I want.

31
00:02:26,000 --> 00:02:30,000
I'll give you a couple of people to see if that's all I want.

32
00:02:34,000 --> 00:02:38,000
I'll give you a couple of people to see if that's all I want.

33
00:02:38,000 --> 00:02:42,000
I'll give you a couple of people to see if that's all I want.

34
00:02:42,000 --> 00:02:46,000
I'll give you a couple of people to see if that's all I want.

35
00:02:46,000 --> 00:02:50,000
I'll give you a couple of people to see if that's all I want.

36
00:02:50,000 --> 00:02:54,000
I'll give you one of them to see if that's what we want.

37
00:02:54,000 --> 00:02:58,000
I'll give you one of them to see if that's all I want.

38
00:02:58,000 --> 00:03:02,000
I'll give you one of them to see if that's all I want.

39
00:03:02,000 --> 00:03:06,000
I'll allow you to see if that's all I want.

40
00:03:06,000 --> 00:03:06,500
I'll allow you to see.

41
00:03:06,500 --> 00:03:10,000
I'll allow you to see if that's all I want.

42
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They're not going to tell us how much time I like to walk in and go over it out there.

43
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Yeah.

44
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It's like a loaded mac and cheese pizza.

45
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You're done with cheese for a little while.

46
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Yeah.

47
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Yeah.

48
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Yeah.

49
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Yeah.

50
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Yeah.

51
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Yeah.

52
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Yeah.

53
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You're going to get something to waste for a year.

54
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Should've never existed.

55
00:05:05,000 --> 00:05:06,000
Yeah.

56
00:05:06,000 --> 00:05:07,000
Yeah.

57
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It's like sandwiches probably would be nice.

58
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And we're going to be here about as well.

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I don't know, I mean, even though it happens to him, but like, I think we're in this kind of system all day, or even a lot of profiting maps.

60
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What do you think about some of the sandwiches for a computer in the office?

61
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Yeah.

62
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Do you guys care what it is?

63
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It's the same thing?

64
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No.

65
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All right.

66
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Having the opportunity to press the board.

67
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Would you like your stuff in the room?

68
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I think there's a reasonable...

69
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Are you going to stay with me?

70
00:06:23,000 --> 00:06:31,000
I think I missed it.

71
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No one's going to know or care.

72
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It's not your case.

73
00:06:33,000 --> 00:06:34,000
You don't have to.

74
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You don't have to.

75
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You don't have to.

76
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You're an audience.

77
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You're an audience.

78
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You're a spectator.

79
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You're a spectator.

80
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What do you mean it's true?

81
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It'll be probably between cases.

82
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Which means it's going to be like...

83
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Let's say let's break it down.

84
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I think I'll get that by now.

85
00:06:59,000 --> 00:07:04,000
I think both of those front records

86
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take these guys off.

87
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I think we're going to have to have

88
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power 15.

89
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I thought you said the entire thing.

90
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90 minutes is about a time between the schedule

91
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for when there are...

92
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We still have four.

93
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I don't think that would be possible.

94
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We'll set it up.

95
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It's very tough.

96
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Almost there.

97
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It's very tough.

98
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It's very tough.

99
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It's very tough.

100
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It's very tough.

101
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But otherwise,

102
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it's not that steep.

103
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It's very tough.

104
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It's very tough.

105
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It's very tough.

106
00:09:04,000 --> 00:09:09,000
It's very tough.

107
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I think it's like 4.20.

108
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I guess it's a question note.

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Whether I also stay with the whole band.

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We're going to figure that out.

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I find the three major airlines are so similar to each other.

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The three major airlines are very similar to each other.

113
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No opinion on Alaska.

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Just going to Seattle is less good.

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All rise.

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Hear ye, hear ye, hear ye.

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The Wisconsin Supreme Court is back in session.

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The Honorable Chief Justice Joe Braskman presiding.

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Your silence is commanded.

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Go ahead and have a seat.

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At long last year,

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if you can ask me something as you're taking the podium,

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sometimes when people are splitting up arguments,

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they're each taking an issue,

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you're going to start with that, weren't you?

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You weren't going to.

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Are you going to take an issue or not?

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You can save some questions.

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All three of us are ready for all your questions.

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He will let the argument unfold, however it's most helpful.

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Oh, cool.

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That's great.

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Then we are ready whenever you are.

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Good morning.

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May I please the court tailor me in on behalf of the Wisconsin legislature?

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Four and a half years ago,

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this court adopted the governor's proposed remedy for the then malaportioned congressional districts.

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The court held unequivocally that that remedy complied with all applicable state and federal laws.

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Nothing has changed since then that could warrant re-entering the political thicket

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of congressional redistricting and putting this court's injunction on trial in a circuit court.

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This court can affirm the dismissal of plaintiffs' complaint on these simple grounds

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without reaching the merits, which is that the circuit court was exactly right

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that it could not unwind this court's final judgment in Johnson 2.

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Likewise, this court could affirm simply by holding plaintiffs waited too long

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to bring this suit in circuit court just as the Illinois Supreme Court held last year

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for the districting challenge in Illinois.

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Nor would there be any reason for this court, for the circuit court,

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to unwind the Johnson 2 injunction.

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As to plaintiff's separation of powers arguments,

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the circuit court was exactly right that plaintiffs' arguments rewrite this court's words in Clark

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to say something that this court did not say.

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The court needs no more authority than Clark itself to know that at least change's remedy

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is not categorically unconstitutional.

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That's cool.

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I want to go back to Clark, which I haven't set up to this point,

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but I'll say now is a well-written opinion.

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Indeed, your honor.

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Thank you.

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Appreciate it.

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Fishing for compliments this morning.

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It was really clear in 63 that these changes on workable in practice.

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It went through the whole analysis about it being unworkable and all the reasons it was

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unworkable.

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I certainly recall vividly sitting in this courtroom as we talked about the peanut's analogy of

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Lucy moving the football away from Charlie Brown because no one who was advocating for

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least change in this courtroom could agree to what it meant.

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Was at least change as far as the number of people, the population, and the district

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was at least change as to the lines.

169
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Were we trying to least change as to municipalities?

170
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It didn't work.

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There was nothing in the Constitution as Justice Taylor brought out a little while ago.

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There was nothing in Wisconsin law.

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There was nothing in the Wisconsin Constitution.

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I brought it forward that could be relied on to be the basis for it.

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In paragraph 63 of Clark just says, as illustrated across the course of the Johnson litigation,

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least change is unworkable in practice.

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As such, we overrule any portion of Johnson 1, Johnson 2, and Johnson 3, that mandate

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at least change approach.

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I would like to know what else could a judge or justice possibly write in an opinion to

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say, this is, we are overturning this.

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This does not apply going forward.

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This was wrong.

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It was unworkable in practice.

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I don't know how much more clearer I could have done it, but apparently there's something

185
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else I should have done.

186
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What do you suggest that was?

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Chief Justice Croft's view took the words right out of my mouth, which is that we're not

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going to apply this going forward.

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But the court's discussion about how lease changes is unworkable is not synonymous with

190
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a holding that lease changes was unconstitutional when applied in Johnson 2.

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And as for Justice Taylor's question about where this lease changes approach comes from,

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I think some table setting is really important here.

193
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You receive Justice Taylor an answer about Clark and the state constitution.

194
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Clark involved the state house districts.

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Of course, we are here about the congressional districts, and so to the question of where

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a lease changes approach might come from, I would point the court to the federal constitution

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here in this case, which assigns power to the legislature for redistricting, not courts.

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And when the last enacted plan by the legislature is Act 44, of course the elections clause could

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anticipate this.

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But we said, I'm sorry to interrupt you, but we said that those maps because they did

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not, the population had shifted, obviously, in the ten years.

202
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Those maps could no longer be violated.

203
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They violated federal law.

204
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They violated our constitution.

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Those maps were no longer in effect.

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They couldn't be.

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Your Honor, I think that mistakes the nature of the judicial power, which is when the court

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examined Act 44 and held Act 44 was unconstitutionally malapportioned, the court was not striking

209
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down the law or erasing it from the Wisconsin statutes.

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The court was remedying the malapportionment of those districts.

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Those districts are still the law on the books today with the additional layer of this court's

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injunction remedying the malapportionment of those districts at the margin.

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And as for the deference to the legislature and whether that could possibly work a constitutional

214
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legislation in a congressional redistricting case, any such rule would come as an enormous

215
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surprise, I would think, to the U.S. Supreme Court.

216
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But states have done it.

217
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State courts have looked at the issue of judicial ability.

218
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We have ten courts now that have come up with a standard.

219
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None of those Supreme Court decisions have been overturned.

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They've not been accepted on cert.

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They have not been accepted on a stay.

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We see state courts coming up with standards to measure whether votes have been improperly

223
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and unconstitutionally and substantially deluded.

224
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How do we not have that same ability, like these other state courts, state Supreme Courts

225
00:17:52,000 --> 00:17:53,000
have had?

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And your Honor, I do have arguments in response to the partisan gerrymandering claim and other

227
00:17:57,000 --> 00:18:02,000
states have done it, but I would like to finish my point on Justice Propsky's, the least changes

228
00:18:02,000 --> 00:18:07,000
approach and the very separate claim that plaintiffs have said they've brought here.

229
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And as for what state courts have done, let me start with the U.S. Supreme Court.

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In cases like White Against Wiser, the U.S. Supreme Court reversed a court for refusing to

231
00:18:16,000 --> 00:18:21,000
defer to the political judgments of the Texas legislature in a malaportionment case.

232
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And then state courts as diverse as courts in Minnesota, Oklahoma, South Carolina, and New Hampshire

233
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have all done exactly what this court did.

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Let me ask you something about that.

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We are not talking about maps that the legislature put in place.

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00:18:36,000 --> 00:18:41,000
The legislature put in place maps, the governor vetoed those maps.

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You are talking about a legislature from 2011.

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Correct.

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00:18:46,000 --> 00:18:47,000
Correct.

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And just as courts in New Hampshire, Oklahoma, and all the other states I just listed off

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00:18:52,000 --> 00:18:58,000
deferred to the same sort of maps, these are impasse cases, malaportionment cases, and those

242
00:18:58,000 --> 00:19:03,000
who say we are going to defer to the last enacted map.

243
00:19:03,000 --> 00:19:06,000
Because that is the last enacted map by the people's representatives.

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And our job here is to remedy malaportionment.

245
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It's not to strike a new political balance.

246
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We should talk about the people's representatives, right?

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Because if you start with Article 1, Section 1 of our Constitution, which says that the

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government derives its power from the consent of the governed.

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From the people, yes?

250
00:19:25,000 --> 00:19:26,000
Yes.

251
00:19:26,000 --> 00:19:27,000
Yes.

252
00:19:27,000 --> 00:19:32,480
And in your view, that means the legislature, not the court, that they should be deciding

253
00:19:32,480 --> 00:19:37,000
this issue of redistricting the 2011 legislature in this case, right?

254
00:19:37,000 --> 00:19:38,000
Yes.

255
00:19:38,000 --> 00:19:39,000
Okay.

256
00:19:39,000 --> 00:19:42,760
Because that legislature, if I'm understanding your argument, was elected by the people.

257
00:19:42,760 --> 00:19:44,840
They're closest to the people.

258
00:19:44,840 --> 00:19:47,000
They can be held accountable by the people.

259
00:19:47,000 --> 00:19:48,000
Yes.

260
00:19:48,000 --> 00:19:49,000
Yes.

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00:19:49,000 --> 00:19:50,000
Okay.

262
00:19:50,000 --> 00:19:52,680
This is where I have some issues.

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00:19:52,680 --> 00:20:01,800
The legislature that passed those original maps wasn't any old legislature, right?

264
00:20:01,800 --> 00:20:09,160
The legislature that passed that maps, they came from districts that many people claimed

265
00:20:09,160 --> 00:20:14,520
are the, were the most gerrymandered in the entire country.

266
00:20:14,520 --> 00:20:20,680
They were, as some say, a prime example of representatives choosing their voters rather

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00:20:20,680 --> 00:20:24,960
than the other way around, rather than voters choosing their representatives.

268
00:20:24,960 --> 00:20:30,520
And because of those maps, many people felt that their votes were diluted, that they weren't

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00:20:30,520 --> 00:20:32,000
representative of the people.

270
00:20:32,000 --> 00:20:35,280
They said that they felt like those districts lacked in representation.

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00:20:35,280 --> 00:20:37,120
People felt like those maps weren't fair.

272
00:20:37,120 --> 00:20:41,040
Some people even called those maps rigged.

273
00:20:41,040 --> 00:20:46,920
That the legislators that came from those districts came from rigged maps.

274
00:20:46,920 --> 00:20:49,600
It is that legislature.

275
00:20:49,600 --> 00:20:54,000
Those representatives from those districts described as extremely gerrymandered that drafted

276
00:20:54,000 --> 00:20:56,480
the maps that we are talking about today.

277
00:20:56,480 --> 00:21:01,720
The maps that got baked in in 2021.

278
00:21:01,720 --> 00:21:05,680
And if I'm understanding your argument that under these change, which you're ardently

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00:21:05,680 --> 00:21:14,240
defending, those maps, the baked in ones from the 2011 legislature, would go forward into

280
00:21:14,240 --> 00:21:17,080
perpetuity indefinitely.

281
00:21:17,160 --> 00:21:20,960
And I don't understand how that is not unconstitutional.

282
00:21:20,960 --> 00:21:26,720
Well, your Honor, whether we agree with it or not, the U.S. Constitution assigns redistricting

283
00:21:26,720 --> 00:21:29,280
authority to the legislature.

284
00:21:29,280 --> 00:21:35,760
Because 250 years ago, when we declared revolution, we said the people decide through their elected

285
00:21:35,760 --> 00:21:37,080
representatives.

286
00:21:37,080 --> 00:21:41,680
And there are two solutions for that, either of which plaintiffs could pursue.

287
00:21:41,840 --> 00:21:46,760
First, they could lobby Congress because, of course, Congress likewise has power under

288
00:21:46,760 --> 00:21:52,920
the elections clause to stop what some have said should not have happened in 2011.

289
00:21:52,920 --> 00:21:59,840
Or like Florida, like New York, like Ohio, plaintiffs could do the hard work of creating

290
00:21:59,840 --> 00:22:04,960
a constitutional amendment and saying any politics in redistricting is forbidden.

291
00:22:04,960 --> 00:22:10,240
Any desire to send Speaker Paul Ryan back to Congress is forbidden.

292
00:22:10,240 --> 00:22:11,240
They have not done that.

293
00:22:11,240 --> 00:22:17,520
And so, yes, as we stand here today, the only neutral way for this court to have proceeded

294
00:22:17,520 --> 00:22:23,880
in a malapportionment case about congressional districts was to just defer to the existing

295
00:22:23,880 --> 00:22:30,280
political and policy choices, like sending senior statesmen, be it Speaker Ryan, or

296
00:22:30,280 --> 00:22:35,840
Representative Obie back to Congress, and lessen until there's a change from Congress itself

297
00:22:35,840 --> 00:22:39,520
or a constitutional change to the Wisconsin Constitution.

298
00:22:39,520 --> 00:22:46,200
And that is regardless of how much constitutional harm is caused to an individual's right to

299
00:22:46,200 --> 00:22:47,200
vote.

300
00:22:47,200 --> 00:22:48,360
Is that what you're saying?

301
00:22:48,360 --> 00:22:56,160
Your Honor, as Justice Ziegler explained, every individual in Wisconsin can go to vote

302
00:22:56,160 --> 00:23:01,320
on election day or mail in their ballot and cast an equally weighted vote.

303
00:23:01,320 --> 00:23:02,320
That's been true in Wisconsin, by the way, since-

304
00:23:02,320 --> 00:23:08,520
That's not what gerrymandering allows, is it gerrymandering is the legislature determining

305
00:23:09,520 --> 00:23:18,920
their voters and assigning, treating class of voters as unfavored.

306
00:23:18,920 --> 00:23:27,720
And that can have the impact of deluding in individuals' right to vote.

307
00:23:27,720 --> 00:23:33,960
So they vote, yes, they go and vote, but their vote's meaningless because politicians have

308
00:23:33,960 --> 00:23:36,200
determined who their voters are.

309
00:23:36,200 --> 00:23:44,040
And that would seem to me so contrary to the language of our Constitution, which elevates

310
00:23:44,040 --> 00:23:50,640
the sovereignty of the people, that politicians have no power without the people.

311
00:23:50,640 --> 00:23:56,280
Your Honor, our founders risk their lives so that our representatives who we elect can

312
00:23:56,280 --> 00:24:02,240
represent the people, not a king, and with all due respect, not courts, because the Wisconsin

313
00:24:02,240 --> 00:24:08,640
Constitution provides this court, no judicially manageable standards, to decide that loyal

314
00:24:08,640 --> 00:24:13,240
Republicans and loyal Democrats have this super-constitutional right.

315
00:24:13,240 --> 00:24:14,880
But other courts have done it.

316
00:24:14,880 --> 00:24:18,160
They have done it, Your Honor, and I'm so glad you asked that question, because there

317
00:24:18,160 --> 00:24:22,520
is no free and fair elections clause in Wisconsin's Constitution.

318
00:24:22,520 --> 00:24:29,200
And there is no Board of Fair Districts amendment saying considering incumbents is forbidden.

319
00:24:29,200 --> 00:24:33,680
And even in states that have done it, even in North Carolina with the free and fair elections

320
00:24:33,680 --> 00:24:37,080
clause, I'd urge this court not to take my words for it, go look at the Supreme Court

321
00:24:37,080 --> 00:24:38,560
opinions in that case.

322
00:24:38,560 --> 00:24:43,800
They threw up their hands, Justice Taylor, and they said, we understand this is a political

323
00:24:43,800 --> 00:24:49,400
problem, and this is hotly debated at kitchen tables and in academic classrooms.

324
00:24:49,400 --> 00:24:53,680
But what we can't do as a court is solve that problem, because even the free and fair

325
00:24:53,680 --> 00:24:56,720
elections clause doesn't give us the tools to do so.

326
00:24:56,720 --> 00:25:03,160
So our Constitution is different in that we, there's a provision that says there's

327
00:25:03,160 --> 00:25:10,040
a remedy for wrongs, section nine, says every person's entitled to a certain remedy in the

328
00:25:10,040 --> 00:25:18,480
laws for all injuries or wrongs, which he may receive in his person, property or character,

329
00:25:18,480 --> 00:25:21,200
he ought to obtain justice freely.

330
00:25:21,200 --> 00:25:24,120
So that is unique to our Constitution.

331
00:25:24,120 --> 00:25:33,440
Our task is to interpret our Constitution, to evaluate legislation, to see if it poses

332
00:25:33,440 --> 00:25:36,640
a constitutional harm to these rights.

333
00:25:36,640 --> 00:25:46,720
So it's just very hard, I think your argument is challenging when I look at our own Constitution

334
00:25:46,720 --> 00:25:54,280
and the language of that Constitution, and the embodiment of the sovereignty of people,

335
00:25:54,280 --> 00:25:57,840
government has no power without the people.

336
00:25:57,840 --> 00:26:07,360
So if a class of voters, if their vote is being deluded or infringed upon, that seems

337
00:26:07,360 --> 00:26:15,560
to me to violate these principles of the people being sovereign, because we have been elevated

338
00:26:15,560 --> 00:26:22,760
the power of politicians above individual's right to choose their government.

339
00:26:22,760 --> 00:26:28,760
Your Honor, the question assumes the answer to the question I thought we were all here

340
00:26:28,760 --> 00:26:36,480
to address today, which is, is there a right to Republican districts or Democratic districts

341
00:26:36,480 --> 00:26:37,480
in the Wisconsin Constitution?

342
00:26:37,480 --> 00:26:41,400
That's not the framing though, it's not, that's not, you're framing it in a certain

343
00:26:41,400 --> 00:26:45,120
way that I think is not how I'm seeing it.

344
00:26:45,120 --> 00:26:52,080
I'm looking at our state Constitution, and I am pondering as we do with all legislation

345
00:26:52,080 --> 00:26:55,080
that we review, the concept of judicial review.

346
00:26:55,080 --> 00:26:57,400
Is there a constitutional harm here?

347
00:26:57,400 --> 00:26:59,040
That's what I'm looking at.

348
00:26:59,040 --> 00:27:04,800
I'm not looking at, it's not up to us to imbue our policy choices.

349
00:27:04,800 --> 00:27:07,960
That's very clearly belongs to the legislature.

350
00:27:07,960 --> 00:27:13,760
What I'm looking at is there a constitutional harm here, and I'm sure you agree that the

351
00:27:13,760 --> 00:27:17,480
right to vote is the most precious constitutional right we have.

352
00:27:17,480 --> 00:27:23,200
We have Wisconsin case law that says that, it is the most precious right.

353
00:27:23,200 --> 00:27:31,600
So isn't that our inquiry, is there a constitutional harm here in infringing or diluting an individual's

354
00:27:31,600 --> 00:27:32,600
right to vote?

355
00:27:32,600 --> 00:27:33,840
That seems to be the question.

356
00:27:33,840 --> 00:27:36,040
Yes, three points, Your Honor.

357
00:27:36,040 --> 00:27:40,720
First, Wisconsin was ahead of the curb in terms of the right to vote in the Cunningham

358
00:27:40,720 --> 00:27:41,720
case.

359
00:27:41,720 --> 00:27:45,520
In the Cunningham, this court did something decades, perhaps a century before the Supreme

360
00:27:45,520 --> 00:27:51,040
Court did in Westbury, which it said, that right to vote is so precious that we in Wisconsin

361
00:27:51,040 --> 00:27:56,320
are going to ensure that you have a numerically equally weighted vote back in, I think it

362
00:27:56,320 --> 00:28:02,840
was 1892, and that, and no one here disputes that this court could not adjudicate a claim

363
00:28:02,840 --> 00:28:06,680
of malapportionment, just as the court did in Johnson.

364
00:28:06,680 --> 00:28:11,760
The second point, beyond that, the right to vote is not a right to get the election

365
00:28:11,760 --> 00:28:13,320
outcomes you want.

366
00:28:13,320 --> 00:28:19,440
The very nature of the political branches is that someone loses and someone wins on election

367
00:28:19,440 --> 00:28:20,440
day.

368
00:28:20,440 --> 00:28:26,120
And when it comes to who decides what those districts look like, the Wisconsin Constitution

369
00:28:26,120 --> 00:28:31,600
gives this court no judicially manageable standard to override what the federal Constitution

370
00:28:31,600 --> 00:28:36,240
says, which is that the legislature does get to decide, and it was okay in remedying

371
00:28:36,240 --> 00:28:40,120
malapportionment to defer to those legislative choices.

372
00:28:40,120 --> 00:28:44,560
A good case on that is the McGraill case where it certainly involved the right to vote.

373
00:28:44,560 --> 00:28:49,440
It involved whether you could be identified by party on a ballot, whether someone knew

374
00:28:49,440 --> 00:28:55,160
I was a Republican or a Democrat or the Constitution Party or something else, and this court deferred.

375
00:28:55,160 --> 00:28:56,160
This court...

376
00:28:56,640 --> 00:29:02,720
Courts do apply substantiality of harm all the time.

377
00:29:02,720 --> 00:29:07,600
We weigh that, whether it be in civil criminal cases.

378
00:29:07,600 --> 00:29:14,240
We are applying those standards and not set out necessarily in the Constitution, but it

379
00:29:14,240 --> 00:29:18,960
seems to me that we're looking at, is there a substantial delusion?

380
00:29:18,960 --> 00:29:21,080
Is there a substantial harm here?

381
00:29:21,080 --> 00:29:24,240
And of course, do that all the time in jurisquigence.

382
00:29:24,240 --> 00:29:31,120
We are always looking at harms and weighing whether there's a substantiality issue.

383
00:29:31,120 --> 00:29:35,400
Your Honor, I suppose that brings me to the third point, which is whether a plaintiff

384
00:29:35,400 --> 00:29:40,920
might be able to establish there is a cognizable harm in some case.

385
00:29:40,920 --> 00:29:46,380
Later on, this court could leave unresolved whether it wants to overrule Johnson One.

386
00:29:46,380 --> 00:29:52,120
But in this particular case, plaintiffs have not done the hard work to walk back what

387
00:29:52,120 --> 00:29:57,000
were more than three dozen paragraphs in addition to Justice Hagedorn's concurrence

388
00:29:57,000 --> 00:30:04,360
explaining that the Constitution, as it sits today and as it sat then, does not give the

389
00:30:04,360 --> 00:30:08,200
court the tools to adjudicate those kinds of thorny claims.

390
00:30:08,200 --> 00:30:09,200
So that's what you were...

391
00:30:09,200 --> 00:30:11,120
Why do we have a remedy for every wrong?

392
00:30:11,120 --> 00:30:17,680
Every person is entitled to a certain remedy because of the laws for all injuries.

393
00:30:17,680 --> 00:30:21,800
Because your Honor, plaintiffs have not identified what the constitutional wrong is at this

394
00:30:21,800 --> 00:30:22,800
time.

395
00:30:22,800 --> 00:30:25,680
Vote delusion is not a constitutional wrong.

396
00:30:25,680 --> 00:30:31,440
When our Constitution explicitly says it is the people who choose their government,

397
00:30:31,440 --> 00:30:35,680
the only mechanism by which they do that is the right to vote.

398
00:30:35,680 --> 00:30:39,200
And no one disputes that the districts are equally apportioned, they can cast an equally

399
00:30:39,200 --> 00:30:40,200
weighted vote.

400
00:30:40,200 --> 00:30:44,320
So it does not matter the extent of a partisan gerrymandering.

401
00:30:44,320 --> 00:30:51,200
It does not matter the extent of the harm that is caused by a disfavored group.

402
00:30:51,200 --> 00:30:56,440
What sounds to me like if you're saying an extreme gerrymandering, an extreme partisan

403
00:30:56,440 --> 00:30:59,280
gerrymander is constitutional.

404
00:30:59,280 --> 00:31:01,720
Your Honor, understanding that is your argument?

405
00:31:01,720 --> 00:31:06,560
Your Honor, I'm not sure at this point in time how to define an extreme partisan gerrymander

406
00:31:06,560 --> 00:31:12,080
versus a sort of partisan gerrymander versus we wanted to send Speaker Ryan back to Congress.

407
00:31:12,080 --> 00:31:17,400
Would you say five percent, double digits, ten percent, fifteen percent?

408
00:31:17,400 --> 00:31:22,560
I think we certainly have districts across the state that hit those numbers.

409
00:31:22,560 --> 00:31:28,880
We do, Your Honor, and I can't tell you that District 2, for example, here where we stand

410
00:31:28,880 --> 00:31:31,720
today is an extreme partisan gerrymander.

411
00:31:31,720 --> 00:31:36,280
The representative there won by 70 to 30 percent vote in 2024.

412
00:31:36,280 --> 00:31:42,680
There's every reason to think he did so because Democrats are densely populated in

413
00:31:42,680 --> 00:31:43,680
the Madison area.

414
00:31:43,680 --> 00:31:46,240
Right, there could be compactness, for sure.

415
00:31:46,240 --> 00:31:49,800
But you look at some of the other districts and the way they're drawn.

416
00:31:49,800 --> 00:31:54,800
What I'm almost hearing you say is that there's not a constitutional claim for extreme partisan

417
00:31:54,800 --> 00:31:57,840
gerrymandering under the Wisconsin Constitution.

418
00:31:57,840 --> 00:32:01,840
If that's what it boils down to, tell us.

419
00:32:01,840 --> 00:32:07,520
Your Honor, right now the Wisconsin Constitution does not define with any level of judicial

420
00:32:07,520 --> 00:32:13,480
certainty what an extreme partisan gerrymander would be and in states that have been displeased

421
00:32:13,480 --> 00:32:18,640
with that constitutional reality, that they have amended their constitutions with clear

422
00:32:18,640 --> 00:32:24,920
rules that courts can apply, the Utah case, the New York case, the Florida case that plaintiffs

423
00:32:24,920 --> 00:32:31,240
have brought to you all involve either reticulated statutes or constitutional amendments saying

424
00:32:32,240 --> 00:32:35,120
we extirpate politics from redistricting.

425
00:32:35,120 --> 00:32:45,720
Council, your opposing council has urged us to adopt New Mexico and Pennsylvania's cases.

426
00:32:45,720 --> 00:32:50,360
And it took the opportunity on break to take a look at their constitutional provisions.

427
00:32:50,360 --> 00:32:56,760
You mentioned earlier that Wisconsin does not have a free and equal elections clause.

428
00:32:56,840 --> 00:33:03,000
The courts in those cases did point to and reference, and the New Mexico and Pennsylvania

429
00:33:03,000 --> 00:33:09,040
constitutions do specifically have a free and equal elections clause.

430
00:33:09,040 --> 00:33:14,600
Do you think that has any impact on whether we should follow Pennsylvania and New Mexico?

431
00:33:14,600 --> 00:33:18,760
I do, and I think, I can't remember if it's the Pennsylvania decision or the first North

432
00:33:18,760 --> 00:33:22,280
Carolina decision that explores the history of that clause.

433
00:33:22,280 --> 00:33:23,720
It's extremely interesting.

434
00:33:23,720 --> 00:33:27,840
There in other state constitutions, they are very specific to elections and your ability

435
00:33:27,840 --> 00:33:29,400
to go cast a vote.

436
00:33:29,400 --> 00:33:34,640
And so there was far more history in those cases to connect that constitutional text

437
00:33:34,640 --> 00:33:41,640
admittedly broad with a right to have fairer districts, however one expert might define

438
00:33:41,640 --> 00:33:43,240
fairer districts.

439
00:33:43,240 --> 00:33:47,280
Here the history points in entirely the opposite direction.

440
00:33:47,280 --> 00:33:49,520
There's precious little of it in the briefs here.

441
00:33:49,520 --> 00:33:52,400
There were more than 100 pages about it in Johnson.

442
00:33:52,840 --> 00:33:57,280
The history boils down to this state's constitutional convention in 1848.

443
00:33:57,280 --> 00:33:59,640
There was a lot of talk about gerrymandering.

444
00:33:59,640 --> 00:34:04,160
And there was a lot of discussion about whether the way Wisconsin's first congressional

445
00:34:04,160 --> 00:34:08,720
districts had been drawn was fair to have a very compact district in the southeast of

446
00:34:08,720 --> 00:34:13,480
the state and the sprawling district capturing 20 counties in the rest of the state.

447
00:34:13,480 --> 00:34:18,080
And the solution to that then answers the question before this court now.

448
00:34:18,080 --> 00:34:22,880
The solution was the people voted through their delegates at the convention and then

449
00:34:22,880 --> 00:34:29,640
through ratifying the constitution and that's been the unchanged history for over 100 years

450
00:34:29,640 --> 00:34:34,440
in this state until 2011 when parties started bringing partisan gerrymandering claims.

451
00:34:34,440 --> 00:34:43,000
Council, I wanted to just follow up with the Chief Justice's question about the 2011 maps.

452
00:34:43,040 --> 00:34:52,040
My recollection of the history here is that I think Democrats controlled the legislature

453
00:34:52,040 --> 00:34:55,880
entirely from 2006 to 2006 to 2010.

454
00:34:55,880 --> 00:34:58,880
There was a Democratic governor at that time.

455
00:34:58,880 --> 00:35:04,200
Then in the 2010 elections, Republicans won the governorship in both houses of the legislature

456
00:35:04,200 --> 00:35:11,280
and using maps that were in place at that time and then it was that legislature which

457
00:35:11,280 --> 00:35:18,400
actually enacted the law that we are dealing with here at 44 in 2011.

458
00:35:18,400 --> 00:35:24,600
And so it was not the quote rigged maps or any later maps that were enacted for example

459
00:35:24,600 --> 00:35:28,000
after our Johnson decision that are at issue here.

460
00:35:28,000 --> 00:35:32,600
But that was in fact a series, a legislature that was chosen with maps that clearly were

461
00:35:32,600 --> 00:35:36,560
quite competitive and led to both Republicans and Democrats controlling both chambers.

462
00:35:36,560 --> 00:35:37,560
Is that accurate?

463
00:35:37,720 --> 00:35:43,120
The points will take in your honor and to finish the point I would say those, the maps

464
00:35:43,120 --> 00:35:47,280
that others have called rigged, I won't endorse that language today, have since also been

465
00:35:47,280 --> 00:35:51,240
replaced through the democratic process where the legislature passed maps and the democratic

466
00:35:51,240 --> 00:35:52,240
governor signed them.

467
00:35:52,240 --> 00:35:56,600
But yes, for purposes of the congressional districts which we're here to talk about today,

468
00:35:56,600 --> 00:35:59,440
the Congress members didn't enact that map.

469
00:35:59,440 --> 00:36:03,520
The people's representatives in the small districts that make up the state legislature

470
00:36:03,520 --> 00:36:08,960
did and that's exactly what the Constitution has envisioned would happen until 1787 and

471
00:36:08,960 --> 00:36:12,520
so to bring us back to what was going on in Johnson.

472
00:36:12,520 --> 00:36:17,120
In Johnson the court was not enacting a new map.

473
00:36:17,120 --> 00:36:21,600
The court was doing what it always does Justice Taylor, it was remedying a constitutional

474
00:36:21,600 --> 00:36:26,520
wrong of malapportionment and going no further.

475
00:36:26,520 --> 00:36:27,520
And it must-

476
00:36:27,520 --> 00:36:33,320
It's not embedded in Wisconsin law.

477
00:36:33,320 --> 00:36:39,560
It comes from a federal case which comes from an interpretation of voting rights act.

478
00:36:39,560 --> 00:36:44,320
There's just no, I wasn't here when it was done, but it seems disconnected.

479
00:36:44,320 --> 00:36:49,000
Your honor, if the standard your honor is referring to is the least changes standard.

480
00:36:49,000 --> 00:36:54,080
That's the approach the US Supreme Court has taken to redistricting cases always and for

481
00:36:54,080 --> 00:36:59,560
purposes of this congressional redistricting case, certainly that standard is allowable

482
00:36:59,560 --> 00:37:05,280
under the elections clause, lest this court rests from the legislature, it's the legislature.

483
00:37:05,280 --> 00:37:07,880
Well, we're supposed to change the least.

484
00:37:07,880 --> 00:37:08,840
Pardon?

485
00:37:08,840 --> 00:37:13,320
What was supposed to change the least and least change?

486
00:37:13,320 --> 00:37:18,000
Well, for a malapportionment case, I think the way the opinion shook out in Johnson 2 for

487
00:37:18,000 --> 00:37:20,120
the congressional districts makes perfect sense.

488
00:37:20,120 --> 00:37:22,000
We looked at core retention scores.

489
00:37:22,000 --> 00:37:27,280
We moved the fewest number of people to repopulate with people the districts.

490
00:37:27,280 --> 00:37:32,640
Of course, other parties in Johnson had differing arguments, but your honor, back to the first

491
00:37:32,640 --> 00:37:38,120
question, whether or not your honor thought that was unworkable to use core retention,

492
00:37:38,120 --> 00:37:45,120
a metric that legislators use all the time, isn't the same as the argument plaintiffs

493
00:37:45,120 --> 00:37:51,400
have brought this court, which is they are asking this court to hold it's not just unworkable,

494
00:37:51,400 --> 00:37:58,360
it's unconstitutional to defer to the legislature when remedying a malapportionment claim.

495
00:37:58,360 --> 00:38:04,440
And I can think of a rule no better suited for an elections clause problem than to say

496
00:38:04,440 --> 00:38:09,240
in a malapportionment case, it's the courts and not the legislature that must decide what

497
00:38:09,240 --> 00:38:11,520
the political balance should be in districts.

498
00:38:11,520 --> 00:38:19,000
That is really, I think, disingenuous reading of more, right?

499
00:38:19,000 --> 00:38:22,040
That's not what Moore said.

500
00:38:22,040 --> 00:38:30,200
Moore said that certainly state courts can utilize traditional principles of judicial

501
00:38:30,200 --> 00:38:35,080
review in reviewing the actions of their legislature.

502
00:38:35,080 --> 00:38:40,360
What we're not supposed to do is go outside the bounds of judicial review.

503
00:38:40,360 --> 00:38:47,400
It's not our, we do not make policy here, we're not, we don't consider that.

504
00:38:47,400 --> 00:38:52,280
We consider the constitution and the text of our constitution, and whether there's

505
00:38:52,280 --> 00:38:54,640
a constitutional harm.

506
00:38:54,640 --> 00:38:59,560
And that was very clearly stated and more.

507
00:38:59,560 --> 00:39:08,400
In Rucho itself, the majority looks to state courts to address some of these issues of

508
00:39:08,400 --> 00:39:10,640
gerrymandered districts.

509
00:39:10,640 --> 00:39:18,000
So there's nothing unusual or strange about this court examining whether an act of the

510
00:39:18,000 --> 00:39:21,800
legislature causes a constitutional harm.

511
00:39:21,800 --> 00:39:23,360
It's what we do every day.

512
00:39:23,360 --> 00:39:24,360
It's our function.

513
00:39:24,360 --> 00:39:30,960
Well, the elections clause point I was reading was about how it would be highly unusual to

514
00:39:30,960 --> 00:39:37,360
hold that this court is prohibited from using the last enacted maps as a starting point,

515
00:39:37,360 --> 00:39:41,520
from using a lease changes approach, because that's what the Supreme Court did in white.

516
00:39:41,520 --> 00:39:45,160
It's what the Minnesota Supreme Court did in hip hurt in the Oklahoma case, in the South

517
00:39:45,160 --> 00:39:48,920
Carolina case, in the New Hampshire case, I'm sure there are more.

518
00:39:48,920 --> 00:39:54,320
And so that remedial approach would be highly unusual because the court isn't enacting

519
00:39:54,320 --> 00:39:59,680
a new map, it's remedying mal apportionment in a lease changes way.

520
00:39:59,680 --> 00:40:03,720
Surely that's allowable under the elections clause.

521
00:40:03,720 --> 00:40:08,760
Now separate and apart from that, as for the partisan gerrymandering claim, no court

522
00:40:08,760 --> 00:40:14,480
has ever held to a final judgment that the map is a partisan gerrymandering or that partisan

523
00:40:14,480 --> 00:40:19,960
gerrymandering is a cognizable claim under the Wisconsin Constitution.

524
00:40:19,960 --> 00:40:23,440
And so I do think it puts the cart before the horse to say plaintiffs have presented

525
00:40:23,440 --> 00:40:28,120
a constitutional harm, partisan gerrymandering, don't we have to remedy it?

526
00:40:28,120 --> 00:40:32,840
First, we have to ask, have plaintiffs done the hard work to present this court with

527
00:40:32,840 --> 00:40:38,640
new text and new history and new reasons not already rejected in Johnson 1?

528
00:40:38,640 --> 00:40:41,480
Okay, I want to take you back to this already rejected in Johnson 1.

529
00:40:41,480 --> 00:40:47,240
Johnson 1 did not have the claim of extreme partisan gerrymandering in front of us.

530
00:40:47,240 --> 00:40:51,600
What was in front of us was a map, creating a map.

531
00:40:51,600 --> 00:40:56,800
And the question that was asked is, should this court, in doing so, consider partisanship?

532
00:40:56,800 --> 00:40:59,920
That is a very different question.

533
00:40:59,920 --> 00:41:05,960
If no one here is saying or thinking that partisanship doesn't come into play when

534
00:41:05,960 --> 00:41:09,000
the legislature makes maps, of course it does.

535
00:41:09,000 --> 00:41:15,760
We're talking about a claim that it has gone so far that extreme partisanship has gone

536
00:41:15,760 --> 00:41:19,720
so far so as to dilute the vote.

537
00:41:19,720 --> 00:41:26,720
And that claim can be, they're making the claim of that that can be found in our Constitution,

538
00:41:26,720 --> 00:41:31,440
those important rights to democracy and the democracy principle that set forth in their

539
00:41:31,440 --> 00:41:32,440
briefs.

540
00:41:32,440 --> 00:41:38,120
So when you sit here and say, we already decided in Johnson 1, I was there and we didn't decide

541
00:41:38,120 --> 00:41:39,120
it.

542
00:41:39,120 --> 00:41:42,880
And they may have been in an opinion that the majority wrote and oftentimes things are in

543
00:41:42,880 --> 00:41:48,040
our opinions that aren't squarely in front of the court, we give that what we give it.

544
00:41:48,040 --> 00:41:52,400
But it was not an issue that has ever been brought to our court, aside from as was pointed

545
00:41:52,400 --> 00:41:56,480
out, we did not take a vehicle of an original action petition.

546
00:41:56,480 --> 00:42:01,840
This case was filed in the circuit court just like every other case starts out in the circuit

547
00:42:01,840 --> 00:42:04,240
court and usually in our district.

548
00:42:04,240 --> 00:42:09,720
So I want to push back on that and it seems like you're giving an awful lot of reliance

549
00:42:09,720 --> 00:42:16,520
on a couple of statements, a couple of paragraphs about an issue that was not squarely in front

550
00:42:16,520 --> 00:42:17,520
of the court.

551
00:42:17,520 --> 00:42:20,680
Yes, Turner, sort of take one of your last points first and then to address the heart

552
00:42:20,680 --> 00:42:22,440
of what was an issue at Johnson 1.

553
00:42:22,440 --> 00:42:26,160
The fact that this case started in circuit court, I actually think irrespective of a

554
00:42:26,160 --> 00:42:31,800
debate on partisan fairness, is the easiest grounds to say, while we might reconsider

555
00:42:31,800 --> 00:42:36,840
it or while we might consider it in another case, we can't consider it in this case.

556
00:42:36,840 --> 00:42:41,920
Because this injunction exists by virtue of an exercise of our original jurisdiction and

557
00:42:41,920 --> 00:42:47,480
now a circuit court has been asked to put that injunction on trial and that turns upside

558
00:42:47,480 --> 00:42:48,480
down the judicial.

559
00:42:48,480 --> 00:42:54,040
Aren't they being asked to issue a declaratory judgment and don't courts issue declaratory

560
00:42:54,040 --> 00:42:55,800
judgments all the time?

561
00:42:55,800 --> 00:42:57,360
Well, initially, no, you're honored.

562
00:42:57,360 --> 00:42:58,560
The complaint's very clear.

563
00:42:58,560 --> 00:43:02,800
They wanted the circuit court to enjoin this court's injunction and it's up to this court

564
00:43:02,800 --> 00:43:07,640
to decide whether it wishes that to continue not just in this case, but in all future cases.

565
00:43:07,640 --> 00:43:11,680
As for the declaratory judgment, the same fundamental problem still persists.

566
00:43:11,680 --> 00:43:16,920
Like academically, that sure sounds like an advisory proceeding because there's nothing

567
00:43:16,920 --> 00:43:22,240
that the court could do alongside the declaratory judgment to enjoin this court's injunction.

568
00:43:22,240 --> 00:43:23,240
But sort of-

569
00:43:23,240 --> 00:43:28,680
I know I want to make a second point, but it sort of feels like what you would have your

570
00:43:28,680 --> 00:43:33,880
friends on the other side do is just chase their tails around indefinitely.

571
00:43:33,880 --> 00:43:40,200
I mean, they have come at this several different ways to be fair.

572
00:43:40,200 --> 00:43:44,720
They have asked for, let's see, reconsideration.

573
00:43:44,720 --> 00:43:48,320
They filed a motion for relief from the judgment.

574
00:43:48,320 --> 00:43:55,000
They filed an original action, and then they filed the complaint in circuit court.

575
00:43:55,000 --> 00:44:00,360
I may have left out something, actually.

576
00:44:00,360 --> 00:44:05,560
I feel like it wouldn't matter which way they came at this, you would say, no, that's

577
00:44:05,560 --> 00:44:06,560
not good enough.

578
00:44:06,560 --> 00:44:10,560
And they have tried, they have come at it at least three or four different ways.

579
00:44:10,560 --> 00:44:12,400
Your Honor, I disagree.

580
00:44:12,400 --> 00:44:17,600
I think they came at it with a motion for reconsideration or a motion for relief from

581
00:44:17,600 --> 00:44:18,920
judgment.

582
00:44:18,920 --> 00:44:22,680
And I don't think there's any dispute that that's actually the most typical way for this

583
00:44:22,680 --> 00:44:28,600
court to address its final injunctions was to reopen Johnson itself.

584
00:44:28,600 --> 00:44:34,320
Then they came at it just like the Clark petitioners and asked this court to revisit its original

585
00:44:34,320 --> 00:44:39,200
jurisdiction injunction with another original jurisdiction action.

586
00:44:39,200 --> 00:44:44,200
And that this court denied those requests doesn't mean that then we can invert the hierarchy

587
00:44:44,200 --> 00:44:51,600
of the judicial branch in this state and allow a circuit court to put your injunction on trial.

588
00:44:51,600 --> 00:44:55,720
But it goes back to Justice, I'm not seeing it.

589
00:44:55,720 --> 00:44:57,240
It's a declaratory judgment.

590
00:44:57,240 --> 00:44:58,240
Well, sure.

591
00:44:58,240 --> 00:45:04,480
They would be declaring that this court acted unconstitutionally in 2022 in Johnson 2.

592
00:45:04,480 --> 00:45:10,560
I can find no authority and plaintiffs have pointed to no authority of any circuit court

593
00:45:10,560 --> 00:45:12,640
in this state having ever done so.

594
00:45:12,640 --> 00:45:18,960
How about a trial court that declares something our court did was unconstitutional in the

595
00:45:18,960 --> 00:45:20,960
criminal setting?

596
00:45:20,960 --> 00:45:27,600
What if a trial court said what if there was a violation of the Constitution and we said

597
00:45:27,600 --> 00:45:32,640
it didn't occur and it goes back and we later learned that the council was ineffective and

598
00:45:32,640 --> 00:45:35,680
all of a sudden there's an issue in front of the court.

599
00:45:35,680 --> 00:45:42,960
I mean, there's a myriad of ways in which cases that we have found to be constitutional

600
00:45:42,960 --> 00:45:48,800
or that we have ruled on then are potentially later found otherwise.

601
00:45:48,800 --> 00:45:52,480
I mean, what you're basically saying is that once we decide something, no one else can

602
00:45:52,480 --> 00:45:54,040
ever review it, including us.

603
00:45:54,040 --> 00:45:55,360
No, you're honored.

604
00:45:55,360 --> 00:45:56,360
This court can.

605
00:45:56,360 --> 00:46:01,080
And while I don't want to devolve into a discussion of habeas, what a habeas case is asking

606
00:46:01,080 --> 00:46:02,960
is actually for a separate writ.

607
00:46:02,960 --> 00:46:04,440
I'm not even talking habeas.

608
00:46:04,440 --> 00:46:07,560
I'm just talking about ineffective assistance of council in our state.

609
00:46:07,560 --> 00:46:11,320
I think I could probably find cases where that's happened, where this court has said

610
00:46:11,320 --> 00:46:15,720
that something was constitutional and it later turns out that actually it wasn't.

611
00:46:15,720 --> 00:46:16,720
Right.

612
00:46:16,720 --> 00:46:20,160
There's a well trodden collateral attack often called writs of habeas corpus on final criminal

613
00:46:20,160 --> 00:46:22,920
judgments, but that's not undoing the criminal judgment.

614
00:46:22,920 --> 00:46:27,160
It's granting a writ of habeas corpus for purposes of this case, your honor.

615
00:46:27,160 --> 00:46:33,000
Of course, this court could exercise its original jurisdiction again if it wanted

616
00:46:33,000 --> 00:46:35,400
to just as it did in Clark.

617
00:46:35,400 --> 00:46:40,440
So long as that original action was pursuant to the usual norms of judicial procedure.

618
00:46:40,440 --> 00:46:47,440
So council, let me just pick up on that point because if we were to find that there's a

619
00:46:47,440 --> 00:46:54,200
justiciable claim here and to remand it to the three judge panel to take evidence and

620
00:46:54,280 --> 00:47:02,240
determine whether the illegal standard for that claim is met and to find a constitutional

621
00:47:02,240 --> 00:47:10,720
violation, I'm just not following you in determining why it is that this three judge

622
00:47:10,720 --> 00:47:20,440
panel does not have jurisdiction or the authority to hold such a trial and draw such a conclusion

623
00:47:20,440 --> 00:47:27,000
on the evidence based on something that was said in Johnson to in which such a claim

624
00:47:27,000 --> 00:47:30,920
was not squarely in front of the court.

625
00:47:30,920 --> 00:47:32,200
Can you answer that, please?

626
00:47:32,200 --> 00:47:33,200
Yes, your honor.

627
00:47:33,200 --> 00:47:39,200
So first on the on the most fundamental procedural procedural point, I'm not aware of a circuit

628
00:47:39,200 --> 00:47:44,120
court putting on trial a final injunction of this court in another case, right?

629
00:47:44,120 --> 00:47:45,360
The circuit court would have to.

630
00:47:45,360 --> 00:47:47,920
It's not putting an injunction on trial.

631
00:47:47,920 --> 00:47:53,040
It is looking at the maps that are currently in place and making a determination about

632
00:47:53,040 --> 00:47:57,000
whether there is a partisan gerrymander in those maps.

633
00:47:57,000 --> 00:48:02,480
An issue that this court did not consider because it had no evidence at that point of

634
00:48:02,480 --> 00:48:04,840
partisan gerrymandering.

635
00:48:04,840 --> 00:48:10,400
Why are you saying that the Wisconsin law or the Wisconsin Constitution would prohibit

636
00:48:10,400 --> 00:48:17,680
an examination of that issue now for maps that are going to be used for future elections?

637
00:48:18,680 --> 00:48:23,040
The maps, just to be very clear, are and they exist by-

638
00:48:23,040 --> 00:48:25,520
They were adopted by this court, I understand that.

639
00:48:25,520 --> 00:48:32,960
They were adopted by this court without consideration for whether the maps were created with the

640
00:48:32,960 --> 00:48:33,960
partisan gerrymandering.

641
00:48:33,960 --> 00:48:34,960
Sure.

642
00:48:34,960 --> 00:48:38,040
So to answer that question directly, and Justice Dalit, I apologize the heart of your question

643
00:48:38,040 --> 00:48:39,040
directly.

644
00:48:39,040 --> 00:48:44,800
I too was here in Johnson and the parties were asked because some parties had raised whether

645
00:48:44,880 --> 00:48:49,600
the Wisconsin Constitution requires districts to be politically fair.

646
00:48:49,600 --> 00:48:54,400
And the parties submitted, as I mentioned, over 100 pages of briefing on that question,

647
00:48:54,400 --> 00:49:01,200
and there are more than three dozen paragraphs of legal analysis in the Johnson One opinion

648
00:49:01,200 --> 00:49:07,280
about why we cannot find anywhere in the Wisconsin Constitution a right to political fairness.

649
00:49:07,280 --> 00:49:12,480
And all the questions that such a right should it proceed in court cases would raise as opposed

650
00:49:12,480 --> 00:49:16,960
to should it proceed in the halls of Congress with anti-partisan gerrymandering legislation?

651
00:49:16,960 --> 00:49:24,160
And you don't see any sunlight between a right to political fairness and a claim that something

652
00:49:24,160 --> 00:49:27,440
is so unfair, it is violative of our Constitution.

653
00:49:27,440 --> 00:49:31,280
Political fairness sounds to me like, you know what, if you've got a Republican in charge,

654
00:49:31,280 --> 00:49:35,760
they might draw the maps more, a little more Republican, a Democrat, the same thing.

655
00:49:35,760 --> 00:49:40,840
That is not, how can that possibly be the same thing as this is so unfair, it rises to a

656
00:49:40,840 --> 00:49:45,400
level of a constitutional harm, which is extreme partisan gerrymandering, which is

657
00:49:45,400 --> 00:49:47,960
what we're being asked about, not political fairness.

658
00:49:47,960 --> 00:49:53,320
Well, your honor, again, having litigated these cases, the difference between the two is not clear,

659
00:49:53,320 --> 00:49:58,760
and that is why you see states like Florida saying we're just not considering it at all.

660
00:49:58,760 --> 00:50:02,440
It's either considered, there's either politics in the map or there's not,

661
00:50:02,440 --> 00:50:07,640
but there's no way, there's no way to assess in a judicially manageable way,

662
00:50:07,640 --> 00:50:11,400
whether there's just enough politics, but not too much.

663
00:50:11,400 --> 00:50:16,280
Because what that means is in the eye of the beholder absent some constitutional direction,

664
00:50:16,280 --> 00:50:18,760
that this is too much, and this is just enough.

665
00:50:18,760 --> 00:50:21,720
It feels like what you're asking us to do is to stick our hat in the sand,

666
00:50:22,360 --> 00:50:23,400
and I'm not your honor.

667
00:50:23,400 --> 00:50:26,040
It feels that way.

668
00:50:26,040 --> 00:50:31,000
I am not your honor, but I want to be emphatic about this.

669
00:50:31,000 --> 00:50:36,440
This is the adversarial system, and plaintiffs have to come to this court with arguments in history,

670
00:50:37,080 --> 00:50:40,280
just as you remarked in your concurrence in the MMC case,

671
00:50:40,280 --> 00:50:44,360
that maybe just maybe there's some history yet to be discovered out there

672
00:50:44,360 --> 00:50:48,440
that shows there's a right to partisan gerrymandering or shows there's this right living

673
00:50:48,440 --> 00:50:52,920
in Wisconsin's Equal Protection Clause, but it's not there in these briefs.

674
00:50:53,560 --> 00:50:58,360
And as much as it pains me to say it, I would urge the court to compare these briefs to the briefs

675
00:50:58,360 --> 00:51:03,960
in Clark, and the arguments that led this court in Clark that were historically rooted,

676
00:51:03,960 --> 00:51:08,280
they grappled with old precedents that weren't about mortgages or farmland,

677
00:51:08,280 --> 00:51:11,240
but about districts themselves and what continuity meant.

678
00:51:11,240 --> 00:51:13,880
It helped that the words contiguity were there.

679
00:51:13,880 --> 00:51:17,080
Well, your honor, I'm never going to get it.

680
00:51:18,520 --> 00:51:22,360
I can't concede that my contiguity argument is not one I still think about every day,

681
00:51:25,160 --> 00:51:27,800
but boy, was that a well-fought fight, your honor.

682
00:51:27,800 --> 00:51:33,640
And it was there, it was there, and that is an express requirement in the Constitution that

683
00:51:33,640 --> 00:51:41,160
the Constitution isn't about, Constitution isn't about express requirements, right?

684
00:51:41,160 --> 00:51:45,160
The Constitution is written in broad language, we're talking about a document

685
00:51:45,160 --> 00:51:49,560
that came right after that in 1848, right?

686
00:51:49,560 --> 00:51:54,120
And it set broad principles that Justice Taylor has been talking about.

687
00:51:54,120 --> 00:52:00,680
So it's not, we don't look for every single, it's not, this isn't connecting the dots,

688
00:52:00,680 --> 00:52:05,640
like can we find the word here, and then it means something, and if we don't find the exact word

689
00:52:05,640 --> 00:52:10,040
here, the principle must not exist. I think the legal scholars lay this out really well in their

690
00:52:10,040 --> 00:52:14,840
amicus brief. I think Justice Penny laid it out really well in his concurrence in Cunningham,

691
00:52:14,840 --> 00:52:18,440
which is that there are broad principles throughout the Wisconsin Constitution,

692
00:52:18,440 --> 00:52:23,480
and not all of those principles allows this court to subject legislative action to strict scrutiny.

693
00:52:24,760 --> 00:52:29,640
In the McGrail case about the ballots, the legislative action was okay because it was reasonable,

694
00:52:29,720 --> 00:52:34,040
even though it affected the right to vote, and if we go back to 1848,

695
00:52:34,040 --> 00:52:39,560
the messy work of what the district should look like was done by the political branches,

696
00:52:39,560 --> 00:52:44,680
and the delegates, and then later the people's representatives, and so there's just no similar

697
00:52:44,680 --> 00:52:51,720
history that was, as was that issue in Clark, to allow this court to invite this court to step

698
00:52:51,720 --> 00:52:58,360
into that political thicket now. I mean, deciding what is fair, whether it's extremely unfair, or

699
00:52:58,360 --> 00:53:04,680
fair, has plagued the federal courts for so long until we get to Rucho, and it's likewise plagued

700
00:53:04,680 --> 00:53:09,240
the state courts absent some bright line rule. Doesn't that show us something? The fact that

701
00:53:09,960 --> 00:53:15,000
these issues have been raised repeatedly, and that courts have struggled with them

702
00:53:15,000 --> 00:53:22,520
repeatedly, doesn't that, in some sense, show that there is a problem? There is a problem that is

703
00:53:22,520 --> 00:53:29,480
infecting our political landscape, not just in Wisconsin, but probably across the country.

704
00:53:29,480 --> 00:53:36,760
Voters struggle with that. I think you could pick just about anybody off the street in Wisconsin

705
00:53:36,760 --> 00:53:43,080
and ask them, do you think legislators should be able to draw a map in a way that

706
00:53:43,080 --> 00:53:48,520
locks in a particular political party, they would say? No. Doesn't it show us that there

707
00:53:48,520 --> 00:53:53,160
is some underlying problem there? The fact that courts have struggled with this for decades now?

708
00:53:53,160 --> 00:53:59,880
I think two things are true at once. Some voters could think there is a problem, and that courts

709
00:53:59,880 --> 00:54:05,160
have struggled with it so much means that it's not the court's problem to solve. And instead,

710
00:54:05,160 --> 00:54:10,840
it's been Congress's problem to solve, for example, in the 1840s, when Congress required single member

711
00:54:10,840 --> 00:54:17,320
congressional districts as a bulwark to gerrymandering, it's a problem for voters to solve with fair

712
00:54:17,400 --> 00:54:22,600
districts amendments. It's a problem for Congress potentially to solve now later on. Congress is

713
00:54:22,600 --> 00:54:29,880
constantly asked, by the way, to pass legislation to eliminate partisan gerrymandering. Congress passed

714
00:54:29,880 --> 00:54:35,400
and it's a hard thing to accomplish when you have a gerrymandered body. But let me just turn to

715
00:54:35,400 --> 00:54:41,240
another point. I want to return to a point you made a few minutes ago about distinguishing our case

716
00:54:41,320 --> 00:54:47,960
from other courts that have found a justiciable claim for partisan gerrymandering such as New

717
00:54:47,960 --> 00:54:54,040
Mexico. And it seemed to me you were leaning pretty heavily into the fact that the New Mexico

718
00:54:54,040 --> 00:55:00,280
Constitution, just as one example, has an explicit clause protecting free and equal elections.

719
00:55:01,320 --> 00:55:05,720
No, I think the New Mexico case rests on their equal protection clause and their history.

720
00:55:05,720 --> 00:55:09,240
It's a different state that you have in Pennsylvania and North Carolina.

721
00:55:09,240 --> 00:55:15,480
Okay, thank you. In any event, the point I wanted to raise is, is it your belief that because the

722
00:55:15,480 --> 00:55:22,120
Wisconsin Constitution lacks an explicit clause protecting fair and equal elections,

723
00:55:22,120 --> 00:55:28,440
that therefore the Wisconsin Constitution has no protection for fair and equal elections?

724
00:55:29,320 --> 00:55:36,680
No, Your Honor, that's not our position. Because clearly, constitutions are generally composed

725
00:55:36,680 --> 00:55:45,160
of broad principles. And this Constitution in Wisconsin is replete with phrases that point

726
00:55:45,160 --> 00:55:51,800
to the importance of popular sovereignty, the consent of the governed. Correct? Correct.

727
00:55:52,280 --> 00:56:00,280
So how is that different in substance than another state constitution that includes a clause such

728
00:56:00,280 --> 00:56:11,240
as fair and equal elections? Aren't those protections inherent in the clauses that protect popular

729
00:56:11,240 --> 00:56:17,080
sovereignty in Wisconsin? Well, as I mentioned before, there is a unique history to a free

730
00:56:17,160 --> 00:56:22,440
and equal elections clause and what those were, the evils that were perpetuated before America,

731
00:56:22,440 --> 00:56:28,680
that those were meant to guard against, specific to voting in elections. But in Wisconsin,

732
00:56:28,680 --> 00:56:34,040
just as everywhere else for these federal congressional districts, there is an absolute

733
00:56:34,040 --> 00:56:39,080
equality requirement at this point. You know, this court was asked to entertain an original

734
00:56:39,080 --> 00:56:43,960
action last year because the congressional districts deviated by one additional person.

735
00:56:44,680 --> 00:56:53,400
And as this court said in Cunningham, that promise of equality of an equally weighted vote,

736
00:56:54,120 --> 00:57:00,120
that is how people effectuate their right to vote. That is how votes are not diluted. And of course,

737
00:57:00,120 --> 00:57:06,200
Wisconsin protects that. And also, through our separation of powers, Wisconsin protects the

738
00:57:06,200 --> 00:57:12,680
right to vote. The founders assigned congressional redistricting power to the legislature and keeping

739
00:57:12,680 --> 00:57:17,400
with the people's representatives who are closest to them, the legislature, now in these territorial

740
00:57:17,400 --> 00:57:24,920
districts, can carry out the will of the people. Now, as for court struggling with this, Justice

741
00:57:24,920 --> 00:57:30,920
Crawford, I think it's very telling that even coming here today, counsel equivocated about what

742
00:57:30,920 --> 00:57:37,000
their test would be. And if counsel can't identify what their test would be, to me, that's proof

743
00:57:37,000 --> 00:57:41,880
positive that there is no judicially manageable standard hiding in the Wisconsin Constitution.

744
00:57:41,880 --> 00:57:45,960
I would agree with you. It's frustrating that they haven't articulated a test and I certainly

745
00:57:45,960 --> 00:57:52,920
wish they would have. That being said, let's talk about workability going forward in the event

746
00:57:53,720 --> 00:57:59,400
that we find both of the claims, both the partisan and anti-competitive gerrymandering

747
00:57:59,400 --> 00:58:08,440
cognizable. What are your thoughts about consolidating the gerrymandering claims and having just one trial?

748
00:58:09,080 --> 00:58:16,040
Again, it's inconceivable to me that there could be a trial in this posture, but to take your question,

749
00:58:16,040 --> 00:58:20,840
you know, assuming all of that, of course, I think the cases would need to be consolidated.

750
00:58:21,560 --> 00:58:25,800
I've participated. Other councils can participate in, for example, the Alabama congressional

751
00:58:25,800 --> 00:58:31,160
redistricting case. Those were consolidated at the trial court for purposes of trial proceedings.

752
00:58:32,520 --> 00:58:37,160
And again, I can't really conceive of how you have a new injunction in joining this courts

753
00:58:37,240 --> 00:58:42,200
injunction, but of course, you only want to do that one time versus two times, and so they should

754
00:58:42,200 --> 00:58:48,120
proceed together. But I don't want to lose sight of my latch as point two. We're talking about a

755
00:58:48,120 --> 00:58:55,800
lot of procedure, a lot of costs, and we are well over halfway into the decennial. And as federal

756
00:58:55,800 --> 00:59:02,040
courts and other courts have held, or the Illinois Supreme Court just held, sometimes plaintiffs are

757
00:59:02,040 --> 00:59:07,960
just too late because congressional districts, the census is about to come. And the prejudice

758
00:59:07,960 --> 00:59:13,800
here, well, let me start with it. The delay, I think, is clear from Brennan. Plaintiffs waited

759
00:59:14,520 --> 00:59:21,160
arguably 15 years to challenge Act 44 is unconstitutional. They waited three years since the

760
00:59:21,160 --> 00:59:25,640
congressional districts were settled. But I do want to point to the prejudice point, or I do

761
00:59:25,640 --> 00:59:30,120
want to discuss the prejudice point, Justice Protece, because it goes to the trial and everything.

762
00:59:30,120 --> 00:59:35,640
Will that be costly? Absolutely. But what's also costly and what's recognized in these cases

763
00:59:35,640 --> 00:59:41,640
we've cited on our latch's argument is the ensuing cost to the state, to the counties,

764
00:59:41,640 --> 00:59:47,640
and to voters should this court agree that the congressional districts need to change again.

765
00:59:47,640 --> 00:59:52,040
Maybe it's before the 2028 elections or the 2030 elections. And then, of course,

766
00:59:52,040 --> 00:59:57,240
the congressional districts will change again in 2032. Can't the congressional maps change

767
00:59:57,240 --> 01:00:00,040
anytime? How can your latch's argument appear?