Or give me a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you a couple of people to see if that's all I want.
I'll give you one of them to see if that's what we want.
I'll give you one of them to see if that's all I want.
I'll give you one of them to see if that's all I want.
I'll allow you to see if that's all I want.
I'll allow you to see.
I'll allow you to see if that's all I want.
They're not going to tell us how much time I like to walk in and go over it out there.
Yeah.
It's like a loaded mac and cheese pizza.
You're done with cheese for a little while.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
Yeah.
You're going to get something to waste for a year.
Should've never existed.
Yeah.
Yeah.
It's like sandwiches probably would be nice.
And we're going to be here about as well.
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.
What do you think about some of the sandwiches for a computer in the office?
Yeah.
Do you guys care what it is?
It's the same thing?
No.
All right.
Having the opportunity to press the board.
Would you like your stuff in the room?
I think there's a reasonable...
Are you going to stay with me?
I think I missed it.
No one's going to know or care.
It's not your case.
You don't have to.
You don't have to.
You don't have to.
You're an audience.
You're an audience.
You're a spectator.
You're a spectator.
What do you mean it's true?
It'll be probably between cases.
Which means it's going to be like...
Let's say let's break it down.
I think I'll get that by now.
I think both of those front records
take these guys off.
I think we're going to have to have
power 15.
I thought you said the entire thing.
90 minutes is about a time between the schedule
for when there are...
We still have four.
I don't think that would be possible.
We'll set it up.
It's very tough.
Almost there.
It's very tough.
It's very tough.
It's very tough.
It's very tough.
But otherwise,
it's not that steep.
It's very tough.
It's very tough.
It's very tough.
It's very tough.
I think it's like 4.20.
I guess it's a question note.
Whether I also stay with the whole band.
We're going to figure that out.
I find the three major airlines are so similar to each other.
The three major airlines are very similar to each other.
No opinion on Alaska.
Just going to Seattle is less good.
All rise.
Hear ye, hear ye, hear ye.
The Wisconsin Supreme Court is back in session.
The Honorable Chief Justice Joe Braskman presiding.
Your silence is commanded.
Go ahead and have a seat.
At long last year,
if you can ask me something as you're taking the podium,
sometimes when people are splitting up arguments,
they're each taking an issue,
you're going to start with that, weren't you?
You weren't going to.
Are you going to take an issue or not?
You can save some questions.
All three of us are ready for all your questions.
He will let the argument unfold, however it's most helpful.
Oh, cool.
That's great.
Then we are ready whenever you are.
Good morning.
May I please the court tailor me in on behalf of the Wisconsin legislature?
Four and a half years ago,
this court adopted the governor's proposed remedy for the then malaportioned congressional districts.
The court held unequivocally that that remedy complied with all applicable state and federal laws.
Nothing has changed since then that could warrant re-entering the political thicket
of congressional redistricting and putting this court's injunction on trial in a circuit court.
This court can affirm the dismissal of plaintiffs' complaint on these simple grounds
without reaching the merits, which is that the circuit court was exactly right
that it could not unwind this court's final judgment in Johnson 2.
Likewise, this court could affirm simply by holding plaintiffs waited too long
to bring this suit in circuit court just as the Illinois Supreme Court held last year
for the districting challenge in Illinois.
Nor would there be any reason for this court, for the circuit court,
to unwind the Johnson 2 injunction.
As to plaintiff's separation of powers arguments,
the circuit court was exactly right that plaintiffs' arguments rewrite this court's words in Clark
to say something that this court did not say.
The court needs no more authority than Clark itself to know that at least change's remedy
is not categorically unconstitutional.
That's cool.
I want to go back to Clark, which I haven't set up to this point,
but I'll say now is a well-written opinion.
Indeed, your honor.
Thank you.
Appreciate it.
Fishing for compliments this morning.
It was really clear in 63 that these changes on workable in practice.
It went through the whole analysis about it being unworkable and all the reasons it was
unworkable.
I certainly recall vividly sitting in this courtroom as we talked about the peanut's analogy of
Lucy moving the football away from Charlie Brown because no one who was advocating for
least change in this courtroom could agree to what it meant.
Was at least change as far as the number of people, the population, and the district
was at least change as to the lines.
Were we trying to least change as to municipalities?
It didn't work.
There was nothing in the Constitution as Justice Taylor brought out a little while ago.
There was nothing in Wisconsin law.
There was nothing in the Wisconsin Constitution.
I brought it forward that could be relied on to be the basis for it.
In paragraph 63 of Clark just says, as illustrated across the course of the Johnson litigation,
least change is unworkable in practice.
As such, we overrule any portion of Johnson 1, Johnson 2, and Johnson 3, that mandate
at least change approach.
I would like to know what else could a judge or justice possibly write in an opinion to
say, this is, we are overturning this.
This does not apply going forward.
This was wrong.
It was unworkable in practice.
I don't know how much more clearer I could have done it, but apparently there's something
else I should have done.
What do you suggest that was?
Chief Justice Croft's view took the words right out of my mouth, which is that we're not
going to apply this going forward.
But the court's discussion about how lease changes is unworkable is not synonymous with
a holding that lease changes was unconstitutional when applied in Johnson 2.
And as for Justice Taylor's question about where this lease changes approach comes from,
I think some table setting is really important here.
You receive Justice Taylor an answer about Clark and the state constitution.
Clark involved the state house districts.
Of course, we are here about the congressional districts, and so to the question of where
a lease changes approach might come from, I would point the court to the federal constitution
here in this case, which assigns power to the legislature for redistricting, not courts.
And when the last enacted plan by the legislature is Act 44, of course the elections clause could
anticipate this.
But we said, I'm sorry to interrupt you, but we said that those maps because they did
not, the population had shifted, obviously, in the ten years.
Those maps could no longer be violated.
They violated federal law.
They violated our constitution.
Those maps were no longer in effect.
They couldn't be.
Your Honor, I think that mistakes the nature of the judicial power, which is when the court
examined Act 44 and held Act 44 was unconstitutionally malapportioned, the court was not striking
down the law or erasing it from the Wisconsin statutes.
The court was remedying the malapportionment of those districts.
Those districts are still the law on the books today with the additional layer of this court's
injunction remedying the malapportionment of those districts at the margin.
And as for the deference to the legislature and whether that could possibly work a constitutional
legislation in a congressional redistricting case, any such rule would come as an enormous
surprise, I would think, to the U.S. Supreme Court.
But states have done it.
State courts have looked at the issue of judicial ability.
We have ten courts now that have come up with a standard.
None of those Supreme Court decisions have been overturned.
They've not been accepted on cert.
They have not been accepted on a stay.
We see state courts coming up with standards to measure whether votes have been improperly
and unconstitutionally and substantially deluded.
How do we not have that same ability, like these other state courts, state Supreme Courts
have had?
And your Honor, I do have arguments in response to the partisan gerrymandering claim and other
states have done it, but I would like to finish my point on Justice Propsky's, the least changes
approach and the very separate claim that plaintiffs have said they've brought here.
And as for what state courts have done, let me start with the U.S. Supreme Court.
In cases like White Against Wiser, the U.S. Supreme Court reversed a court for refusing to
defer to the political judgments of the Texas legislature in a malaportionment case.
And then state courts as diverse as courts in Minnesota, Oklahoma, South Carolina, and New Hampshire
have all done exactly what this court did.
Let me ask you something about that.
We are not talking about maps that the legislature put in place.
The legislature put in place maps, the governor vetoed those maps.
You are talking about a legislature from 2011.
Correct.
Correct.
And just as courts in New Hampshire, Oklahoma, and all the other states I just listed off
deferred to the same sort of maps, these are impasse cases, malaportionment cases, and those
who say we are going to defer to the last enacted map.
Because that is the last enacted map by the people's representatives.
And our job here is to remedy malaportionment.
It's not to strike a new political balance.
We should talk about the people's representatives, right?
Because if you start with Article 1, Section 1 of our Constitution, which says that the
government derives its power from the consent of the governed.
From the people, yes?
Yes.
Yes.
And in your view, that means the legislature, not the court, that they should be deciding
this issue of redistricting the 2011 legislature in this case, right?
Yes.
Okay.
Because that legislature, if I'm understanding your argument, was elected by the people.
They're closest to the people.
They can be held accountable by the people.
Yes.
Yes.
Okay.
This is where I have some issues.
The legislature that passed those original maps wasn't any old legislature, right?
The legislature that passed that maps, they came from districts that many people claimed
are the, were the most gerrymandered in the entire country.
They were, as some say, a prime example of representatives choosing their voters rather
than the other way around, rather than voters choosing their representatives.
And because of those maps, many people felt that their votes were diluted, that they weren't
representative of the people.
They said that they felt like those districts lacked in representation.
People felt like those maps weren't fair.
Some people even called those maps rigged.
That the legislators that came from those districts came from rigged maps.
It is that legislature.
Those representatives from those districts described as extremely gerrymandered that drafted
the maps that we are talking about today.
The maps that got baked in in 2021.
And if I'm understanding your argument that under these change, which you're ardently
defending, those maps, the baked in ones from the 2011 legislature, would go forward into
perpetuity indefinitely.
And I don't understand how that is not unconstitutional.
Well, your Honor, whether we agree with it or not, the U.S. Constitution assigns redistricting
authority to the legislature.
Because 250 years ago, when we declared revolution, we said the people decide through their elected
representatives.
And there are two solutions for that, either of which plaintiffs could pursue.
First, they could lobby Congress because, of course, Congress likewise has power under
the elections clause to stop what some have said should not have happened in 2011.
Or like Florida, like New York, like Ohio, plaintiffs could do the hard work of creating
a constitutional amendment and saying any politics in redistricting is forbidden.
Any desire to send Speaker Paul Ryan back to Congress is forbidden.
They have not done that.
And so, yes, as we stand here today, the only neutral way for this court to have proceeded
in a malapportionment case about congressional districts was to just defer to the existing
political and policy choices, like sending senior statesmen, be it Speaker Ryan, or
Representative Obie back to Congress, and lessen until there's a change from Congress itself
or a constitutional change to the Wisconsin Constitution.
And that is regardless of how much constitutional harm is caused to an individual's right to
vote.
Is that what you're saying?
Your Honor, as Justice Ziegler explained, every individual in Wisconsin can go to vote
on election day or mail in their ballot and cast an equally weighted vote.
That's been true in Wisconsin, by the way, since-
That's not what gerrymandering allows, is it gerrymandering is the legislature determining
their voters and assigning, treating class of voters as unfavored.
And that can have the impact of deluding in individuals' right to vote.
So they vote, yes, they go and vote, but their vote's meaningless because politicians have
determined who their voters are.
And that would seem to me so contrary to the language of our Constitution, which elevates
the sovereignty of the people, that politicians have no power without the people.
Your Honor, our founders risk their lives so that our representatives who we elect can
represent the people, not a king, and with all due respect, not courts, because the Wisconsin
Constitution provides this court, no judicially manageable standards, to decide that loyal
Republicans and loyal Democrats have this super-constitutional right.
But other courts have done it.
They have done it, Your Honor, and I'm so glad you asked that question, because there
is no free and fair elections clause in Wisconsin's Constitution.
And there is no Board of Fair Districts amendment saying considering incumbents is forbidden.
And even in states that have done it, even in North Carolina with the free and fair elections
clause, I'd urge this court not to take my words for it, go look at the Supreme Court
opinions in that case.
They threw up their hands, Justice Taylor, and they said, we understand this is a political
problem, and this is hotly debated at kitchen tables and in academic classrooms.
But what we can't do as a court is solve that problem, because even the free and fair
elections clause doesn't give us the tools to do so.
So our Constitution is different in that we, there's a provision that says there's
a remedy for wrongs, section nine, says every person's entitled to a certain remedy in the
laws for all injuries or wrongs, which he may receive in his person, property or character,
he ought to obtain justice freely.
So that is unique to our Constitution.
Our task is to interpret our Constitution, to evaluate legislation, to see if it poses
a constitutional harm to these rights.
So it's just very hard, I think your argument is challenging when I look at our own Constitution
and the language of that Constitution, and the embodiment of the sovereignty of people,
government has no power without the people.
So if a class of voters, if their vote is being deluded or infringed upon, that seems
to me to violate these principles of the people being sovereign, because we have been elevated
the power of politicians above individual's right to choose their government.
Your Honor, the question assumes the answer to the question I thought we were all here
to address today, which is, is there a right to Republican districts or Democratic districts
in the Wisconsin Constitution?
That's not the framing though, it's not, that's not, you're framing it in a certain
way that I think is not how I'm seeing it.
I'm looking at our state Constitution, and I am pondering as we do with all legislation
that we review, the concept of judicial review.
Is there a constitutional harm here?
That's what I'm looking at.
I'm not looking at, it's not up to us to imbue our policy choices.
That's very clearly belongs to the legislature.
What I'm looking at is there a constitutional harm here, and I'm sure you agree that the
right to vote is the most precious constitutional right we have.
We have Wisconsin case law that says that, it is the most precious right.
So isn't that our inquiry, is there a constitutional harm here in infringing or diluting an individual's
right to vote?
That seems to be the question.
Yes, three points, Your Honor.
First, Wisconsin was ahead of the curb in terms of the right to vote in the Cunningham
case.
In the Cunningham, this court did something decades, perhaps a century before the Supreme
Court did in Westbury, which it said, that right to vote is so precious that we in Wisconsin
are going to ensure that you have a numerically equally weighted vote back in, I think it
was 1892, and that, and no one here disputes that this court could not adjudicate a claim
of malapportionment, just as the court did in Johnson.
The second point, beyond that, the right to vote is not a right to get the election
outcomes you want.
The very nature of the political branches is that someone loses and someone wins on election
day.
And when it comes to who decides what those districts look like, the Wisconsin Constitution
gives this court no judicially manageable standard to override what the federal Constitution
says, which is that the legislature does get to decide, and it was okay in remedying
malapportionment to defer to those legislative choices.
A good case on that is the McGraill case where it certainly involved the right to vote.
It involved whether you could be identified by party on a ballot, whether someone knew
I was a Republican or a Democrat or the Constitution Party or something else, and this court deferred.
This court...
Courts do apply substantiality of harm all the time.
We weigh that, whether it be in civil criminal cases.
We are applying those standards and not set out necessarily in the Constitution, but it
seems to me that we're looking at, is there a substantial delusion?
Is there a substantial harm here?
And of course, do that all the time in jurisquigence.
We are always looking at harms and weighing whether there's a substantiality issue.
Your Honor, I suppose that brings me to the third point, which is whether a plaintiff
might be able to establish there is a cognizable harm in some case.
Later on, this court could leave unresolved whether it wants to overrule Johnson One.
But in this particular case, plaintiffs have not done the hard work to walk back what
were more than three dozen paragraphs in addition to Justice Hagedorn's concurrence
explaining that the Constitution, as it sits today and as it sat then, does not give the
court the tools to adjudicate those kinds of thorny claims.
So that's what you were...
Why do we have a remedy for every wrong?
Every person is entitled to a certain remedy because of the laws for all injuries.
Because your Honor, plaintiffs have not identified what the constitutional wrong is at this
time.
Vote delusion is not a constitutional wrong.
When our Constitution explicitly says it is the people who choose their government,
the only mechanism by which they do that is the right to vote.
And no one disputes that the districts are equally apportioned, they can cast an equally
weighted vote.
So it does not matter the extent of a partisan gerrymandering.
It does not matter the extent of the harm that is caused by a disfavored group.
What sounds to me like if you're saying an extreme gerrymandering, an extreme partisan
gerrymander is constitutional.
Your Honor, understanding that is your argument?
Your Honor, I'm not sure at this point in time how to define an extreme partisan gerrymander
versus a sort of partisan gerrymander versus we wanted to send Speaker Ryan back to Congress.
Would you say five percent, double digits, ten percent, fifteen percent?
I think we certainly have districts across the state that hit those numbers.
We do, Your Honor, and I can't tell you that District 2, for example, here where we stand
today is an extreme partisan gerrymander.
The representative there won by 70 to 30 percent vote in 2024.
There's every reason to think he did so because Democrats are densely populated in
the Madison area.
Right, there could be compactness, for sure.
But you look at some of the other districts and the way they're drawn.
What I'm almost hearing you say is that there's not a constitutional claim for extreme partisan
gerrymandering under the Wisconsin Constitution.
If that's what it boils down to, tell us.
Your Honor, right now the Wisconsin Constitution does not define with any level of judicial
certainty what an extreme partisan gerrymander would be and in states that have been displeased
with that constitutional reality, that they have amended their constitutions with clear
rules that courts can apply, the Utah case, the New York case, the Florida case that plaintiffs
have brought to you all involve either reticulated statutes or constitutional amendments saying
we extirpate politics from redistricting.
Council, your opposing council has urged us to adopt New Mexico and Pennsylvania's cases.
And it took the opportunity on break to take a look at their constitutional provisions.
You mentioned earlier that Wisconsin does not have a free and equal elections clause.
The courts in those cases did point to and reference, and the New Mexico and Pennsylvania
constitutions do specifically have a free and equal elections clause.
Do you think that has any impact on whether we should follow Pennsylvania and New Mexico?
I do, and I think, I can't remember if it's the Pennsylvania decision or the first North
Carolina decision that explores the history of that clause.
It's extremely interesting.
There in other state constitutions, they are very specific to elections and your ability
to go cast a vote.
And so there was far more history in those cases to connect that constitutional text
admittedly broad with a right to have fairer districts, however one expert might define
fairer districts.
Here the history points in entirely the opposite direction.
There's precious little of it in the briefs here.
There were more than 100 pages about it in Johnson.
The history boils down to this state's constitutional convention in 1848.
There was a lot of talk about gerrymandering.
And there was a lot of discussion about whether the way Wisconsin's first congressional
districts had been drawn was fair to have a very compact district in the southeast of
the state and the sprawling district capturing 20 counties in the rest of the state.
And the solution to that then answers the question before this court now.
The solution was the people voted through their delegates at the convention and then
through ratifying the constitution and that's been the unchanged history for over 100 years
in this state until 2011 when parties started bringing partisan gerrymandering claims.
Council, I wanted to just follow up with the Chief Justice's question about the 2011 maps.
My recollection of the history here is that I think Democrats controlled the legislature
entirely from 2006 to 2006 to 2010.
There was a Democratic governor at that time.
Then in the 2010 elections, Republicans won the governorship in both houses of the legislature
and using maps that were in place at that time and then it was that legislature which
actually enacted the law that we are dealing with here at 44 in 2011.
And so it was not the quote rigged maps or any later maps that were enacted for example
after our Johnson decision that are at issue here.
But that was in fact a series, a legislature that was chosen with maps that clearly were
quite competitive and led to both Republicans and Democrats controlling both chambers.
Is that accurate?
The points will take in your honor and to finish the point I would say those, the maps
that others have called rigged, I won't endorse that language today, have since also been
replaced through the democratic process where the legislature passed maps and the democratic
governor signed them.
But yes, for purposes of the congressional districts which we're here to talk about today,
the Congress members didn't enact that map.
The people's representatives in the small districts that make up the state legislature
did and that's exactly what the Constitution has envisioned would happen until 1787 and
so to bring us back to what was going on in Johnson.
In Johnson the court was not enacting a new map.
The court was doing what it always does Justice Taylor, it was remedying a constitutional
wrong of malapportionment and going no further.
And it must-
It's not embedded in Wisconsin law.
It comes from a federal case which comes from an interpretation of voting rights act.
There's just no, I wasn't here when it was done, but it seems disconnected.
Your honor, if the standard your honor is referring to is the least changes standard.
That's the approach the US Supreme Court has taken to redistricting cases always and for
purposes of this congressional redistricting case, certainly that standard is allowable
under the elections clause, lest this court rests from the legislature, it's the legislature.
Well, we're supposed to change the least.
Pardon?
What was supposed to change the least and least change?
Well, for a malapportionment case, I think the way the opinion shook out in Johnson 2 for
the congressional districts makes perfect sense.
We looked at core retention scores.
We moved the fewest number of people to repopulate with people the districts.
Of course, other parties in Johnson had differing arguments, but your honor, back to the first
question, whether or not your honor thought that was unworkable to use core retention,
a metric that legislators use all the time, isn't the same as the argument plaintiffs
have brought this court, which is they are asking this court to hold it's not just unworkable,
it's unconstitutional to defer to the legislature when remedying a malapportionment claim.
And I can think of a rule no better suited for an elections clause problem than to say
in a malapportionment case, it's the courts and not the legislature that must decide what
the political balance should be in districts.
That is really, I think, disingenuous reading of more, right?
That's not what Moore said.
Moore said that certainly state courts can utilize traditional principles of judicial
review in reviewing the actions of their legislature.
What we're not supposed to do is go outside the bounds of judicial review.
It's not our, we do not make policy here, we're not, we don't consider that.
We consider the constitution and the text of our constitution, and whether there's
a constitutional harm.
And that was very clearly stated and more.
In Rucho itself, the majority looks to state courts to address some of these issues of
gerrymandered districts.
So there's nothing unusual or strange about this court examining whether an act of the
legislature causes a constitutional harm.
It's what we do every day.
It's our function.
Well, the elections clause point I was reading was about how it would be highly unusual to
hold that this court is prohibited from using the last enacted maps as a starting point,
from using a lease changes approach, because that's what the Supreme Court did in white.
It's what the Minnesota Supreme Court did in hip hurt in the Oklahoma case, in the South
Carolina case, in the New Hampshire case, I'm sure there are more.
And so that remedial approach would be highly unusual because the court isn't enacting
a new map, it's remedying mal apportionment in a lease changes way.
Surely that's allowable under the elections clause.
Now separate and apart from that, as for the partisan gerrymandering claim, no court
has ever held to a final judgment that the map is a partisan gerrymandering or that partisan
gerrymandering is a cognizable claim under the Wisconsin Constitution.
And so I do think it puts the cart before the horse to say plaintiffs have presented
a constitutional harm, partisan gerrymandering, don't we have to remedy it?
First, we have to ask, have plaintiffs done the hard work to present this court with
new text and new history and new reasons not already rejected in Johnson 1?
Okay, I want to take you back to this already rejected in Johnson 1.
Johnson 1 did not have the claim of extreme partisan gerrymandering in front of us.
What was in front of us was a map, creating a map.
And the question that was asked is, should this court, in doing so, consider partisanship?
That is a very different question.
If no one here is saying or thinking that partisanship doesn't come into play when
the legislature makes maps, of course it does.
We're talking about a claim that it has gone so far that extreme partisanship has gone
so far so as to dilute the vote.
And that claim can be, they're making the claim of that that can be found in our Constitution,
those important rights to democracy and the democracy principle that set forth in their
briefs.
So when you sit here and say, we already decided in Johnson 1, I was there and we didn't decide
it.
And they may have been in an opinion that the majority wrote and oftentimes things are in
our opinions that aren't squarely in front of the court, we give that what we give it.
But it was not an issue that has ever been brought to our court, aside from as was pointed
out, we did not take a vehicle of an original action petition.
This case was filed in the circuit court just like every other case starts out in the circuit
court and usually in our district.
So I want to push back on that and it seems like you're giving an awful lot of reliance
on a couple of statements, a couple of paragraphs about an issue that was not squarely in front
of the court.
Yes, Turner, sort of take one of your last points first and then to address the heart
of what was an issue at Johnson 1.
The fact that this case started in circuit court, I actually think irrespective of a
debate on partisan fairness, is the easiest grounds to say, while we might reconsider
it or while we might consider it in another case, we can't consider it in this case.
Because this injunction exists by virtue of an exercise of our original jurisdiction and
now a circuit court has been asked to put that injunction on trial and that turns upside
down the judicial.
Aren't they being asked to issue a declaratory judgment and don't courts issue declaratory
judgments all the time?
Well, initially, no, you're honored.
The complaint's very clear.
They wanted the circuit court to enjoin this court's injunction and it's up to this court
to decide whether it wishes that to continue not just in this case, but in all future cases.
As for the declaratory judgment, the same fundamental problem still persists.
Like academically, that sure sounds like an advisory proceeding because there's nothing
that the court could do alongside the declaratory judgment to enjoin this court's injunction.
But sort of-
I know I want to make a second point, but it sort of feels like what you would have your
friends on the other side do is just chase their tails around indefinitely.
I mean, they have come at this several different ways to be fair.
They have asked for, let's see, reconsideration.
They filed a motion for relief from the judgment.
They filed an original action, and then they filed the complaint in circuit court.
I may have left out something, actually.
I feel like it wouldn't matter which way they came at this, you would say, no, that's
not good enough.
And they have tried, they have come at it at least three or four different ways.
Your Honor, I disagree.
I think they came at it with a motion for reconsideration or a motion for relief from
judgment.
And I don't think there's any dispute that that's actually the most typical way for this
court to address its final injunctions was to reopen Johnson itself.
Then they came at it just like the Clark petitioners and asked this court to revisit its original
jurisdiction injunction with another original jurisdiction action.
And that this court denied those requests doesn't mean that then we can invert the hierarchy
of the judicial branch in this state and allow a circuit court to put your injunction on trial.
But it goes back to Justice, I'm not seeing it.
It's a declaratory judgment.
Well, sure.
They would be declaring that this court acted unconstitutionally in 2022 in Johnson 2.
I can find no authority and plaintiffs have pointed to no authority of any circuit court
in this state having ever done so.
How about a trial court that declares something our court did was unconstitutional in the
criminal setting?
What if a trial court said what if there was a violation of the Constitution and we said
it didn't occur and it goes back and we later learned that the council was ineffective and
all of a sudden there's an issue in front of the court.
I mean, there's a myriad of ways in which cases that we have found to be constitutional
or that we have ruled on then are potentially later found otherwise.
I mean, what you're basically saying is that once we decide something, no one else can
ever review it, including us.
No, you're honored.
This court can.
And while I don't want to devolve into a discussion of habeas, what a habeas case is asking
is actually for a separate writ.
I'm not even talking habeas.
I'm just talking about ineffective assistance of council in our state.
I think I could probably find cases where that's happened, where this court has said
that something was constitutional and it later turns out that actually it wasn't.
Right.
There's a well trodden collateral attack often called writs of habeas corpus on final criminal
judgments, but that's not undoing the criminal judgment.
It's granting a writ of habeas corpus for purposes of this case, your honor.
Of course, this court could exercise its original jurisdiction again if it wanted
to just as it did in Clark.
So long as that original action was pursuant to the usual norms of judicial procedure.
So council, let me just pick up on that point because if we were to find that there's a
justiciable claim here and to remand it to the three judge panel to take evidence and
determine whether the illegal standard for that claim is met and to find a constitutional
violation, I'm just not following you in determining why it is that this three judge
panel does not have jurisdiction or the authority to hold such a trial and draw such a conclusion
on the evidence based on something that was said in Johnson to in which such a claim
was not squarely in front of the court.
Can you answer that, please?
Yes, your honor.
So first on the on the most fundamental procedural procedural point, I'm not aware of a circuit
court putting on trial a final injunction of this court in another case, right?
The circuit court would have to.
It's not putting an injunction on trial.
It is looking at the maps that are currently in place and making a determination about
whether there is a partisan gerrymander in those maps.
An issue that this court did not consider because it had no evidence at that point of
partisan gerrymandering.
Why are you saying that the Wisconsin law or the Wisconsin Constitution would prohibit
an examination of that issue now for maps that are going to be used for future elections?
The maps, just to be very clear, are and they exist by-
They were adopted by this court, I understand that.
They were adopted by this court without consideration for whether the maps were created with the
partisan gerrymandering.
Sure.
So to answer that question directly, and Justice Dalit, I apologize the heart of your question
directly.
I too was here in Johnson and the parties were asked because some parties had raised whether
the Wisconsin Constitution requires districts to be politically fair.
And the parties submitted, as I mentioned, over 100 pages of briefing on that question,
and there are more than three dozen paragraphs of legal analysis in the Johnson One opinion
about why we cannot find anywhere in the Wisconsin Constitution a right to political fairness.
And all the questions that such a right should it proceed in court cases would raise as opposed
to should it proceed in the halls of Congress with anti-partisan gerrymandering legislation?
And you don't see any sunlight between a right to political fairness and a claim that something
is so unfair, it is violative of our Constitution.
Political fairness sounds to me like, you know what, if you've got a Republican in charge,
they might draw the maps more, a little more Republican, a Democrat, the same thing.
That is not, how can that possibly be the same thing as this is so unfair, it rises to a
level of a constitutional harm, which is extreme partisan gerrymandering, which is
what we're being asked about, not political fairness.
Well, your honor, again, having litigated these cases, the difference between the two is not clear,
and that is why you see states like Florida saying we're just not considering it at all.
It's either considered, there's either politics in the map or there's not,
but there's no way, there's no way to assess in a judicially manageable way,
whether there's just enough politics, but not too much.
Because what that means is in the eye of the beholder absent some constitutional direction,
that this is too much, and this is just enough.
It feels like what you're asking us to do is to stick our hat in the sand,
and I'm not your honor.
It feels that way.
I am not your honor, but I want to be emphatic about this.
This is the adversarial system, and plaintiffs have to come to this court with arguments in history,
just as you remarked in your concurrence in the MMC case,
that maybe just maybe there's some history yet to be discovered out there
that shows there's a right to partisan gerrymandering or shows there's this right living
in Wisconsin's Equal Protection Clause, but it's not there in these briefs.
And as much as it pains me to say it, I would urge the court to compare these briefs to the briefs
in Clark, and the arguments that led this court in Clark that were historically rooted,
they grappled with old precedents that weren't about mortgages or farmland,
but about districts themselves and what continuity meant.
It helped that the words contiguity were there.
Well, your honor, I'm never going to get it.
I can't concede that my contiguity argument is not one I still think about every day,
but boy, was that a well-fought fight, your honor.
And it was there, it was there, and that is an express requirement in the Constitution that
the Constitution isn't about, Constitution isn't about express requirements, right?
The Constitution is written in broad language, we're talking about a document
that came right after that in 1848, right?
And it set broad principles that Justice Taylor has been talking about.
So it's not, we don't look for every single, it's not, this isn't connecting the dots,
like can we find the word here, and then it means something, and if we don't find the exact word
here, the principle must not exist. I think the legal scholars lay this out really well in their
amicus brief. I think Justice Penny laid it out really well in his concurrence in Cunningham,
which is that there are broad principles throughout the Wisconsin Constitution,
and not all of those principles allows this court to subject legislative action to strict scrutiny.
In the McGrail case about the ballots, the legislative action was okay because it was reasonable,
even though it affected the right to vote, and if we go back to 1848,
the messy work of what the district should look like was done by the political branches,
and the delegates, and then later the people's representatives, and so there's just no similar
history that was, as was that issue in Clark, to allow this court to invite this court to step
into that political thicket now. I mean, deciding what is fair, whether it's extremely unfair, or
fair, has plagued the federal courts for so long until we get to Rucho, and it's likewise plagued
the state courts absent some bright line rule. Doesn't that show us something? The fact that
these issues have been raised repeatedly, and that courts have struggled with them
repeatedly, doesn't that, in some sense, show that there is a problem? There is a problem that is
infecting our political landscape, not just in Wisconsin, but probably across the country.
Voters struggle with that. I think you could pick just about anybody off the street in Wisconsin
and ask them, do you think legislators should be able to draw a map in a way that
locks in a particular political party, they would say? No. Doesn't it show us that there
is some underlying problem there? The fact that courts have struggled with this for decades now?
I think two things are true at once. Some voters could think there is a problem, and that courts
have struggled with it so much means that it's not the court's problem to solve. And instead,
it's been Congress's problem to solve, for example, in the 1840s, when Congress required single member
congressional districts as a bulwark to gerrymandering, it's a problem for voters to solve with fair
districts amendments. It's a problem for Congress potentially to solve now later on. Congress is
constantly asked, by the way, to pass legislation to eliminate partisan gerrymandering. Congress passed
and it's a hard thing to accomplish when you have a gerrymandered body. But let me just turn to
another point. I want to return to a point you made a few minutes ago about distinguishing our case
from other courts that have found a justiciable claim for partisan gerrymandering such as New
Mexico. And it seemed to me you were leaning pretty heavily into the fact that the New Mexico
Constitution, just as one example, has an explicit clause protecting free and equal elections.
No, I think the New Mexico case rests on their equal protection clause and their history.
It's a different state that you have in Pennsylvania and North Carolina.
Okay, thank you. In any event, the point I wanted to raise is, is it your belief that because the
Wisconsin Constitution lacks an explicit clause protecting fair and equal elections,
that therefore the Wisconsin Constitution has no protection for fair and equal elections?
No, Your Honor, that's not our position. Because clearly, constitutions are generally composed
of broad principles. And this Constitution in Wisconsin is replete with phrases that point
to the importance of popular sovereignty, the consent of the governed. Correct? Correct.
So how is that different in substance than another state constitution that includes a clause such
as fair and equal elections? Aren't those protections inherent in the clauses that protect popular
sovereignty in Wisconsin? Well, as I mentioned before, there is a unique history to a free
and equal elections clause and what those were, the evils that were perpetuated before America,
that those were meant to guard against, specific to voting in elections. But in Wisconsin,
just as everywhere else for these federal congressional districts, there is an absolute
equality requirement at this point. You know, this court was asked to entertain an original
action last year because the congressional districts deviated by one additional person.
And as this court said in Cunningham, that promise of equality of an equally weighted vote,
that is how people effectuate their right to vote. That is how votes are not diluted. And of course,
Wisconsin protects that. And also, through our separation of powers, Wisconsin protects the
right to vote. The founders assigned congressional redistricting power to the legislature and keeping
with the people's representatives who are closest to them, the legislature, now in these territorial
districts, can carry out the will of the people. Now, as for court struggling with this, Justice
Crawford, I think it's very telling that even coming here today, counsel equivocated about what
their test would be. And if counsel can't identify what their test would be, to me, that's proof
positive that there is no judicially manageable standard hiding in the Wisconsin Constitution.
I would agree with you. It's frustrating that they haven't articulated a test and I certainly
wish they would have. That being said, let's talk about workability going forward in the event
that we find both of the claims, both the partisan and anti-competitive gerrymandering
cognizable. What are your thoughts about consolidating the gerrymandering claims and having just one trial?
Again, it's inconceivable to me that there could be a trial in this posture, but to take your question,
you know, assuming all of that, of course, I think the cases would need to be consolidated.
I've participated. Other councils can participate in, for example, the Alabama congressional
redistricting case. Those were consolidated at the trial court for purposes of trial proceedings.
And again, I can't really conceive of how you have a new injunction in joining this courts
injunction, but of course, you only want to do that one time versus two times, and so they should
proceed together. But I don't want to lose sight of my latch as point two. We're talking about a
lot of procedure, a lot of costs, and we are well over halfway into the decennial. And as federal
courts and other courts have held, or the Illinois Supreme Court just held, sometimes plaintiffs are
just too late because congressional districts, the census is about to come. And the prejudice
here, well, let me start with it. The delay, I think, is clear from Brennan. Plaintiffs waited
arguably 15 years to challenge Act 44 is unconstitutional. They waited three years since the
congressional districts were settled. But I do want to point to the prejudice point, or I do
want to discuss the prejudice point, Justice Protece, because it goes to the trial and everything.
Will that be costly? Absolutely. But what's also costly and what's recognized in these cases
we've cited on our latch's argument is the ensuing cost to the state, to the counties,
and to voters should this court agree that the congressional districts need to change again.
Maybe it's before the 2028 elections or the 2030 elections. And then, of course,
the congressional districts will change again in 2032. Can't the congressional maps change
anytime? How can your latch's argument appear?