WEBVTT 00:00.000 --> 00:05.000 Or give me a couple of people to see if that's all I want. 00:30.000 --> 00:34.000 I'll give you a couple of people to see if that's all I want. 00:34.000 --> 00:38.000 I'll give you a couple of people to see if that's all I want. 00:38.000 --> 00:42.000 I'll give you a couple of people to see if that's all I want. 00:42.000 --> 00:46.000 I'll give you a couple of people to see if that's all I want. 00:46.000 --> 00:50.000 I'll give you a couple of people to see if that's all I want. 00:50.000 --> 00:54.000 I'll give you a couple of people to see if that's all I want. 00:54.000 --> 00:58.000 I'll give you a couple of people to see if that's all I want. 00:58.000 --> 01:02.000 I'll give you a couple of people to see if that's all I want. 01:02.000 --> 01:06.000 I'll give you a couple of people to see if that's all I want. 01:06.000 --> 01:10.000 I'll give you a couple of people to see if that's all I want. 01:10.000 --> 01:14.000 I'll give you a couple of people to see if that's all I want. 01:14.000 --> 01:18.000 I'll give you a couple of people to see if that's all I want. 01:18.000 --> 01:22.000 I'll give you a couple of people to see if that's all I want. 01:22.000 --> 01:26.000 I'll give you a couple of people to see if that's all I want. 01:26.000 --> 01:30.000 I'll give you a couple of people to see if that's all I want. 01:30.000 --> 01:34.000 I'll give you a couple of people to see if that's all I want. 01:34.000 --> 01:38.000 I'll give you a couple of people to see if that's all I want. 01:38.000 --> 01:42.000 I'll give you a couple of people to see if that's all I want. 01:42.000 --> 01:46.000 I'll give you a couple of people to see if that's all I want. 01:46.000 --> 01:50.000 I'll give you a couple of people to see if that's all I want. 01:50.000 --> 01:54.000 I'll give you a couple of people to see if that's all I want. 01:54.000 --> 01:58.000 I'll give you a couple of people to see if that's all I want. 01:58.000 --> 02:02.000 I'll give you a couple of people to see if that's all I want. 02:02.000 --> 02:06.000 I'll give you a couple of people to see if that's all I want. 02:06.000 --> 02:10.000 I'll give you a couple of people to see if that's all I want. 02:10.000 --> 02:14.000 I'll give you a couple of people to see if that's all I want. 02:14.000 --> 02:18.000 I'll give you a couple of people to see if that's all I want. 02:18.000 --> 02:22.000 I'll give you a couple of people to see if that's all I want. 02:22.000 --> 02:26.000 I'll give you a couple of people to see if that's all I want. 02:26.000 --> 02:30.000 I'll give you a couple of people to see if that's all I want. 02:34.000 --> 02:38.000 I'll give you a couple of people to see if that's all I want. 02:38.000 --> 02:42.000 I'll give you a couple of people to see if that's all I want. 02:42.000 --> 02:46.000 I'll give you a couple of people to see if that's all I want. 02:46.000 --> 02:50.000 I'll give you a couple of people to see if that's all I want. 02:50.000 --> 02:54.000 I'll give you one of them to see if that's what we want. 02:54.000 --> 02:58.000 I'll give you one of them to see if that's all I want. 02:58.000 --> 03:02.000 I'll give you one of them to see if that's all I want. 03:02.000 --> 03:06.000 I'll allow you to see if that's all I want. 03:06.000 --> 03:06.500 I'll allow you to see. 03:06.500 --> 03:10.000 I'll allow you to see if that's all I want. 04:10.000 --> 04:25.000 They're not going to tell us how much time I like to walk in and go over it out there. 04:25.000 --> 04:26.000 Yeah. 04:26.000 --> 04:41.000 It's like a loaded mac and cheese pizza. 04:41.000 --> 04:47.000 You're done with cheese for a little while. 04:47.000 --> 04:49.000 Yeah. 04:49.000 --> 04:51.000 Yeah. 04:51.000 --> 04:53.000 Yeah. 04:53.000 --> 04:55.000 Yeah. 04:55.000 --> 04:57.000 Yeah. 04:57.000 --> 04:58.000 Yeah. 04:58.000 --> 04:59.000 Yeah. 04:59.000 --> 05:03.000 You're going to get something to waste for a year. 05:03.000 --> 05:05.000 Should've never existed. 05:05.000 --> 05:06.000 Yeah. 05:06.000 --> 05:07.000 Yeah. 05:07.000 --> 05:09.000 It's like sandwiches probably would be nice. 05:09.000 --> 05:12.000 And we're going to be here about as well. 05:12.000 --> 05:25.000 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. 05:25.000 --> 05:28.000 What do you think about some of the sandwiches for a computer in the office? 05:28.000 --> 05:29.000 Yeah. 05:29.000 --> 05:30.000 Do you guys care what it is? 05:30.000 --> 05:31.000 It's the same thing? 05:31.000 --> 05:32.000 No. 05:32.000 --> 05:50.000 All right. 05:50.000 --> 05:55.000 Having the opportunity to press the board. 05:55.000 --> 06:09.000 Would you like your stuff in the room? 06:09.000 --> 06:16.000 I think there's a reasonable... 06:16.000 --> 06:23.000 Are you going to stay with me? 06:23.000 --> 06:31.000 I think I missed it. 06:31.000 --> 06:32.000 No one's going to know or care. 06:32.000 --> 06:33.000 It's not your case. 06:33.000 --> 06:34.000 You don't have to. 06:34.000 --> 06:35.000 You don't have to. 06:35.000 --> 06:36.000 You don't have to. 06:36.000 --> 06:37.000 You're an audience. 06:37.000 --> 06:38.000 You're an audience. 06:38.000 --> 06:39.000 You're a spectator. 06:39.000 --> 06:40.000 You're a spectator. 06:44.000 --> 06:45.000 What do you mean it's true? 06:45.000 --> 06:50.000 It'll be probably between cases. 06:50.000 --> 06:55.000 Which means it's going to be like... 06:55.000 --> 06:56.000 Let's say let's break it down. 06:56.000 --> 06:59.000 I think I'll get that by now. 06:59.000 --> 07:04.000 I think both of those front records 07:04.000 --> 07:11.000 take these guys off. 07:11.000 --> 07:16.000 I think we're going to have to have 07:16.000 --> 07:20.000 power 15. 07:20.000 --> 07:24.000 I thought you said the entire thing. 07:24.000 --> 07:27.000 90 minutes is about a time between the schedule 07:27.000 --> 07:32.000 for when there are... 07:32.000 --> 07:35.000 We still have four. 07:35.000 --> 07:40.000 I don't think that would be possible. 07:40.000 --> 07:44.000 We'll set it up. 07:44.000 --> 07:47.000 It's very tough. 07:47.000 --> 07:54.000 Almost there. 08:24.000 --> 08:29.000 It's very tough. 08:29.000 --> 08:34.000 It's very tough. 08:34.000 --> 08:37.000 It's very tough. 08:37.000 --> 08:41.000 It's very tough. 08:41.000 --> 08:44.000 But otherwise, 08:44.000 --> 08:49.000 it's not that steep. 08:49.000 --> 08:54.000 It's very tough. 08:54.000 --> 08:59.000 It's very tough. 08:59.000 --> 09:04.000 It's very tough. 09:04.000 --> 09:09.000 It's very tough. 09:09.000 --> 09:16.000 I think it's like 4.20. 09:17.000 --> 09:20.000 I guess it's a question note. 09:20.000 --> 09:25.000 Whether I also stay with the whole band. 09:25.000 --> 09:30.000 We're going to figure that out. 09:47.000 --> 09:52.000 I find the three major airlines are so similar to each other. 09:57.000 --> 10:00.000 The three major airlines are very similar to each other. 10:00.000 --> 10:03.000 No opinion on Alaska. 10:03.000 --> 10:06.000 Just going to Seattle is less good. 10:17.000 --> 10:22.000 All rise. 10:22.000 --> 10:29.000 Hear ye, hear ye, hear ye. 10:29.000 --> 10:33.000 The Wisconsin Supreme Court is back in session. 10:33.000 --> 10:37.000 The Honorable Chief Justice Joe Braskman presiding. 10:37.000 --> 10:42.000 Your silence is commanded. 10:42.000 --> 10:47.000 Go ahead and have a seat. 10:47.000 --> 10:50.000 At long last year, 10:50.000 --> 10:53.000 if you can ask me something as you're taking the podium, 10:53.000 --> 10:56.000 sometimes when people are splitting up arguments, 10:56.000 --> 10:58.000 they're each taking an issue, 10:58.000 --> 11:00.000 you're going to start with that, weren't you? 11:00.000 --> 11:03.000 You weren't going to. 11:03.000 --> 11:06.000 Are you going to take an issue or not? 11:06.000 --> 11:09.000 You can save some questions. 11:09.000 --> 11:11.000 All three of us are ready for all your questions. 11:11.000 --> 11:14.000 He will let the argument unfold, however it's most helpful. 11:14.000 --> 11:15.000 Oh, cool. 11:15.000 --> 11:16.000 That's great. 11:16.000 --> 11:21.000 Then we are ready whenever you are. 11:21.000 --> 11:22.000 Good morning. 11:22.000 --> 11:26.000 May I please the court tailor me in on behalf of the Wisconsin legislature? 11:26.000 --> 11:28.000 Four and a half years ago, 11:28.000 --> 11:35.000 this court adopted the governor's proposed remedy for the then malaportioned congressional districts. 11:35.000 --> 11:43.000 The court held unequivocally that that remedy complied with all applicable state and federal laws. 11:43.000 --> 11:49.000 Nothing has changed since then that could warrant re-entering the political thicket 11:49.000 --> 11:56.000 of congressional redistricting and putting this court's injunction on trial in a circuit court. 11:56.000 --> 12:02.000 This court can affirm the dismissal of plaintiffs' complaint on these simple grounds 12:02.000 --> 12:07.000 without reaching the merits, which is that the circuit court was exactly right 12:07.000 --> 12:14.000 that it could not unwind this court's final judgment in Johnson 2. 12:14.000 --> 12:19.000 Likewise, this court could affirm simply by holding plaintiffs waited too long 12:19.000 --> 12:26.000 to bring this suit in circuit court just as the Illinois Supreme Court held last year 12:26.000 --> 12:30.000 for the districting challenge in Illinois. 12:30.000 --> 12:35.000 Nor would there be any reason for this court, for the circuit court, 12:35.000 --> 12:39.000 to unwind the Johnson 2 injunction. 12:39.000 --> 12:42.000 As to plaintiff's separation of powers arguments, 12:42.000 --> 12:48.000 the circuit court was exactly right that plaintiffs' arguments rewrite this court's words in Clark 12:48.000 --> 12:51.000 to say something that this court did not say. 12:51.000 --> 12:57.000 The court needs no more authority than Clark itself to know that at least change's remedy 12:57.000 --> 13:01.000 is not categorically unconstitutional. 13:01.000 --> 13:02.000 That's cool. 13:02.000 --> 13:05.000 I want to go back to Clark, which I haven't set up to this point, 13:05.000 --> 13:10.000 but I'll say now is a well-written opinion. 13:10.000 --> 13:12.000 Indeed, your honor. 13:12.000 --> 13:14.000 Thank you. 13:14.000 --> 13:15.000 Appreciate it. 13:15.000 --> 13:19.000 Fishing for compliments this morning. 13:19.000 --> 13:24.000 It was really clear in 63 that these changes on workable in practice. 13:24.000 --> 13:28.000 It went through the whole analysis about it being unworkable and all the reasons it was 13:28.000 --> 13:30.000 unworkable. 13:30.000 --> 13:39.000 I certainly recall vividly sitting in this courtroom as we talked about the peanut's analogy of 13:39.000 --> 13:47.000 Lucy moving the football away from Charlie Brown because no one who was advocating for 13:47.000 --> 13:51.000 least change in this courtroom could agree to what it meant. 13:51.000 --> 13:55.000 Was at least change as far as the number of people, the population, and the district 13:55.000 --> 13:57.000 was at least change as to the lines. 13:57.000 --> 14:03.000 Were we trying to least change as to municipalities? 14:03.000 --> 14:08.000 It didn't work. 14:08.000 --> 14:13.000 There was nothing in the Constitution as Justice Taylor brought out a little while ago. 14:13.000 --> 14:15.000 There was nothing in Wisconsin law. 14:15.000 --> 14:18.000 There was nothing in the Wisconsin Constitution. 14:18.000 --> 14:24.000 I brought it forward that could be relied on to be the basis for it. 14:24.000 --> 14:30.000 In paragraph 63 of Clark just says, as illustrated across the course of the Johnson litigation, 14:30.000 --> 14:32.000 least change is unworkable in practice. 14:32.000 --> 14:38.000 As such, we overrule any portion of Johnson 1, Johnson 2, and Johnson 3, that mandate 14:38.000 --> 14:39.000 at least change approach. 14:39.000 --> 14:47.000 I would like to know what else could a judge or justice possibly write in an opinion to 14:47.000 --> 14:52.000 say, this is, we are overturning this. 14:52.000 --> 14:55.000 This does not apply going forward. 14:55.000 --> 14:56.000 This was wrong. 14:56.000 --> 14:58.000 It was unworkable in practice. 14:58.000 --> 15:02.000 I don't know how much more clearer I could have done it, but apparently there's something 15:02.000 --> 15:04.000 else I should have done. 15:04.000 --> 15:07.000 What do you suggest that was? 15:07.000 --> 15:10.000 Chief Justice Croft's view took the words right out of my mouth, which is that we're not 15:10.000 --> 15:13.000 going to apply this going forward. 15:13.000 --> 15:20.000 But the court's discussion about how lease changes is unworkable is not synonymous with 15:20.000 --> 15:26.000 a holding that lease changes was unconstitutional when applied in Johnson 2. 15:26.000 --> 15:31.000 And as for Justice Taylor's question about where this lease changes approach comes from, 15:31.000 --> 15:34.000 I think some table setting is really important here. 15:34.000 --> 15:39.000 You receive Justice Taylor an answer about Clark and the state constitution. 15:39.000 --> 15:42.000 Clark involved the state house districts. 15:42.000 --> 15:46.000 Of course, we are here about the congressional districts, and so to the question of where 15:46.000 --> 15:51.000 a lease changes approach might come from, I would point the court to the federal constitution 15:51.000 --> 15:57.000 here in this case, which assigns power to the legislature for redistricting, not courts. 15:57.000 --> 16:04.000 And when the last enacted plan by the legislature is Act 44, of course the elections clause could 16:04.000 --> 16:05.000 anticipate this. 16:05.000 --> 16:11.000 But we said, I'm sorry to interrupt you, but we said that those maps because they did 16:11.000 --> 16:16.000 not, the population had shifted, obviously, in the ten years. 16:16.000 --> 16:19.000 Those maps could no longer be violated. 16:19.000 --> 16:22.000 They violated federal law. 16:22.000 --> 16:23.000 They violated our constitution. 16:23.000 --> 16:24.000 Those maps were no longer in effect. 16:24.000 --> 16:25.000 They couldn't be. 16:25.000 --> 16:31.000 Your Honor, I think that mistakes the nature of the judicial power, which is when the court 16:31.000 --> 16:40.000 examined Act 44 and held Act 44 was unconstitutionally malapportioned, the court was not striking 16:40.000 --> 16:44.000 down the law or erasing it from the Wisconsin statutes. 16:44.000 --> 16:49.000 The court was remedying the malapportionment of those districts. 16:49.000 --> 16:56.000 Those districts are still the law on the books today with the additional layer of this court's 16:56.000 --> 17:00.000 injunction remedying the malapportionment of those districts at the margin. 17:00.000 --> 17:07.000 And as for the deference to the legislature and whether that could possibly work a constitutional 17:07.000 --> 17:12.000 legislation in a congressional redistricting case, any such rule would come as an enormous 17:12.000 --> 17:15.000 surprise, I would think, to the U.S. Supreme Court. 17:15.000 --> 17:16.000 But states have done it. 17:16.000 --> 17:20.000 State courts have looked at the issue of judicial ability. 17:20.000 --> 17:25.000 We have ten courts now that have come up with a standard. 17:25.000 --> 17:29.000 None of those Supreme Court decisions have been overturned. 17:29.000 --> 17:31.000 They've not been accepted on cert. 17:31.000 --> 17:34.000 They have not been accepted on a stay. 17:34.000 --> 17:42.000 We see state courts coming up with standards to measure whether votes have been improperly 17:42.000 --> 17:45.000 and unconstitutionally and substantially deluded. 17:45.000 --> 17:52.000 How do we not have that same ability, like these other state courts, state Supreme Courts 17:52.000 --> 17:53.000 have had? 17:53.000 --> 17:57.000 And your Honor, I do have arguments in response to the partisan gerrymandering claim and other 17:57.000 --> 18:02.000 states have done it, but I would like to finish my point on Justice Propsky's, the least changes 18:02.000 --> 18:07.000 approach and the very separate claim that plaintiffs have said they've brought here. 18:07.000 --> 18:11.000 And as for what state courts have done, let me start with the U.S. Supreme Court. 18:11.000 --> 18:16.000 In cases like White Against Wiser, the U.S. Supreme Court reversed a court for refusing to 18:16.000 --> 18:21.000 defer to the political judgments of the Texas legislature in a malaportionment case. 18:21.000 --> 18:28.000 And then state courts as diverse as courts in Minnesota, Oklahoma, South Carolina, and New Hampshire 18:28.000 --> 18:31.000 have all done exactly what this court did. 18:31.000 --> 18:32.000 Let me ask you something about that. 18:32.000 --> 18:36.000 We are not talking about maps that the legislature put in place. 18:36.000 --> 18:41.000 The legislature put in place maps, the governor vetoed those maps. 18:41.000 --> 18:45.000 You are talking about a legislature from 2011. 18:45.000 --> 18:46.000 Correct. 18:46.000 --> 18:47.000 Correct. 18:47.000 --> 18:52.000 And just as courts in New Hampshire, Oklahoma, and all the other states I just listed off 18:52.000 --> 18:58.000 deferred to the same sort of maps, these are impasse cases, malaportionment cases, and those 18:58.000 --> 19:03.000 who say we are going to defer to the last enacted map. 19:03.000 --> 19:06.000 Because that is the last enacted map by the people's representatives. 19:06.000 --> 19:09.000 And our job here is to remedy malaportionment. 19:09.000 --> 19:12.000 It's not to strike a new political balance. 19:12.000 --> 19:15.000 We should talk about the people's representatives, right? 19:15.000 --> 19:19.000 Because if you start with Article 1, Section 1 of our Constitution, which says that the 19:19.000 --> 19:23.000 government derives its power from the consent of the governed. 19:23.000 --> 19:25.000 From the people, yes? 19:25.000 --> 19:26.000 Yes. 19:26.000 --> 19:27.000 Yes. 19:27.000 --> 19:32.480 And in your view, that means the legislature, not the court, that they should be deciding 19:32.480 --> 19:37.000 this issue of redistricting the 2011 legislature in this case, right? 19:37.000 --> 19:38.000 Yes. 19:38.000 --> 19:39.000 Okay. 19:39.000 --> 19:42.760 Because that legislature, if I'm understanding your argument, was elected by the people. 19:42.760 --> 19:44.840 They're closest to the people. 19:44.840 --> 19:47.000 They can be held accountable by the people. 19:47.000 --> 19:48.000 Yes. 19:48.000 --> 19:49.000 Yes. 19:49.000 --> 19:50.000 Okay. 19:50.000 --> 19:52.680 This is where I have some issues. 19:52.680 --> 20:01.800 The legislature that passed those original maps wasn't any old legislature, right? 20:01.800 --> 20:09.160 The legislature that passed that maps, they came from districts that many people claimed 20:09.160 --> 20:14.520 are the, were the most gerrymandered in the entire country. 20:14.520 --> 20:20.680 They were, as some say, a prime example of representatives choosing their voters rather 20:20.680 --> 20:24.960 than the other way around, rather than voters choosing their representatives. 20:24.960 --> 20:30.520 And because of those maps, many people felt that their votes were diluted, that they weren't 20:30.520 --> 20:32.000 representative of the people. 20:32.000 --> 20:35.280 They said that they felt like those districts lacked in representation. 20:35.280 --> 20:37.120 People felt like those maps weren't fair. 20:37.120 --> 20:41.040 Some people even called those maps rigged. 20:41.040 --> 20:46.920 That the legislators that came from those districts came from rigged maps. 20:46.920 --> 20:49.600 It is that legislature. 20:49.600 --> 20:54.000 Those representatives from those districts described as extremely gerrymandered that drafted 20:54.000 --> 20:56.480 the maps that we are talking about today. 20:56.480 --> 21:01.720 The maps that got baked in in 2021. 21:01.720 --> 21:05.680 And if I'm understanding your argument that under these change, which you're ardently 21:05.680 --> 21:14.240 defending, those maps, the baked in ones from the 2011 legislature, would go forward into 21:14.240 --> 21:17.080 perpetuity indefinitely. 21:17.160 --> 21:20.960 And I don't understand how that is not unconstitutional. 21:20.960 --> 21:26.720 Well, your Honor, whether we agree with it or not, the U.S. Constitution assigns redistricting 21:26.720 --> 21:29.280 authority to the legislature. 21:29.280 --> 21:35.760 Because 250 years ago, when we declared revolution, we said the people decide through their elected 21:35.760 --> 21:37.080 representatives. 21:37.080 --> 21:41.680 And there are two solutions for that, either of which plaintiffs could pursue. 21:41.840 --> 21:46.760 First, they could lobby Congress because, of course, Congress likewise has power under 21:46.760 --> 21:52.920 the elections clause to stop what some have said should not have happened in 2011. 21:52.920 --> 21:59.840 Or like Florida, like New York, like Ohio, plaintiffs could do the hard work of creating 21:59.840 --> 22:04.960 a constitutional amendment and saying any politics in redistricting is forbidden. 22:04.960 --> 22:10.240 Any desire to send Speaker Paul Ryan back to Congress is forbidden. 22:10.240 --> 22:11.240 They have not done that. 22:11.240 --> 22:17.520 And so, yes, as we stand here today, the only neutral way for this court to have proceeded 22:17.520 --> 22:23.880 in a malapportionment case about congressional districts was to just defer to the existing 22:23.880 --> 22:30.280 political and policy choices, like sending senior statesmen, be it Speaker Ryan, or 22:30.280 --> 22:35.840 Representative Obie back to Congress, and lessen until there's a change from Congress itself 22:35.840 --> 22:39.520 or a constitutional change to the Wisconsin Constitution. 22:39.520 --> 22:46.200 And that is regardless of how much constitutional harm is caused to an individual's right to 22:46.200 --> 22:47.200 vote. 22:47.200 --> 22:48.360 Is that what you're saying? 22:48.360 --> 22:56.160 Your Honor, as Justice Ziegler explained, every individual in Wisconsin can go to vote 22:56.160 --> 23:01.320 on election day or mail in their ballot and cast an equally weighted vote. 23:01.320 --> 23:02.320 That's been true in Wisconsin, by the way, since- 23:02.320 --> 23:08.520 That's not what gerrymandering allows, is it gerrymandering is the legislature determining 23:09.520 --> 23:18.920 their voters and assigning, treating class of voters as unfavored. 23:18.920 --> 23:27.720 And that can have the impact of deluding in individuals' right to vote. 23:27.720 --> 23:33.960 So they vote, yes, they go and vote, but their vote's meaningless because politicians have 23:33.960 --> 23:36.200 determined who their voters are. 23:36.200 --> 23:44.040 And that would seem to me so contrary to the language of our Constitution, which elevates 23:44.040 --> 23:50.640 the sovereignty of the people, that politicians have no power without the people. 23:50.640 --> 23:56.280 Your Honor, our founders risk their lives so that our representatives who we elect can 23:56.280 --> 24:02.240 represent the people, not a king, and with all due respect, not courts, because the Wisconsin 24:02.240 --> 24:08.640 Constitution provides this court, no judicially manageable standards, to decide that loyal 24:08.640 --> 24:13.240 Republicans and loyal Democrats have this super-constitutional right. 24:13.240 --> 24:14.880 But other courts have done it. 24:14.880 --> 24:18.160 They have done it, Your Honor, and I'm so glad you asked that question, because there 24:18.160 --> 24:22.520 is no free and fair elections clause in Wisconsin's Constitution. 24:22.520 --> 24:29.200 And there is no Board of Fair Districts amendment saying considering incumbents is forbidden. 24:29.200 --> 24:33.680 And even in states that have done it, even in North Carolina with the free and fair elections 24:33.680 --> 24:37.080 clause, I'd urge this court not to take my words for it, go look at the Supreme Court 24:37.080 --> 24:38.560 opinions in that case. 24:38.560 --> 24:43.800 They threw up their hands, Justice Taylor, and they said, we understand this is a political 24:43.800 --> 24:49.400 problem, and this is hotly debated at kitchen tables and in academic classrooms. 24:49.400 --> 24:53.680 But what we can't do as a court is solve that problem, because even the free and fair 24:53.680 --> 24:56.720 elections clause doesn't give us the tools to do so. 24:56.720 --> 25:03.160 So our Constitution is different in that we, there's a provision that says there's 25:03.160 --> 25:10.040 a remedy for wrongs, section nine, says every person's entitled to a certain remedy in the 25:10.040 --> 25:18.480 laws for all injuries or wrongs, which he may receive in his person, property or character, 25:18.480 --> 25:21.200 he ought to obtain justice freely. 25:21.200 --> 25:24.120 So that is unique to our Constitution. 25:24.120 --> 25:33.440 Our task is to interpret our Constitution, to evaluate legislation, to see if it poses 25:33.440 --> 25:36.640 a constitutional harm to these rights. 25:36.640 --> 25:46.720 So it's just very hard, I think your argument is challenging when I look at our own Constitution 25:46.720 --> 25:54.280 and the language of that Constitution, and the embodiment of the sovereignty of people, 25:54.280 --> 25:57.840 government has no power without the people. 25:57.840 --> 26:07.360 So if a class of voters, if their vote is being deluded or infringed upon, that seems 26:07.360 --> 26:15.560 to me to violate these principles of the people being sovereign, because we have been elevated 26:15.560 --> 26:22.760 the power of politicians above individual's right to choose their government. 26:22.760 --> 26:28.760 Your Honor, the question assumes the answer to the question I thought we were all here 26:28.760 --> 26:36.480 to address today, which is, is there a right to Republican districts or Democratic districts 26:36.480 --> 26:37.480 in the Wisconsin Constitution? 26:37.480 --> 26:41.400 That's not the framing though, it's not, that's not, you're framing it in a certain 26:41.400 --> 26:45.120 way that I think is not how I'm seeing it. 26:45.120 --> 26:52.080 I'm looking at our state Constitution, and I am pondering as we do with all legislation 26:52.080 --> 26:55.080 that we review, the concept of judicial review. 26:55.080 --> 26:57.400 Is there a constitutional harm here? 26:57.400 --> 26:59.040 That's what I'm looking at. 26:59.040 --> 27:04.800 I'm not looking at, it's not up to us to imbue our policy choices. 27:04.800 --> 27:07.960 That's very clearly belongs to the legislature. 27:07.960 --> 27:13.760 What I'm looking at is there a constitutional harm here, and I'm sure you agree that the 27:13.760 --> 27:17.480 right to vote is the most precious constitutional right we have. 27:17.480 --> 27:23.200 We have Wisconsin case law that says that, it is the most precious right. 27:23.200 --> 27:31.600 So isn't that our inquiry, is there a constitutional harm here in infringing or diluting an individual's 27:31.600 --> 27:32.600 right to vote? 27:32.600 --> 27:33.840 That seems to be the question. 27:33.840 --> 27:36.040 Yes, three points, Your Honor. 27:36.040 --> 27:40.720 First, Wisconsin was ahead of the curb in terms of the right to vote in the Cunningham 27:40.720 --> 27:41.720 case. 27:41.720 --> 27:45.520 In the Cunningham, this court did something decades, perhaps a century before the Supreme 27:45.520 --> 27:51.040 Court did in Westbury, which it said, that right to vote is so precious that we in Wisconsin 27:51.040 --> 27:56.320 are going to ensure that you have a numerically equally weighted vote back in, I think it 27:56.320 --> 28:02.840 was 1892, and that, and no one here disputes that this court could not adjudicate a claim 28:02.840 --> 28:06.680 of malapportionment, just as the court did in Johnson. 28:06.680 --> 28:11.760 The second point, beyond that, the right to vote is not a right to get the election 28:11.760 --> 28:13.320 outcomes you want. 28:13.320 --> 28:19.440 The very nature of the political branches is that someone loses and someone wins on election 28:19.440 --> 28:20.440 day. 28:20.440 --> 28:26.120 And when it comes to who decides what those districts look like, the Wisconsin Constitution 28:26.120 --> 28:31.600 gives this court no judicially manageable standard to override what the federal Constitution 28:31.600 --> 28:36.240 says, which is that the legislature does get to decide, and it was okay in remedying 28:36.240 --> 28:40.120 malapportionment to defer to those legislative choices. 28:40.120 --> 28:44.560 A good case on that is the McGraill case where it certainly involved the right to vote. 28:44.560 --> 28:49.440 It involved whether you could be identified by party on a ballot, whether someone knew 28:49.440 --> 28:55.160 I was a Republican or a Democrat or the Constitution Party or something else, and this court deferred. 28:55.160 --> 28:56.160 This court... 28:56.640 --> 29:02.720 Courts do apply substantiality of harm all the time. 29:02.720 --> 29:07.600 We weigh that, whether it be in civil criminal cases. 29:07.600 --> 29:14.240 We are applying those standards and not set out necessarily in the Constitution, but it 29:14.240 --> 29:18.960 seems to me that we're looking at, is there a substantial delusion? 29:18.960 --> 29:21.080 Is there a substantial harm here? 29:21.080 --> 29:24.240 And of course, do that all the time in jurisquigence. 29:24.240 --> 29:31.120 We are always looking at harms and weighing whether there's a substantiality issue. 29:31.120 --> 29:35.400 Your Honor, I suppose that brings me to the third point, which is whether a plaintiff 29:35.400 --> 29:40.920 might be able to establish there is a cognizable harm in some case. 29:40.920 --> 29:46.380 Later on, this court could leave unresolved whether it wants to overrule Johnson One. 29:46.380 --> 29:52.120 But in this particular case, plaintiffs have not done the hard work to walk back what 29:52.120 --> 29:57.000 were more than three dozen paragraphs in addition to Justice Hagedorn's concurrence 29:57.000 --> 30:04.360 explaining that the Constitution, as it sits today and as it sat then, does not give the 30:04.360 --> 30:08.200 court the tools to adjudicate those kinds of thorny claims. 30:08.200 --> 30:09.200 So that's what you were... 30:09.200 --> 30:11.120 Why do we have a remedy for every wrong? 30:11.120 --> 30:17.680 Every person is entitled to a certain remedy because of the laws for all injuries. 30:17.680 --> 30:21.800 Because your Honor, plaintiffs have not identified what the constitutional wrong is at this 30:21.800 --> 30:22.800 time. 30:22.800 --> 30:25.680 Vote delusion is not a constitutional wrong. 30:25.680 --> 30:31.440 When our Constitution explicitly says it is the people who choose their government, 30:31.440 --> 30:35.680 the only mechanism by which they do that is the right to vote. 30:35.680 --> 30:39.200 And no one disputes that the districts are equally apportioned, they can cast an equally 30:39.200 --> 30:40.200 weighted vote. 30:40.200 --> 30:44.320 So it does not matter the extent of a partisan gerrymandering. 30:44.320 --> 30:51.200 It does not matter the extent of the harm that is caused by a disfavored group. 30:51.200 --> 30:56.440 What sounds to me like if you're saying an extreme gerrymandering, an extreme partisan 30:56.440 --> 30:59.280 gerrymander is constitutional. 30:59.280 --> 31:01.720 Your Honor, understanding that is your argument? 31:01.720 --> 31:06.560 Your Honor, I'm not sure at this point in time how to define an extreme partisan gerrymander 31:06.560 --> 31:12.080 versus a sort of partisan gerrymander versus we wanted to send Speaker Ryan back to Congress. 31:12.080 --> 31:17.400 Would you say five percent, double digits, ten percent, fifteen percent? 31:17.400 --> 31:22.560 I think we certainly have districts across the state that hit those numbers. 31:22.560 --> 31:28.880 We do, Your Honor, and I can't tell you that District 2, for example, here where we stand 31:28.880 --> 31:31.720 today is an extreme partisan gerrymander. 31:31.720 --> 31:36.280 The representative there won by 70 to 30 percent vote in 2024. 31:36.280 --> 31:42.680 There's every reason to think he did so because Democrats are densely populated in 31:42.680 --> 31:43.680 the Madison area. 31:43.680 --> 31:46.240 Right, there could be compactness, for sure. 31:46.240 --> 31:49.800 But you look at some of the other districts and the way they're drawn. 31:49.800 --> 31:54.800 What I'm almost hearing you say is that there's not a constitutional claim for extreme partisan 31:54.800 --> 31:57.840 gerrymandering under the Wisconsin Constitution. 31:57.840 --> 32:01.840 If that's what it boils down to, tell us. 32:01.840 --> 32:07.520 Your Honor, right now the Wisconsin Constitution does not define with any level of judicial 32:07.520 --> 32:13.480 certainty what an extreme partisan gerrymander would be and in states that have been displeased 32:13.480 --> 32:18.640 with that constitutional reality, that they have amended their constitutions with clear 32:18.640 --> 32:24.920 rules that courts can apply, the Utah case, the New York case, the Florida case that plaintiffs 32:24.920 --> 32:31.240 have brought to you all involve either reticulated statutes or constitutional amendments saying 32:32.240 --> 32:35.120 we extirpate politics from redistricting. 32:35.120 --> 32:45.720 Council, your opposing council has urged us to adopt New Mexico and Pennsylvania's cases. 32:45.720 --> 32:50.360 And it took the opportunity on break to take a look at their constitutional provisions. 32:50.360 --> 32:56.760 You mentioned earlier that Wisconsin does not have a free and equal elections clause. 32:56.840 --> 33:03.000 The courts in those cases did point to and reference, and the New Mexico and Pennsylvania 33:03.000 --> 33:09.040 constitutions do specifically have a free and equal elections clause. 33:09.040 --> 33:14.600 Do you think that has any impact on whether we should follow Pennsylvania and New Mexico? 33:14.600 --> 33:18.760 I do, and I think, I can't remember if it's the Pennsylvania decision or the first North 33:18.760 --> 33:22.280 Carolina decision that explores the history of that clause. 33:22.280 --> 33:23.720 It's extremely interesting. 33:23.720 --> 33:27.840 There in other state constitutions, they are very specific to elections and your ability 33:27.840 --> 33:29.400 to go cast a vote. 33:29.400 --> 33:34.640 And so there was far more history in those cases to connect that constitutional text 33:34.640 --> 33:41.640 admittedly broad with a right to have fairer districts, however one expert might define 33:41.640 --> 33:43.240 fairer districts. 33:43.240 --> 33:47.280 Here the history points in entirely the opposite direction. 33:47.280 --> 33:49.520 There's precious little of it in the briefs here. 33:49.520 --> 33:52.400 There were more than 100 pages about it in Johnson. 33:52.840 --> 33:57.280 The history boils down to this state's constitutional convention in 1848. 33:57.280 --> 33:59.640 There was a lot of talk about gerrymandering. 33:59.640 --> 34:04.160 And there was a lot of discussion about whether the way Wisconsin's first congressional 34:04.160 --> 34:08.720 districts had been drawn was fair to have a very compact district in the southeast of 34:08.720 --> 34:13.480 the state and the sprawling district capturing 20 counties in the rest of the state. 34:13.480 --> 34:18.080 And the solution to that then answers the question before this court now. 34:18.080 --> 34:22.880 The solution was the people voted through their delegates at the convention and then 34:22.880 --> 34:29.640 through ratifying the constitution and that's been the unchanged history for over 100 years 34:29.640 --> 34:34.440 in this state until 2011 when parties started bringing partisan gerrymandering claims. 34:34.440 --> 34:43.000 Council, I wanted to just follow up with the Chief Justice's question about the 2011 maps. 34:43.040 --> 34:52.040 My recollection of the history here is that I think Democrats controlled the legislature 34:52.040 --> 34:55.880 entirely from 2006 to 2006 to 2010. 34:55.880 --> 34:58.880 There was a Democratic governor at that time. 34:58.880 --> 35:04.200 Then in the 2010 elections, Republicans won the governorship in both houses of the legislature 35:04.200 --> 35:11.280 and using maps that were in place at that time and then it was that legislature which 35:11.280 --> 35:18.400 actually enacted the law that we are dealing with here at 44 in 2011. 35:18.400 --> 35:24.600 And so it was not the quote rigged maps or any later maps that were enacted for example 35:24.600 --> 35:28.000 after our Johnson decision that are at issue here. 35:28.000 --> 35:32.600 But that was in fact a series, a legislature that was chosen with maps that clearly were 35:32.600 --> 35:36.560 quite competitive and led to both Republicans and Democrats controlling both chambers. 35:36.560 --> 35:37.560 Is that accurate? 35:37.720 --> 35:43.120 The points will take in your honor and to finish the point I would say those, the maps 35:43.120 --> 35:47.280 that others have called rigged, I won't endorse that language today, have since also been 35:47.280 --> 35:51.240 replaced through the democratic process where the legislature passed maps and the democratic 35:51.240 --> 35:52.240 governor signed them. 35:52.240 --> 35:56.600 But yes, for purposes of the congressional districts which we're here to talk about today, 35:56.600 --> 35:59.440 the Congress members didn't enact that map. 35:59.440 --> 36:03.520 The people's representatives in the small districts that make up the state legislature 36:03.520 --> 36:08.960 did and that's exactly what the Constitution has envisioned would happen until 1787 and 36:08.960 --> 36:12.520 so to bring us back to what was going on in Johnson. 36:12.520 --> 36:17.120 In Johnson the court was not enacting a new map. 36:17.120 --> 36:21.600 The court was doing what it always does Justice Taylor, it was remedying a constitutional 36:21.600 --> 36:26.520 wrong of malapportionment and going no further. 36:26.520 --> 36:27.520 And it must- 36:27.520 --> 36:33.320 It's not embedded in Wisconsin law. 36:33.320 --> 36:39.560 It comes from a federal case which comes from an interpretation of voting rights act. 36:39.560 --> 36:44.320 There's just no, I wasn't here when it was done, but it seems disconnected. 36:44.320 --> 36:49.000 Your honor, if the standard your honor is referring to is the least changes standard. 36:49.000 --> 36:54.080 That's the approach the US Supreme Court has taken to redistricting cases always and for 36:54.080 --> 36:59.560 purposes of this congressional redistricting case, certainly that standard is allowable 36:59.560 --> 37:05.280 under the elections clause, lest this court rests from the legislature, it's the legislature. 37:05.280 --> 37:07.880 Well, we're supposed to change the least. 37:07.880 --> 37:08.840 Pardon? 37:08.840 --> 37:13.320 What was supposed to change the least and least change? 37:13.320 --> 37:18.000 Well, for a malapportionment case, I think the way the opinion shook out in Johnson 2 for 37:18.000 --> 37:20.120 the congressional districts makes perfect sense. 37:20.120 --> 37:22.000 We looked at core retention scores. 37:22.000 --> 37:27.280 We moved the fewest number of people to repopulate with people the districts. 37:27.280 --> 37:32.640 Of course, other parties in Johnson had differing arguments, but your honor, back to the first 37:32.640 --> 37:38.120 question, whether or not your honor thought that was unworkable to use core retention, 37:38.120 --> 37:45.120 a metric that legislators use all the time, isn't the same as the argument plaintiffs 37:45.120 --> 37:51.400 have brought this court, which is they are asking this court to hold it's not just unworkable, 37:51.400 --> 37:58.360 it's unconstitutional to defer to the legislature when remedying a malapportionment claim. 37:58.360 --> 38:04.440 And I can think of a rule no better suited for an elections clause problem than to say 38:04.440 --> 38:09.240 in a malapportionment case, it's the courts and not the legislature that must decide what 38:09.240 --> 38:11.520 the political balance should be in districts. 38:11.520 --> 38:19.000 That is really, I think, disingenuous reading of more, right? 38:19.000 --> 38:22.040 That's not what Moore said. 38:22.040 --> 38:30.200 Moore said that certainly state courts can utilize traditional principles of judicial 38:30.200 --> 38:35.080 review in reviewing the actions of their legislature. 38:35.080 --> 38:40.360 What we're not supposed to do is go outside the bounds of judicial review. 38:40.360 --> 38:47.400 It's not our, we do not make policy here, we're not, we don't consider that. 38:47.400 --> 38:52.280 We consider the constitution and the text of our constitution, and whether there's 38:52.280 --> 38:54.640 a constitutional harm. 38:54.640 --> 38:59.560 And that was very clearly stated and more. 38:59.560 --> 39:08.400 In Rucho itself, the majority looks to state courts to address some of these issues of 39:08.400 --> 39:10.640 gerrymandered districts. 39:10.640 --> 39:18.000 So there's nothing unusual or strange about this court examining whether an act of the 39:18.000 --> 39:21.800 legislature causes a constitutional harm. 39:21.800 --> 39:23.360 It's what we do every day. 39:23.360 --> 39:24.360 It's our function. 39:24.360 --> 39:30.960 Well, the elections clause point I was reading was about how it would be highly unusual to 39:30.960 --> 39:37.360 hold that this court is prohibited from using the last enacted maps as a starting point, 39:37.360 --> 39:41.520 from using a lease changes approach, because that's what the Supreme Court did in white. 39:41.520 --> 39:45.160 It's what the Minnesota Supreme Court did in hip hurt in the Oklahoma case, in the South 39:45.160 --> 39:48.920 Carolina case, in the New Hampshire case, I'm sure there are more. 39:48.920 --> 39:54.320 And so that remedial approach would be highly unusual because the court isn't enacting 39:54.320 --> 39:59.680 a new map, it's remedying mal apportionment in a lease changes way. 39:59.680 --> 40:03.720 Surely that's allowable under the elections clause. 40:03.720 --> 40:08.760 Now separate and apart from that, as for the partisan gerrymandering claim, no court 40:08.760 --> 40:14.480 has ever held to a final judgment that the map is a partisan gerrymandering or that partisan 40:14.480 --> 40:19.960 gerrymandering is a cognizable claim under the Wisconsin Constitution. 40:19.960 --> 40:23.440 And so I do think it puts the cart before the horse to say plaintiffs have presented 40:23.440 --> 40:28.120 a constitutional harm, partisan gerrymandering, don't we have to remedy it? 40:28.120 --> 40:32.840 First, we have to ask, have plaintiffs done the hard work to present this court with 40:32.840 --> 40:38.640 new text and new history and new reasons not already rejected in Johnson 1? 40:38.640 --> 40:41.480 Okay, I want to take you back to this already rejected in Johnson 1. 40:41.480 --> 40:47.240 Johnson 1 did not have the claim of extreme partisan gerrymandering in front of us. 40:47.240 --> 40:51.600 What was in front of us was a map, creating a map. 40:51.600 --> 40:56.800 And the question that was asked is, should this court, in doing so, consider partisanship? 40:56.800 --> 40:59.920 That is a very different question. 40:59.920 --> 41:05.960 If no one here is saying or thinking that partisanship doesn't come into play when 41:05.960 --> 41:09.000 the legislature makes maps, of course it does. 41:09.000 --> 41:15.760 We're talking about a claim that it has gone so far that extreme partisanship has gone 41:15.760 --> 41:19.720 so far so as to dilute the vote. 41:19.720 --> 41:26.720 And that claim can be, they're making the claim of that that can be found in our Constitution, 41:26.720 --> 41:31.440 those important rights to democracy and the democracy principle that set forth in their 41:31.440 --> 41:32.440 briefs. 41:32.440 --> 41:38.120 So when you sit here and say, we already decided in Johnson 1, I was there and we didn't decide 41:38.120 --> 41:39.120 it. 41:39.120 --> 41:42.880 And they may have been in an opinion that the majority wrote and oftentimes things are in 41:42.880 --> 41:48.040 our opinions that aren't squarely in front of the court, we give that what we give it. 41:48.040 --> 41:52.400 But it was not an issue that has ever been brought to our court, aside from as was pointed 41:52.400 --> 41:56.480 out, we did not take a vehicle of an original action petition. 41:56.480 --> 42:01.840 This case was filed in the circuit court just like every other case starts out in the circuit 42:01.840 --> 42:04.240 court and usually in our district. 42:04.240 --> 42:09.720 So I want to push back on that and it seems like you're giving an awful lot of reliance 42:09.720 --> 42:16.520 on a couple of statements, a couple of paragraphs about an issue that was not squarely in front 42:16.520 --> 42:17.520 of the court. 42:17.520 --> 42:20.680 Yes, Turner, sort of take one of your last points first and then to address the heart 42:20.680 --> 42:22.440 of what was an issue at Johnson 1. 42:22.440 --> 42:26.160 The fact that this case started in circuit court, I actually think irrespective of a 42:26.160 --> 42:31.800 debate on partisan fairness, is the easiest grounds to say, while we might reconsider 42:31.800 --> 42:36.840 it or while we might consider it in another case, we can't consider it in this case. 42:36.840 --> 42:41.920 Because this injunction exists by virtue of an exercise of our original jurisdiction and 42:41.920 --> 42:47.480 now a circuit court has been asked to put that injunction on trial and that turns upside 42:47.480 --> 42:48.480 down the judicial. 42:48.480 --> 42:54.040 Aren't they being asked to issue a declaratory judgment and don't courts issue declaratory 42:54.040 --> 42:55.800 judgments all the time? 42:55.800 --> 42:57.360 Well, initially, no, you're honored. 42:57.360 --> 42:58.560 The complaint's very clear. 42:58.560 --> 43:02.800 They wanted the circuit court to enjoin this court's injunction and it's up to this court 43:02.800 --> 43:07.640 to decide whether it wishes that to continue not just in this case, but in all future cases. 43:07.640 --> 43:11.680 As for the declaratory judgment, the same fundamental problem still persists. 43:11.680 --> 43:16.920 Like academically, that sure sounds like an advisory proceeding because there's nothing 43:16.920 --> 43:22.240 that the court could do alongside the declaratory judgment to enjoin this court's injunction. 43:22.240 --> 43:23.240 But sort of- 43:23.240 --> 43:28.680 I know I want to make a second point, but it sort of feels like what you would have your 43:28.680 --> 43:33.880 friends on the other side do is just chase their tails around indefinitely. 43:33.880 --> 43:40.200 I mean, they have come at this several different ways to be fair. 43:40.200 --> 43:44.720 They have asked for, let's see, reconsideration. 43:44.720 --> 43:48.320 They filed a motion for relief from the judgment. 43:48.320 --> 43:55.000 They filed an original action, and then they filed the complaint in circuit court. 43:55.000 --> 44:00.360 I may have left out something, actually. 44:00.360 --> 44:05.560 I feel like it wouldn't matter which way they came at this, you would say, no, that's 44:05.560 --> 44:06.560 not good enough. 44:06.560 --> 44:10.560 And they have tried, they have come at it at least three or four different ways. 44:10.560 --> 44:12.400 Your Honor, I disagree. 44:12.400 --> 44:17.600 I think they came at it with a motion for reconsideration or a motion for relief from 44:17.600 --> 44:18.920 judgment. 44:18.920 --> 44:22.680 And I don't think there's any dispute that that's actually the most typical way for this 44:22.680 --> 44:28.600 court to address its final injunctions was to reopen Johnson itself. 44:28.600 --> 44:34.320 Then they came at it just like the Clark petitioners and asked this court to revisit its original 44:34.320 --> 44:39.200 jurisdiction injunction with another original jurisdiction action. 44:39.200 --> 44:44.200 And that this court denied those requests doesn't mean that then we can invert the hierarchy 44:44.200 --> 44:51.600 of the judicial branch in this state and allow a circuit court to put your injunction on trial. 44:51.600 --> 44:55.720 But it goes back to Justice, I'm not seeing it. 44:55.720 --> 44:57.240 It's a declaratory judgment. 44:57.240 --> 44:58.240 Well, sure. 44:58.240 --> 45:04.480 They would be declaring that this court acted unconstitutionally in 2022 in Johnson 2. 45:04.480 --> 45:10.560 I can find no authority and plaintiffs have pointed to no authority of any circuit court 45:10.560 --> 45:12.640 in this state having ever done so. 45:12.640 --> 45:18.960 How about a trial court that declares something our court did was unconstitutional in the 45:18.960 --> 45:20.960 criminal setting? 45:20.960 --> 45:27.600 What if a trial court said what if there was a violation of the Constitution and we said 45:27.600 --> 45:32.640 it didn't occur and it goes back and we later learned that the council was ineffective and 45:32.640 --> 45:35.680 all of a sudden there's an issue in front of the court. 45:35.680 --> 45:42.960 I mean, there's a myriad of ways in which cases that we have found to be constitutional 45:42.960 --> 45:48.800 or that we have ruled on then are potentially later found otherwise. 45:48.800 --> 45:52.480 I mean, what you're basically saying is that once we decide something, no one else can 45:52.480 --> 45:54.040 ever review it, including us. 45:54.040 --> 45:55.360 No, you're honored. 45:55.360 --> 45:56.360 This court can. 45:56.360 --> 46:01.080 And while I don't want to devolve into a discussion of habeas, what a habeas case is asking 46:01.080 --> 46:02.960 is actually for a separate writ. 46:02.960 --> 46:04.440 I'm not even talking habeas. 46:04.440 --> 46:07.560 I'm just talking about ineffective assistance of council in our state. 46:07.560 --> 46:11.320 I think I could probably find cases where that's happened, where this court has said 46:11.320 --> 46:15.720 that something was constitutional and it later turns out that actually it wasn't. 46:15.720 --> 46:16.720 Right. 46:16.720 --> 46:20.160 There's a well trodden collateral attack often called writs of habeas corpus on final criminal 46:20.160 --> 46:22.920 judgments, but that's not undoing the criminal judgment. 46:22.920 --> 46:27.160 It's granting a writ of habeas corpus for purposes of this case, your honor. 46:27.160 --> 46:33.000 Of course, this court could exercise its original jurisdiction again if it wanted 46:33.000 --> 46:35.400 to just as it did in Clark. 46:35.400 --> 46:40.440 So long as that original action was pursuant to the usual norms of judicial procedure. 46:40.440 --> 46:47.440 So council, let me just pick up on that point because if we were to find that there's a 46:47.440 --> 46:54.200 justiciable claim here and to remand it to the three judge panel to take evidence and 46:54.280 --> 47:02.240 determine whether the illegal standard for that claim is met and to find a constitutional 47:02.240 --> 47:10.720 violation, I'm just not following you in determining why it is that this three judge 47:10.720 --> 47:20.440 panel does not have jurisdiction or the authority to hold such a trial and draw such a conclusion 47:20.440 --> 47:27.000 on the evidence based on something that was said in Johnson to in which such a claim 47:27.000 --> 47:30.920 was not squarely in front of the court. 47:30.920 --> 47:32.200 Can you answer that, please? 47:32.200 --> 47:33.200 Yes, your honor. 47:33.200 --> 47:39.200 So first on the on the most fundamental procedural procedural point, I'm not aware of a circuit 47:39.200 --> 47:44.120 court putting on trial a final injunction of this court in another case, right? 47:44.120 --> 47:45.360 The circuit court would have to. 47:45.360 --> 47:47.920 It's not putting an injunction on trial. 47:47.920 --> 47:53.040 It is looking at the maps that are currently in place and making a determination about 47:53.040 --> 47:57.000 whether there is a partisan gerrymander in those maps. 47:57.000 --> 48:02.480 An issue that this court did not consider because it had no evidence at that point of 48:02.480 --> 48:04.840 partisan gerrymandering. 48:04.840 --> 48:10.400 Why are you saying that the Wisconsin law or the Wisconsin Constitution would prohibit 48:10.400 --> 48:17.680 an examination of that issue now for maps that are going to be used for future elections? 48:18.680 --> 48:23.040 The maps, just to be very clear, are and they exist by- 48:23.040 --> 48:25.520 They were adopted by this court, I understand that. 48:25.520 --> 48:32.960 They were adopted by this court without consideration for whether the maps were created with the 48:32.960 --> 48:33.960 partisan gerrymandering. 48:33.960 --> 48:34.960 Sure. 48:34.960 --> 48:38.040 So to answer that question directly, and Justice Dalit, I apologize the heart of your question 48:38.040 --> 48:39.040 directly. 48:39.040 --> 48:44.800 I too was here in Johnson and the parties were asked because some parties had raised whether 48:44.880 --> 48:49.600 the Wisconsin Constitution requires districts to be politically fair. 48:49.600 --> 48:54.400 And the parties submitted, as I mentioned, over 100 pages of briefing on that question, 48:54.400 --> 49:01.200 and there are more than three dozen paragraphs of legal analysis in the Johnson One opinion 49:01.200 --> 49:07.280 about why we cannot find anywhere in the Wisconsin Constitution a right to political fairness. 49:07.280 --> 49:12.480 And all the questions that such a right should it proceed in court cases would raise as opposed 49:12.480 --> 49:16.960 to should it proceed in the halls of Congress with anti-partisan gerrymandering legislation? 49:16.960 --> 49:24.160 And you don't see any sunlight between a right to political fairness and a claim that something 49:24.160 --> 49:27.440 is so unfair, it is violative of our Constitution. 49:27.440 --> 49:31.280 Political fairness sounds to me like, you know what, if you've got a Republican in charge, 49:31.280 --> 49:35.760 they might draw the maps more, a little more Republican, a Democrat, the same thing. 49:35.760 --> 49:40.840 That is not, how can that possibly be the same thing as this is so unfair, it rises to a 49:40.840 --> 49:45.400 level of a constitutional harm, which is extreme partisan gerrymandering, which is 49:45.400 --> 49:47.960 what we're being asked about, not political fairness. 49:47.960 --> 49:53.320 Well, your honor, again, having litigated these cases, the difference between the two is not clear, 49:53.320 --> 49:58.760 and that is why you see states like Florida saying we're just not considering it at all. 49:58.760 --> 50:02.440 It's either considered, there's either politics in the map or there's not, 50:02.440 --> 50:07.640 but there's no way, there's no way to assess in a judicially manageable way, 50:07.640 --> 50:11.400 whether there's just enough politics, but not too much. 50:11.400 --> 50:16.280 Because what that means is in the eye of the beholder absent some constitutional direction, 50:16.280 --> 50:18.760 that this is too much, and this is just enough. 50:18.760 --> 50:21.720 It feels like what you're asking us to do is to stick our hat in the sand, 50:22.360 --> 50:23.400 and I'm not your honor. 50:23.400 --> 50:26.040 It feels that way. 50:26.040 --> 50:31.000 I am not your honor, but I want to be emphatic about this. 50:31.000 --> 50:36.440 This is the adversarial system, and plaintiffs have to come to this court with arguments in history, 50:37.080 --> 50:40.280 just as you remarked in your concurrence in the MMC case, 50:40.280 --> 50:44.360 that maybe just maybe there's some history yet to be discovered out there 50:44.360 --> 50:48.440 that shows there's a right to partisan gerrymandering or shows there's this right living 50:48.440 --> 50:52.920 in Wisconsin's Equal Protection Clause, but it's not there in these briefs. 50:53.560 --> 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 50:58.360 --> 51:03.960 in Clark, and the arguments that led this court in Clark that were historically rooted, 51:03.960 --> 51:08.280 they grappled with old precedents that weren't about mortgages or farmland, 51:08.280 --> 51:11.240 but about districts themselves and what continuity meant. 51:11.240 --> 51:13.880 It helped that the words contiguity were there. 51:13.880 --> 51:17.080 Well, your honor, I'm never going to get it. 51:18.520 --> 51:22.360 I can't concede that my contiguity argument is not one I still think about every day, 51:25.160 --> 51:27.800 but boy, was that a well-fought fight, your honor. 51:27.800 --> 51:33.640 And it was there, it was there, and that is an express requirement in the Constitution that 51:33.640 --> 51:41.160 the Constitution isn't about, Constitution isn't about express requirements, right? 51:41.160 --> 51:45.160 The Constitution is written in broad language, we're talking about a document 51:45.160 --> 51:49.560 that came right after that in 1848, right? 51:49.560 --> 51:54.120 And it set broad principles that Justice Taylor has been talking about. 51:54.120 --> 52:00.680 So it's not, we don't look for every single, it's not, this isn't connecting the dots, 52:00.680 --> 52:05.640 like can we find the word here, and then it means something, and if we don't find the exact word 52:05.640 --> 52:10.040 here, the principle must not exist. I think the legal scholars lay this out really well in their 52:10.040 --> 52:14.840 amicus brief. I think Justice Penny laid it out really well in his concurrence in Cunningham, 52:14.840 --> 52:18.440 which is that there are broad principles throughout the Wisconsin Constitution, 52:18.440 --> 52:23.480 and not all of those principles allows this court to subject legislative action to strict scrutiny. 52:24.760 --> 52:29.640 In the McGrail case about the ballots, the legislative action was okay because it was reasonable, 52:29.720 --> 52:34.040 even though it affected the right to vote, and if we go back to 1848, 52:34.040 --> 52:39.560 the messy work of what the district should look like was done by the political branches, 52:39.560 --> 52:44.680 and the delegates, and then later the people's representatives, and so there's just no similar 52:44.680 --> 52:51.720 history that was, as was that issue in Clark, to allow this court to invite this court to step 52:51.720 --> 52:58.360 into that political thicket now. I mean, deciding what is fair, whether it's extremely unfair, or 52:58.360 --> 53:04.680 fair, has plagued the federal courts for so long until we get to Rucho, and it's likewise plagued 53:04.680 --> 53:09.240 the state courts absent some bright line rule. Doesn't that show us something? The fact that 53:09.960 --> 53:15.000 these issues have been raised repeatedly, and that courts have struggled with them 53:15.000 --> 53:22.520 repeatedly, doesn't that, in some sense, show that there is a problem? There is a problem that is 53:22.520 --> 53:29.480 infecting our political landscape, not just in Wisconsin, but probably across the country. 53:29.480 --> 53:36.760 Voters struggle with that. I think you could pick just about anybody off the street in Wisconsin 53:36.760 --> 53:43.080 and ask them, do you think legislators should be able to draw a map in a way that 53:43.080 --> 53:48.520 locks in a particular political party, they would say? No. Doesn't it show us that there 53:48.520 --> 53:53.160 is some underlying problem there? The fact that courts have struggled with this for decades now? 53:53.160 --> 53:59.880 I think two things are true at once. Some voters could think there is a problem, and that courts 53:59.880 --> 54:05.160 have struggled with it so much means that it's not the court's problem to solve. And instead, 54:05.160 --> 54:10.840 it's been Congress's problem to solve, for example, in the 1840s, when Congress required single member 54:10.840 --> 54:17.320 congressional districts as a bulwark to gerrymandering, it's a problem for voters to solve with fair 54:17.400 --> 54:22.600 districts amendments. It's a problem for Congress potentially to solve now later on. Congress is 54:22.600 --> 54:29.880 constantly asked, by the way, to pass legislation to eliminate partisan gerrymandering. Congress passed 54:29.880 --> 54:35.400 and it's a hard thing to accomplish when you have a gerrymandered body. But let me just turn to 54:35.400 --> 54:41.240 another point. I want to return to a point you made a few minutes ago about distinguishing our case 54:41.320 --> 54:47.960 from other courts that have found a justiciable claim for partisan gerrymandering such as New 54:47.960 --> 54:54.040 Mexico. And it seemed to me you were leaning pretty heavily into the fact that the New Mexico 54:54.040 --> 55:00.280 Constitution, just as one example, has an explicit clause protecting free and equal elections. 55:01.320 --> 55:05.720 No, I think the New Mexico case rests on their equal protection clause and their history. 55:05.720 --> 55:09.240 It's a different state that you have in Pennsylvania and North Carolina. 55:09.240 --> 55:15.480 Okay, thank you. In any event, the point I wanted to raise is, is it your belief that because the 55:15.480 --> 55:22.120 Wisconsin Constitution lacks an explicit clause protecting fair and equal elections, 55:22.120 --> 55:28.440 that therefore the Wisconsin Constitution has no protection for fair and equal elections? 55:29.320 --> 55:36.680 No, Your Honor, that's not our position. Because clearly, constitutions are generally composed 55:36.680 --> 55:45.160 of broad principles. And this Constitution in Wisconsin is replete with phrases that point 55:45.160 --> 55:51.800 to the importance of popular sovereignty, the consent of the governed. Correct? Correct. 55:52.280 --> 56:00.280 So how is that different in substance than another state constitution that includes a clause such 56:00.280 --> 56:11.240 as fair and equal elections? Aren't those protections inherent in the clauses that protect popular 56:11.240 --> 56:17.080 sovereignty in Wisconsin? Well, as I mentioned before, there is a unique history to a free 56:17.160 --> 56:22.440 and equal elections clause and what those were, the evils that were perpetuated before America, 56:22.440 --> 56:28.680 that those were meant to guard against, specific to voting in elections. But in Wisconsin, 56:28.680 --> 56:34.040 just as everywhere else for these federal congressional districts, there is an absolute 56:34.040 --> 56:39.080 equality requirement at this point. You know, this court was asked to entertain an original 56:39.080 --> 56:43.960 action last year because the congressional districts deviated by one additional person. 56:44.680 --> 56:53.400 And as this court said in Cunningham, that promise of equality of an equally weighted vote, 56:54.120 --> 57:00.120 that is how people effectuate their right to vote. That is how votes are not diluted. And of course, 57:00.120 --> 57:06.200 Wisconsin protects that. And also, through our separation of powers, Wisconsin protects the 57:06.200 --> 57:12.680 right to vote. The founders assigned congressional redistricting power to the legislature and keeping 57:12.680 --> 57:17.400 with the people's representatives who are closest to them, the legislature, now in these territorial 57:17.400 --> 57:24.920 districts, can carry out the will of the people. Now, as for court struggling with this, Justice 57:24.920 --> 57:30.920 Crawford, I think it's very telling that even coming here today, counsel equivocated about what 57:30.920 --> 57:37.000 their test would be. And if counsel can't identify what their test would be, to me, that's proof 57:37.000 --> 57:41.880 positive that there is no judicially manageable standard hiding in the Wisconsin Constitution. 57:41.880 --> 57:45.960 I would agree with you. It's frustrating that they haven't articulated a test and I certainly 57:45.960 --> 57:52.920 wish they would have. That being said, let's talk about workability going forward in the event 57:53.720 --> 57:59.400 that we find both of the claims, both the partisan and anti-competitive gerrymandering 57:59.400 --> 58:08.440 cognizable. What are your thoughts about consolidating the gerrymandering claims and having just one trial? 58:09.080 --> 58:16.040 Again, it's inconceivable to me that there could be a trial in this posture, but to take your question, 58:16.040 --> 58:20.840 you know, assuming all of that, of course, I think the cases would need to be consolidated. 58:21.560 --> 58:25.800 I've participated. Other councils can participate in, for example, the Alabama congressional 58:25.800 --> 58:31.160 redistricting case. Those were consolidated at the trial court for purposes of trial proceedings. 58:32.520 --> 58:37.160 And again, I can't really conceive of how you have a new injunction in joining this courts 58:37.240 --> 58:42.200 injunction, but of course, you only want to do that one time versus two times, and so they should 58:42.200 --> 58:48.120 proceed together. But I don't want to lose sight of my latch as point two. We're talking about a 58:48.120 --> 58:55.800 lot of procedure, a lot of costs, and we are well over halfway into the decennial. And as federal 58:55.800 --> 59:02.040 courts and other courts have held, or the Illinois Supreme Court just held, sometimes plaintiffs are 59:02.040 --> 59:07.960 just too late because congressional districts, the census is about to come. And the prejudice 59:07.960 --> 59:13.800 here, well, let me start with it. The delay, I think, is clear from Brennan. Plaintiffs waited 59:14.520 --> 59:21.160 arguably 15 years to challenge Act 44 is unconstitutional. They waited three years since the 59:21.160 --> 59:25.640 congressional districts were settled. But I do want to point to the prejudice point, or I do 59:25.640 --> 59:30.120 want to discuss the prejudice point, Justice Protece, because it goes to the trial and everything. 59:30.120 --> 59:35.640 Will that be costly? Absolutely. But what's also costly and what's recognized in these cases 59:35.640 --> 59:41.640 we've cited on our latch's argument is the ensuing cost to the state, to the counties, 59:41.640 --> 59:47.640 and to voters should this court agree that the congressional districts need to change again. 59:47.640 --> 59:52.040 Maybe it's before the 2028 elections or the 2030 elections. And then, of course, 59:52.040 --> 59:57.240 the congressional districts will change again in 2032. Can't the congressional maps change 59:57.240 --> 01:00:00.040 anytime? How can your latch's argument appear?