All right, cell phone's off, all right, so you need your drinking in here.
Stand wise to yourself, please do that to me.
All right, all right, all right, all right, all right, all right, all right.
All right, all right, all right.
All right, all right, all right.
All right, all right, all right, all right.
All right, all right.
All right, all right, all right.
All right, all right.
All right, all right.
All right, all right.
All right, all right.
All right, all right.
All right, Gary, Gary, Gary, the Wisconsin Supreme Court is now in session.
The Honorable Chief Justice and Nat Kingsland Z here presiding.
Your silence is commanded.
Okay, please be seated.
When we have a lot of things, sometimes they tumble, so.
Okay, this morning we are here on 23 AP 1399.
Action, Rebecca Clark versus Wisconsin Elections Commission.
What I'd like to do at the outset is just talk about timing, so we're all on this page.
Each side has an hour 20, and what I think we'll try to do is take a break.
After one side presents, we'll take a 10-minute break, and then the other side will present.
But in any event, we will be concluded before noon today.
I want to go through the times to make sure we're all on the same page as to who's doing what and for what length of time.
So that there's no question in that regard.
I want to make sure my notes are right.
So, Mark Gabor, Campaign Legal Center Washington DC 29 minutes.
Is that right?
Okay.
Anthony Russomano, 12 minutes.
Tamara Packard, Pinesbock, 12 minutes.
All right.
Sam Hirsch, another 12 minutes from General Block Washington DC.
Okay, now for the people from Washington DC, have you been admitted Pro-Hawk Beach A previously, so I don't have to worry about that at the time you're arguing?
Perfect.
Okay, thank you for that.
Then for the second half, if you will, Taylor A.R. Mian from Consovoy McCarthy, Arlington, Virginia.
Five zero minutes, right?
And Richard Essenberg from Will 30 minutes.
All right.
And you were previously admitted Pro-Hawk Beach A.
Great.
I think we've dotted those eyes, crossed those T's.
Then on rebuttal, Sam Hirsch, five minutes.
Anthony Russomano, three minutes.
Tamara Packard, two minutes.
Mark Gabor, five minutes.
All right.
Good.
So far we've got it straight.
With that then, let's proceed with Mark Gabor presenting.
Good morning, Your Honor.
I think you must lie on the floor.
All right.
Thank you.
All right.
Please proceed.
Good morning.
And may it please the court.
The Wisconsin Constitution's redistricting requirements are not optional.
Council?
Yes.
Council?
Council?
Where were you?
Where were your clients two years ago?
Because we've already been through this.
Redistricting happens once every ten years after the census.
All of the issues that you're bringing actually could have been brought before this court two
years ago.
So why did your clients sit on their rights?
We granted intervention to basically anybody who wanted to participate in the litigation.
I know your law firm participated in the litigation in Johnson.
Where were your clients?
Why did they wait two years?
Good morning, Justice Bradley.
The court's September 24th, 2021 order that granted the Johnson original action petition
set an October 6th deadline for intervention in that case.
That was well before the legislature introduced publicly its map.
It was well before any party in the Johnson case submitted their map proposals.
And it was months before this court ordered the legislature's map into place.
There was no possible way the clerk petitioners could have known what their legal claims were
in on October 6, 2021 when the map was not put into effect for months later.
Well, one of your principal claims relates to contiguity in your seeking to overturn 50 years of precedent.
That was an issue that was litigated by all of the parties.
In fact, there was a stipulation by all of the parties regarding contiguity contrary to the position that you're taking.
So why wouldn't your clients step in then?
Well, of course, the map that would govern the next elections, as I mentioned, was not known at that point.
So even if for 50 years there was a constitutional violation, there was no way to know that there was going to be one going forward.
And no party at that point had even said what they thought the standards should be other than the Johnson petitioners in their petition.
That at least changes was the only thing that was sort of out there as a potential standard.
And so I'm unaware of any authority that would say that if you don't raise a constitutional claim in 12 days,
that you're forever precluded from raising that claim in the future when you have no idea that that claim is going to arise for the particular map that is going to be put into place.
Council, everyone, remember that I was...
Let me ask the questions.
I just want to...
I just want to...
I just want to...
I just want to...
I just want to...
I just want to...
I just wanna...
I just want to...
I just want to...
If I question...
I just want to springboard off with something you said just to clarify, if I could.
You talked...
Okay, Justice.
Thank you.
I just want to give you an opportunity to talk about the case law.
I'm interested in how you look at lamb, I'm interested in how you look at presser, which of course was a federal case, interpreting the Wisconsin Constitution.
Can you walk me through your interpretation of the legal precedent up to this point in time regarding contiguity, please?
Yes, Your Honor, thank you.
So in 1892 in the lamb versus Cunningham case, this court said that with respect to the contiguity provision that this section is also requires that each assembly district must consist of contiguous territory.
That is to say, it cannot be made up of two or more pieces of detached territory.
And then it went on to say that this requirement was quote, absolutely binding, end quote.
And so for a century, this requirement, this pretty straightforward requirement in the Constitution was followed.
And then for some period of time, in 1971, the legislature passed a statute saying that this provision could also include territory that was quote, not contiguous, end quote.
And before that point, 20 years before that, in 1953, the legislature passed a redistricting plan.
In 1951, the Rosenberry Act, the Zimmerman cases about that.
And in 1953, the legislature came back and said, we've noticed some mistakes, there's some non-contiguous pieces.
So we're passing an amendment to that to make those contiguous.
Came to this court and said, could you bless this, we're in a different legislative session.
So we know we're doing the, violating the requirement possibly to do this more than once.
But there's some non-contiguities, please allow us to fix that.
And what this court said is, of course, if there is a constitutional violation in the first map that the legislature passes,
of course they can come back and fix that.
And so there was a recognition in 1953 that contiguity meant touching.
And then in 1971, the legislature sort of went awry with the definition.
So fast forward to the Prosser case, two parties in that case brought forth maps.
One was completely contiguous, demonstrating that in Wisconsin you can draw a completely contiguous map that
follows the bounded by wards and towns and county lines requirement.
And the federal court had another map that wasn't.
And the federal court just basically said, and these cases are complex, I don't blame the Prosser court for this.
But what the court said is, close enough, we don't think this is a serious demaridus what the court said.
And it didn't recognize, it didn't cite the lamb decision, it didn't cite the 1953 situation with the legislature fixing those non-contiguities.
And it just said that we think that this is close enough.
And of course, federal courts are bound by this court's interpretations of the meaning of Wisconsin law.
And this court is not bound by a federal court's misinterpretation of the meaning of the Wisconsin Constitution.
And so the federal courts then did redistricting for several years,
the AFL-CIO case, the Baumgart case, the Prosser case.
And then in 2011, the legislature actually repealed that 1971 statute that the legislature now cites as the basis for
why this court should continue to permit unconstitutional districts going forward.
Thank you for that summary of that argument council.
But I want to get back to my line of questioning which relates to whether we should be here in the first place.
Everybody knows that the reason we're here is because there was a change in the membership of the court.
You would not have brought this action if the newest justice had lost her election.
No, Your Honor, that's not right.
I reject the-
Well, the law forward actually announced to the media in April after the justice's election that they would be bringing this very case before the court.
And wasn't that based on that justice's pronouncements about the maps being rigged?
No, Your Honor.
I don't think anyone said that this case would not be brought, which is, I think, the premise of your question.
What I was going to say is that I reject the premise that the issue of whether or
not contiguous means not contiguous.
I don't see that as a partisan issue, it is just the plain text of the Constitution.
And this court's decision and all of the opinions in the town of Wilson case suggest to me,
I think, rightfully, that this is not a controversial question.
Does the Constitution mean what it says, or should we judicially amend it to mean?
If this is such a glaring constitutional violation, then did all of the attorneys who participated in the Johnson litigation commit malpractice?
No, I don't think anyone committed malpractice, and I don't think this court did either.
I think that this issue was not litigated.
No one noticed that there was a federal court decision that had said this was okay.
And that's what everyone relied on.
The focus was on lease changes and the claim in the case was mal apportionment.
And so, no party brought this away.
That was the reason that this court had to get involved because there was no other way to remedy the mal apportionment due to the impasse between the legislature and the governor.
So unfortunately, this court had to step in two years ago because we couldn't conduct elections in the state of Wisconsin with mal apportioned maps.
The point is, counsel, that there are going to be a number of Supreme Court elections over the ensuing years.
Is it your position that this court can revisit redistricting upon every change of membership?
Because, counsel, that could occur in 2025 and again in 2026.
Again, in 2018, 2019, and 2020, are there any limits to the number of redistricting actions that can be brought in a 10-year period?
So, again, I reject the premise with respect to the judicial election.
That does not bear on whether the Constitution's plain text requirements should be followed.
And I would point the court to-
Since we are here today and since one of the issues is contiguity, I'd like to ask you a couple of questions regarding contiguity.
And one of the questions I have has to do with your friends, I actually have two questions,
but one is, Will, in the response brief, talks about the fact that the governor and
the mathematicians, which is how we referred to them a couple years ago,
I guess we've not caught on them Atkinson, that they conceded in Johnson that municipal islands were okay.
And I want to ask you what you think we should-
Well, certainly I would say that the clerk petitioners were not, no one of them was in the case.
And also, issue perclusion and claim perclusion, these doctrines require that the issues be actually litigated.
There was no adversarial briefing in the case on this question.
Honestly, it got like a sentence in every brief, because everyone just cited Prosser and moved on.
It just was not the claim in the case, and it wasn't that issue.
And certainly, this court has never taken the position that when we have a clear
statement of what the Constitution means in the case law, that we should then just stop enforcing that,
because there's an aberration along the way.
And I would point the court to, in particular, the Attorney General versus Cunningham case,
which is the one that proceeded by a few months, the Lamb versus Cunningham case.
And on page 729 of that decision, this court said about the Article 4 requirements in the Constitution for redistricting.
Quote, a legislative body formed in violation of these constitutional restrictions,
is as a body unknown to the Constitution and cannot rightfully exercise this high prerogative of legislation, end quote.
And so, I think the suggestion that there was a 12-day window in 2021, and then that's it.
After that, for time immemorial, no one can raise the question of,
are we following the Constitution's basic requirements?
I think that that's-
Councils, can I ask a question?
Sure, I have a second specific contiguity question, and it has to do with pinpoint contiguity,
which when I look at that, it's the two corners of a square matching up.
The way I'm looking at this is, I play tennis somewhat, I used to play tennis, and the lines are in.
I think in football, maybe the lines are out, depending on whether or not we look at it that way or not.
If our test is that contiguity means you can get from one point in a district to another without crossing a line.
I don't know, as I look at it, it seems to me that you can do that pretty easily on pinpoint contiguity, but maybe I'm wrong on that.
Do you have a position regarding that, and do we need to give guidance on that?
Should we ask for remedial maps in this case?
I would say that most states don't allow pinpoint contiguity, and I think that that's probably the most sensible rule.
Certainly, there's no difficulty in drawing- there are some municipalities in Wisconsin that have a next territory in that manner that is at pinpoint.
But as we say in our briefs, the wards in Wisconsin have at most 4,000 people, and then the legislative districts are 59,000.
It is not possible to think about that pinpoint contiguity area and make sure it's surrounded by the rest of the district.
What's the basis for not allowing pinpoint contiguity?
I mean, actually, if you even just want to describe for us what you believe the basis of, I mean, the contiguity is.
What's the point?
Well, so on the first question, I would think that's based on how other states have treated it.
Certainly, if in this court's annexation context, for example, if the court allows contiguity,
I think the word should mean the same thing in the constitution as it does, it's a word.
And mean the same thing in our case law and describe and contiguity.
Exactly.
And this court has relied upon the definition and dictionaries that says touching along a border or joining.
And so in that sense, perhaps pinpoint contiguity would be permissible.
But certainly, it's not as a practical matter.
There are very few places where this would even be an issue.
And your second question, Justice Dallett, I may have forgotten.
Oh, I had asked about, that's okay.
I had asked about contiguity.
And I mean, this even turns back to what we do have of the description when the constitution was created from the founders.
We don't have a lot of language, but we do have some.
And what, I mean, contiguity as it was placed in our Wisconsin constitution, do we have any sense of what that is to mean and why?
With respect to the why, this court spoke about it, I believe in the Attorney General versus Cunningham case,
that the contiguity and the compactness requirements were all sort of checks on the legislature to ensure that it actually wasn't engaging in gerrymandering.
That you are connecting like communities with each other, neighborhoods with neighborhoods that surround them.
And that goes to important representational interests.
And so this limits the legislature's power to engage in distortions of representational government.
And we say in our brief Wisconsin is the only state that has anything that looks anything like this.
Council, that's what I wanted to ask you about.
I believe in your brief you argued that 54 assembly districts and 21 senate districts contain non-contiguous territories, is that correct?
That's right.
How does that compare to other states across the country?
So I think there are maybe, there's maybe one district in Massachusetts,
two or three in Pennsylvania and a total of, I may have Pennsylvania and Tennessee wrong.
There's like a total of seven in the country.
They haven't been challenged.
Wisconsin has 75, this shocks people across the country who look at this map.
This is like foreign to what redistricting looks like.
Council, I wanted to, I'm sorry, Chief, go ahead.
So, Council, you set the language, and I'm going to brief stew the language from Cunningham.
It talks about, you know, contiguity being, you know, absolutely binding and those sorts of things.
The case also talks about the fact that the other provisions are also absolutely binding,
including the provision that says county, town, and ward lines cannot be split, right?
That's right.
So even if you are correct, as a matter of the original public meaning,
that contiguity means physical touching, I'd like to hear you address why you still sort of win or what we do about it.
And the reason is because the problem we have is that annexation is something that arose later, right?
And so if you just sort of take, you know, a city that annexes land in the middle of a town and
you absorb that into the town, you will probably be, maybe even definitely,
splitting up a ward in violation of the Wisconsin Constitution.
Or, and you can find different ways to sort of connect the dots and those sorts of things.
But it seems to me that the legislature's approach over the last, you know,
50 years since this annexation became permissible roughly speaking 100 years ago
has kind of created a problem, which is you have two provisions that can't both be complied with, right?
So if you prioritize contiguity,
why would you prioritize contiguity over the county, town, and ward lines?
There doesn't seem to be any textual warrant for that.
And why isn't there some play in the joints that the legislature's decision,
which it has, you know, been consistent about, and, you know, even the maps that were proposed,
all of them that were proposed to us two years ago did this same thing,
seemed to say a sensible resolution to this problem is to keep these municipally annexed lands together.
And that best complies with potentially incompatible constitutional commands.
How would you respond to that?
Yes, Justice Haggadour, the response would be that there is actually not a problem and they are not incompatible.
And so maps can be drawn in Wisconsin that are bound, or the districts are bounded by county, town, and ward lines.
And just to stop and think about what that means for a moment.
That means that the lines around the district have to match up with lines of towns, counties, or wards.
And so there's not a single place in Wisconsin where it's not possible to bound the districts by county, town, and ward lines.
And to have the district be 100% contiguous.
And so as a factual matter, there just is no conflict between these provisions.
And in addition, you can also keep the wards whole.
Isn't part of that because in 2011, the legislature changed the statute to allow for
the drawing of ward lines after the redistricting process?
The legislature did that and that's what happens now, and yes, though the ward lines are drawn after.
But even if you don't do that, even if you just take the ward lines as you find them today,
you can bound the districts by the ward lines and make them 100% contiguous.
And the remedial process in this case will show that I would bet that the legislature's experts have done this already.
It just simply is not a conflict.
And so as a factual matter, if we don't have two constitutional provisions conflicting,
we shouldn't be balancing them against one another.
We should be following them.
And as part of your argument that there are 75, essentially,
islands that are not at all connected with the parcel at issue.
Well, it's more than seven.
So there's 75 districts that have non-contiguous detached pieces.
So district 80 has 40 of them.
Like islands where they're in the middle of some other property?
They're in the middle of, and we have some pictures in it, but there's like a district, right?
And then if you think of it as colored red, and then next to it is the colored green district on the map.
In the middle of the colored green district are blobs of red that belong to the neighborhood.
So of those blobs of red, of those islands, right?
Can we call them islands, do you think?
We can settle on that.
I don't like that because I would say detached territory because there are literal islands that exist.
Okay, detached territory.
How many of those have people living in them?
The legislature, hopefully, included an appendix to their response to the opening brief that has that.
I don't off the top of my head know it, but I can give you some examples in the Eau Claire area.
There's one detached piece of the town of Washington that has 1,234 people living in it.
Okay, but my question really isn't which ones have people living in it.
How many of those detached territories have people living in them, voters, people who would vote, living in them?
I don't know the number off the top of my head.
It's listed in the appendix to the legislature's brief, their opening brief.
But how many, who are the plaintiffs that live in these detached territories?
What are the names of the plaintiffs and where do they live?
Gabrielle Young, I believe, lives in a detached island in the Madison region.
And all of, at most of the Clark petitioners, live in a district that contains detached pieces, which is the first.
What about the detached territory, which plaintiffs, which people on your side of the V, live in one of these red blobs?
Detached territories, not islands, what are you talking about?
Of the petitioners in the case, Gabrielle Young lives in a detached, one person.
And I can't speak.
And the Madison area.
Right, and I can't.
In the island detached territory, red blob.
And I can't speak for the Atkinson, Mr. Herschel would have to tell you there.
Do you think that's important to have an aggrieved party live in one of the areas that's the subject of the dispute?
Well, we do, as we just mentioned.
And I also would say that cases dealing with redistricting don't typically require a party who lives in one particular part of a district.
Even in federal courts where there's a jurisdictional standing requirement, living in the district is what suffices.
Now, if we look to the Malaportion, to the Johnson case as a sort of corollary example, I think there were four petitioners here who lived from the Johnson group that lived in Malaportion districts.
This court didn't just stop and draw those four districts.
Malfairness Johnson was completely different.
It was a legislative and, it was a constitutional impasse, a constitutional crisis.
If the court didn't step in, there were zero maps.
But the court was, the issue was brought to the court, and a decision had to be made in a very timely matter for there were any other votes taken in other elections.
The court didn't have a choice, frankly.
The court doesn't really belong in these cases.
We found ourselves in one, and we had to decide it.
That's how I see Johnson.
Otherwise, the Constitution places this responsibility on the legislature and the executive.
So, respectfully, Chief Justice, I would push back a little bit.
What we had in Johnson was a constitutional violation, the Malaportionment.
What we have here today is a constitutional violation.
The districts aren't contiguous and they violate the separation of powers.
And so, actually, the 2011 act, as I think Justice Bradley maybe had in one of the separate opinions,
wasn't sunset, it's still, it's enjoined.
But it's, so if no one had come to court and challenged the Malaportionment, we'd still be under Act 43.
Those districts would just be Malaportioned.
So, it took a party coming here and saying, this is unconstitutional, please enjoin it.
The clerk petitioners are here today saying, this is unconstitutional, please enjoin it.
Is there any end to this litigation?
Well, I think there's one constitutional provision that is hanging out in the balance as to what it means in the Wisconsin Constitution.
Well, it wasn't, with all due respect, when we decided Johnson.
That's right, it was the-
It was provision, it was something addressed in the opinion, something addressed by the parties, and it was concluded.
Why shouldn't this be waiting for ten years?
What I would say is that, I agree with the respect that in 1892 this issue was decided.
But I don't know of any source of law that says that parties cannot raise a constitutional claim when they weren't a party to that proceeding.
And more to the point, I would say more to the point is the legislature is going to do this again in 2031, after the 2030 census.
And so why not, why would we wait eight years to tell the legislature what the constitution means when there are parties before the court now raising constitutional points?
How do we already tell the parties what the constitution means?
You do understand that in selecting new maps, the court was obligated to ensure that the new maps would comply with every provision of federal and state law,
including the constitution.
So I understand your argument is that we didn't spend enough time in the majority opinion in Johnson 1,
addressing contiguity, but when I compare it to the case you're hanging your hat on,
your entire argument rests on lamb.
Let's see what they actually said in lamb for analysis, citing absolutely no authority.
This section also requires that each assembly district must consist of contiguous territory.
That is to say, it cannot be made up of two or more pieces of detached territory.
I'll admit that these several conditions are absolutely binding upon the legislature.
And that the body has no power, much less discretion to dispense with any one of them.
That's a pretty brief analysis with absolutely no citation to authority.
So how can you possibly argue that we should be bound by that rather than our recent precedent decided only two years ago.
Where this court went through each and every provision of law,
analyzed each and every provision of law that would govern redistricting and
had a conclusive opinion and a decision on each of those issues.
I think the main answer is that the lamb case followed the constitutional text and the Johnson 1 case and the processor case didn't do that.
Council, before we run out of time, well, I want to let you finish, but I have a question for you.
That's basically-
Okay, before we run out of time, if we are to find these maps unconstitutional.
And we were to turn to a map, someone to help draw the maps.
Do you have names of people that you would suggest?
So yes, we will-
And I'm going to ask this of all the parties.
So what is a process matter, what I would suggest is that the parties submit proposals.
We have suggested that the court appoint a referee to receive those proposals and-
If we don't do that, if we don't go and follow 80506.
But we want to enlist the help of a professional map maker.
Is there a name that you could give us today that- Who does this?
We're going to look- Who's done it in other states?
Sure, so just maybe a couple of weeks ago, the Middle District of Alabama appointed David Ealy to draw the Alabama map.
He's been appointed before.
The Stanford professor Nathan Priscilla has frequently done this for courts.
There are a number of such people.
Bernie Groffman was sort of the founder of the jingles preconditions and voting rights because he's done this before.
And so certainly the most recent experience is with David Ealy in federal court.
And that of course went up to the US Supreme Court and they denied a rehearing on that map.
And so that's someone that's off the top of my head.
Council, we've had a lot of questions thus far that really go to standing or
issue preclusion latches, et cetera.
You were billed, so to speak, to address contiguity and least change.
So take it away on least change, at least get a minute or two on that argument if you would.
Yes, Your Honor, and thank you, Justice Bradley.
So what I would say is, we've laid out in our brief why Johnson isn't controlling on this point.
At least change plus its definition got one vote in the court, not four.
And on top of that, the Johnson decision I would submit disregarded
starry decisive self with respect to the fact that this court had never applied that
principle in the Zimmerman case or any of that preceded it.
And in addition to not getting more than one vote for
its definition and its applicability, it simply doesn't work in this case.
So one, the map that's currently in effect is not a map that was passed by the legislature and signed by the governor.
It's a map that was vetoed by the governor.
And so the whole concept of least change is we're going to defer to the political process.
It rose out of respect for the political process in limiting the judiciary.
And what we saw at the end of the Johnson litigation was we're putting least
change in effect to respect the political process.
And then the one map, the only map that we know failed the political process is the one that was put in place.
Council no map would have made it through the political process.
It was an impossibility in the litigation, you understand that, right?
My time is up.
Go ahead and answer that question, then you can address whatever you'd like on rebuttal.
Thank you.
I don't know whether that's true, the governor and the legislature certainly could have attempted to compromise.
The legislature chose instead to come to the court and didn't even try an over right vote.
There was no effort or the second chance.
And so many states, the governor and the legislature who are in opposite parties come together and compromise.
That didn't happen here.
Thank you.
All right, thank you.
Twelve minutes goes fast.
You didn't have 12.
You had more than...
Yeah.
And double that.
So what is 29?
I think we get to three.
Right.
Thanks.
Good morning, your honours.
My name is Anthony Russomano.
I am an assistant attorney general and I represent Governor Tony Evers.
Today I'll be talking about the separation of powers claim from the gubernatorial perspective.
And we know that separation of powers is especially important in redistricting.
Redistricting goes to the very core of our democracy.
And the governor is the only participant in redistricting who represents the people as a whole.
Quick question at the outset.
Why wasn't this the crux of your argument the last time you came before the court?
Why wasn't it raised your honour?
Your honour, well, it wasn't a claim in the last litigation.
And also, as I'll discuss more, we believe the separation of powers issue really arose at the end of Johnson litigation.
At the very end, when the court adopted the legislature's map that had been vetoed by the governor.
So that really came to fruition at the end of the case.
Where was your motion for reconsideration if this was such a grave affront to the Constitution?
Your honour, it wasn't an issue that we believe could be raised at that point in time.
Why not?
I believe that the decision was final and this court indicated it wasn't accepting more briefing.
We did ask, after this case was remanded from the US Supreme Court, the governor did ask for more briefing and evidence.
To address the remanded issues from the US Supreme Court, but that was denied by the court.
That was largely voting rights act.
That was the reason it was remanded, yes.
Right, but separation of powers.
You weren't precluded from arguing that at any point in the case.
Wouldn't it be best if a court knew all the issues that were before it and knew what was to be litigated and what wasn't
so that they don't have piecemeal litigation and challenges after the fact?
Your honour, I suppose, in the abstract, that's desirable.
But again, we believe that the separation of powers didn't really arise in full fruition until the end of that case.
So it wouldn't have been something you would have risen right at the beginning in Johnson 1.
But the legislature submitted its proposal much earlier.
I mean, it absolutely was an argument you could have made.
That's true, your honour.
We did argue one against least change from the beginning in Johnson 1.
We did argue against the legislature's map, but it's true that no one in the case brought up the separation of powers issue.
Right, but that's kind of the problem with your client's position.
I mean, it's really remarkable, actually.
I mean, you participated in the litigation, you stipulated to the contiguity issue,
you submitted maps that this court adopted that are contrary to the position you're now advocating in this court.
And you could have argued against the legislative maps on this basis, but didn't.
It seems, if any other litigation bring any other claim,
I think you would be precluded for making these arguments under, I mean, almost any doctrine that you want to pick from here.
It's a rather remarkable argument that you ought to be able to make these claims here.
Well, Your Honor, I think there's something to that.
In a normal case, take two private litigants.
There are preclusion doctrines that can apply so people can move on with their lives.
But we do think that this is fundamentally different.
We're talking about whether the maps that guide democracy in Wisconsin are constitutional,
whether they follow the rules of the road.
And the governor in particular represents the people as a whole in that sense.
Do you three counsel that courts don't pass laws?
Ordinarily, courts do not pass laws, I agree, Your Honor.
And do you agree that in the Johnson litigation, when we did not pass any laws?
Well, if I could tweak that, Your Honor, I'd say the court stepped in institutionally,
or it should have stepped in institutionally, to almost legislate in a sense because it has to fill a void when there's impasse.
Sure, but we didn't pass a law, correct?
We didn't enact a law.
There's no new laws in the books.
The law in the books, in fact, still is the 2011 maps enacted by the governor and legislature at that time, correct?
The court didn't pass a law in the sense of going through the legislative process.
That's correct, Your Honor.
Right.
And so the process of vetoing legislation and enacting laws, the argument does not make much sense to me at all,
because what courts do is impose a remedy to harms and to constitutional injuries.
The constitutional injury was the right of voters to have districts that are equitably apportioned.
And so we remedied that wrong.
We imposed a remedy that remedy continues for the time being.
Now there's an effort to disturb a remedy from a prior case that's still ongoing, but we didn't pass any laws.
So it seems to me that your argument that there's some violation of the legislative process by imposing a remedy,
even a remedy, by the way, that was rejected by your client, which is fine.
I just don't understand it.
These are two totally different things.
The process of enacting legislation and judicial remedies for injuries are two totally different things constitutionally.
Well, Your Honor, I would agree that they're different things, but I think our view is the problem is that they were
mushed together in the Johnson litigation, and they shouldn't have been.
And one way the court overstepped in some sense, and then stepped back in another sense when it gave us some more details on that.
So in our view, the court started out from the front end, started off on the wrong foot.
And that was, as mentioned earlier, the lease changes mandate this court issued in Johnson 1.
We think that had two problems that involved the separation of powers.
First, the lease changes, we believe, put a thumb on the scale in favor of one of the political branches.
So Wisconsin legislature, the Republican part of the legislature, wanted maps that were more or less the same as they had been for the last ten years.
They wanted, in the governor's view, to entrench power to ossify things, regardless of what changed in the voting population's preferences.
So we think by imposing these changes, the court was starting to step into outside of its realm right from the beginning of its proper role.
But in Johnson 2 council, the court chose the governor's maps, and I didn't hear any argument from you or your client in that litigation that somehow
the court was violating the legislature's core power under Article 4, Section 3 to apportion and district anew, the members of the state and assembly.
Why didn't you raise the separation of power violation argument there?
Your Honor, it wasn't the focus of the litigation.
And I guess I should say, as I said earlier, these issues about whether things should have been risen before all go to preclusion doctrines,
and they really don't apply to redistricting and to the publicly important issue of whether the maps are constitutional.
I want to turn the discussion if I cut a little bit to remedy.
I have two questions for you.
The first one is the question we just asked, Mr. Gabor, and that is, if we get to the point in this litigation where we determine that we would like the assistance of a mapmaker,
do you have anyone that you would recommend we consider?
I believe we could swiftly provide the court with the name.
I don't have the name right now.
If I could get the court the name by my rebuttal time, I could do that.
And my second question is this, and I think quite frankly it's the big white elephant in the room, and that has to do with partisan fairness or partisan impact or no partisan bias or being completely blind to any partisanship.
We didn't take this case on extreme partisan gerrymandering.
We declined to take those first three issues.
But I do wonder if this court gets to the place where we either need to adopt maps based on the parties presenting them to us or we get to the place where we are going to be drafting our own maps.
I wonder what your position is regarding partisanship.
Do we consider it?
Do we not consider it?
There's a case law of course that says by not considering it, we are letting it play a big role.
Yes, Your Honor.
We absolutely think the courts should consider partisan bias and responsiveness in the maps.
And there's examples in the briefs from the Minnesota Supreme Court and the Pennsylvania Supreme Court.
Both courts have recently done that.
And the idea is that the court uses that as a way of comparing maps.
So you have maps that follow the particular constitutional or statutory mandates.
And then you can use metrics and there are several different metrics.
And some courts just consider them all and look at them as a whole to show you if a map is responsive.
If a map, say the 2011 maps, for example, the Republicans would win 60 seats with less than 50% of the vote.
So we measure things like that showing there's outsized impacts where a party gets less than half the vote but has a large majority.
There are different measures for wasting votes, things like that.
And why is that important especially when a court is drawing maps or adopting maps where as a legislature?
It might be different.
Why is that the case?
When the court draws maps, it's key.
Many courts have said this, including courts in Wisconsin.
It's key that the courts have a neutral role and they don't enshrine partisan bias in maps the court adopts.
The court must be neutral when it's adopting maps.
And that's part of when I was getting at the issues that this court had when Johnson won.
It didn't actually take on that full role it's supposed to have as an institution when it's doing impassered litigation.
So when your client submitted maps to us two years ago, you took into account, your client took into account partisanship, correct?
I don't believe we did.
Your client, the maps that were submitted to this court were an effort to, in part,
ensure that maybe more Democrats could be elected.
Is that a fair statement?
I don't believe we did any evaluations, at least a minute to the court, that I can refer back to your honor that I'm aware of at the moment.
But they may have looked at them for that as well.
Yeah, okay.
Well, I'm going to sort of stipulate on the record whether anybody disagrees or not that every map we've received had partisan interest in mind,
including the governor's quite obviously.
Hold on, I just want to finish my question or justice.
So my question to you then is if we're supposed to take into account partisan interests,
and there's supposed to be some measure here of when things have gone too far, and it's fine to take into account partisanship,
it's just a question you can't go too far in one direction, what's an acceptable number of Republican-leaning seats in your view?
Well, your honor, that's the difference, I think, between having a partisan gerrymandering claim as a merits claim
and looking at partisanship just from the back end, which is what we're talking about.
But except if there's maps that are drawn neutrally, and they lead to, say, 60 likely Republican seats in the Assembly versus 58,
presumably there's some metric for saying, this is going to lead to too many Republicans, we need to ensure more Democrats could get elected.
I mean, your argument is that that's exactly what this court should do, so what are those numbers for you?
Well, your honor, there's no line that's particular line needs to be drawn, so in this situation where the court would be creating the map
and then looking at proposals perhaps, and comparing those proposals, it would just be relative.
So it would be, is this map showing partisan bias more than this map is showing partisan bias?
And you can compare the maps, another tool for comparing the maps to help the court's neutral role,
but there's no magic number in this situation that needs to be met.
So that's one of the beauties, I guess, of it not being a partisan gerrymandering claim.
The court doesn't need to draw that line in this case.
Council, proportionality has been advanced as a neutral metric.
What's your position with regard to that?
Well, your honor, we would say in our brief we list some metrics, and none of them is strict proportionality.
So we would say there's more sophisticated ways of looking at it.
One of them is called the efficiency gap, for example, which looks at wasted votes, so how many votes both sides would waste in a particular district.
There's also something called partisan symmetry, which looks at how far if the election was 50 things deviate from what you'd expect.
So it's not strict proportionality, I don't think any of those.
Oh, I'm sorry, my time is up.
A short question, short answer.
Okay.
I don't want to let you get in the back door what we didn't allow in the front door.
That is arguments regarding partisan gerrymandering.
Tell me why your argument is devoid of any semblance of a partisan gerrymandering.
That should be easy to answer, sure.
I'll refer back to the answer I just gave, Justice Haggadorn, is that there's a fundamental difference between trying to draw a line saying you cannot do something because it's partisan.
That would be the partisan gerrymandering claim, and saying we're going to look at the maps in front of us and make sure those maps aren't, the map isn't far off the side bias-wise.
And it's just a way of looking at maps in the back end to ensure court neutrality.
It's about neutrality, not about drawing a line about partisanship.
Thank you.
Thank you.
That was relatively short.
That was pretty good.
All right.
Tamara Packard, 12 minutes goes fast.
I get to be the short one in the room.
Good morning, your honors, and may it please the court.
I'm Tamara Packard of Pinesbach LLP, accompanying me at council table today as my colleague Eduardo Castro.
And we represent the five Democratic Senator Respondents, Senators Carpenter, Larson, Spritzer, Hesselbein, and Smith.
These senators are also present and in court today.
Thank you for the opportunity to speak with you.
I want to hit two points with you.
First of all, on the merits, the Johnson Court violated the Wisconsin Constitution's separation of powers when it adopted vetoed SB 621 as our state legislative maps.
The governor's council just addressed that.
Council just addressed that.
Council's going to stop you right there.
I've got a question.
I'm actually going to ask Attorney Rosamano as well.
But in a situation where the governor and the legislature are at an impasse in the redistricting process and they come to this court,
what rule should we apply to ensure that we don't violate separation of power?
Don't adopt the map that failed the political process.
It's that simple.
Then are the congressional maps equally flawed?
I don't think those were the maps that failed the political process, Your Honor.
The reason SB 621 is the map that failed the political process is that it was the map that was drawn by the legislature before that litigation even started.
It was then vetoed by the governor, this litigation ensued, that litigation ensued.
The court actually adopted a different map that was responsive and drawn to the court's specifications.
Then the Supreme Court cast doubt on the legality of that.
The case came back to this court, and then the court chose the map that had failed the political process.
So when the court initially chose the governor's maps?
Yes.
That was reversed by the U.S. Supreme Court.
Did that also fail the political process?
Because I didn't hear this argument anywhere in that case.
The governor's map was never part of the legislative process.
It was not proposed by the legislature.
It was not proposed by the governor during the legislative process.
So the court could take the governor's maps, but the court just can't take the legislature?
Correct.
If the legislature is okay to usurp the legislature's constitutional mandate to redistrict, but it's not okay for the court.
I'm not following your argument.
It doesn't make any sense.
Isn't the fact that I'd like an answer to my question, Justice, first.
I think it's because the legislature was a party.
Are you arguing the case?
The governor's map proposed in the Johnson litigation was created in particular to meet the court's specifications.
It was never part of the political process.
It was only aiming at providing the court with a map that met its criteria.
So the legislature did not do that.
The legislature, what if it had made just a couple of minor tweaks to the map?
Then it would not have been the map that failed the political process.
Would that be okay?
That wouldn't violate the separation of powers?
I don't know.
I don't know what that map is.
I don't know whether, that's a hypothetical question and I don't have the answer to it.
I'd like to talk about remedy because it's only been touched on as far as when the court takes on the role of map maker or who it's going to appoint when it overturns Johnson III.
But I'd like to ask, because I'd like clarification, I think it's important to clarify what it is that you're actually asking for relief.
You are ultimately asking that this court unseat every assemblyman who was elected last year.
You're asking this court then also to unseat all the senators in the odd number districts.
You're saying that they don't have the authority to hold their seats.
Does that also invalidate all of the legislation that was passed by these legislators who are somehow unlawfully occupying their seats?
What we are asking the court is to provide a remedy that derives from this court's original jurisdiction over matters.
This is out question the primary publicity juris issue that this court has dealt with over the generations.
We're asking the court to exercise its equitable powers and its role as the only nonpartisan branch of the government.
This is a should.
It's not a must, right?
The Republicans have been mistaken in their briefing about that.
There is no must for avoiding partisan maps absent to finding that the maps are violation of the law, which is not before this court.
So should is what the court's role is here.
What is equitable?
What is nonpartisan?
What is independent?
What is suiting the judicial role of independence from partisan politics?
The court has the discretion to direct a remedy that advances and preserves the collective interests of the citizens of this state.
And that all comes from the exercise of original jurisdiction.
Keep in mind that redistricting cases are publicity juris because as this court said in 1892, they require the interposition of the highest judicial power to shield the sovereignty of the state itself from violation.
And by sovereignty of the state itself, the court meant the people.
Justice Pinney described this eloquently in his concurrence in the Cunningham case in 1892.
He explained that the aggregate community, the accumulated will of the people, is the sovereign.
So given this, as Justice Pinney went on to say, it is the court's responsibility in exercising its original jurisdiction to protect the people
against all actions in violation of the constitution and which are injurious.
And how so we've already done that.
We did that in Johnson.
What I'm asking you is in this case, in this do over case, what is the remedy that you are asking?
Isn't it to unseat all of the assemblymen in the state of Wisconsin and half of the senators?
We are asking that this court have elections that are based on a constitutional map.
Okay, I understand that.
And that's why we did this in Johnson because we had maps that didn't comport with the constitution because of the census data that the state received like every other state.
I understand that.
But I'm asking you to confirm that you are asking this court to order that new elections be held which will unseat every elected assembly person in the state of Wisconsin.
And half of the senators.
That is the relief you are seeking, is it not?
We are supporting the Quo Worento request for new elections, early elections for the senators.
My clients, the five democratic senators, are ready willing and able to prove to the voters of the district that they are placed in.
That they are the right representatives to carry the people's voices to the state house.
That's an extraordinary remedy which in the past when it's been requested in Trump be Biden, this court rejected.
It's an absolutely extraordinary remedy and it sounds, you know, there's many intonations about democracy throughout the briefing.
I can't imagine something less democratic than unseating most of the legislature that was duly elected last year.
I believe as my learning council earlier said that in the Cunningham case the court spoke about representatives who are elected to their seats based on an unconstitutional map.
So counsel, I have to say that I agree it's an extreme remedy.
Tell me, is there any precedent for using a writ that would house such a big chunk of the state legislature?
Has this ever been done before?
I don't know of any.
But this is a really big problem here.
Attorney Packard, if we do not choose to exercise the remedy of quil or wento, but we do find the maps, do not comport with a constitution.
Do you have a name of a map drawer, someone that you would recommend that we, if we were to use such a person to help us with the maps?
Who that would be?
I'm sorry your honor.
I did not come prepared to answer that question.
I don't have names to give you.
On separation of powers, when was the last time we had a legislature that comported with the constitution, if ever?
When was the last time we had a legislature that?
Or a contiguity, if you thought of that issue at all.
Was there, have we ever had a duly elected legislature with maps that are constitutional?
We have not had cases, as far as I know, where the court has found that an entire election was of assembly people and half the senate was found to have been
the last time we had a legislature that was found to have been, I'm sorry, I'm sorry, I'm sorry.
I'm sorry, I'm sorry.
I'm sorry.
I'm sorry.
Is that your argument?
Because your earlier response was a different year, in the very beginning you said, what do you want?
Don't adopt maps that failed the political process.
process. That sounds like one version of separation of powers, and I thought you were
going to argue a different version. Must be wrong, because I didn't hear it so far.
Well, Your Honor, in Johnson One, the court recognized that it cannot legislate, right?
It cannot act as a super legislature. But in redistricting litigation, the court can
only provide a judicial remedy to an unconstitutional map. Now, it did that. It did a judicial remedy
at first, when it chose the governor's map. But then, when the case got sent back down
by the U.S. Supreme Court, without offering the opportunity to respond to that court's
concerns, this court chose SB 621 and imposed that as its new map. In doing that, the court
cut short the legislative process. In fact, it completed the legislative process, the
legislature. Are you at all advancing, excuse me, the argument that was advanced in the
first set of arguments of the legal scholars or not? Maybe I read too much into the description
of what you were going to be arguing. That is the abdication of our role as a neutral
arbiter and a review of the constitutional mandates. So you're not arguing that, or are
you arguing that? That is true as well, Your Honor. I think that this court had a role.
May I finish my answer, please? The sentence. This court had a role in Johnson to choose
a map from a judicial standpoint, from a nonpartisan standpoint, from an independent
standpoint, from a standpoint that did not prefer any party over another, just like the
Prosser court did, and just as the Jensen Supreme Court, the Wisconsin Supreme Court,
endorsed in Jensen just a few years later. In closing, thank you for your time, and please
do justice.
All right, Sam Hirsch, 12 minutes.
Good morning, folks. I'm Sarah Seilzer from Morgan, and before I go to Sam Hirsch, I'm the
Director of Representing the Addison and O'Rourke's. Mr. Hirsch has been admitted from Happy
Day, and will be due in the argument.
Good morning, thank you. Please proceed.
May it please the court, Sam Hirsch, for the Atkinson interveners. I'll be principally addressing
the standards and process that the court should use in imposing a remedy if it finds that the
existing state legislative maps violate the Wisconsin Constitution. These were the third and
fourth questions in the October 6th order. Specifically, I would like to address four issues.
First, in our opening a brief, and especially in our response brief, Atkinson interveners
strove to lay out a very detailed, precise description of the substantive standards and the procedures
and timeline that we believe should govern any remedial proceedings. It's our belief that
everybody involved. Those seeking relief, those opposing it, the entire court, the people of
Wisconsin will be best served by clear, unambiguous rules of the road, articulated the outset of
the remedial process, including clear unambiguous rules about how the court will apply the principle
of judicial neutrality in evaluating proposed maps. Then everyone will have fair notice
about what is expected of them, and no one can later claim unfair surprise. Second,
in that vein, I'd like to start by clarifying one specific issue that may not have been clear
enough in our response brief, which is whether the court should expressly permit a non-contiguous
ward to be replaced by two or more contiguous wards to promote the creation of a contiguous
assembly district, and the answer is clearly yes. Now, there's going to be many-
Then you're talking about other states, red blobs or islands or whatever the other phrase was that
you're preferred using. How many of those have people in them? The answer is discernible from
the appendix to the legislature's brief. I do not know the total off the top of my head.
Well, if somebody here knows the total, since you're asking for a remedy, I'd like to know if it's
for people. After the break and when I come back on rebuttal, I'll try to come up with that number
of your honor. Thank you. I'm not sure I understand your argument regarding this remedy,
because in my mind, if we find the maps unconstitutional, wouldn't we just start all over with new maps?
I don't understand your argument about you, we could, a district, and I think the legislature
argued this as well, that we could, if there was a district that had a detached,
if there was a district and there was a detached area of a district and another district,
that the other district would just absorb the detached area. But why are we even worrying about
that? If we find these maps unconstitutional, don't we just start all over? So, your honor,
there are ward islands all over the state. They don't all create district islands right now,
because often the island and the so-called mainland are in the same assembly district.
But there's a couple thousand of these ward pieces around the state. So, how we deal with them is
important. And let me say, I just want to, I'm sorry, I don't want to hit your point, but I want
to follow up on that, because it relates to my earlier question. If there are wards that are
ward islands that are split in two, you can't preference contiguity over ward lines. You'd
be ordering an unconstitutional, you'd be ordering as a remedy for contiguity violation of the
Constitution, which says you can't split ward lines. Your honor, I think you're failing to
distinguish splitting a ward versus following ward lines. What the Constitution speaks to is that
the boundary of assembly districts has to sit on top of a county line, a town line, or a ward
line. That's entirely separate from whether you can split a county or a town or a ward. I don't
think anyone is advocating splitting wards, but it is important to understand that some
brief says in particular, making districts contiguous could require splitting wards.
Let me explain exactly what that means. Splitting is not the right expression there, and I apologize
for that term. The question is, can you replace a non-contiguous ward with two or more contiguous
ones in some circumstances? Now, that will not always be the way you cure non-contiguity
districts. Sometimes you'll create a land bridge to connect the island in the mainland,
and that's fine, but sometimes that really destroys compactness. Sometimes it causes you to split
other municipalities. We believe it may prevent you from drawing a truly neutral map, and state
law says it's perfectly fine to replace a non-contiguous ward with two contiguous ones. I cite here
Wisconsin statutes 515-2F, as well as 1C and 4A, and there is a June 24th, 1963 attorney
general's opinion that says exactly that the wards can be made to follow the districts.
Are neutral maps the same as contiguous maps? Are you asking for neutral maps redrawn?
Are you asking for contiguous maps to be drawn? Both, Your Honor. How do we know which is which?
This brings me to one of my other points, which is you're going to ask if you get through a
medial phase, I assume the parties to each submit a map or maybe two maps, you're going to throw
out the ones that are unlawful, which include ones that are non-contiguous, but if you're
then left with more than one, how do you choose among them? And the Jensen court was very clear
in saying this court in Jensen, in saying exactly how to do that, which is that when this is a
quote, when comparing submitted plans, the court should pick the one most consistent with judicial
neutrality, not one that seeks partisan advantage. Is judicial neutrality the same thing as partisan
neutrality? Are we supposed, I'm asking you, are we supposed to draw maps that make Wisconsin a 50-50
state? Is that what you mean? No, that's not what I mean. What I mean is that as between two maps,
one of which puts a thumb on the scale for one political party to a much greater degree and the
other does not, you should choose the one that does not. That's what you said in Jensen,
and it's consistent with this court's role as an impartial, non-partisan, elected body for the
state of Wisconsin. Should we do that even if it makes it not contiguous? No, again, I'm talking
about once you have two or more competing proposals.
you
you
you
there was no time for a motion for reconsideration because everybody was told that April 15th was
the drop deadline for all this litigation. That doesn't cut off your appeal, right? So it doesn't
cut off your ability to file a motion for reconsideration. Why wait until August 2023,
Council? And I'm here representing the Atkinson interveners, Professor Atkinson as well as two
of my other clients were not even parties in that case. But some of your clients were parties
in Johnson. So the contiguity argument could have been made, but you stipulated along with all the
other parties that municipal islands are legally contiguous with the municipality to which the
island belongs. If this is such a glaring constitutional violation, why would you stipulate to that in
Johnson? That argument was raised in the August 22nd filings by the other side. This court ruled
in October 6th to proceed. I do want to finish the argument. What about her representations?
Can you answer that question? I'm really curious about it because I've been asking
a similar question. And then if you could get back and finish the answer. Can you remind me
with questions? I'm sorry. Why did you stipulate to contiguity? It was a mistake. In our October 25th
brief, we actually said that detach pieces. They don't make mistakes in litigation all the time,
but they have to live with them because there's a finality part of litigation. And others of my
clients were not involved and don't have to live with that. Can you go ahead and finish your
answer? Thank you so much, Your Honor. The reason is not to have a map maker at your service. Not
only will it pull you into the political thicket further than you need to be. If there's a problem
with one of the maps that's in front of you that's submitted by a party, you can ask them to fix it
and they can do it in 48 or 72 hours. Selecting and overseeing a map drawing referee is time-consuming
and complex. And if you tell people in advance, we're going to end up drawing our own, then everyone
goes to their distant corners. If you say, we're going to pick the most reasonable maps submitted
to us, it's a foster's moderation. Would it be possible for someone who specializes in map drawing
to help us pick the best maps out of the one that has- Isn't that how most states use for
professor personally? I think it's fine if the role is to evaluate the party's submitted maps,
not to draw them yourself. I just think that's a slippery slope that you probably don't want to
go to. And in that vein- Council, every map that we received two years ago, going back to my
prior point, to me, very clearly had partisan motivations in mind. And I have no doubt that if
we elicit maps, whether stated or unstated, every single map that we received, we'll try to get,
we'll try to comply with whatever the courts directive are and seek whatever advantage
our clients are seeking. I'm not sure that that process avoids much. It certainly didn't settle
anything last time around. Well, I think as long as you get clear instructions about what it is
that you have to do to comply with the mandatory district and criteria, and then what you have to
do as between lawful plans to be chosen as the most judicially neutral, as long as instructions
are clear and you have three rounds as we did last time of expert reports, which we did in a
matter of weeks, you'll get clear answers about which maps are best. What would be neutral? What's
the acceptable range of Republican or Democratic-leaning assembly districts or Senate districts that's
within the permissible range? The key question is, which maps are most likely to support rather
than Fort majority rule? So it's not about the percentages. What is that? Can you be more
specific? What's the percentage of the jury rule? How many Republicans are permissible? How many
Democrats? I mean, what do you really... Oh, I'm sorry, your honor. Go ahead. To be really clear.
In a... Look, this is a very, very hyper-competitive state and which party's candidates get more votes
in a given year shifts from election cycle to... Your Honor, I see what I'm going to say. Shifts
from election cycle to election cycle. In a year where Republican legislative candidates get more
votes statewide than Democratic legislative candidates, they should control the legislature
and vice versa in a year where Democratic legislative candidates get more votes statewide,
they should control the legislature. It's that simple. It's called majority rule and I hope the
court stands up for it. Thank you, Your Honor. Just a moment. I wanted to ask a question, but I'll
ask it... Do you want to ask it now so you can think about it for a very far? Yes, and that is,
you are billed to speak to the issue of the motion that has been filed regarding the legislative
technology services and you haven't read the word regarding that. So I'm going to ask you that
in essence, what's your response to the legislature's response to the motion following up on that?
They say we can't order either the legislature or the LTSB to do anything and what's the consequence
of it. That's it. Thank you. That's our heads up on Rabbeau. That's for later. Okay. Thank you so much.
Okay. All right. We're going to take a 10-minute break and we'll reconvene to hear additional oral
arguments.
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Hey.
Okay.
pinch.
Okay.
Okay.
Kinda.
All right.
All right.
Never say.
All right.
This is funny.
Yeah.
I don't know what you mean.
All right.
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All right.
We're going to close the doors.
We have less than a minute.
Come on down.
Sarah's still up here.
Sarah, are you still up here?
No.
Now that's funny.
Yeah.
Can you just close those other doors?
Because whoever is in is in.
Who's ever not in that?
For those of you against the wall,
there's no sitting against the wall.
Are you still in like an Arnold's husband?
Sorry.
The two leather door.
Thank you.
All right.
Sounds good.
We're going to get started.
It is 10, 10.
The 10 minute break is over.
If you were here before you know the rules,
if you weren't here before,
I'm going to quickly, quickly go over them again.
There is no eating or drinking in here that includes gum.
If you have gum, please dispense of it out there.
If you swallow it, I don't want to know anything about it.
You will be asked to stand twice the first time.
You will be commanded to stand when I come out that door the second
time you'll be expected to stand when the justices leave.
Any questions?
All right.
Your cell phone should be off or completely on silent.
Please shut off all your notifications,
Facebook, Tinder, TikTok, Instagram,
plenty of fish, whatever the case may be.
Walk in your dog so you're a calendar one.
I know it sounds ridiculous, but somebody's calendar invite did
go off because they forgot to walk their dog.
But at the time you're here, it's too late just so you know.
Any questions, comments, concerns?
All right.
Shoes are all the way on your feet.
All right.
I got back on you.
Don't you worry.
No.
All right.
Beautiful.
All right.
Let's do this.
No, it's okay.
I'm just going to put it under again.
Here, Kevin.
I don't need this.
Okay.
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So, sir, you need to find a seat.
All rise.
Hurry, hurry, hurry.
The Wisconsin Supreme Court has reconvened.
The Honorable Chief Justice Annette Kingston Ziegler
presiding.
Your silence is commanded.
Please be seated.
Back on the record in Clark v. W.E.C.
We are now prepared to proceed with second half of oral arguments.
Taylor Mian is prepared to present.
Good morning, packed.
Mrs. Hunter.
All right, fifty, five zero minutes
for you.
Please proceed.
Yes, your Honor.
Taylor Mian, counsel for the legislature.
May it please?
Chief Justice Ziegler, I have answers to your questions.
I've got answers to your textual question, and I also want to go through the.
But first, I have to start with the petitioners' delay.
This court invited petitioners to intervene in Johnson two years, one month and 15 days ago.
They waited, they waited exactly one day after this court's membership changed to file their unprecedented collateral attack.
They have no answer for their delay.
They have no answer for the limits to stop the next collateral attack and the next collateral attack.
And having sat out Johnson, petitioners cannot now cry foul,
shortening Wisconsin senators, constitutionally prescribed terms,
and rushing this case to judgment in only a few months time.
Nor is there anything to cry foul about.
For their delay, and the governors about face, reveal something about the nature of their claims.
They are meritless.
They are a wolf in sheep's clothing designed to backdoor a political statewide remedy.
So Council, is there a case you can point to where a constitutional, ongoing harm was barred by the doctrine that you're now claiming to us of latches?
It was suspended from raising a constitutional harm.
Your Honor, the best case I could point you to is a redistricting case, and it was Zimmerman.
So if you look at the procedural history in Zimmerman, the governor there filed a sue in 1962, and it was too close to the 1962 elections.
The case was dismissed, and the governor came back in 1963, and even then the court gave the legislature another opportunity to redistrict.
Are we too close to an election?
I mean, isn't this the point that they could wait eight years right now and still not be near the next redistricting time period?
But are we too close to an election?
Is that a problem here?
Yes, Your Honor.
It's been our argument all along that there's not sufficient time given the remaining fact finding to allow the legislature an opportunity to apply.
Act finding, are you think we need to have in this case at this point?
Your Honor, with respect to liability, we would still press our arguments that the petitioners haven't proved their standing.
That would be a factual issue we think could entail depositions of the petitioners and the interveners.
And if we're back before this court, after the legislature would have any opportunity to redistrict, we would surely expect extensive fact finding on a remedy.
If, for example, your Honor's decided that the remedy had to be neutral, that would entail a trial, and not just a mini trial.
My question was at this point in the litigation, not at the remedy stage, at this point in the litigation,
other than standing, which is pretty broad right now in this state, what fact finding do you think needs to be happening?
With respect to liability, I'm still not going to stipulate necessarily that a petitioner living in a district with a one person island necessarily has standing,
and we would like to take depositions about what their injury is.
Okay, what about the Governor?
Your Honor, arguing the Governor has no standing, because I certainly don't see that argument anywhere, and I think that would be a pretty unique argument that the Governor doesn't have standing.
Me too, Your Honor, and I would agree with you. We would have never raised a standing argument with respect to the Governor.
So one party has standing, so that means they all have standing.
If I could finish my answer, we would not argue standing in Johnson with respect to the Governor just as it wasn't a problem in the Zimmerman litigation,
but here the Governor suffers a different flaw, which is I don't see a way in which this Court can say the Governor can come into Johnson and argue things one way,
and then come into this Court and argue things another way.
Okay, so you're mixing concepts. Let's get back to standing.
You agree that they're standing, because if one party has standing, they all have standing, and the Governor has standing.
Do you agree?
Your Honor, we agree with the Governor's arguments that under Wisconsin law, when the Governor comes into a redistricting case, or more formally often,
the Attorney General, when they come into a redistricting case, they are litigating on behalf of all Wisconsinites.
But that's not true for redistricting at-infinite them.
In the same sort of perclusion principles that you apply to state officials in the Mobius printing case that the Governor himself cites,
you also have to apply here.
The Governor himself proposed a remedy with municipal islands, and this Court took it.
And I don't see how the Governor can now come in and say, we were wrong all along.
Those basic perclusion and estoppel principles have to apply here.
Now, I have one more point-
But we just seem to be weaving in and out of different, shall I say, defenses, or what we often would have, affirmative defenses, counsel.
So, just for clarification, are you arguing that the Governor does not have standing in this action?
No, Your Honor, we're arguing that you don't even get to standing.
The Governor cannot take care of the other petitioners' standing problems because of the estoppel and perclusion problems.
Are you arguing that latches bars the Governor?
I think one, latches in perclusion as applied to the Governor boil out to the same thing.
But yes, the Governor, if he wanted to raise a contiguity argument, the time for the Governor to raise the contiguity argument was in Johnson.
More than two years ago at this point.
There's been a couple of cases that say latches on the part of the government and bringing suits said not to be a defense in the case of a claim, which is founded on the sovereign right.
And of course, it's one of the cases is the Joseph Berg case, another one is the Chippewa cable case.
So, it seems to me that's a pretty, given those cases, a weak argument, vis-a-vis latches in the Governor.
Can you respond to that?
Your Honor, two responses.
The first is I don't see any case in that category cited by the Governor that involves a collateral attack or successive litigation by the exact same government party.
And the best case I have is the Mobius printing case where you did exercise your discretion and you did say that the Governor was precluded for making arguments that he didn't make before.
I agree with you, sometimes the labels are used interchangeably, but I cannot find a case.
And I don't think there's one in the briefs where you have the same political official here in Johnson in 2021, 2022, making one argument.
And the same government official comes back a year later without asking for the case they participated in to be reopened and they make a different argument.
You could call that a stop or you could call it perclusion, but either way the Governor can't take care of the standing problem.
And on your question Chief Justice Ziegler, standing is really important.
And I agree it's a prudential remedy, but it goes to the courts, it's a prudential doctrine, but when it comes to remedies, it's not so prudential, it goes to the judicial power of this court.
And on the question of remedies, I don't see how a petitioner, for example, who lives in Beloit where there is one municipal island to keep the town of Turtle Hole, how that petitioner in Beloit can ask for a statewide redraw.
Or a redraw of districts, for example, in Green Bay.
And on that, this case is a recent Mcconkie case and the Tegan case are actually quite helpful.
The analogy to me would be you would allow an Illinois voter to come in and Mcconkie and come in and Tegan and invalidate a constitutional amendment.
Or try to invalidate the Wisconsin Elections Commission's guidance.
The Illinois voter is ineligible to vote there, just like the Beloit voter is ineligible to vote in the Green Bay district.
And so as far as the problem, Chief Justice Ziegler, is quite limited.
By my count, there are 45 districts that do not have any alleged municipal islands.
There's an additional 11 districts.
Are you talking about legislature as a whole? Are you talking about just the assembly?
I appreciate the opportunity to clarify, just the assembly districts.
We go back to your 45 then.
So you're saying there are 45?
45 of the 99 assembly districts, as best I can tell, do not have any municipal islands.
So only 45 of the 99 assembly districts are contiguous.
No, Your Honor, and I'm looking forward to getting my argument that all the districts are contiguous.
I really do think we have the better of the text in history.
And 45 do not have any alleged islands.
An additional...
It's detached territory. They're not islands, right?
That means 54 due.
Well, 54 due, but an additional 11 have zero people in them.
11 districts have alleged municipal islands with zero people in them.
An additional 10, so I think now we're at 66, those additional 10 have islands totaling 1 to 10 people.
Where what this court would be saying is one person in an island,
for example, up in Green Bay, entitles everyone to a statewide redraw.
And of the few municipal islands that are left, where you have districts with people and islands exceeding 100 people,
I count 13 of those based on our appendix.
The petitioners do not claim to live within...
Live in those districts, except for Madison area districts.
That's district 80, district 79, and district 47, and except for Beloit, which is district 31.
So there are people who live in the districts that have detached territory in them who are bringing this suit.
Your Honor, I wouldn't call...
Maybe not everybody, but there are people.
I wouldn't call it detached territory, and I'm going to get to that.
But there are people in a district where to keep a town hole, you can put all parts of the town into the district.
But I appreciate the question, because it's helpful for a remedy.
If the islands in Madison area can be fixed within Madison,
and the island in the Beloit area, as best I can tell, can be fixed with one ward in the city of Beloit.
And that's no reason to redraw the entire state map.
It sounds like you're asking for us if we find that these maps violate the contiguity requirement
in the Wisconsin Constitution that we should start with least change.
Because if you're talking about adding one in here, subtracting one in there, you're basically saying,
we're starting from the maps that were.
So you're arguing for least change.
Your Honor, I'm arguing that you imposed a judicial remedy, which is a remedy limited to the scope of the contiguity problem
for the petitioner who has standing to raise it.
And I would like to point the court to the Smith v. Zimmerman case that we notified everyone about last week.
Smith v. Zimmerman is a nice example of this in action.
I think it's from 1953 or 1954.
And there you had a law, not a injunction of this court, that the petitioner was challenging as unconstitutional.
That petitioner, as best I can tell, was from Brown County.
And when this court said, petitioner, you're right, this law is unconstitutional.
That remedy was an as-applied remedy to Brown County only, and again, as best I can tell from that decision,
there was no statewide remedy.
That's just the nature of judicial.
This is a judicial remedy.
And because it's a judicial remedy, we have to be careful about population deviation, correct?
And doesn't your remedy of, well, we'll just have whatever district is surrounding the island,
soak up the island, doesn't that take us to 9% to 10% of population deviation throughout the state,
which would completely blow apart what any court has ever done?
No, Your Honor, I don't think that's right.
I think that is true of District 47, where within the Madison, that's in Madison, within the Madison area,
you might have to change some wards in addition to dissolving the district
in order to keep that population equality nice and precise.
But the beauty of the mandatory injunction in Johnson, because it was a malefortionment case,
is that the existing districts are very closely apportioned,
and there is, when you're dissolving an island of 20 people, for example,
in the town of Legeview, no, you're not going to run into the problem of malefortionment.
The islands on the whole have very few people in them.
And again, there's only a few islands, not just districts, just a few islands that have so many people in them.
The 1,000 person island is an outlier, by the way, that you heard about earlier.
It's far larger, multiple is larger than any of the other ones.
And that island is really interesting, because it's in this Oshkosh territory
where as a function of this court's lease changes remedy,
you have areas of Oshkosh that used to be the town of Algoma and this whole thing.
You can dissolve those islands and not create a municipal split, given later annexations.
But I do want to get to why we shouldn't even get to the remedy.
In addition to all of our procedural arguments, I'd like the opportunity to address the text of the Constitution,
and I really want an opportunity to respond to the history, because I do think we have the better of the history.
So first with respect to the text, the text of the Constitution, you've got two clauses,
and I think in section four that are applicable here.
And I think about them as the bounded by clause and the contiguous territory clause.
And when you go to redistrict, you don't just draw lines willy-nilly through Dane County or through Brown County.
What you do is you pick a town, or you pick a ward, or you pick a city, and you say,
I want that town in the assembly district.
And that's the work that the bounded by clause is doing.
It says, these are the building blocks of redistricting.
Counties, precincts at the time of the founding, towns, and wards.
And you say, I would like the town of Madison, the town of Middleton, in districts 47 or districts 80 respectively.
The contiguous territory clause then takes you to the next step.
What if the town of Middleton is too small to make up a district in its entirety?
You have to combine it with something else.
And the contiguous territory clause tells you you have to combine it with a town that is adjoining in some respect to the town of Madison.
So if you look at, let's take Middleton.
If you look at 80, 80 in Middleton, and you look at the text, the way the redistricting is written,
it says, I want the whole town of Middleton in the town of Verona, and I'm forgetting it, it's another town to the west of the town of Middleton.
And if you look at a map, all those towns share nice square boundaries.
They are contiguous territory within the meaning of the Constitution.
What if I find...
Crossplanes, it's crossplanes.
I grew up in the district.
If I find the reading of the language in the Constitution to really have three provisions, not just collapsed into two.
Three provisions, Your Honor.
Do you mean, are we talking compactness or just within the bounded by and the consistent?
I'm talking about the representatives to the assembly, how chosen in Article 4 that says,
such districts to be bounded by county, precinct, town, or ward lines, comma, to consist of contiguous territory.
That's the second thing.
And the third is to be as compact a form as practicable.
If you asserted that there were two clauses, and I find three.
Yes, Your Honor.
Of course, compactness is a third requirement, and I don't want to use building blocks in two different ways,
but they're almost like stacking Russian dolls, right?
So first we talk about what are the building blocks, towns, or counties.
Then we talk about how you combine those towns or counties and the contiguous territory clause.
And then your third compactness clause tells you, okay, even if the town of Verona and the town of Middleton are adjoining
in some respect, let's make sure you don't have a sprawling district in terms of compactness.
What's your definition of contiguity or contiguous territory as it sets forth in the text of the Constitution,
since I think 1848, right?
Right.
I think you can define contiguity as strictly or as loosely as you want, and my whole text argument still works.
But if you're going-
How did they define it in 1848?
In 1848 you have dictionary definitions using both of those definitions,
either physically adjoining in some respect or near or close by.
And we have shown in our briefs that both-
You can work both definitions and they both work for our interpretation.
I'd advise you to take the near close by definition because of the water islands, Your Honor.
And so, for example, if you look at the 1861 redistricting,
the state redistricted all of Door County with all of Accanto County,
and the only way to get there is across Green Bay, otherwise you're driving through another Senate district-
You take the water out of it, though.
Your definition doesn't make any sense.
Your Honor, I don't see how you could take the water out of it because section four and section five
don't include an exception for water, and whatever definition you choose here has to apply to water as well.
But let's just take petitioners.
Let's take petitioners more-
We're not leaving a district.
If there's water in between, and you have to get from one place to an actual island,
and there's water in between, you're not going from one district to another district,
the water, to the first, to the same district that you left in the beginning.
So, no, it's actually not the same.
That might be true if what the legislature did in 1861 was they took just Washington Island
and Door County and put it with the town of Accanto.
That would create problems under the bounded by clause at that time.
But that's not- I don't think that's right with respect to Door County, right?
Your argument- Your point would make it unconstitutional to put Door County with anything else,
mainland Door County with anything else, other than Quani County.
And then today, the problem with their exception for water is that it would allow a district in Green Bay
to be districted with Kenosha because you could just take the Green Bay to Lake Michigan.
Oh, we still- Wait, wait, wait.
I mean, it doesn't- Just because we do that doesn't mean that compact form as practicable
flies out the window of the boat that we're in getting from one of these places to the other.
That doesn't- No.
That's a very fair point, Your Honor.
I do take your point.
But what I think is helpful about our definition of contiguity and why.
I don't think it ultimately matters.
What's helpful is it makes it easier to understand the rules of contiguity,
whether we're talking about municipal islands or whether we're talking about water islands.
That's the tail leading the dock.
You're telling us to use one definition because it will help your argument.
And I'm pretty sure the rule is that we're supposed to look at the definitions to figure out what the law is.
Your Honor, that I am prepared to argue for the rest of the time using definition.
Our building blocks argument still makes sense.
Let me give you another example.
If you look at Beloit, the petitioners have included a picture in their response brief.
And they're upset that the town of Turtle has a municipal island surrounded by the city of Beloit.
The reason for that is the building blocks.
The town of Turtle is included whole in Assembly District 31.
And so when you take the town of Turtle whole, you take it with all its islands.
It didn't- If I could just finish the point.
The town of Turtle is contiguous even as the petitioners have defined the term because it shares an entire border with the town of Clinton.
And there's no other way to understand the text without putting the two clauses in unnecessary conflict with one another than to say that Assembly District 31 is contiguous because the town of Turtle is touching the town of Clinton.
And any other reading requires you to potentially split the town of Turtle or make other changes that are not and they're not written into the text.
So what do you do with- We've had some discussion very recently in the case of town of Wilson versus City of Shibuya.
Thank you.
I joined it.
In any event we had a long discussion in that case about contiguity.
And really it's kind of- And looked at the definitions, looked at how we applied in our case law and came up with the definition that contiguity has to have some significant degree of physical contact between the properties in question.
Acknowledging that there could be exceptions, fact-based, very specific ones, but that's contiguity.
What do you make of this whole discussion going through all of our case law looking at the word contiguous?
You're right, Your Honor.
And I think town of Wilson is our case, not their case.
And I would take a look at paragraph 22 of that opinion where the court said what is significant is that the annex territory shares a common boundary with the city of 650 feet.
And when you apply that same rationale here, the town of Clinton shares a common boundary with the town of Turtle that shares this well beyond 650 feet and is therefore contiguous within the meaning of the redistrict.
Council, regardless of what Wilson, that well-written opinion states, or whether when you take the town of Turtle, you take all the islands.
It sounds like that's the name of a future book or something.
I want to know what the word means, right?
And so contiguous, first came into the English language from Latin in the, what, 17th century.
And it meant a degree of physical contact, just like the Wilson opinion did.
The next time I take a look at it is in the 18th century.
Samuel Johnson's dictionary, 1755, a degree of physical contact, is the same.
Then I look more importantly at the time of the Constitution and the way it was used in the 1846 Constitution, arguably, and the 1848.
And of course then, the main dictionary was Miriam Webster, according to some historical accounts.
And that deals with some kind of physical context.
Cases decided after the 1848 also deal with that.
So, I just find unconvincing, given that history, that it would mean something other than a degree of physical contact.
Your Honor, I think even if that's where you are and you think it requires some physical contact.
Well, that's because of the meaning of the word.
Well, your Honor, respectfully in 1848, we've cited examples of contemporaneous dictionaries that have what's called a looser definition.
But more to your point, contiguous counsel, but if that's in fact accurate, and I think we've all been thinking about this a lot.
Do you know of any Wisconsin Supreme Court case that decided the original, and I emphasize original meaning of contiguous in Article 4, sections 4 and 5?
Your Honor, as far as the original meaning, I think Johnson decided it not once, not twice, but three times.
And I'm trying to get to get to that why Johnson was correct with respect to its approach to contiguity.
What is important in the constitutional text, contiguous is an adjective.
And you still have to decide what it's modifying, and then that verbal phrase to consist of.
Can you tell me where in Johnson 1, 2, or 3, you found language addressing the original meaning?
Your Honor, I don't think the words original meaning appear in Johnson.
Accurate, thank you.
In paragraph 36 of Johnson, you said municipal islands are contiguous within, exactly as Lamb said.
And in paragraph, I think it's 9 of Johnson 2, or maybe it's 6.
You said the governor's proposed remedy with municipal islands was contiguous.
And in paragraph 70 of Johnson 3, you said the same was true of the legislature's remedy.
But I'd like to get to the syntax of section 4, contiguous modifies territory.
And what territory means has to be something different than town lines or ward lines.
And as we've tried to explain, contiguous territory means that when you bring the town of Clinton in with the town of Turtle,
you want to make sure that those two towns are joining in some respect.
Or if you're going to redistrict Door County across the Bay with Ocanto County, they are nearby if you're going to use the looser definition.
That's confirmed by the verbal phrase to consist of, which is not bounded by.
Consistive connotes grouping together of these towns or these wards or these counties.
Which ones are you picking?
You're picking the ones that are joining in some respect.
Can I just make sure I understand your argument?
I want to let you finish, but I just want to make sure I understand what you're saying.
Is that what we're looking at is sort of the building blocks, mostly towns and wards, right?
The county is not supposed to cross too, and they did do some West County by county largely too early on.
But that is long as those building blocks, whether they may be a county town or a ward, is contiguous to another county town or ward.
That reading those two together, that satisfies the constitutional, the contiguity that's required.
In other words, not every piece of land necessarily needs to be contiguous as your argument, but that the county town or wards need to be contiguous to another county town or ward.
Yes, your honor, and even to use Justice Bradley, the definition that Justice Bradley is using, they're touching in some respect.
And if you go around the map today, you will see that.
They're touching in some respect other than the water islands.
And if it meant something different, I'd urge you to take a look at the California Constitution that I think petitioners have cited in their response brief.
The California Constitution doesn't use consists of contiguous territory.
It talks about districts that shall be geographically contiguous.
And then it later talks about contiguous population.
If Wisconsin meant what petitioners are saying, if the Wisconsin ratifiers meant what petitioners say that they meant, I would expect language like that.
And if you have any doubts about that, I'd like to turn to the history because I think the history confirms our building blocks for you.
I have actually history teed up here, so I want to hear what you have to say.
But I'm having a hard time with your argument because if we take it to the extreme, which sometimes we want to do in this room,
we could just have these detached portions everywhere, like 55 would be nothing the next time.
We could have over hundreds, right?
You could have an infinite number, so I don't understand.
You could have as many as you have wards, right?
So I just don't understand where your argument ends.
I appreciate the question, your honor, because it relates to town of Wilson.
In some ways the problem is self-healing or self-limited by existing annexation rules.
And so when a city goes to annex, and I'd like a chance to clarify this, most of these islands are not city annexations that are the ones implicated in town of Wilson.
But a city like, obviously the city of Madison can't annex territory up in Green Bay, right?
And there are annexation laws that are going to cabin when the city can annex.
And when a town is annexed from, well those town lines have been nice square town lines since possibly before the Northwest territory came into existence.
And those town lines are what's at issue here.
I think on our appendix we list something like 270 or 280 different islands.
More than 200 of them are towns.
And the reason for those towns, the reasons those are on our appendix is it's for keeping towns whole.
The town of Turtle, the town of Madison, the town of Blooming Grove, the town of Middleton, and on and on and on.
It's very consistent with the building blocks.
This isn't us district, the legislature or Johnson 3 or anyone else, no one since 1856.
It's not necessarily about the cities, it is about the town.
So what are these municipal islands even in existence in 1848 when our constitution was created?
Your Honor, the first that we can tell is in existence in 1856.
Eight years after ratification, when perhaps there's the same folks around as we're around during ratification.
But there was an annexation in 1856?
Yes, your Honor, and this is in the town of Blooming Grove case described at page 722.
In 1856 the city of Madison incorporated.
And the result of the city of Madison's incorporation was to leave the town of Madison in five detached pieces.
That was the first of many such incorporation of cities and annexations of cities by cities that leave these towns as sometimes an archipelago of islands.
And with respect to redistricting, you just take the archipelago as you find it to keep the town's whole.
And I'd like to just say a little bit more about the history.
I told you about the rowboat districts.
I think that's also consistent with our interpretation.
No one said that was unconstitutional.
And in 1930, the town of Madison that I just told you about is best I can tell the town of Madison was represented by one legislator.
And the city of Madison was represented by another legislator, and no one claimed that was unconstitutional.
Council, on the issue of history, turn back with me, if you will, to those thrilling days of 1848.
And the districts that were made and fashioned at that time after the constitutional convention.
Were all of the districts touching one another, had some kind of contact with one another?
All the districts had contact with one another just like they do today, your honor.
The Madison archipelago of islands, the town of Middleton, is touching the town of Verona, and they are both in District 80 together.
What about that town of turtle you were telling me about?
I say that tongue in cheek. It's not really a question.
My question goes to this.
This isn't that informative.
But the time of 1848, when the districts were drafted, were mapped out, that they, and the word contiguity, of course, was a guideline, right?
Right there in the Constitution.
That all of the districts were touching one another.
Isn't that informed the definition?
Your honor, two quick points in 1861, that wasn't true of the robot district in Door County.
But you know what I think is really interesting about that 1848 Constitution?
If you look in Article 14, I think it's in Section 2, you see my building blocks point.
And if you look at the three districts of portion to Dane County, they did not draw lines through Dane County randomly.
What they said is we want the town, I'm sorry to keep using it, but it was true then and it's true now.
We want the town of Middleton, and we want the town of Verona in one district in Dane County.
And that's exactly what the legislature did in 2011.
It's what this court's mandatory injunction did in Johnson.
And if I could just go back, fast forward a little bit.
I do want to respond to the 1950s history, because with all due respect, I'm not sure that it was stated to you quite correctly.
In the 1950s, there's this 1953 law that has been referred to obliquely in some of that.
That 1953 law is what's at issue in the Smith v. Zimmerman case that we notified everyone else about, everyone about last week.
And what's really interesting about that 1953 law and what and looked at it, it's in Chapter 550 if you look at the laws of Wisconsin of 1953.
The town of Madison was represented by one legislator in that law.
In the city of Madison, which surrounds some of the town of Madison, what remains of the town of Madison was represented by another.
And there was no claim in the 1950s litigation that that was unconstitutional.
The contiguities referred to in the Thompson v. Zimmerman case, in the Smith v. Zimmerman case, you can see them with your own eyes in the Northwest reporter that we filed last week.
Those contiguities are areas on one side or the other of the Fox River.
They are water problems. They are not municipal islands.
And even with respect to those water problems, this court went out of its way in Smith v. Zimmerman to say no one is claiming that's unconstitutional.
The changes made by the legislature in 1953 were policy changes.
I think in the Zimmerman two case from the 1960s, again, you would find examples of municipal islands there.
No one claimed that the court drawn map was unconstitutional.
In the 1970s, the legislature codified longstanding practice.
No one should claim that was unconstitutional.
In the 1990s, the processor court took a map with municipal islands over one that didn't have municipal islands.
No one said that was unconstitutional.
In 2011, Act 43, consistent with longstanding practice, did that.
No one claimed that was unconstitutional.
And in Johnson, three times over, no one claimed it was unconstitutional.
If we were to adopt the petitioner's point of view regarding contiguity, have we ever had constitutional maps in Wisconsin?
Well, Your Honor, that's certainly one problem with their argument, and I do want to spend the rest of my time with on the remedy.
Because of the limited time, the first instance I can tell is far back as 1930.
What about 1848?
Your Honor, again, we think our position is.
The districts are still adjoining.
Population changes didn't occur until 1930 that required the town of Madison to go, or apologies, Dane County,
to go from, I think, three representatives to five representatives.
At which point you get Madison, city of Madison, only districts separated from other districts in Dane County.
Why is this relevant?
We have plenty of situations where we have not had something challenged as unconstitutional, and then it is.
One that comes to mind is the Dobbs case, most recently.
But there's plenty of other examples.
So why is the fact that no one challenged something as unconstitutional mean that somehow it's now constitutional?
Well, Your Honor, I think it's relevant to the merit of the argument, and for all the reasons, the merit reasons I've given today,
those are the most consistent way to read the text in history.
But it does matter for the remedy, and I don't want to sit down without having an opportunity to address that.
Petitioners delay, at the very least, requires three things.
At the very least, as an initial matter, you cannot oust legally elected senators from their constitutionally prescribed terms,
having sat out the 2022 litigation and let the 2022 elections come to pass.
Petitioners can now not claim that the 2026 elections are too far away.
What's the core rental remedy?
What's your best argument against that?
I have three cases, Your Honor.
My best argument is the Trump case, and I cannot see how you refuse to recount or unwind lawfully counted ballots
in a case involving the Republican presidential candidate, but you would do so here for lawfully elected senators.
The second case is probably the Covington case.
I understand that's a federal case and has different principles at work,
and if it's right that the Supreme Court has never said that a special election is appropriate
after a year's long litigation in racial gerrymandering cases, intentional racial gerrymandering,
boy, it's hard for me to see how it would be appropriate here.
And the third is the Pierce case that's been cited a few times where that gets at the heart of what the core rental remedy is.
It's about the qualifications of candidates.
No one said that the senators are not qualified here or cried foul if the elections were unlawful in some respect.
The second thing is even if you go the petitioner's way, even if you think the petitioner's are right on the merits,
you must give the legislature an opportunity to redistrict.
And they cannot say that there's not enough time left for that.
There's not enough time for the legislature to apply their own rule because they waited too long to file the suit.
That's exactly what you did in Zimmerman.
And it's also what you did in the lamb cases.
You didn't jump in and issue a mandatory injunction or the Cunningham cases.
You left it to the legislature.
And the third is related to that.
If we're back before this court or if you don't agree with me that you have to give the legislature an opportunity,
you've got to give us as much time to litigate this case as the petitioner sat on their rights.
And I don't see how petitioners can wait 679 days since this court's invitation to intervene in Johnson.
And then we have 14 days to come up with a remedy.
I don't have an expert that's done that contrary to what was said earlier.
And then 14 days to respond to other remedies over the Christmas holiday.
Justice Krowski, to your question, if you do get to the remedial phase,
the legislature is who should do it first.
Just like Zimmerman and these other cases.
And we found any separation of powers problem to take that opportunity away from the legislature.
And if the legislature and the governor cannot agree on maps and we're at a point of having to look at proposals,
do you have a map maker that you would want us to use?
Justice Dalit, apologies.
The person I would say would be LTSB in the same way that the federal court did in the Baumgar case,
where you can use LTSB to show you how to dissolve those municipal islands.
Or to apply whatever rules, whatever rules you think.
Okay, we don't want to be drawing maps.
Who would be a person who could consult with us on looking at maps that have been proposed?
LTSB could apply whatever rules you announce here just as they did in Baumgar.
On the question of partisanship, I want to return to where I started,
which is you've heard a lot about neutral remedies today.
What petitioners call neutral, we call doing politics.
And whether you're asking whether a law is a partisan gerrymander,
or you're asking whether a remedy is a partisan gerrymander,
you've still got to decide what a partisan gerrymander is.
All the tests they've given you are all deviations from proportionality.
It might not be exactly proportionality, but it's still a deviation from proportionality.
And I'd urge this court to take a look at the Harper 3 decision from North Carolina
that just went through all of those tests and all of those political science metrics,
and they threw up their hand and they said we cannot do this in a judicial way.
We can only do it in a political way.
And there's at least three reasons for that.
The first is you've got to decide who's a Republican and who's a Democrat.
In a state where a third of Wisconsin voters identify as independents.
And you've got to decide that in a state where voters, like here and everywhere else,
they vote for candidates, they don't vote for parties, and they split their tickets.
And so is a person a Republican or is a person a Democrat
if they vote for Tammy Baldwin or President Biden at the top of the ticket,
but they vote for their Republican Assembly candidate at the bottom of the ticket.
What is that person?
Are they an independent? Are they Republican? What's fair to them?
Even if you could decide who's who.
Why is it politics? Why is politics the measure of fairness,
as opposed to say being fair and neutral with respect to religion or other features?
And even if it is just politics, deciding what is fair is a question of political philosophy.
It's not a question delegated to this court.
Your friends on the other side phrase it a little bit differently,
and what their argument is that we should have maps that reflect what a majority of voters in the state wants.
Said differently, we should not allow maps when a minority of people in the state are allowed to rule a majority.
I mean, that's what I'm hearing them say.
That's exactly what I heard them say two-year honor, and in 1848,
the Wisconsin Constitution decided that question against them.
In 1848, it was a critical moment in the ratification debates about whether Wisconsin
was going to elect their legislators at large in some way,
or whether Wisconsin was going to elect legislators through single member districts.
And they decided-
Wait, wait, wait, wait, wait, wait, wait, wait.
Hold on.
Can you finish?
I'd love to finish.
Oh, I thought I thought you were the answer.
No, I'm not.
Continue.
The single member districting is inherently unfair when it comes to proportionality.
It is the opposite of proportionality.
It is a check on statewide elections of officials.
And so, for example, in Massachusetts,
Massachusetts has about 30 to 40 percent of Republicans.
They've got nine representatives in Congress,
and no one would say it's unfair that all nine of those representatives are Democrats
because it's just the way people live, and when you have single member districts,
you've got to just take people where they live.
And so, here, just like in every other state,
you're going to see differences between the statewide share of votes that parties receive
and those who represent single member districts and the legislature.
And you don't need to take my word for it.
You can take 40, 50 years of the Supreme Court's decisions on this issue.
Veth explains this at length.
Davis versus Bandamer explains this at length in Justice O'Connor's opinion,
where single member districts are not proportionate.
And it would take a constitutional amendment to get away from those single member districts,
and for this court to voice proportionality upon the legislature.
And you know what?
Ohio did just that.
Ohio recently said,
Court, you have jurisdiction to decide what is fair and what is neutral and redistricting,
and we're going to do you one better.
We're going to tell you what the rule is.
And the rule in the Ohio Constitution says you need your districts to be proportionate.
Without that constitutional text here, all you're left with is that we have single member districts
and we know as a matter of politics on the ground that those single member districts
are not going to reflect proportionality.
And if you impose that rule, you're imposing a political choice.
Is there any?
Can I do this?
Wait, wait, wait.
Question.
Thank you.
I hear what you're saying.
And on the one hand, I don't disagree.
On the other hand, I kind of do.
And this is where I'm having difficulty with your argument is you're talking about single member districts.
And because we have single member districts here,
doesn't that mean that we should be even more careful with the representation of those districts?
That is, you could maybe draw a map where you've got 99% Democrat and 1% Republican.
I mean, you could draw maps that could do just about anything.
So what I'm hearing you say is because we have single member districts, we shouldn't worry about it.
And I'm just wondering, is there...
There's got to be somewhere in between completely turning a blind eye,
which there's also lots of case lots that we shouldn't do that.
We shouldn't completely ignore partisanship because by completely ignoring it,
we can make partisanship the entire issue.
Three responses, Your Honor.
First, on your specific point, the Gaffney case that says you shouldn't turn a blind eye to partisanship
is a case about what the legislature can and can't do.
And in this court, I think justice is blind and has to be blind to politics.
And the bigger picture question is, the problem with proportionality,
the problem with their rule that they're giving you, is you would actually probably enter the thicket
of ordering a remedy that is more favorable to Democrats.
Proportionality is not necessarily the neutral baseline that courts for 50 years have failed to discover.
So take out the word proportionality and assume that if we were to find these maps unconstitutional
and choose new maps, each party, as Justice Haggadon pointed out,
is going to submit maps that benefit their side, right?
They're going to have a thumb on the scale.
Every single person that puts a map to us.
So isn't it better for us to go in with clear eyes than to pretend that we're just neutral?
We're just neutral.
And then we adopt one that has a thumb on the scale.
Why would we do that?
I'm not talking proportionality, but why would this court, as a neutral,
as the third branch of government, why should we do that?
Three responses, Your Honor.
The first is, I don't want to assume the premise, which is that we're jumping straight to a remedy without
getting the legislature an opportunity to apply the rule.
The second is, I actually don't understand why we would need to worry about how many Republican districts we're going to have
and how many Democrats we're going to have statewide, because any remedy has to be limited to the problem.
For example, the Dane County Islands.
I don't see why you would be going out of Dane County to redress those.
And the third is, even if you disagree with me on those first and second points, what is fair, again,
as a question of political philosophy, not a judicial question?
And so as a competitive district fair, where it's 50, 50%, should this court be making sure that the maximum number of districts
are competitive, so the maximum number of people in those districts are dissatisfied every time their candidate
loses by one percentage point, or is a lock district a safe district fair, where this court's going to have to decide,
oh, we think we should have 50 Republican districts and 49 Democrat districts.
And then within that lock district, what about the people there?
Because I think most people have differing views from the candidates that ultimately get elected.
And what about the moderate conservative or the moderate Republican in the deeply red Republican district
that's continuing to elect a very, very conservative Republican?
Or the moderate liberal in a district that's electing the very progressive Democrat candidate?
I don't, once you open the door, you're on there, you're going to have to make decisions about what's fair, what's neutral.
And this is how most states do this, right?
And it's the way the Atkinson petitioners described it is you go down the list, and if contiguity is met,
and then you go down the list, and why wouldn't you take, when you have two maps and you're choosing between the maps,
why wouldn't that come into play?
It comes into play.
I don't know if it's every single other state, but the cases I've read seem to indicate that that is a factor,
that at that stage the court, as a neutral, should make sure that no one's putting a thumb on the scale of democracy.
No, Your Honor, and if you, the case I'd point you to, that's like this case and not like the many impasse case they've cited you to,
where the court said our first ground rule is that you will not go out of the boundaries of districts eight and nine.
And so there was, to resolve the RERA remedy there.
And so there was no opportunity to bring to this court something political.
The remedies were just redrawing within the boundaries.
The second case I'd point you to is Prosser.
I think Prosser is actually a really helpful example.
The political concern in Prosser was that the Republican proposed remedy in that case had targeted
four of the highest-ranking Democrats in the legislature.
And so the political concern was a change in the remedy from the existing political geography
and a sort of political targeting that the court says we're not going to be complicit in.
So no, Your Honor, I think the way the courts have handled redistricting cases is we want to stay out of the big P politics problems
and the small P politics problems, like what town should we put with another town?
So council, but we're not bound by Prosser's interpretation, correct?
You're not, Your Honor, but they have cited it to you and I just wanted to make clear that I don't,
I'm not seeing the sort of authority that because of a contiguity violation in the town of Turtle,
you can redraw districts statewide that look neutral.
Okay, so let me just drag you back to latches real quick because I know your time is running out.
What's your response to the governor's argument that latches doesn't apply when the inflicted harm is ongoing
or when the plaintiff is effective relief?
Your Honor, I have two or three responses to that.
The first is you can't apply that argument to their extraordinary requested remedy of electing senators,
cutting, ousting the senators from their terms.
That's clearly a retrospective remedy in conflict with Trump.
The second case I point you to is Brennan, and I actually think Brennan in some ways is as helpful or more helpful
than the Trump case, where in Brennan, there was arguably a sort of ongoing prospective harm
with respect to the effective date that was changed in that line item veto.
And the court still applied latches there.
And I think Brennan's really similar to here.
So in Brennan, the petitioner sat on their hands in 2017 when that bill was passed.
Here too, everyone sat on their hands in 2011 when Act 43 was passed with municipal islands with respect to contiguity.
In Brennan, they waited two years and four months after there had been an intervening budget.
Here, they waited 11 years and 11 months after there had been an intervening mandatory injunction
from this court saying, we're going to go along with contiguity in the same way we have since 1848,
and that's what I want to leave the court with.
If latches doesn't apply here, and if you allow this collateral attack and perclusion doesn't apply,
look what comes next.
Could I finish the thought, Your Honor?
You may finish your sentence.
Nothing would stop a voter in Bayfield to Waukesha to racing to come into this court tomorrow or next year
or the year after and say, I'm challenging the court's final judgment.
In redistricting, you'd have redistricting ad infinitum.
You'd also have it for all your other final judgments.
Thank you, Your Honor.
Thank you.
Thank you.
Attorney Essenberg.
Council, I didn't get an opportunity to ask prior counsel about the due process issue that I think both of you have raised.
So I'll ask you if you consider this to be a fair tribunal that will independently and impartially
consider your arguments in this case when three justices on this court ruled against your clients
and a fourth justice conveyed her predetermined position on the Johnson case as by campaigning
on a mantra that the maps adopted in Johnson were rigged and saying she agreed with the dissent in the maps case.
It's interesting.
Anyone only one justice on this court has an illegal writing on this case.
Excuse me, Justice.
I would appreciate the courtesy of you not interrupting me and I would like to hear a response to my question.
Consistent with the provisions of the attorney oath.
Just a moment.
You've been asked a question, please answer.
All right.
Are you finished with the question?
I am.
All right.
Well, we reversed.
We have reserved the question of what implications might flow from the disposition of the recusal motion.
We're not offering any additional argument on that because that's been resolved at this level and perhaps it will become the subject of appeal, perhaps not.
My view would be that this court finds itself in a precarious situation.
As Justice Hagenorn observed during our friend's oral argument, it is remarkable to see a matter, a particular case or controversy, fully litigated before this court.
And then an attempt made to effectively reopen this a year later after a change in the composition of the court.
This is not a question of somebody coming in later and asking to overrule one of this court's precedent.
They make no effort to show that stare decisis doesn't apply here.
I mean, this court is well aware of what it takes to overrule a precedent.
There's an analysis that you have to undertake.
And when this court has overruled precedents in the past, it has undertaken that analysis.
I'm not sure that that's true because I think with least change, they certainly have gone through that analysis.
More concerning to me, though, is this.
Should we find these maps to be unconstitutional?
You would just have us sit with it then.
We just shouldn't worry about it.
We should say, you know what, state of Wisconsin?
We have unconstitutional maps.
Live with it until 2031.
Well, I would say two things.
First of all, for the reasons that were suggested by my colleague, Ms. Mian,
I think there are circumstances in which latches can apply because there is a countervailing interest on the part of this court having some measure of finality and not having a situation with respect to decennial redistricting where, you know,
we keep coming back to the court and saying, hey, we thought of something else.
We found another client.
She didn't think of this.
There is some value in having the matter litigated so that in this important process of electing representatives to our legislature, there's some finality and people can rely on the fact that districts look like they do.
They can make decisions about where to allocate resources.
They can make decisions about where to run candidates.
Voters can form relationships with their legislators and not be subject to a constant disruption of this as we re-litigate the question of redistricting in series.
So the Constitution takes a back seat to what you just described?
The Constitution doesn't take a back seat because the Constitution also includes, you know, these notions of finality.
There has to be, at some point, there has to be an end.
But if this court were to conclude...
What does the Constitution say about finality, Mr. Ashenburg?
What does the Constitution say about finality?
Well, courts have the power to adjudicate and resolve cases and controversies.
When they have resolved cases and controversies, the matter is done.
Does in cases and controversies the federal standard not our standard?
Well, it's not cases and controversies is not the term used.
But you have the capacity to adjudicate questions that come before you.
And there has to be some concept of finality or you would lack the power to adjudicate with any type of decisiveness and completeness.
But I would say, if this court were to conclude that some of the arguments that are made by the petitioners in Group 1 parties here
warrant redress, that redress must be limited to whatever it takes to fix the particular problem and constitutional violation that the court has identified.
And that is, I think, consistent with the very concept of separation of powers.
This court does not...
The obligation upon the legislature to redistrict anew is not applicable to this court.
Now, I would argue that that applies to what the legislature is supposed to do when the population changes,
it says that they portion anew in accordance with the population of each district.
But that's not the obligation that's placed on this court.
This court does not exist to consider the various policy considerations and political issues that might arise in the course of redistricting.
This court exists to solve legal problems.
So in the Malaportionment case, when someone comes to you and says that the legislative districts are malapportioned
and the legislative and gubernatorial branches are not able to reach an agreement, right?
The political branches have failed.
They're at an impasse, yet the districts are malapportioned.
It's a constitutional violation.
This court has the authority to step in and fix that violation, but only to fix that violation.
Council, I want to ask you about that because I know Justice Kroski asked this of the other council on your side.
But in your brief, it says that if we were to do what you want in terms of remedy, which is just to absorb these islands,
it says the total, this is according to you, the total population deviation among assembly districts would be 9.72%.
So you're saying all we do is just this one little remedy, but we also have to look at many factors,
including proportionality, which I'm pretty sure you argued in Johnson was, it's 2% is what we all know it to be,
and 9.72% would never meet the muster of the Constitution.
Well, we also said that, I mean, there is some old case law that suggests that maybe 10% is the limit,
but we're not, we went beyond that in the brief.
And we also said that it is possible to make minor adjustments, basically in three areas.
I think it's Oshkosh, Madison, and Eau Claire.
And adjust the district boundaries, absorb the islands.
Many of them you can absorb because there are no people or there are five people in there, so those aren't a problem.
But that in the very, very few islands where there is a larger population,
our preliminary look at the issue reveals that in about three areas,
you can move about 15,000 people and you can fix this problem and you can have, I believe,
a lower population deviation than we were left with after Johnson 3,
and not have an unreasonable number of municipal splits.
And that's what I wanted to ask you.
So if we would go along with this plan that you're proffering,
tell us the splits that, what would result split-wise?
Well, I don't know what it would be split-wise.
I am told that it would not be an unreasonable number of splits, but that would have to be finalized
where we ever to get to the remedy stage.
But we believe-
There would be words that would be split, correct?
I don't know for sure, but perhaps more than Johnson 3, but less than Act 43.
That would be a question that we would have to sort out at the remedial phase.
But I think that all this is very interesting in life, Justice Bradley, of your comments,
that said you don't want this litigation to be a backdoor vehicle.
This isn't an opportunity for a Trojan horse.
It isn't an opportunity for a fig leaf in which we take a violation,
like if the lack of continuity is a violation,
that affects maybe 709,000 people who live in islands
and then use that as an excuse to redistrict the entire state.
That is not a judicial remedy.
That is using a relatively minor constitutional violation as an excuse
to get at the very thing that this court has concluded that it will not consider.
And that is various claims of partisan gerrymandering.
This is where I've been really trying to wrap my head around this argument for a few weeks now.
And I think this is where I'm just not understanding it.
This is where I'm seeing it, okay?
Is that we've got, we have, what is it, 55 out of 99 assembly districts
that have a contiguity issue, right?
Can we agree on that?
55, 52, 55, 55?
Where there is a detached, where there is some detached territory.
There is this thing, whatever we decide to call it.
I mean, this is Blyland, a red blob.
I've heard a number of different terms.
You can go with red blob if you want.
It has that thing in it.
Okay, so let's just say the numbers have differed a little bit.
52 to 55.
Pick your number.
In my mind, what I see is that over half of the assembly districts in this state
have a constitutional violation.
And I hear you when you say, and I don't know, 13 of them.
11 of them, have zero people in them, okay?
So now we're down to 44.
I'm going to start with 55 and go to 44 because I can do that in my head
while I'm sitting up here, okay?
So now we're just under half, right?
And this is where I'm having a really hard time understanding your argument.
What I'm hearing you say is, if it's just one or two people, don't worry about it.
You can just, you know, consume that district by the district that's around it.
It's a small constitutional violation.
Don't worry about it.
And in my mind, I'm thinking, on either, under either counting almost half or a little over half
of the assembly districts, in our state, have a constitutional violation.
So why don't we start clean?
And your answer to that is that, well, we should start small.
And when you say that, all I can hear on the back of my head is, is,
least change, least change, least change.
No, I'm not saying that you ignore a constitutional violation because it's small.
I'm not saying that you start small.
I'm saying that whatever you do, because you are a court and you exist to solve legal problems
and not to redistrict a new and not to draw a set of maps that, under some political philosophy,
is thought to be better.
Your role here is to fix the constitutional violation.
And the constitutional violation here, notwithstanding that there are 54 of these,
that there are some of these things in 54 districts, is relatively easy to fix.
Because in most of them, there are very few people.
There are 11 with no people, but there are many others that have 3, 5, 10, less than 100 people.
Those can be readily absorbed.
And that doesn't ignore the constitutional violation.
That repairs the constitutional violation.
Now, we just want to ask you one question.
And I wish I had asked the legislature attorney, but I'm going to ask you.
In their brief, I know, and maybe this was in your brief too, but in their brief,
do you believe they say we shouldn't touch the Milwaukee districts?
Do you agree with that?
In our view, you would not have to touch the Milwaukee districts to solve the problem.
Again, assuming that these islands are a constitutional problem,
they could be fixed without touching the Milwaukee districts.
I believe I'm correct on that.
Thank you.
Because, and again, what we are saying is that there would be,
yeah, my brain informs me that there are no islands with any people in Milwaukee.
And so I think that we can agree that those districts would not be involved in any type of remedy.
I just wanted to ask about just the procedural posture of this case is just,
I don't know if I've ever seen anything like it before.
Maybe I'm just off, but here.
But you have a judicial remedy, an injunction that's been issued.
We're not reopening the other case.
We seem to be, though, asking to disturb an injunction, an issue, an injunction on an injunction.
And I'm wondering if you would discuss the authority and propriety of issuing a declaratory judgment in this particular context, too.
And the declaratory judgment act is also one of those things that you do to provide certainty.
That's what the text actually says.
That's part of the thing that you consider when you are going to issue a declaratory judgment.
And it seems to me that this litigation has done and will do nothing other than create perpetual uncertainty in the state of Wisconsin over redistricting.
That these issues will continue to be open to challenge on multiple grounds.
This won't settle anything.
One court's sense of what the appropriate use of our equitable remedial powers might be different than what the court looked like the prior year.
I wonder if you might just comment on some of those procedural questions.
Yes, I think that's absolutely right.
And as an example, let me recollect our friend's admonition that while you shouldn't draw a map that failed the political process.
Now, what that means literally in this case is that you cannot choose any map because they have all failed the political process because if it is a violation of the separation of powers to pick a map that has been vetoed by the governor because
the power to sign or veto a map is an exclusive power of the governor, in fact is a core power of the governor.
Then it is equally a violation of the separation of powers to pick a map that has not been passed by the legislature because the passage of legislation is equally a power that is exclusive to the legislature and is a core function of the legislature.
And so if in fact this court can do neither of those things, then all it can do is refer the matter back to the legislature and hope that this time they do something different.
That can't be the right outcome, the right outcome has to be that this court has the power but only the power to exercise its remedial authority and its remedial authority is not limited by what the legislature did or didn't do or what the governor did or didn't do.
Now in exercising that remedial authority, now we have a court that's acting as a court.
And when it takes on a case like redistricting, and it wasn't that long ago that we were all here.
I think a court is entitled to insist in there are a series of procedural rules, whether we call them latches, whether we call them issue preclusion,
that are designed to ensure that litigation has some finality and it doesn't become a never ending process of different parties raising their hand and saying well we thought of something else.
We thought of something else.
There's a point at which it's too late to think of something else and you need to wait until the next redistricting.
And it becomes even more remarkable, Justice Hagenorren, when we consider the fact that this question of separation of powers was in fact raised during Johnson.
In Johnson 1, the legislature, my friends at the legislature came in and they said you know what, court you should defer to the maps that we passed that were vetoed by the governor.
You should defer to them.
And this court said no, we will not defer to your maps because they were not enacted into law.
They were vetoed.
What?
Except we did.
Pardon?
Except we did.
We adopted those maps.
But you didn't.
Well you adopted the maps, but you didn't adopt the maps because you deferred to them as law.
You adopted the maps because after a great deal of litigation, right, where the governor's maps were adopted for both congressional and legislative districts in Johnson 2.
And then the U.S. Supreme Court found that there was an error and vacated and remanded and we were out of time and the legislative maps wound up being adopted along with the governor's congressional maps.
But that wasn't a matter of deference.
That was a matter of the parties coming in and arguing for the adoption of their maps based upon the criteria that the court set forth for the consideration of those maps.
The maps had, when you defer to something, you're giving it a privileged position, right?
It's like we presume that a law is constitutional.
But there was no presumption that the legislative maps would be the chosen ones here.
They had to compete on an equal footing with the maps that were submitted by, as I recall, six other parties.
Council, in your, I don't want to say past life, but you were very engaged with one of the law schools here.
So I consider you a legal scholar.
And there are legal.
Dangerous assumptions.
Well, that's right.
Does that assume a fact, not an evidence?
I don't know.
And I don't think I don't appreciate it.
But you have some legal scholars on the other side.
And I'm pointing to the amicus of the legal scholars that talk about separation of powers in a way that resonates with me.
And it isn't this, and they say two separation of power arguments.
And whether or not you label it separation of powers or as one of the other amicus does, an abdication of the judicial role.
I think these are not easy cases.
But I think that my sense of what the judicial role is, is broader than your sense of what the judicial role is.
I love, yeah, I love, citing linguist in his speech about judicial independence.
And you may or may not be familiar with it.
But if you're not familiar with it, I happen to have it right.
As a legal scholar.
A legal scholar, I'm sure he is.
And he says this in part, and it's in the Richmond Law Review also.
It is easy today to see the need for an independent judiciary with the authority to enforce the terms of the written constitution.
And then he goes on to say that that was a novel idea at the time of the founders.
And that this, that a court being able to enforce the constitution is the single most significant contribution that America has made to the art of government.
And I say, wow.
And yet, you seem to disagree with that premise and the argument advanced by the other legal scholars and their amicus saying that we can't abdicate our role to enforce the constitution.
So can we do respond to that, please?
Justice Bradley, let me rush to assure you that when I hear that quote from Chief Justice Rehnquist, I also say, wow.
Do you?
Yes.
And, but I don't think, in the unspoken assertion here, is that there has been in Johnson some abdication of the judicial role, and I don't think that's true.
In fact, it seems to me that Johnson assiduously stuck to the judicial role, whether, we hear a lot about lease changes,
that's the term that was used in Johnson, to describe a comparison of the maps that were submitted,
not to the vetoed legislative maps, but to Act 43, which was passed into law, and it was not invalidated or found to be unconstitutional by any court.
And I think that the reason that the court did that, and I think, as explained in Justice Hagedorn's concurrence, and I'm sure else where, but I remember it from there,
is that this is a malaportionment case.
The only thing that is before us, and that is, and that means that the only thing that the judiciary has empowered to address, is the question of malaportionment.
And the court did that.
It considered population deviation, which is a synagogue on, of a redistricting case, and that it also took some care to ensure that the districts were
attacked and contiguous, that they didn't, it resulted in undue temporary disenfranchisement, that they didn't result in an unreasonable number of municipal splits,
and considered whether it violated the Voting Rights Act, and came to that conclusion.
What it didn't do is consider the political consequences of adopting any particular set of maps.
And in this case, this court decided, when I accepted this petition, that it would not consider these partisan gerrymandering claims.
And the problem that we have is, as my colleague, Ms. Meehan, pointed out, the question of partisan fairness cannot be assumed.
It cannot be high-spotted. It cannot be short-armed.
If it's going to be considered, it has to be fully litigated.
And that's true whether it comes through at the remedial stage, or comes through in response to a claim liability.
And this court has decided that it isn't going to take that issue up.
I think that the court made that decision for good reason.
I think that we have a 50-year history of people being unable to satisfactorily address that issue.
And I think any suggestion that proportional representation is a standard is simply inconsistent with our Constitution's choice of single-member geographical destruction.
Attorney Essenberg, I think that you argued in your brief that any proposed new maps should be submitted anonymously.
Is that correct?
Yes.
What's your rationale for that?
Well, rationale is, again, this court has entered into, if any time that the court gets into redistricting, it enters into a political ticket.
And Justice Prosser was very, very big on this.
He was very reluctant to ever do it.
And there are always going to be allegations that people have allowed their partisan preferences to affect themselves.
In one way, I think, to short circuit that would be some type of anonymous submission.
Council, we have-
Really to protect the court, I think.
Council, we have effectively reopened Johnson.
I understand that potentially new issues have been raised.
They all could have been raised.
And as you point out, to some extent, they were raised.
Because this court had an obligation to consider each and every constitutional requirement when it undertook adopting a remedy for malportionment.
Could you please speak to other principles?
The other Justice Bradley is espousing principles voiced by legal scholars in this case.
But this court has said respect for prior decisions is fundamental to the rule of law.
Starry Decisis is the preferred course of judicial action because it promotes even-handed, predictable, and consistent development of legal principles
and contributes to the actual and perceived integrity of the judicial process.
The decision to overturn a prior case must not be undertaken merely because the composition of the court has changed.
Those words were all well-written by my colleague, Justice Anne Walsh Bradley.
So by effectively reopening this case, what does that do to the rule of law in the state of Wisconsin?
And how does that reflect on the integrity and the legitimacy of this court?
Well, look, there are times when we're effectively reopening Johnson by somebody coming in and saying Johnson was wrongly decided.
And I think that if you're going to do that, then you have to do all the work.
You have to do the work of explaining why Starry Decisis doesn't apply in this case.
And that is a heavy burden to get beyond.
And then, if you're going to enter into the political thicket given all of the complexities that the various parties have pointed out,
you can't pretend that there are a bunch of neutral statistical methods that will allow that to happen without conducting a trial.
We hear that there was some consideration of political fairness in cases like Baumgard and Prosser.
It wasn't the type of analysis that we're going to see that we would see at a remedial phase in this case.
I mean, they were concerned with incumbent pairings and things like that.
But even in those cases, there was a trial.
There was discovery.
There was examination of political actors.
There was expert reports.
Those experts were cross-examined.
It was the whole nine yards, and you are not going to be able to get into those issues in this case without affording all of the parties due process.
And this court has already decided that it simply can't do that in the context of this case.
I wanted to ask you a chance to give – I've given everyone an opportunity to tell us who they would use if this court were to consult someone in terms of choosing a map.
Really short answer if I'm going to be consistent with everyone.
I would have to send you a name.
I don't have any at the tip of my tongue.
All right.
We are now at the rebuttal stage.
Five minutes, Sam Hirsch.
Start with questions that I was left with and then make two very quick points.
Madam Chief Justice, I counted 192 populated district islands in the appendix to the legislature's opening brief to answer your question.
Justice Bradley.
We believe there's about 2,000 actual municipal islands in the state, and there's about 200 false or erroneous fragments that look like islands in the LTSB data set.
Actual islands are usually very close to the rest of the municipality they belong to.
Sometimes these fragments are very far from the rest of their award.
And they're often tiny and they often don't show up in any other data set.
If this issue has not gotten fixed, it's going to cause bedlam in the remedial phase.
How so?
Let's say you draw a map thinking, well, these are errors, so I'm going to ignore them.
And then someone comes in and says, well, your districts are actually non-contiguous because one of those is not an error.
That's an actual island.
Then your map gets thrown out.
On the other hand, if you actually try to grab them all, you're going to have all sorts of interesting, weird, non-compact shapes to do that.
Now, who can actually tell you definitively which ones are real and which ones aren't unless we have a common and accurate data set?
That's why we need it.
And it's LTSB that has the code that generated the errors.
No fault of their own.
It's a software problem.
So we respond to the position that was asserted that we can't order LTSB to correct the database because that would result the argument continues in an improper manipulation of census data.
So how do you respond to that?
We're not asking for anyone to manipulate census data.
What the problem is right now is that they are-
We order them as their authority to order them.
Yes, the legislature is a party.
LTSB is a legislative service agency that is an entity of the legislature.
Wait, wait.
I want to be clear on that because that's less than clear to me.
The legislature is a party and LTSB is wholly created by the legislature.
It is completely controlled by the legislature.
That is correct.
It is called a legislative service agency.
And so we're telling the legislature because they're a party to this litigation that they have to instruct someone else, even though we couldn't directly instruct the other party.
They're not a party to the litigation, right?
So we're telling them to do something we couldn't order.
You're asking the legislature to have a part of the legislature do something that is necessary for the success of-
Do you have any other points you want to robot in your short time?
Yes.
Just to wrap this point up, if we didn't care about contiguous territory, this wouldn't matter.
But in a world where we do, it's critical and we don't want to wreak havoc.
Secondly, I completely reject the other side's least change approach to just dissolving these islands.
And I separate that from what I requested earlier, which is clear instructions that it's okay to fix the islands both through a land bridge or in some cases by creating two contiguous wards.
But look at this.
Sometimes here from the other side, this idea that contiguity is just a side show, that it's nothing important.
We have 12 contiguous Senate districts.
They're currently represented by six Democrats and six Republicans.
We have 21 non-contiguous Senate districts, and they're currently represented by five Democrats and 16 Republicans.
This relationship is not coincidental.
And last on special elections, there's been some question-
What do you make up the independent vote?
It's significant in Wisconsin.
We have a lot of independent voters.
How do they figure into what you're talking about?
You have zero independent state legislators, and in almost every single statewide election,
you typically have about 1% of the vote going to independent third party or writing candidates, and almost never more than 5%.
So your argument is that every voter in Wisconsin is purely partisan?
Absolutely not.
What we want is a map that as those independent and other voters shift from cycle to cycle, that the map will reflect that.
So in a good Republican year, Republicans control the legislature.
And after a good Democratic year, Democrats control the legislature.
Right now, that's impossible.
When was the last time we had a constitutional map under your criteria?
In terms of the contiguity, 1960s, the Zimmerman map.
Okay, thank you.
You're on a map.
I finished the last point.
Last sentence.
In response.
I'll try to be decent.
Special elections have been ordered in redistricting cases in Ketchum v. City Council, Smith v. Beasley,
Covens v. Chicago City Council, Keller v. Gilliam, Tucker v. Crawford, Cozner v. Dalton, and Vera v. Bush.
And that shows that this is not at all an extraordinary remedy in cases such as this.
Thank you, Your Honor.
Thank you.
All right.
Three minutes.
Council, I want to ask a question just to jump in right away.
In the Cunningham case, I talked about the county, town, and ward lines.
As those are inviable, you can't cross those.
That was the rule and understood until, obviously, the U.S. Supreme Court rendered that not able to be fully enforceable.
My question to you is, if this court decides that it wishes to draw the maps from scratch to achieve some sort of political rebalance state and state legislature.
And it does so by crossing county lines in order to, say, capture more Republicans outside of Dane County in order to, you know, extend and allow more Democrats to get elected.
Would that be permissible in your view?
Well, my understanding is usually the way it's thought of as the county line requirement yields to malaportionment.
So the typical way of thinking about it would be, are you correcting malaportionment?
I don't know that we would need to, in this proceeding, to cross county lines in addition to what's already in the map.
So if there's an effort to cross county lines, it's not justified by an effort to keep population equal.
That would be impermissible in your views if it was done for purposes of, you know, changing the political makeup of the maps.
It need to be in compliance with some kind of requirement, so generally that would be the understanding that you would look through the criteria.
There's more than just malaportionment, which is an issue, but look at the criteria which is applicable to a map.
And then if you say, well, I'm going to break one of the rules in the county lines, you would generally have a justification in one of the binding criteria.
What do you make of the order in that clause?
Such districts to be bounded by county precinct town or award lines.
That's a good point, Your Honor.
I glossed over that, that it would be one of those things has to be respected, so you wouldn't be able to break all of those things up.
That's not what Cunningham says.
Cunningham says exactly the opposite.
Cunningham says that county lines, it would be total surplusage to have the word county in there if it just met word lines.
That you need to keep counties together, you need to keep towns together, and you need to keep wards together, and that you cannot divide them.
The reason we don't have to enforce that is for population purposes, that's it.
I mean, at least if you're going to mind coming in for contiguity, you certainly would need to rely on that.
It's absolutely binding for the same reasons here.
Your Honor, I think we would go back, as Justice Dallop pointed out, to the constitutional texts in the OR.
So I think if this court were to evaluate that provision in this proceeding, the OR would be given effect as needed.
So you'd have to overrule Cunningham's language on that ground, but not, but you'd affirm it on the contiguity ground,
but you'd overrule that when it comes to county, town, and ward lines.
I don't have Cunningham in front of me to know exactly what would need to happen with Cunningham, but I believe the OR would be of an effect.
If that would be overruling Cunningham on that point.
And if I may.
Council, isn't it an abuse of the judicial system for the governor to take one position on contiguity in the prior litigation
and then come in here for political advantage and argue the exact opposite because the governor did stipulate that
contiguity could include municipal islands.
I see him out of time.
Sure answer.
Your Honor.
So please.
Your Honor, it is not an abuse.
That's the answer.
All right.
The question was asked of you.
No, Your Honor.
The issue wasn't squarely addressed in Johnson.
And because of the publicly important issue here are the maps constitutional and the governor's here representing the people as a whole.
It is proper to just court to take it on.
Thank you.
All right.
Attorney Packard.
Two minutes.
Anybody ready to fire a question before she.
Justice Anwell Bradley is absolutely right.
This court's role is broader than simply being an error correcting court.
You are justices, as the marshal reminded us, not judges.
And that's especially with respect to cases that are publicity jurists.
In 1874 in the railroad companies case, this court found that the original jurisdiction was not just to deal with issues big and really important to every single person in this state,
but also to quote, nerve the court's arm to protect its citizens in their liberties and to guard against usurpation.
Why should this case have started here?
We've heard a lot about fact finding.
And there are a lot of different assertions being made.
We have some people saying X amount of districts have zero people, other people.
We don't have facts before us.
Why didn't this start at the trial court?
Why wasn't it before a trial court where it could be properly worked up through discovery and questioning and witnesses?
Instead of perhaps this court sending it to someone who knows who to make who knows what unreviewable findings, who knows if evidence even applies in that scenario.
And then all of a sudden this court takes that when it should have started or could have started at the trial court.
And then we'd have all the facts that have been properly vetted.
Why start it here and why start it now?
I don't think legal issues require fact finding, which is what this court already determined.
And that's why it shows.
We don't need the referee.
We don't need to send this to some sort of general master or referee.
I just want to make sure we're not going down a road where we're making people give up their constitutional rights really to have a trial where they can cross examine and question and conduct discovery.
All those things that would properly happen if we went trial court to court appeals to Supreme Court.
And this was fast-tracked to the end game.
And in doing so, you're saying it's purely a legal question, not a single fact at issue?
One sentence.
It very well may be that we need fact finding in the remedies section.
Right now we still need a legal decision.
All right.
Thank you.
Sir Gabor.
Little taller than this path.
All right.
Well, you're getting yourself organized.
I'll ask you a question.
I'm asked others today.
When do you think was the last time Wisconsin had a map that was constitutional?
In the 1950s, I think there was an effort made to correct the non-contiguity.
And on that point, Justice Bradley had mentioned, does this make all the legislation that was passed improper?
This court addressed that in the Attorney General v. Cunningham case and that same paragraph I quoted earlier,
it said that it would be defacto legislature and the legislation would not be at issue.
Why should we respect that precedent, but not the precedent we just created two years ago?
Because I think the problem is with this discussion of starry, decisis, and Johnson is that Johnson departed from this court's precedent.
Departed from the Jensen precedent where the court said judges should not put in place a plan that seeks partisan effects.
It departed from the Cunningham case that said that detached territory is not contiguous.
And it departed from the method this court had used in Zimmerman, which was not least changed.
And so it overturned any cases counsel.
It just disregarded and it didn't use the special circumstances test to explain why the Johnson court was not doing that.
And so this court stuck with two precedents, one from 100 years ago or 50 years ago and one that was an aberration from that last year.
And so I don't think that starry, decisis would even apply in that circumstance.
So are you saying the Johnson court should not have weighed in on redistricting?
No, it absolutely needed to.
I think that it needed to follow the court's precedent.
And so I do want to address-
Cunningham says you can't cross county and town lines.
And that's the same question I asked before.
Are you asking us to overrule that?
Do you think that you cannot cross county lines unless necessary for population?
That would be the only justification for disregarding the constitutional provision.
You have to cross the county line for population.
So it's just really not practically an issue.
Dane County has more, it doesn't work to just have the districts in Dane County.
And so that wouldn't work.
I'm from Rhinelander and there's, whether we were in 1848 for today, I don't think there's
a single person, if I walk the streets of Rhinelander and said, is the legislature's argument
about what contiguous territory means?
Not a single person would say that that's what they think that means.
Territory referred to the land of the state.
We were a territory.
And then we became a state.
So the territory of the state of the districts has to be contiguous and touching, not with
40 detached pieces around it.
Now with respect to the simple remedy that the legislature and the Johnson interveners propose.
We discussed this in our response brief around page 43, 44, to Justice Protisei, which is
questioned.
That would, there'd be at least 52 new, 54 new municipal splits.
More than that, because most of these districts have more than one municipal non-contaguity.
So it could be triple the number of current municipal splits.
Their suggestion requires splitting all of those wards.
You can have districts that comply with both the contaguity requirement and are bounded
by the wards.
You can keep all the wards whole.
And they would have you split all of those wards, which would have some wards with one,
two, 20 people in them, which we would no longer have secret ballots if you did that, because
you can look at the election results and see which legislator, the one person in that municipality
in that new legislative district voted for.
Our constitution requires secret ballots.
And so you're asking this court to redesign new maps, you know, from scratch, if you will,
to some extent, and to, or mostly, and induce so in order to achieve a political kind of
rebalancing of the state legislature.
My question to you is what is an acceptable, and your argument is something like, there's
some notion of fairness of what that number should be.
We have too many Republicans or not enough Democrats.
Tell me the range.
How many Republicans are enough?
One, have we gone too far?
One of their too many Republicans in the legislature were maps that are too Republican
leaning that we have to say that's too many.
And what would be the flip side where, say, you know, as an assembly map drawing one that
creates, for example, a Democratic majority would be potentially pretty tough to do?
Was there a line where you have too many Democrats in the assembly?
What is the range of acceptable partisan makeup with a legislature interview?
I think the court should look to the Baldaris case from the Texas federal three-judge
court with Judge Hickenbotham.
That shows that this is not that complicated, actually.
You look at the proposals before you, and you compare them.
Is there one that's having the election result where the Republicans win, but they win, but
they lose, but they win 60% of the seats?
Is there one where the Democrats win, but they only get 30% of the seats?
And compare the maps before you and see which one is not showing signs of, as this court
said in Jensen, judges picking a plan that seeks partisan effects.
So what should happen to the 60% and what should happen to the 30%?
How do those get adjusted?
The elections in Wisconsin, the voters, when they go and vote, the maps should result in
a result that reflects how they voted.
And I would have to just, if I may, one sentence I read.
One sentence?
The idea, I think there's a wrong premise, Justice Hagedorn, and it builds off the idea
that all the Democrats in Wisconsin are in Madison and Milwaukee.
That's just not true.
And the skew in the current plan is not because of that.
It's because of Shabwagan, Wasser, Eau Claire, La Crosse, and cities across the
superior, cities across the state that are intentionally cracked and pulled apart by the
legislature's plan.
Thank you.
Thank you.
All right.
Interesting moral argument.
This case is adjourned.
We'll reconvene at 1230 in conference.
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