Clarke v. Wis. Elec. Comm'n

998 N.W.2d 370

2023 WI 79

Rebecca CLARKE, Ruben Anthony, Terry Dawson, Dana Glasstein, Ann Groves-Lloyd, Carl Hujet, Jerry Iverson, Tia Johnson, Angie Kirst, Selika Lawton, Fabian Maldonado, Annemarie McClellan, James McNett, Brittany Muriello, Ela Joosten (Pari) Schils, Nathaniel Slack, Mary Smith-Johnson, Denise Sweet and Gabrielle Young, Petitioners,

Governor Tony Evers, in his official capacity; Nathan Atkinson, Stephen Joseph Wright, Gary Krenz, Sarah J. Hamilton, Jean-Luc Thiffeault, Somesh Jha, Joanne Kane and Leah Dudley, Intervenors-Petitioners,

v.WISCONSIN ELECTIONS COMMISSION, Don Millis, Robert F. Spindell, Jr., Mark L. Thomsen, Ann S. Jacobs, Marge Bostelmann, Joseph J. Czarnezki in their official capacities as Members of the Wisconsin Election Commission; Meagan Wolfe in her official capacity as the Administrator of the Wisconsin Elections Commission; Andre Jacque, Tim Carpenter, Rob Hutton, Chris Larson, Devin LeMahieu, Stephen L. Nass, John Jagler, Mark Spreitzer, Howard Marklein, Rachael Cabral-Guevara, Van H. Wanggaard, Jesse L. James, Romaine Robert Quinn, Dianne H. Hesselbein, Cory Tomczyk, Jeff Smith and Chris Kapenga in their official capacities as Members of the Wisconsin Senate, Respondents,Wisconsin Legislature; Billie Johnson, Chris Goebel, Ed Perkins, Eric O’Keefe, Joe Sanfelippo, Terry Moulton, Robert Jensen, Ron Zahn, Ruth Elmer and Ruth Streck, Intervenors-Respondents.

No. 2023AP1399-OA

Supreme Court of Wisconsin.

Oral Argument: November 21, 2023

Opinion Filed: December 22, 2023

For the petitioners, there were briefs filed by Daniel S. Lenz, T.R. Edwards, Elizabeth M. Pierson, Scott B. Thompson, and Law Forward, Inc., Madison; Douglas M. Poland, Jeffrey A. Mandell, Rachel E. Snyder, and Stafford Rosenbaum LLP, Madison; Elisabeth S. Theodore (pro hac vice), John A. Freedman (pro hac vice), and Arnold & Porter Kaye Scholar LLP, D.C.; Mark P. Gaber (pro hac vice), Brent Ferguson (pro hac vice), Hayden Johnson (pro hac vice), Benjamin Phillips (pro hac vice), and Campaign Legal Center, D.C.; Annabelle E. Harless (pro hac vice), and Campaign Legal Center, Chicago; Ruth M. Greenwood (pro hac vice), Nicholas O. Stephanopoulos (pro hac vice), and Election Law Clinic at Harvard Law School, Cambridge. There was an oral argument by Mark Gaber.

For the intervenor-petitioner, Governor Tony Evers in his official capacity, there were briefs filed by Anthony D. Russomanno, assistant attorney general, Faye B. Hipsman, assistant attorney general, Brian P. Keenan, assistant attorney general, with whom on the brief was Joshua L. Kaul, attorney general; Mel Banes, and Office of Governor Tony Evers, Madison; Christine P. Sun (pro hac vice), Dax L. Goldstein (pro hac vice), and States United Democracy Center, Los Angeles; John Hill (pro hac vice), and States United Democracy Center, DuBois. There was an oral argument by Anthony D. Russomanno, assistant attorney general.

For the intervenor-petitioner, Nathan Atkinson, Stephen Joseph Wright, Gary Krenz, Sarah J. Hamilton, Jean-Luc Thiffeault, Somesh Jha, Joanne Kane and Leah Dudley, there were briefs filed by Sarah A. Zylstra, Tanner G. Jean-Louis, and Boardman Clark LLP, Madison; Sam Hirsch (pro hac vice), Jessica Ring Amunson (pro hac vice), Elizabeth B. Deutsch (pro hac vice), Arjun R. Ramamurti, (pro hac vice), and Jenner & Block LLP, D.C. There was an oral argument by Sam Hirsch.

For the respondents, Tim Carpenter, Chris Larson, Mark Spreitzer, Dianne H. Hesselbein, and Jeff Smith, in there official capacities as Members of the Wisconsin Senate, there were briefs filed by Tamara B. Packard, Eduardo E. Castro, and Pines Bach LLP, Madison. There was an oral argument by Tamara B. Packard.

For the intervenors-respondents, Wisconsin Legislature, and respondents, Andre Jacque, Rob Hutton, Devin LeMahieu, Stephen L. Nass, Howard Marklein, John Jagler, Rachael Cabral-Guevara, Van H. Wanggaard, Jesse L. James, Romaine Robert Quinn, Cory Tomczyk, and Chris Kapenga, in there official capacities as Members of the Wisconsin Senate, there were briefs filed by Kevin M. St. John, and Bell Giftos St. John LLC, Madison; Jessie Augustyn, and Augustyn Law LLC, Appleton; Adam K. Mortara, and Lawfair LLC, Nashville; Taylor A.R. Meehan (pro hac vice), Rachael C. Tucker (pro hac vice), Daniel M. Vitagliano (pro hac vice), C’Zar D. Bernstein (pro hac vice), and Consovoy McCarthy PLLC, Arlington; Scott A. Keller (pro hac vice), Shannon Grammel (pro hac vice), Gabriela Gonzalez-Araiza (pro hac vice), and Lehotsky Keller Cohn LLP, D.C.; Matthew H. Frederick (pro hac vice), and Lehotsky Keller Cohn, LLP, Austin. There was an oral argument by Taylor A.R. Meehan.

For the intervenors-respondents, Billie Johnson, Chris Goebel, Ed Perkins, Eric O’Keefe, Joe Sanfelippo, Terry Moulton, Robert Jensen, Ron Zahn, Ruth Elmer and Ruth Streck, there were briefs filed by Richard M. Esenberg, Luke N. Berg, Nathalie E. Burmeister, and Wisconsin Institute for Law & Liberty, Inc., Milwaukee. There was an oral argument by Richard M. Esenberg.

An amicus curiae brief was filed by Nathan J. Kane, and WMC Litigation Center, Madison, on behalf of the Wisconsin Manufacturers and Commerce, Inc.

An amicus curiae brief was filed by Margo S. Kirchner, and Wisconsin Justice Initiative, Inc, Milwaukee; Daniel J. Schneider, and Wisconsin Fair Maps Coalition, Chicago, on behalf of the Wisconsin Justice Initiative, Inc. & Wisconsin Fair Maps Coalition.

An amicus curiae brief was filed by Matthew W. O’Neill, and Fox, O’Neill & Shannon, S.C., Milwaukee, on behalf of Matthew Petering, PhD.

An amicus curiae brief was filed by Nicholas E. Fairweather, and Hawks Quindel S.C., Madison; Jonathan B. Miller (pro hac vice), Michael Adame (pro hac vice), and Public Rights Project, Oakland, on behalf of Local Elected Officials.

An amicus curiae brief was filed by Robert Yablon, Bryna Godar, and State Democracy Research Initiative, University of Wisconsin Law School, Madison, on behalf of Legal Scholars.

An amicus curiae brief was filed by Samuel T. Ward-Packard, and Elias Law Group LLP, D.C.; Abha Khanna (pro hac vice), and Elias Law Group LLP, Seattle; William K. Hancock (pro hac vice), Julie Zuckerbrod (pro hac vice), and Elias Law Group LLP, D.C., on behalf of Jo Ellen Burke, Jennie Tunkieicz and John Persa.

An amicus curiae brief was filed by Tony Wilkin Gibart, Adam Voskuil, Daniel P. Gustafson, and Midwest Environmental Advocates, Madison, on behalf of Coalition on Lead Emergency.

KAROFSKY, J., delivered the majority opinion of the Court, in which ANN WALSH BRADLEY, DALLET and PROTASIEWICZ, JJ., joined. ZIEGLER, C.J., filed a dissenting opinion. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion. HAGEDORN, J., filed a dissenting opinion.

JILL J. KAROFSKY, J.

¶1 In Wisconsin the number of state legislative districts containing territory completely disconnected from the rest of the district is striking. At least 50 of 99 assembly districts and at least 20 of 33 senate districts include separate, detached territory. A particularly stark example is the Madison-area 47th Assembly District (shown in yellow below). This district contains more than a dozen separate, detached parts that are home to thousands of people who must cross one or more other districts before reaching another part of the 47th.¹

998 N.W.2d 378.bmp

¶2 Here we are asked to determine whether these districts violate Article IV, Sections 4 and 5 of the Wisconsin Constitution, which provide that state legislative districts must consist of "contiguous territory." Wis. Const. art. IV, §§ 4-5. Two groups of Wisconsin voters (the Clarke Petitioners² and Wright Petitioners³), the Governor, and a group of state senators⁴ (collectively, Petitioners), argue that the current districts are non-contiguous, and therefore violate the Wisconsin Constitution. Petitioners ask us to enjoin their use in future elections and to order the adoption of remedial maps. Additionally, they ask us to issue a writ quo warranto declaring the November 2022 state senate elections unlawful, and to order special elections for these offices that would otherwise not be on the ballot until November 2026. The Legislature, several senators elected in 2022,⁵ and a group of Wisconsin voters⁶ (collectively, Respondents)⁷ argue that the current state legislative districts comply with the Wisconsin Constitution’s contiguity requirements. Respondents also contend that Petitioners’ claims are barred by various defenses, and that the relief the Petitioners seek is otherwise unavailable.

¶3 We hold that the contiguity requirements in Article IV, Sections 4 and 5 mean what they say: Wisconsin’s state legislative districts must be composed of physically adjoining territory. The constitutional text and our precedent support this commonsense interpretation of contiguity. Because the current state legislative districts contain separate, detached territory and therefore violate the constitution’s contiguity requirements, we enjoin the Wisconsin Elections Commission from using the current legislative maps in future elections.⁸ We also reject each of Respondents’ defenses. We decline, however, to issue a writ quo warranto invalidating the results of the 2022 state senate elections.

¶4 Because we enjoin the current state legislative district maps from future use, remedial maps must be drawn prior to the 2024 elections. The legislature has the primary authority and responsibility to draw new legislative maps. See Wis. Const. art. IV, § 3. Accordingly, we urge the legislature to pass legislation creating new maps that satisfy all requirements of state and federal law. We are mindful, however, that the legislature may decline to pass legislation creating new maps, or that the governor may exercise his veto power. Consequently, to ensure maps are adopted in time for the 2024 election, we will proceed toward adopting remedial maps unless and until new maps are enacted through the legislative process. At the conclusion...