Johnson v. Wis. Elections Comm'n

400 Wis.2d 626

971 N.W.2d 402

2022 WI 14

Billie JOHNSON, Eric O'Keefe, Ed Perkins and Ronald Zahn, Petitioners,

Black Leaders Organizing for Communities, Voces de la Frontera, League of Women Voters of Wisconsin, Cindy Fallona, Lauren Stephenson, Rebecca Alwin, Congressman Glenn Grothman, Congressman Mike Gallagher, Congressman Bryan Steil, Congressman Tom Tiffany, Congressman Scott Fitzgerald, Lisa Hunter, Jacob Zabel, Jennifer Oh, John Persa, Geraldine Schertz, Kathleen Qualheim, Gary Krenz, Sarah J. Hamilton, Stephen Joseph Wright, Jean-Luc Thiffeault, and Somesh Jha, Intervenors-Petitioners,

v.WISCONSIN ELECTIONS COMMISSION, Marge Bostelmann in her official capacity as a member of the Wisconsin Elections Commission, Julie Glancey in her official capacity as a member of the Wisconsin Elections Commission, Ann Jacobs in her official capacity as a member of the Wisconsin Elections Commission, Dean Knudson in his official capacity as a member of the Wisconsin Elections Commission, Robert Spindell, Jr. in his official capacity as a member of the Wisconsin Elections Commission and Mark Thomsen in his official capacity as a member of the Wisconsin Elections Commission, Respondents,The Wisconsin Legislature, Governor Tony Evers, in his official capacity, and Janet Bewley Senate Democratic Minority Leader, on behalf of the Senate Democratic Caucus, Intervenors-Respondents.

No. 2021AP1450-OA

Supreme Court of Wisconsin.

Oral Argument: January 19, 2022

Opinion Filed: March 1, 2022

FILED MARCH 3, 2022

For the petitioners, there were briefs filed by Richard M. Esenberg, Anthony F. LoCoco, Lucas T. Vebber and Wisconsin Institute for Law & Liberty, Milwaukee. There was oral argument by Richard M. Esenberg.

For the intervenors-petitioners Black Leaders Organizing for Communities, Voces de la Frontera, League of Women Voters of Wisconsin, Cindy Fallona, Lauren Stephenson and Rebecca Alwin, briefs, including amicus briefs, were filed by Douglas M. Poland, Jeffrey A. Mandell, Rachel E. Snyder, Richard A. Manthe, Carly Gerads and Stafford Rosenbaum LLP, Madison; Mel Barnes and Law Forward, Inc., Madison; Mark P. Gaber (pro hac vice), Christopher Lamar (pro hac vice)and Campaign Legal Center, Washington, D.C.; Annabelle Harless (pro hac vice) and Campaign Legal Center, Chicago. There was oral argument by Douglas M. Poland.

For the intervenors-petitioners Congressmen Glenn Grothman, Mike Gallagher, Bryan Steil, Tom Tiffany and Scott Fitzgerald there were briefs, including amicus briefs, filed by Misha Tseytlin, Kevin M. LeRoy, and Troutman Pepper Hamilton Sanders LLP, Chicago. There was oral argument by Misha Tseytlin.

For the intervenors-petitioners Lisa Hunter, Jacob Zabel, Jennifer Oh, John Persa, Geraldine Schertz and Kathleen Qualheim, there were briefs, including amicus briefs filed by Charles G. Curtis, Jr. and Perkins Coie LLP, Madison; Marc Erik Elias (pro hac vice), Aria C. Branch (pro hac vice), Daniel C. Osher (pro hac vice), Jacob D. Shelly (pro hac vice), Christina A. Ford (pro hac vice), William K. Hancock (pro hac vice) and Elias Law Group LLP, Washington, D.C. There was oral argument by John Devaney (pro hac vice), Perkins Coie LLP, Washington, D.C.

For the intervenors-petitioners Citizens Mathematicians and Scientists Gary Krenz, Sarah J. Hamilton, Stephen Joseph Wright, Jean-Luc Thiffeault and Somesh Jha, briefs were filed by Michael P. May, Sarah A. Zylstra, Tanner G. Jean-Louis and Boardman & Clark LLP, Madison, and David J. Bradford (pro hac vice) and Jenner & Block LLP, Chicago. There was oral argument by Sam Hirsch (pro hac vice), Jenner & Block LLP, Washington, D.C.

For the respondents Wisconsin Elections Commission, Marge Bostelmann, Julie Glancey, Ann Jacobs, Dean Knudson, Robert Spindell, Jr. and Mark Thomsen there were letter-briefs filed by Steven C. Kilpatrick, assistant attorney general, Karla Z. Keckhaver, assistant attorney general, Thomas C. Bellavia, assistant attorney general.

For the intervenors-respondents the Wisconsin Legislature there were briefs, including amicus briefs, filed by Kevin M. St. John and Bell Giftos St. John LLC, Madison; Jeffrey M. Harris (pro hac vice), Taylor A.R. Meehan (pro hac vice), James P. McGlone and Consovoy McCarthy PLLC, Arlington, Virginia and Adam K. Mortara and Lawfair LLC, Chicago. There was oral argument by Taylor A.R. Meehan.

For the intervenor-respondent Governor Tony Evers there were briefs filed by Joshua L. Kaul, attorney general, Anthony D. Russomanno, assistant attorney general and Brian P. Keenan, assistant attorney general. There was oral argument by Anthony D. Russomanno.

For the intervenor-respondent Janet Bewley, State Senate Democratic Minority Leader on behalf of the State Senate Democratic Caucus there were briefs filed by Tamara B. Packard, Aaron G. Dumas and Pines Bach LLP, Madison. There was oral argument by Tamara B. Packard.

There was an amicus brief filed on behalf of William Whitford, Hans Breitenmoser, Mary Lynne Donohue, Wendy Sue Johnson and Deborah Patel by Ruth M. Greenwood (pro hac vice), The Election Law Clinic, Harvard Law School, Cambridge, MA; with whom on the brief were law student-practitioners Mary F. Brown, Mark R. Haidar, Meredith A. Manda, Sarah A. Sadlier, Corey M. Stewart, Harvard Law School and Jakob Feltham and Hawks Quindel, S.C., Madison.

There was an amicus brief filed on behalf of Concerned Voters of Wisconsin by Joseph S. Goode, Mark M. Leitner, John W. Halpin and Laffey, Leitner & Goode, L.L.C., Milwaukee.

There was an amicus brief filed on behalf of Non-Party Legal Scholars by Allison Boldt, Robert Yablon and the University of Wisconsin Law School, Madison.

There was an amicus brief filed by Daniel R. Suhr, Thiensville.

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

BRIAN HAGEDORN, J.

¶1 Every ten years, states are required to redraw the boundaries for congressional and legislative districts to account for population changes. This means the maps enacted into law in 2011 cannot constitutionally serve as the basis for future elections. The responsibility to adopt new district boundaries is not ours in the first instance, but that of the legislature and governor via the legislative process.

¶2 Shortly after the completion of the 2020 decennial census, a group of voters petitioned this court to declare the 2011 maps unconstitutional and remedy the malapportionment. We granted the petition, and subsequently granted intervention to all parties that sought it, mindful that relief from this court would be necessary only if the legislative process failed.¹ We have given the political branches a fair opportunity to carry out their constitutional responsibilities. They have not done so. Both this court and the United States Supreme Court have held that this failure implicates the constitutional rights of voters. State ex rel. Reynolds v. Zimmerman, 22 Wis. 2d 544, 562, 126 N.W.2d 551 (1964) ; Reynolds v. Sims, 377 U.S. 533, 566, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). We are therefore left with the unwelcome task of filling the gap.

¶3 The members of this court were not of one mind regarding how—or even whether—to approach this undertaking. But having taken this case, we sought input from the parties on the law that governs, as well as the process by which we should fashion a remedy.

¶4 In an order issued on November 17, 2021, and an opinion issued on November 30, 2021, we set out the basic process and criteria we would use to guide our decision. Johnson v. Wis. Elections Comm'n, 2021 WI 87, 399 Wis. 2d 623, 967 N.W.2d 469. Rather than craft our own map, we invited all parties to this litigation to submit one proposed map for each set of districts where new district boundaries are required: congress, state senate, and state assembly. We said we would choose maps that minimize changes from current law and evaluate maps for compliance with state and federal law. Id., ¶¶38, 72. In so concluding, we rejected an approach that involved this court making significant policy decisions or weighing competing policy criteria. We also rejected invitations to consider the partisan makeup of proposed districts. By focusing on legal requirements and using the maps currently reflected in Wisconsin law as a reference point, we sought to minimize our involvement in the numerous policy and political decisions inherent in map-drawing.

¶5 Following our November 30 opinion, parties submitted proposed maps, briefs, and expert reports. And we heard over five hours of argument regarding which proposed maps best comply with the parameters we established.

¶6 Although not bound by any map proposal, we approached this task hoping to select submissions from the parties that best satisfied the criteria we set forth. We did so both at the suggestion of the parties and in recognition of our limitations. While we appreciate the hard work of the parties, we must acknowledge that each proposal makes changes that appear unnecessary to account for population changes or to otherwise comply with the law. But rather than modify submissions we received, we determine that the best approach is to choose the maps that best conform with our directives, imperfect though they may be.

¶7 Congressional maps. We received proposed congressional maps from four parties: the Citizen Mathematicians and Scientists,² the Congressmen,³ Governor Tony Evers, and the Hunter intervenors-petitioners.⁴ The first question is which map most complies with our least-change directive. With only eight districts, core retention—a...