Who will draw the lines on the Wisconsin political map?

The courts could step in to draw district boundaries if — or when — the governor and Legislature fail to agree on the political map.
different hands involved in grabbing a pencil to illustrate
Illustration by James Heimer

Wisconsin should have new legislative and congressional boundaries within the next year or two. The question is, who will draw them?

With unified control of the process in 2011, Republicans drew maps that helped them build their majorities in the Legislature and hold onto four of the state’s eight congressional districts. There is a special election on May 12 to fill a fifth — the 7th District seat vacated by Sean Duffy — which is another that favors Republicans.

But in recent history, the courts more often than not have drawn legislative lines amid split control of the Capitol. Both Democrats and Republicans are already looking at how another court battle could play out.

“It’s more than possible — it’s probable — that we’re going to see lawsuits that are pending in multiple jurisdictions at the same time,” says attorney Doug Poland, who has been involved in several redistricting suits, including those challenging the lines Republicans drew in 2011.

The chances of Democratic Gov. Tony Evers and a GOP-controlled Legislature agreeing on new maps next year are next to nil.

After Republicans drew the lines in 2011, various Democrats went to court decrying the maps as partisan gerrymanders. Meanwhile, when Evers announced in January that he was creating a nonpartisan commission to draw what he dubbed “The People’s Maps,” Assembly Speaker Robin Vos, R-Rochester, dismissed it as a “fake, phony, partisan process.”

That doesn’t exactly create an atmosphere of compromise for a process with such high political stakes.

If Republicans hold onto both houses this fall, they will likely try to draw maps that Evers would be expected to veto. The one caveat is if Republicans can pick up a net of three seats in the Senate and another three in the Assembly. That would give them the two-thirds majorities needed to override an Evers veto.

Short of that, it’s off to court. When looking at how a lawsuit might play out, Capitol insiders believe Republicans would rather go to the state Supreme Court, where conservatives have a majority.

Meanwhile, they say Democrats would rather roll the dice with a panel of federal judges, particularly after getting a receptive audience when they successfully challenged the Assembly lines Republicans drew in 2011. A three-judge panel ruled the lines were unconstitutional only to see the U.S. Supreme Court declare that challenges to partisan gerrymanders had no place in the federal courts.

Looking back over the past 50 years, Wisconsin’s court battles over redistricting have largely played out in the federal courts. But the state Supreme Court laid down a marker in 2000 suggesting it was open to being the first stop in drawing the lines when lawmakers and the governor fail to do it themselves.

That year, a lawsuit asking the federal court in Milwaukee to draw new lines was already pending when then-GOP legislative leaders asked the state Supreme Court to step in.

The justices passed on taking the case, largely because the process was already so far along in federal court. Declaring Wisconsin voters have a “strong interest” in a map drawn by “an institution of state government,” the justices promised to devise a system to handle such suits if they were asked to step in again. But they never put that proposed process in place, and it was a moot point in 2011 with Republicans in charge of the state Legislature and the governor’s office.

Jim Troupis, who was an attorney for GOP lawmakers in that 2002 lawsuit, says he doesn’t necessarily expect a race to the courts next year over the drawing of lines. Still, he said whoever draws the first map — whether it be the Legislature, governor, state supreme court or federal courts — will be key.

The federal courts typically have a role in redistricting suits due to the various federal requirements for the maps, such as bans on the dilution of the political power of racial minorities to elect candidates of their choice.

But if the federal court simply reviews a map drawn by the state Supreme Court, it would likely defer to the Wisconsin justices on many of their decisions so long as they complied with those federal standards.

In one of the suits that challenged the 2011 GOP maps, a three-judge federal panel ruled that two Assembly districts violated the Voting Rights Act by dividing Latino voters into two seats, diluting their power. But the ruling only required tweaks to those districts, declining to throw out the whole map.

“Who draws them in the first instance is a very, very important decision,” Troupis says.

JR Ross is the editor of WisPolitics.com.