This blog post continues the focus of the Law School’s Lubar Center on redistricting.

In the litigation over Wisconsin legislative and congressional redistricting, both sides say they’re not on a venue-shopping spree.

But however it’s characterized, virtually all of the legal action to date has been directed toward deciding which court will hear the case—and perhaps ultimately draw the maps for Wisconsin’s Assembly, state Senate and U.S. House districts—and when.

Officially, the job of redrawing those lines after each decennial census belongs to the Legislature, subject to veto by the governor. But both sides—and even a federal judge—have cast doubt on the chances that Republican legislative leaders and Democratic Gov. Tony Evers will agree on maps. Both sides argue that their preferred courts must be ready to step in swiftly if the legislative process breaks down.

Democrats and their progressive allies want the issue to be handled by the federal courts, which drew the maps in the 1980s, 1990s, and 2000s. Judge Diane Sykes, the chief of the U.S. Court of Appeals for the Seventh Circuit, named a three-judge panel—two appointed to the bench by a Democratic president and one appointed by a Republican president—to hear federal litigation. Any appeals would go straight to the U.S. Supreme Court.

Republicans and their conservative allies say that the matter belongs in the Wisconsin Supreme Court, which last drew the maps in the 1960s. Conservatives are frequently said to hold a 4–3 edge there, but the deciding vote often is cast by Justice Brian Hagedorn, who has sided with the more liberal minority in some high-profile cases during his first two years on the court.

While shying away from terms like “venue-shopping” and “forum-shopping,” both Rick Esenberg, president of the conservative Wisconsin Institute for Law and Liberty, and Doug Poland, litigation director of the progressive Law Forward, agree that venue is a key consideration.

“Do lawyers engage in calculation as to whether a forum is more favorable to them?” Esenberg asks rhetorically. “Of course they do. We all do.”

Both sides want particular courts for specific reasons, Poland says. Law Forward argues that federal courts have more experience handling this kind of case, while WILL says redistricting is the state’s job.

Until recently, the trend in court action was running in the Democrats’ favor. But Republicans won a significant victory when the state justices agreed to take the case.

That turn of events didn’t seem likely after the state’s high court repeatedly passed up opportunities to formulate its own procedure for handling redistricting cases.

The question dates back to the 2000 redistricting cycle, when then-Assembly Speaker Scott Jensen, a Republican, asked the state Supreme Court to intervene. The justices deferred to the three-judge federal panel that was already hearing the case, but they agreed to consider a rule for handling such cases in the future.

A study committee appointed by the court in 2003 came back with a recommendation in 2008 for redistricting challenges to be heard by a panel of five state appellate judges, with appeals to the Wisconsin Supreme Court. But in 2009, the court rejected that proposed rule, 4–3, with conservatives in the majority.

Jensen, now out of office and represented by WILL, came back to the high court in June 2020 and asked it to again consider the procedural issue. Backed by Republicans, Jensen and WILL proposed a rule calling for the justices to bypass lower state courts and exercise original jurisdiction over redistricting challenges, with the option to appoint a special master or circuit judge to sort out questions of fact. After hearing opposition from Evers and Democrats, led by Law Forward, the court issued an unsigned order unanimously rejecting the rule in May 2021.

That order reserved the court’s right to hear redistricting challenges under original jurisdiction, but comments at public hearings in 2009 and 2021 made it clear that some justices—including new Chief Justice Annette K. Ziegler and her predecessor as chief, Justice Patience D. Roggensack—had serious reservations about taking such a case. And Hagedorn was on record in an unrelated case, expressing frustration at the number of original-jurisdiction requests (many from WILL) for the state’s court of last resort.

For a while, attention turned to a different case, Waity v. LeMahieu, over whether GOP legislative leaders could hire redistricting lawyers yet.

In late 2020 and early 2021, the Legislature’s top Republicans, Assembly Speaker Robin Vos and Senate Majority Leader Devin LeMahieu, hired a pair of law firms to start preparing for potential redistricting litigation. Lester Pines, a leading Democratic lawyer in Madison, filed suit on behalf of a group of Madison teachers, arguing that lawmakers could not hire attorneys without a case in court.

Dane County Judge Stephen Ehlke ruled against the Republican legislative leaders and the intermediate appeals court declined to stay his ruling dissolving the lawyers’ contracts. Then the Supreme Court took the case from the appeals court and stayed the ruling in July. Oral arguments are scheduled for November.

Poland says that Waity is moot, now that litigation has been filed and the legislature has followed the appropriate procedure to intervene. Pines suggests that the case is still relevant because it deals with legislative leaders’ power to spend taxpayer dollars, even if it’s no longer about redistricting.

But Waity was very much about redistricting when it was filed. In 2011, GOP leaders had hired law firms to help draw maps in secret, maintaining the information as privileged. Pines says that he was trying to ensure that didn’t happen again.

By August, the venue issue was alive again. More than four months behind schedule, the U.S. Census Bureau released the population data needed for redistricting on Aug. 12. Within a week and a half, three lawsuits were filed, all asking judges to step in if legislators and Evers are unable to agree on maps:

• On Aug. 13, top Democratic attorney Marc Elias filed suit in federal court on behalf of six Wisconsin voters. Sykes, a former Wisconsin Supreme Court justice, assigned the case, Hunter v. Bostelman, to a three-judge panel consisting of Madison-based U.S. District Judge James Peterson, Chicago-based U.S. District Judge Edmond Chang, and Judge Amy St. Eve, who serves with Sykes on the Chicago-based Seventh Circuit appeals court. Peterson and Chang were appointed to the bench by former President Barack Obama and St. Eve to the appeals bench by former President Donald Trump.
• On Aug. 23, WILL filed suit, asking the state Supreme Court to take original jurisdiction, on behalf of four Wisconsin voters. Conservative activist Eric O’Keefe is among the plaintiffs in that case, Johnson v. Wisconsin Elections Commission.
• Later on Aug. 23, Law Forward filed suit in federal court on behalf of Black Leaders Organizing for Communities, Voces de la Frontera, and the League of Women Voters of Wisconsin. That action, BLOC v. Spindell, was consolidated with Hunter v. Bostelman on Sept. 16.

All of the lawsuits named the state’s Elections Commission and its members as defendants, even though that body has no role in drawing maps. Instead, it implements redistricting plans to ensure that candidates and voters are placed in the correct districts.

Evers, Republican legislative leaders, and the state’s GOP House members all have been admitted as intervenors in the federal case. They and the federal plaintiffs, as well as state  Senate Minority Leader Janet Bewley, are asking to intervene in the state case as well.

The federal panel was already hearing motions in its consolidated case when the state high court ruled, 4-3, that it would accept the Johnson case.

In the court’s order and a concurring statement by Justice Rebecca Bradley, the justices cited precedents holding that redistricting is primarily a state responsibility. In dissent, Justice Rebecca Dallet argued that the federal courts are better-equipped to handle the job because they have procedures in place.

“The majority’s order charts no course whatsoever,” Dallet wrote. “It drops the court into the redistricting wilderness without even a compass.”

Poland and Esenberg agree that state courts can take primary jurisdiction over redistricting but disagree on why the high court would have declined to set up rules in advance for how to do so. Esenberg says the justices may have seen nothing in his proposed rule that they couldn’t do anyway, while Poland believes that even the majority remains divided on the wisdom of deciding the case.

As Dallet’s dissent notes, the majority order also bypasses the never-used procedure that lawmakers themselves set up for redistricting court challenges. In 2011 Act 39, the Legislature—dominated then as now by Republicans—decided that redistricting challenges should be heard by a panel of three circuit judges, with appeals to the state high court. But in Johnson, WILL argued the delayed census left too little time to follow that procedure before candidates must file for 2022 legislative and congressional elections.

Once the state justices accepted jurisdiction, Republican forces moved to shut down the federal case. WILL asked the three-judge panel to hold off, while GOP legislative leaders asked the U.S. Supreme Court to throw out Hunter. While the federal justices ponder that question, the three-judge panel agreed Oct. 6 to pause its proceedings until at least Nov. 5.

However, the federal judges have expressed a bit of skepticism about whether the state will get the job done.

Before the state justices accepted jurisdiction, Peterson said, “If history is any guide, there’s at least—to put it mildly—there’s at least a substantial likelihood that divided government of the State of Wisconsin will have trouble, as it has in the past, drawing its own maps.”

And in their Oct. 6 order the judges wrote, “The Wisconsin Supreme Court did not commit to drawing new legislative or congressional maps, and has not yet set a schedule to do so, or even to decide whether it will do so.”

That schedule is the next issue before both courts, with the parties in disagreement over when the maps need to be completed.

The Elections Commission says it needs maps by March 1, to allow its staff and local election officials 45 days to ensure that district lines are correctly updated before candidates start circulating nominating petitions April 15 for the fall 2022 elections. WILL says that timeline is unrealistically short and that the maps need not be final before April 15. In their order, the federal judges said they were proceeding on the basis of a March 1 deadline for the maps, unless further evidence is presented. The state justices have called for briefs on the issue of the timetable.

At the heart of the scheduling issue is how much time the Legislature, Evers, and possibly the Wisconsin high court would have for acting before the federal court stepped in. Working backward from the commission’s March 1 deadline, the federal panel says it is still planning for a Jan. 31 start to a five-day trial in the Hunter case.

An attorney for GOP leaders has said lawmakers will take up redistricting in November. Vos has gone so far as to claim that they will adopt maps that Evers will sign.

Poland and Esenberg say they would welcome a political resolution, even though few observers expect agreement to emerge from the often-frosty relations between Evers and legislative leaders.

“It’s been the smart money that they would never agree,” Esenberg says.