Draft:Johnson v. Wisconsin Elections Commission

Johnson v. Wisconsin Elections Commission is a landmark case heard by the Wisconsin Supreme Court between November 2021 and April 2022, relating to congressional and legislative redistricting in Wisconsin. The case is notable because it was the first redistricting case decided by the Wisconsin Supreme Court in 60 years, and broke away from a precedent of deferring to the federal judiciary on redistricting issues. There were three decisions in the Johnson case published by the Wisconsin Supreme Court in November 2021, requesting remedial map proposals and setting a standard for judging those maps, March 2022, selecting legislative and congressional maps, and April 2022, selecting a different legislative map proposal after the March 2022 decision was partially struck down by the United States Supreme Court. In the first Johnson decision, the Wisconsin Supreme Court also introducing a new legal standard to apply to state redistricting cases, often referred to as the "least changes" standard. That standard was overturned by the court's landmark decision in Clarke v. Wisconsin Elections Commission (2023).

Background
During the 2010 Midterm Elections, Republicans won control of the Wisconsin state government, with Scott Walker winning the 2010 governor election, and Republicans winning a majority in the Wisconsin Senate and a near supermajority in the Wisconsin Asssembly. After the 2010 Census, Wisconsin Republicans redistricted the legislative districts, and the congressional districts, to give the Republican party an edge in both congress, and especially the Wisconsin Legislature. The final redistricted maps resulted in one of the most successful partisan gerrymanders in the history of the United States. The gerrymander was a result of a Republican project known as REDMAP, which had the goal of entrenching Republican majorities in state legislatures and congressional districts. The results of this gerrymander were best seen in 2018, when in the 2018 Wisconsin State Assembly election, Wisconsin Democrats won 53% of the legislative vote, however Republicans retained their near supermajority in the assembly. The 2011 gerrymander was also the first time in nearly 40 years, in which Wisconsin redistricting was conducted by one-party government, the prior one-party redistricting taking place in 1983, in which Democrats conducted the redistricting. After the 2018 Wisconsin gubernatorial election, in which Superintendent of Public Instruction Tony Evers defeated incumbent governor Scott Walker, Democrats regained control of the governorship, whilst the legislature remained Republican. Once the 2020 census had been conducted, under Wisconsin law, redistricting was to be conducted by the legislature, with gubernatorial approval. However, due to the divide in government, and increased political polarisation, the Wisconsin state government was unable to adopt a map on time, with both parties deferring to the courts. Democrats, represented by progressive law firm, Law Forward sought relief from the federal judiciary, whilst Republicans sought relief with the Wisconsin Supreme Court. The federal cases On August 23, 2021, on behalf of the Republican plaintiffs, the conservative law firm Wisconsin Institute for Law and Liberty filed a petition with the Wisconsin Supreme Court, for the court to take original jurisdiction on the redistricting case. On September 22, 2021, the court agreed to take the case, assuming jurisdiction from federal courts, and overturning its 60 year precedent of deferring redistricting cases to the federal judiciary.

November 2021 Johnson v. Wisconsin Election Commission case (Johnson 1)
On August 13, 2021, a group of Wisconsin voters, represented by progressive law firm, Law Forward filed a federal lawsuit, known as "Hunter v. Bostelmann", with the United States District Court for the Western District of Wisconsin, alleging that the 2011 congressional and legislative maps adopted by the Republican Party violated the principle of one person, one vote under the 14th Amendment's Equal Protection Clause, and Article 1, Section 2 of the United States Constitution, and also contended that the legislature's inability to enact redistricted maps in time for the 2022 Wisconsin elections violated their freedom of association under the 1st Amendment. A few days later, on August 23, 2021, 2 different lawsuits were filed, one being federal and one being state-level. The federal lawsuit, under the name, "Black Leaders Organising for Communities v. Spindell" was also filed with the United States District Court for the Western District of Wisconsin and also contended that the 2011 legislative maps violated the principle of "one man, one vote" under the 14th Amendment, as well as hindering their right to freedom of assembly under the 1st Amendment by not having a valid redistricting plan in place. Both federal lawsuits, were consolidated together on September 16, 2021. The state-level lawsuit, known as Johnson v Wisconsin, was brought by Wisconsin voters represented by conservative law firm Wisconsin Institute for Law and Liberty and asked the Wisconsin Supreme Court to take original jurisdiction against challenges to the 2011 maps. The plaintiffs contended that the "one person, one vote" requirement in redistricting, had been violated by a malapportionment of the legislative and congressional maps due to the 2020 census, and therefore had to be redrawn. The plaintiffs also contended that this malapportionemnt was in violation of Art. IV of the Wisconsin Constitution, and therefore had to be redrawn. The plaintiffs also contended that the Wisconsin Supreme Court take action in the case, due to redistricting being a primarily state task, as opposed to a federal task. Finally, the plaintiffs asked the Wisconsin Supreme Court to use "the principle of making the least number of changes to the existing maps as are necessary to meet the requirement of equal population and the remaining traditional redistricting criteria". On September 22, 2021, in a 4-3 decision along ideological lines, the Wisconsin Supreme Court agreed to take the case. This was seen as a major deviation from prior Wisconsin Supreme Court precedent, as the court had previously rejected jurisdiction, and deferred redistricting cases to federal courts, often by a unanimous decision. The latest time this happened, was in 2002, with the case, "Jensen v. Wisconsin Elections Board", where the court rejected jurisdiction by citing they lacked the proper procedure to litigate redistricting, and allowed the federal courts to take the case instead. The last time the Wisconsin Supreme Court took a redistricting case, was in 1964 with "State ex rel. Reynolds v Zimmerman". After the Wisconsin Supreme Court agreed to take the case, the United States District Court for the Western District of Wisconsin stayed its lawsuit, extending its stay on November 18, 2021 to January 4, 2022, and giving a second and final extension of the stay on December 17, 2021 to January 28, 2022.

Decision
On November 30, 2021, the Wisconsin Supreme Court issued its opinion, answering the first 3 questions, and stating that they had answered the 4th question, preliminarily, in an unpublished order. Writing for a plurality for question 1, and for the majority for questions 2 and 3, Justice Rebecca Bradley began her opinion by noting that the 2011 maps are unconstitutional under Wisconsin law, and that the United States Supreme Court declared "there are no legal standards by which judges may decide whether maps are politically "fair", under its landmark decision in Rucho v Common Cause. Justice Bradley herself agreed with the conclusion of SCOTUS by stating that the Wisconsin constitution requires the legislature to perform the task of redistricting. Justice Bradley also noted that intervenors in the lawsuit asked the court to consider Article 1, Section 2, the 14th Amendment's Equal Protection Clause, the Voting Rights Act of 1965, and the Wisconsin Constitution's Declaration of Rights.

In answering the questions presented by the plaintiffs, Justice Bradley held that for any judicial remedy to resolve a redistricting dispute, the remedy must resolve the dispute "only to the extent necessary to remedy the violation of a justiciable and cognizable right protected under the United States Constitution, the VRA, or Article IV, Sections 3, 4, or 5 of the Wisconsin Constitution", that partisan composition doesn't constitute a "justiciable or cognizable right", and that any judicial remedy will make "the minimum changes necessary in order to conform the existing congressional and state legislative redistricting plans to constitutional and statutory requirements". Justice Bradley also stated that any revisions to the maps are only to fix the malapportionment produced by the census.

Justice Brian Hagedorn wrote a separate concurring opinion, starting his off, by agreeing with Justice Bradley, that, under Wisconsin law, the job of redistricting falls to the legislature, and not the judiciary, that "the job of the judiciary is to decide cases based on the law", "our role is appropriately limited to altering current district boundaries only as needed to comply with legal requirements", and "to the extent feasible, a court's role in redistricting should be modest and restrained". However, Justice Hagedorn's concurrence differed from the majority opinion in that he disagreed with the majority's conclusion that "only legal requirements may be considered in constructing a fitting remedy", instead asserting that "legal standards establish the need for a remedy and constrain the remedies we may impose, but they are not the only permissible judicial considerations when constructing a proper remedy". Justice Hagedorn notes Communities of interest as a consideration in redistricting cases, that is not a legal requirement. Justice Hagedorn also notes the dissent in his opinion, disagreeing with the dissent, stating that "the dissent argues we can take over the responsibility of the legislature entirely, discard policy judgments we don't like, and craft a new law from scratch consistent with our own policy concerns. The reader should look past pleas for fairness and see this for what it is: a claim of dangerously broad judicial power to fashion state policy. According to the dissent, this court should simply ignore the law on the books——one the dissent makes clear it is not fond of——and draft a new one more to its liking."

Dissent
Justice Rebecca Dallet wrote the dissenting opinion, which was joined by Justices Ann Walsh Bradley, and Jill Karofsky. Justice Dallet started her dissent of by stating, "Redistricting is an "inherently political and legislative——not judicial——task," even when judges do it." Justice Dallet reaffirmed and emphasised her position on redistricting cases, by stating that the prior precedent set by the Wisconsin Supreme Court of deferring to federal courts, was the best approach for handling redistricting, stating, "That is one reason why I said that the federal courts, comprised of judges insulated from partisan politics by lifetime appointments, are best suited to handle redistricting cases." Justice Dallet criticised the majority, for what she believed was "the political thicket of redistricting", and criticising the Court for not remaining neutral and non-partisan in redistricting cases. She also criticised the court for choosing the least changes principle as the criteria for redistricting, and arguing that using least changes for redistricting, was "effectively insulates future maps from being challenged as extreme partisan gerrymanders." Justice Dallet also said, that these two factors, in determining new maps, "The upshot of those two decisions, neither of which is politically neutral, is to elevate outdated partisan choices over neutral redistricting criteria. That outcome has potentially devastating consequences for representative government in Wisconsin."

Justice Dallet also directly criticised the court's decision to use the least changes priniciples, believing that the court's usage of this principle, was political, and non-partisan, stating "In that way, adopting a least-change approach is an inherently political choice. Try as it might, the majority is fooling no one by proclaiming its decision is neutral and apolitical." She also criticised the use of least changes, due to the fact, that the least changes had not been used in federal or state courts before, in redistricting cases, before the Johnson case, stating "The bottom line is that the least-change approach has no "general acceptance among reasonable jurists" when the court's starting point is a legislatively drawn map." However, Justice Dallet also concluded, that the least changes principle can be used in certain circumstances, noting that maps drawn by a court, that were based on a previous court drawn map, can be drawn using the least changes principle.

Decision
After the verdict in Johnson 1, the Wisconsin Supreme Court set and heard oral arguments on January 19, 2022, on what maps the court would adopt, after the 2020 census, and issuing its decision on March 3, 2022. Writing for the majority, Justice Brian Hagedorn started his opinion off by acknowledging that the process of redistricting falls towards the Wisconsin Legislature and Wisconsin Governor, and not the Wisconsin Judiciary, but that the lawsuit brought to the court was done to "remedy the malapportionment" of the 2020 census. Justice Hagedorn also mentions that the court intervened in the malapportionment case because that the political branches of Wisconsin failed to "carry out their constitutional responsibilities", and states "both this court and the United States Supreme Court have held that this failure implicates the constitutional rights of voters". As the court had not established a measure to enact the least changes principle in Johnson 1, Justice Hagedorn established his own method to enact the least changes principle, known as "Core Retention". Justice Hagedorn explained it as being "a measure of voters who remain in their prior districts". Justice Hagedorn came to the conclusion that Governor Tony Evers' proposed congressional district map was the map that best satisfied the core retention method, stating that Evers' map "moves 5.5% of the population to new districts, leaving 94.5% in their current districts. In raw numbers, the Governor's proposal to move 324,415 people to new districts is 60,041 fewer people than the next best proposal. In addition, Governor Evers' submission complies with the federal Constitution and all other applicable laws. We therefore adopt Governor Evers' proposed congressional map." For the legislative maps, Justice Hagedorn stated that 6 proposals of maps, from Black Leaders Organising for Communities, Citizens Maps and Scientists, Governor Evers, State Senator Janet Bewley, the Wisconsin Legislature, and the Hunter Intervenor-Petitioners, were given to the court, and that Governor Evers' maps, once again, were the maps which fulfilled the core retention metric, stating "In their senate proposals, both Governor Evers and the Legislature move a nearly identical 7.8% of voters to different districts (92.2% core retention), with a slight edge to the Legislature for moving 1,958 fewer people. However, in their assembly map proposals, Governor Evers moves 14.2% of voters to new districts, while the Legislature moves 15.8% (85.8% vs. 84.2% core retention), a difference that affects 96,178 people. No other proposal comes close. And beyond core retention, no other measure of least change alters the picture. The Governor's proposed senate and assembly maps produce less overall change than other submissions." Regarding the Wisconsin State Constitution, the Federal Constitution and the Voting Rights Act of 1965, Justice Hagedorn wrote "We also conclude that Governor Evers' proposals satisfy the requirements of the state and federal constitutions. Under the Wisconsin Constitution, all districts are contiguous, sufficiently equal in population, sufficiently compact, appropriately nested, and pay due respect to local boundaries. Governor Evers' proposed maps also comply with the federal constitution's population equality requirement. Regarding the Voting Rights Act (VRA), the 2011 maps enacted into law include six majority-Black assembly voting districts in the Milwaukee area. Governor Evers, along with several other parties, argues the VRA now requires a seventh majority Black assembly district in the Milwaukee area. As a map-drawer, we understand that our duty is to determine whether there are "good reasons" to believe the VRA requires a seven-district configuration. In assessing the information presented by the parties, we conclude there are good reasons to believe a seventh majority-Black district is needed to satisfy the VRA. Governor Evers' assembly map accomplishes this. For these reasons, we adopt Governor Evers' proposed remedial state senate and state assembly maps."

Dissent
Justices Ziegler, Bradley and Roggensack each wrote separate dissenting opinions, which were then joined by the other two justices.