Scott Bauer/AP Photo
Opponents of Republican redistricting plans demonstrate in the Wisconsin State Capitol, October 28, 2021, in Madison, Wisconsin.
Last week, the Wisconsin Supreme Court decided to hear Clarke v. Wisconsin Elections Commission, a case challenging the state’s gerrymandered legislative maps. The decision is the culmination of a monthslong battle between the state’s highest court and the Republican-controlled legislature. Liberals gained a majority on the Wisconsin Supreme Court in April for the first time in 15 years with the election of Justice Janet Protasiewicz.
After Protasiewicz joined the court in August, a coalition that includes the Campaign Legal Center (CLC), a democracy and voting rights watchdog group, filed a lawsuit arguing that the current legislative maps are an extreme partisan gerrymander that violates the Wisconsin Constitution. Republicans in the state legislature then called on Protasiewicz to recuse herself from any case regarding redistricting or abortion, citing her comments on the campaign trail in which she called Wisconsin’s legislative maps “rigged” and voiced her support for abortion rights.
Republicans even floated the idea of impeaching Protasiewicz, who was elected by 11 percentage points, arguing that she has “prejudged” cases. Though they have backed off after a barrage of bad press—this week, two conservative judges asked by the legislature to weigh in on the effort have advised against impeachment—the Republicans’ efforts underscore how the state once known for pioneering progressive reforms has taken a toxic turn in the last decade and a half.
SINCE THE U.S. SUPREME COURT RULED that partisan gerrymandering was beyond the reach of federal courts in 2019, the fight for fair state and federal legislative district maps has in large part turned into 50 state-by-state battles. In no state legislature has the fight been more contentious—and the results more anti-majoritarian—than Wisconsin.
When Wisconsin Republicans won both the governorship and the state legislature in 2010, they also gained total control over redistricting and produced some of the most discriminatory gerrymanders in American history. The maps worked as intended, resulting in a Republican stranglehold on the legislature even as the state has trended blue in recent years.
In Wisconsin, the legislative mapmaking process mirrors the path of a typical piece of legislation: State lawmakers draft the maps, secure passage in both chambers, and send them on to the governor for a signature or a veto. The redistricting process following the 2020 census produced the latest set of state legislative maps, which went into effect this year after a lengthy court battle. These maps are an even more extreme partisan gerrymander. The Princeton Gerrymandering Project gives both the Wisconsin Senate and Assembly maps failing grades for political fairness, citing “significant Republican advantage.” Despite the state’s battleground status in presidential elections, Republicans now control 22 of 33 Senate seats and 64 of 99 Assembly seats.
Wisconsin’s Senate and Assembly districts stand out from the rest because they go beyond traditional “cracking and packing.”
The 2022 maps so heavily favor the Republicans that Sam Wang, a professor of neuroscience at Princeton University and director of the Princeton Gerrymandering Project, has estimated that if Republicans win only 47.5 percent of the statewide popular vote, they still would maintain a supermajority in Wisconsin’s Senate.
While gerrymandering has produced jigsaw-piece shaped legislative districts all over the country, Wisconsin’s Senate and Assembly districts stand out from the rest because they go beyond traditional “cracking and packing.” The majority of them, 55 of 99 Assembly districts and 21 of 33 Senate districts, are noncontiguous, creating legislative “islands.” Legislators in these areas need to leave their own districts and travel through another district to reach their constituents who have been relegated to these islands.
Wisconsin’s maps could be gerrymandered without creating any islands, yet noncontiguous districts have proliferated throughout the last two redistricting cycles. In 2011, 42 of the 99 Assembly districts were noncontiguous. The latest maps added 13 more. “Wisconsin remains gerrymandered to within an inch of its life,” says Kenneth Mayer, a professor of political science at the University of Wisconsin–Madison.
The CLC petition presents several arguments including violations of voters’ rights to equal protection and free speech. But one of the coalition’s contentions is that these types of districts violate the state constitution, since legislative districts must be “bounded by county, precinct, town or ward lines, to consist of contiguous territory.”
Mark Gaber, senior director at the CLC, calls the increase of island districts a “consequence of the sole focus on partisan advantage.” Gaber adds, “The only thing I think the legislature was doing, aside from balancing population in this last go-round, was improving Republican performance.”
The lawsuit points out that Wisconsin’s 88th Assembly District near Green Bay, which was contiguous in 2011, now contains small islands of voters. The predominantly white, middle-class district saw a slight increase in population and had become more politically competitive since the last redistricting cycle.
The 2022 map created two islands of voters along the Fox River on the western boundary of the district. One long and skinny island territory just south of De Pere is a section of the town of Ledgeview. The rest of Ledgeview extends east into farm country. According to Dave’s Redistricting, which helps citizens analyze redistricting maps using census and election data, Ledgeview breaks nearly 60 percent to 40 percent for Republicans. A second rectangular island farther south of De Pere is a portion of the town of Rockland, which is overwhelmingly Republican: 65 percent of registered voters picked Republicans between 2016 and 2020; 33 percent voted for Democrats.
The 2022 88th Assembly district map not only gains Republican voters by adding all of Ledgeview and Rockland, but it also drops a large portion of De Pere, a city that only slightly favors Republicans. By swapping out part of De Pere for islands of Republican-heavy towns in the 2022 maps, the Wisconsin Republicans helped to ensure that the 88th Assembly District would stay safely red. The neighboring Second Assembly District, which is also noncontiguous, now swallows up all of the Democratic voters in politically split De Pere.
In 2020, Donald Trump won the 88th District 50 percent to Joe Biden’s 48 percent. After the maps were redrawn and the district was made noncontiguous, the CLC lawsuit projected that Trump would have carried the district by eight percentage points, taking 53 percent of the vote to Biden’s 45 percent.
State Rep. Evan Goyke is a Democrat who represents a part of western Milwaukee and has been in the legislature since 2012. He told the Prospect that he has “not heard or seen any rational explanation [and] no defense from the mapmakers or from the majority party” on why there has been an increase of island districts. Their silence on the issue, he said, “is an admission of guilt that it stems from the root of all gerrymandering, which is a partisan advantage in the map.”
A 1992 federal court decision that determined how the maps would be drawn in the 1990 redistricting cycle in Wisconsin opened the door to the use of noncontiguous districts. A three-judge panel validated the districts proposed by Democratic state lawmakers that followed noncontiguous municipal boundaries. In their opinion, they noted they were “not persuaded by the plaintiffs’ argument that the Wisconsin Constitution requires literal contiguity.”
The CLC lawsuit argues in part that the 1992 federal decision based its definition of contiguous districts on a now-repealed statute and overlooked a Wisconsin Supreme Court case from 1892, which states that contiguous districts as required by the state constitution cannot be made up of two or more parts. In 2020, the Wisconsin Supreme Court reaffirmed the 1892 standard in a case regarding municipal annexation, stating that contiguous territory must have “some significant degree of physical contact.”
The Republican Speaker of the Assembly Robin Vos, however, has stood by the current maps, telling the Associated Press in August that the districts are constitutional since they are “legally contiguous.”
The latest back-and-forth between Republicans and Democrats in Wisconsin highlights the messy, hyper-polarized nature of so many of the state redistricting fights all across the country.
“To really understand the gerrymandering issue, you actually have to be willing to get granular,” said Wang. Getting granular in Wisconsin means navigating its legislative islands. The state supreme court is scheduled to hear oral arguments in Clarke v. Wisconsin Elections Commission next month.
