Evers 'absolutely' willing to get involved in new fight over legislative maps; here's how the process will unfold

 

WAUKESHA, Wis. (CBS 58) -- Gov. Tony Evers said Friday if the new-look Wisconsin Supreme Court throws out the state's current legislative maps, he's willing to have his administration take another shot at submitting its own set of maps.

Law Forward, a liberal legal group, said earlier this week it is planning to challenge the current Republican-drawn maps. The group indicated it will file its case later this summer, once liberal Justice-elect Janet Protasiewicz takes her seat on the bench and officially gives the court a liberal majority for the first time in 15 years.

Critics argue the maps are outrageously gerrymandered, giving Republicans much bigger majorities in the Assembly and Senate than they should have.

"Everybody knows my position," Evers said after an event in Waukesha. "We have maps that are gerrymandered, and we need to have fair maps."

While statewide contests are frequently decided by extremely close margins, Republicans this week won a two-thirds supermajority in the Senate and are two seats away from doing the same in the Assembly. A full legislative supermajority would give Republicans the power to override the governor's vetoes without needing any Democrats to cross over. 

Rick Esenberg, president of the conservative Wisconsin Institute for Law & Liberty, defended the current maps before the state supreme court. He maintained the imbalance is due to liberal voters clustering in urban areas. 

"When voters have sorted themselves out this way, where this is where they live, you are going to have a disadvantage," Esenberg said.

Last spring, the Wisconsin Supreme Court adopted the GOP-controlled legislature's maps after the U.S. Supreme Court ruled Evers' maps violated the federal Voting Rights Act.

A commission formed by Evers submitted maps that reduced the number of majority-Black Assembly seats by one. The governor's map spread out Black voters in Milwaukee to create more districts Democrats would have a realistic chance of winning, but the nation's high court determined Black voters were harmed because the likely result would be fewer Black lawmakers. 

Protasiewicz indicated during the campaign she'd be open to arguments challenging the GOP maps. During a candidate forum in January, she called the maps "rigged."

Robert Yablon, a law professor at UW-Madison and faculty co-director of the State Democracy Research Initiative, said, even when taking urban clustering into account, various reviews of the current maps find Wisconsin has one of the nation's most extreme gerrymanders. 

"The mapmakers here have really gone well beyond what the natural geographic features of Wisconsin would give you if that was all you were thinking about," Yablon said.

Evers said if the Republican maps are deemed unconstitutional, he'd embrace the chance to go back before the supreme court.

"Oh, absolutely," Evers said. "Absolutely, or if there's another process that will work better than we did last time, that's fine."

Expected arguments

Yablon said he expected those challenging the maps to argue Democratic voters have suffered injury by having their votes devalued. He noted it's a tricky argument because nothing in the Wisconsin constitution addresses the idea of maps drawn to favor one party over another.

Yablon said liberals' argument would likely center around a claim the maps violate broader guarantees enshrined in the constitution. 

"That those gerrymandered districts are an affront to those notions of political equality and popular self-government," he said.

Esenberg dismissed such arguments as weak. He said the competitive nature of statewide elections should not factor into legislative contests, which are designed to produce 99 unique results in the Assembly and 33 in the Senate.

"We don't elect Democrats and Republicans to the legislature based on what proportion of the statewide vote they have," Esenberg said.

A tight timeline and different possible outcomes

If progressives are to have new maps in place for the 2024 elections, Yablon said the supreme court would need to issue a final decision by next April.

While that would generally be a pretty fast-moving case, Yablon said it wouldn't be all that unusual for a redistricting challenge. In fact, the legal process that led to the current maps played out over a seven-month span between September 2021 and April 2022. 

He said it would be best to think of the upcoming challenge as two separate questions for the court to consider: First, are the current maps causing injury to the affected voters? If so, the court must then seek a remedy.

That process could unfold in a couple of different ways. The court could ask parties to submit their own evidence, including their own map proposals.

"That's something the federal courts did in the past when they drew district lines in Wisconsin," Yablon said.

From there, the court could select one of the parties' maps, which is what happened most recently. However, Yablon said in previous decades, where the federal courts handled Wisconsin redistricting disputes, the court brought in nonpartisan experts to draw the final boundaries.

"They looked at the parties' submissions in those cases," Yablon said. "Decided they didn't like what the parties had given them, and then had new expert-drawn lines."