State and federal courts are both set to draw voting maps — now what?

On Wednesday the Wisconsin Supreme Court agreed to take a redistricting case brought by the conservative Wisconsin Institute for Law & Liberty (WILL) that could put it in the position of drawing Wisconsin’s next round of voting maps, should the Legislature and the governor fail to agree on a new map following the 2020 census.

The state court’s decision to take the case comes only one day after a federal judge said that a three-judge panel in U.S. district court will schedule a trial on the same matter in January. In the past, federal courts have drawn Wisconsin’s voting maps when the Legislature and the governor could not agree.

“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,” U.S. District Judge James Peterson said, explaining why the federal court is prepared to step in.

A lawyer for Republican legislative leaders argued that the federal court should not take that case and said Republican lawmakers are considering asking the U.S. Supreme Court to throw it out.

Meanwhile, in taking the case brought by WILL, the Wisconsin Supreme Court requested briefs from all sides to help it determine how to schedule further proceedings and when a new redistricting plan should take effect.

“The [state] court’s action was not unexpected but leaves lots of details yet to be determined,” said Jeffrey Mandell, founder of Law Forward, a progressive, nonprofit law firm that helped bring the federal suit. “We’re prepared to fight for fair maps in both federal and state courts,” he added.

WILL celebrated the Supreme Court’s order. “Adopting new state legislative and congressional maps is a state responsibility,” WILL’s president and general counsel Rick Esenberg said in a statement. “We are pleased the Wisconsin Supreme Court reaffirmed this longstanding principle and accepted jurisdiction in the event the courts have to act.”

Previously, conservatives and liberals alike on the Wisconsin Supreme Court have repeatedly rejected the notion that the state Supreme Court is the proper forum for drawing political maps, saying that doing so would drag them into partisan politics.

The justices, including current Chief Justice Patience Roggensack, have also pointed out that the state Supreme Court is not set up to conduct fact-finding and sift through the expert testimony involved in map-drawing.

But in Wednesday’s order the justices wrote, “This court has long deemed redistricting challenges a proper subject for the court’s exercise of its original jurisdiction.”

In a majority opinion — a large portion of which is dedicated to arguing with a dissent by Justice Rebecca Dallet, who states that redistricting matters belong in federal courts — the majority writes, “We have a history of letting federal courts handle these matters, perhaps because it removes us from the thicket of political conflicts. Our job, however, is not to avoid controversy but to declare the law.”

The dueling court orders set up the next phase of a race to new maps. Progressive groups and voting-rights advocates are aiming to have a panel of three federal judges led by Peterson — two of whom were appointed by former President Barack Obama — decide Wisconsin’s voting districts. Republican state legislators, who enjoy one of the most GOP-friendly gerrymandered maps in the nation, are seeking a friendlier forum in the conservative-dominated Wisconsin Supreme Court.

“The State Supreme Court has no experience in these complex cases, and no procedure for the necessary fact-finding,” says Sachin Chheda, director of the Fair Elections Project. “Both the current and former Chief Justice have previously said so, and nothing has changed from their original concerns. It unfortunately looks like a politicization of the process, and that gives the people of Wisconsin even less confidence in the state high court.”

Whatever happens in state court, Chheda points out, will likely be reviewed by a federal court, since federal voting-rights issues are involved, “and this exponentially increases costs for the taxpayers, who will be paying for duplicative litigation in multiple venues,” he adds. “And this surely does not speed up the process.”

If the state court comes up with a map that is challenged under federal voting-rights law, the federal court will review it. If, on the other hand, the federal court imposes a map, because of the supremacy clause of the U.S. Constitution, Chheda points out, the state court cannot override it.

“People want to call it a race, but that doesn’t mean if the state court goes there first there’s no role for federal court,” he adds. “The federal court understands there are federal issues involved. Voting Rights Act claims are not addressed in state court.”