2021 WI 87

SUPREME COURT OF WISCONSIN

CASE NO.: 2021AP1450-OA

COMPLETE TITLE: Billie Johnson, Eric O'Keefe, Ed Perkins and 

Ronald Zahn,

 Petitioners,

Black Leaders Organizing for Communities, Voces 

de la Frontera, League of Women Voters of 

Wisconsin, Cindy Fallona, Lauren Stephenson, 

Rebecca Alwin, Congressman Glenn Grothman, 

Congressman Mike Gallagher, Congressman Bryan 

Steil, Congressman Tom Tiffany, Congressman 

Scott Fitzgerald, Lisa Hunter, Jacob Zabel, 

Jennifer Oh, John Persa, Geraldine Schertz, 

Kathleen Qualheim, Gary Krenz, Sarah J. 

Hamilton, Stephen Joseph Wright, Jean-Luc 

Thiffeault, and Somesh Jha, 

 Intervenors-Petitioners,

 v.

Wisconsin Elections Commission, Marge Bostelmann 

in her official capacity as a member of the 

Wisconsin Elections Commission, Julie Glancey in 

her official capacity as a member of the 

Wisconsin Elections Commission, Ann Jacobs 

in her official capacity as a member of the 

Wisconsin Elections Commission, Dean Knudson in 

his official capacity as a member of the 

Wisconsin Elections Commission, Robert Spindell, 

Jr. in his official capacity as a member of the 

Wisconsin Elections Commission and Mark Thomsen 

in his official capacity as a member of the 

Wisconsin Elections Commission,

 Respondents,

The Wisconsin Legislature, Governor Tony Evers, 

in his official capacity, and Janet Bewley 

Senate Democratic Minority Leader, on behalf of 

the Senate Democratic Caucus,

 Intervenors-Respondents.

ORIGINAL ACTION

OPINION FILED: November 30, 2021 

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: 

SOURCE OF APPEAL:

COURT: 
2

COUNTY: 

JUDGE: 

JUSTICES:

REBECCA GRASSL BRADLEY, J., delivered the majority opinion of 

the Court with respect to all parts except ¶¶8, 69-72, and 81, 

in which ZIEGLER, C.J., and ROGGENSACK, and HAGEDORN, JJ., 

joined, and an opinion with respect to ¶¶8, 69–72, and 81, in 

which ZIEGLER, C.J., and ROGGENSACK, J., joined. HAGEDORN, J., 

filed a concurring opinion. DALLET, J., filed a dissenting 

opinion in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.

NOT PARTICIPATING:

 

ATTORNEYS:

For the petitioners, there were briefs filed by Richard M. 

Esenberg, Anthony F. LoCoco, Lucas T. Vebber and Wisconsin 

Institute for Law & Liberty, Milwaukee. 

For the intervenors-petitioners Black Leaders Organizing 

for Communities, Voces de la Frontera, League of Women Voters of 

Wisconsin, Cindy Fallona, Lauren Stephenson and Rebecca Alwin,

briefs, including amicus briefs, were filed by Douglas M. 

Poland, Jeffrey A. Mandell, Rachel E. Snyder, Richard A. Manthe, 

Carly Gerads and Stafford Rosenbaum LLP, Madison; Mel Barnes and 

Law Forward, Inc., Madison; Mark P. Gaber (pro hac vice), 

Christopher Lamar (pro hac vice)and Campaign Legal Center, 

Washington, D.C.; Annabelle Harless (pro hac vice) and Campaign 

Legal Center, Chicago.

For the intervenors-petitioners Congressmen Glenn Grothman, 

Mike Gallagher, Bryan Steil, Tom Tiffany and Scott Fitzgerald 

there were briefs, including amicus briefs, filed by Misha 

Tseytlin, Kevin M. LeRoy, and Troutman Pepper Hamilton Sanders 

LLP, Chicago. 

For the intervenors-petitioners Lisa Hunter, Jacob Zabel, 

Jennifer Oh, John Persa, Geraldine Schertz and Kathleen 

Qualheim, there were briefs, including amicus briefs filed by 
3

Charles G. Curtis, Jr. and Perkins Coie LLP, Madison; Marc Erik 

Elias (pro hac vice), Aria C. Branch (pro hac vice), Daniel C. 

Osher (pro hac vice), Jacob D. Shelly (pro hac vice), Christina 

A. Ford (pro hac vice), William K. Hancock (pro hac vice) and 

Elias Law Group LLP, Washington, D.C. 

For the intervenors-petitioners Citizens Mathematicians and 

Scientists Gary Krenz, Sarah J. Hamilton, Stephen Joseph Wright, 

Jean-Luc Thiffeault and Somesh Jha, briefs were filed by Michael 

P. May, Sarah A. Zylstra, Tanner G. Jean-Louis and Boardman & 

Clark LLP, Madison, and David J. Bradford (pro hac vice) and 

Jenner & Block LLP, Chicago.

For the respondents Wisconsin Elections Commission, Marge 

Bostelmann, Julie Glancey, Ann Jacobs, Dean Knudson, Robert 

Spindell, Jr. and Mark Thomsen there were letter-briefs filed by 

Steven C. Kilpatrick, assistant attorney general, Karla Z. 

Keckhaver, assistant attorney general, Thomas C. Bellavia, 

assistant attorney general.

For the intervenors-respondents the Wisconsin Legislature 

there were briefs filed by Kevin M. St. John and Bell Giftos St. 

John LLC, Madison; Jeffrey M. Harris (pro hac vice), Taylor A.R. 

Meehan (pro hac vice), James P. McGlone and Consovoy McCarthy 

PLLC, Arlington, Virginia and Adam K. Mortara and Lawfair LLC, 

Chicago.

For the intervenor-respondent Governor Tony Evers there 

were briefs filed by Joshua L. Kaul, attorney general, Anthony 

D. Russomanno, assistant attorney general and Brian P. Keenan, 

assistant attorney general.

For the intervenor-respondent Janet Bewley, State Senate 

Democratic Minority Leader on behalf of the State Senate 
4

Democratic Caucus there were briefs filed by Tamara B. Packard, 

Aaron G. Dumas and Pines Bach LLP, Madison.

There was an amicus brief filed by Daniel R. Suhr, 

Thiensville.
2021 WI 87

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2021AP1450-OA

STATE OF WISCONSIN : IN SUPREME COURT

Billie Johnson, Eric O'Keefe, Ed Perkins and 

Ronald Zahn,

 Petitioners,

Black Leaders Organizing for Communities, Voces 

de la Frontera, League of Women Voters of 

Wisconsin, Cindy Fallona, Lauren Stephenson, 

Rebecca Alwin, Congressman Glenn Grothman, 

Congressman Mike Gallagher, Congressman Bryan 

Steil, Congressman Tom Tiffany, Congressman 

Scott Fitzgerald, Lisa Hunter, Jacob Zabel, 

Jennifer Oh, John Persa, Geraldine Schertz, 

Kathleen Qualheim, Gary Krenz, Sarah J. 

Hamilton, Stephen Joseph Wright, Jean-Luc 

Thiffeault, and Somesh Jha, 

 Intervenors-Petitioners,

 v.

Wisconsin Elections Commission, Marge 

Bostelmann in her official capacity as a member 

of the Wisconsin Elections Commission, Julie 

Glancey in her official capacity as a member of 

the Wisconsin Elections Commission, Ann Jacobs 

in her official capacity as a member of the 

Wisconsin Elections Commission, Dean Knudson in 

his official capacity as a member of the 

Wisconsin Elections Commission, Robert 

Spindell, Jr. in his official capacity as a 

member of the Wisconsin Elections Commission,

and Mark Thomsen in his official capacity as a 

member of the Wisconsin Elections Commission,

 Respondents,

FILED

NOV 30, 2021

Sheila T. Reiff

Clerk of Supreme Court
2

The Wisconsin Legislature, Governor Tony Evers, 

in his official capacity, and Janet Bewley 

Senate Democratic Minority Leader, on behalf of 

the Senate Democratic Caucus,

 Intervenors-Respondents.

REBECCA GRASSL BRADLEY, J., delivered the majority opinion of 

the Court with respect to all parts except ¶¶8, 69-72, and 81, 

in which ZIEGLER, C.J., and ROGGENSACK, and HAGEDORN, JJ., 

joined, and an opinion with respect to ¶¶8, 69–72, and 81, in 

which ZIEGLER, C.J., and ROGGENSACK, J., joined. HAGEDORN, J., 

filed a concurring opinion. DALLET, J., filed a dissenting 

opinion in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined.

ORIGINAL ACTION. Rights declared. 

1 REBECCA GRASSL BRADLEY, J. The Wisconsin 

Constitution requires the legislature "to apportion and district 

anew the members of the senate and assembly, according to the 

number of inhabitants" after each census conducted under the 

United States Constitution every ten years. Wis. Const. art. 

IV, § 3. In fulfilling this responsibility, the legislature 

draws maps reflecting the legislative districts across the 

state. Every census invariably reveals population changes 

within legislative districts, and the legislature must 

thereafter satisfy the constitutional requirement that each 

district contain approximately equal numbers of people by 

developing new maps, which are subject to veto by the governor. 

When this occurs, courts are often asked to step in and draw the 
No. 2021AP1450-OA

3

maps.

¶2 This year, the legislature drew maps, the governor 

vetoed them, and all parties agree the existing maps, enacted 

into law in 2011, are now unconstitutional because shifts in 

Wisconsin's population around the state have disturbed the 

constitutionally guaranteed equality of the people's 

representation in the state legislature and in the United States 

House of Representatives. We have been asked to provide a 

remedy for that inequality. Some parties to this action further 

complain that the 2011 maps reflect a partisan gerrymander 

favoring Republican Party candidates at the expense of Democrat 

Party candidates, and ask us to redraw the maps to allocate 

districts equally between these dominant parties, although no 

one asks us to assign districts to any minor parties in 

proportion to their share of Wisconsin's electoral vote.

¶3 The United States Supreme Court recently declared 

there are no legal standards by which judges may decide whether 

maps are politically "fair." Rucho v. Common Cause, 139 

S. Ct. 2484, 2499-500 (2019). We agree. The Wisconsin 

Constitution requires the legislature——a political body——to

establish the legislative districts in this state. Just as the 

laws enacted by the legislature reflect policy choices, so will 

the maps drawn by that political body. Nothing in the 

constitution empowers this court to second-guess those policy 

choices, and nothing in the constitution vests this court with 

the power of the legislature to enact new maps. Our role in 

redistricting remains a purely judicial one, which limits us to 
No. 2021AP1450-OA

4

declaring what the law is and affording the parties a remedy for 

its violation. 

¶4 In this case, the maps drawn in 2011 were enacted by 

the legislature and signed into law by the governor. Their 

lawfulness was challenged in a federal court, which upheld them 

(subject to a slight adjustment to Assembly Districts 8 and 9 in 

order to comply with federal law). Baldus v. Members of Wis. 

Gov't Accountability Bd., 862 F. Supp. 2d 860, 863 (E.D. Wis. 

2012). In 2021, those maps no longer comply with the 

constitutional requirement of an equal number of citizens in 

each legislative district, due to shifts in population across 

the state. This court will remedy that malapportionment, while 

ensuring the maps satisfy all other constitutional and statutory 

requirements. Claims of political unfairness in the maps 

present political questions, not legal ones. Such claims have 

no basis in the constitution or any other law and therefore must 

be resolved through the political process and not by the 

judiciary.

I. PROCEDURAL HISTORY AND HOLDING

¶5 Billie Johnson et al., four Wisconsin voters 

("Wisconsin voters"), filed a petition for leave to commence an 

original action in this court following the release of the 

results of the 2020 census. Claiming to live in malapportioned 

congressional and state legislative districts, they have asked 

us to declare the existing maps——codified in Chapters 3 and 4 of 

the Wisconsin Statutes——violate the "one person, one vote" 

principle embodied in Article IV, Section 3 of the Wisconsin 
No. 2021AP1450-OA

5

Constitution. They also have asked us to enjoin the 

respondents, the Wisconsin Elections Commission (WEC) and its 

members in their official capacity, from administering 

congressional and state legislative elections until the 

political branches adopt redistricting plans meeting the 

requirements of Article IV. Because the legislature and the 

governor reached an impasse, the Wisconsin voters request a 

mandatory injunction,1 remedying what all parties agree are 

unconstitutional plans by making only those changes necessary 

for the maps to comport with the one person, one vote principle 

while satisfying other constitutional and statutory mandates (a 

"least-change" approach).

¶6 We granted the petition and permitted the legislature, 

the governor, and several other parties to intervene. The 

intervenors raised numerous issues of federal and state law. In 

addition to the requirements of Article IV of the Wisconsin 

Constitution, we have been asked to consider the following laws 

in shaping any judicial remedy for the malapportioned 

congressional and state legislative districts: (1) Article I, 

Section 2 of the United States Constitution; (2) the Equal 

Protection Clause of the Fourteenth Amendment of the United 

 

1 A "mandatory injunction" is "[a]n injunction that orders 

an affirmative act or mandates a specified course of conduct." 

Mandatory injunction, Black's Law Dictionary (11th ed. 2019). 

When a court orders elections be conducted pursuant to modified 

maps, it is effectively ordering a mandatory injunction. See

Reynolds v. Sims, 377 U.S. 533, 541 (1964).
No. 2021AP1450-OA

6

States Constitution; (3) the Voting Rights Act (VRA) of 1965;2

and (4) multiple provisions of the Wisconsin Constitution's 

Declaration of Rights.

¶7 In anticipation of implementing a judicial remedy upon 

the expected impasse the political branches have now reached, we 

ordered the parties to address four issues:

(1) Under the relevant state and federal laws, what 

factors should we consider in evaluating or 

creating new maps?

(2) Is the partisan makeup of districts a valid 

factor for us to consider in evaluating or 

creating new maps?

(3) The petitioners ask us to modify existing maps 

using a "least-change" approach. Should we do 

so, and if not, what approach should we use?

(4) As we evaluate or create new maps, what 

litigation process should we use to determine a 

constitutionally sufficient map?[3]

We addressed the fourth question, at least preliminarily, in a 

prior order.

¶8 We hold: (1) redistricting disputes may be judicially 

resolved 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 

 

2 One intervenor invoked the Fifteenth Amendment of the 

United States Constitution, but did not develop an argument 

distinguishable from the intervenor's VRA argument. See Hunter 

et al. Br. at 20, 30. Accordingly, we do not address the 

Fifteenth Amendment further.

3 Johnson v. WEC, No. 2021AP1450-OA, unpublished order (Wis. 

Oct. 14, 2021) (per curiam) (ordering supplemental briefing).
No. 2021AP1450-OA

7

of the Wisconsin Constitution; (2) the partisan makeup of 

districts does not implicate any justiciable or cognizable 

right; and (3) this court will confine any judicial remedy to 

making the minimum changes necessary in order to conform the 

existing congressional and state legislative redistricting plans 

to constitutional and statutory requirements. The existing maps 

were passed by the legislature and signed by the governor. They 

survived judicial review in federal court. Revisions are now 

necessary only to remedy malapportionment produced by population 

shifts made apparent by the decennial census. Because the 

judiciary lacks the lawmaking power constitutionally conferred 

on the legislature, we will limit our remedy to achieving 

compliance with the law rather than imposing policy choices. 

II. BACKGROUND

A. Legal Context

¶9 Historical context helps frame the Petitioners' claims 

by illustrating the one person, one vote principle. The phrase 

"one person, one vote" is a relatively modern expression, but 

the concept of equal representation by population, as well as 

its alternatives, were familiar at the founding. In eighteenthcentury England, over half of the members of the House of 

Commons were elected from sparsely populated districts, later 

branded the "rotten boroughs." Such a system of representation 

undermined popular sovereignty. 5 T.H.B. Oldfield, The 

Representative History of Great Britain and Ireland 219 (1816) 

("The great Earl of Chatham called these boroughs the 
No. 2021AP1450-OA

8

excrescences, the rotten part of the constitution, which must be 

amputated to save the body from a mortification.").

¶10 In contrast, representation by population gives an 

area with a larger population more influence in the legislative 

body than an area with a smaller population. Our nation's 

founders enshrined this principle in Article I, Section 2 of the 

United States Constitution. Its third clause specifies that the 

House of Representatives, unlike its predecessor, the House of 

Commons, must be apportioned "among the several 

States . . . according to their respective Numbers[.]" To 

account for population shifts, it requires the federal 

government to conduct a census every ten years and then 

reapportion representatives. U.S. Const. art. I, § 2, cl. 3.

¶11 The Framers established a bicameral legislature. They

viewed per capita representation in the House of Representatives 

as essential to the preservation of the people's liberty. The 

Federalist No. 52, at 327 (James Madison) (Clinton Rossiter ed., 

1961). With respect to the Senate, the Framers enshrined the 

concept of state sovereignty by allocating senators equally 

among the states, regardless of population size. See U.S. 

Const. art. I, § 3, cl. 1 ("The Senate of the United States 

shall be composed of two Senators from each State.").

Accordingly, Senate seats are unaffected by redistricting.

¶12 Redistricting involves many political choices, and the 

United States Constitution does not substantially constrain 

state legislatures' discretion to decide how congressional 

elections are conducted. See U.S. Const. art. I, § 4. 
No. 2021AP1450-OA

9

Nevertheless, redistricting must comply with the one person, one 

vote principle. Wesberry v. Sanders, 376 U.S. 1, 7–8 (1964). 

Even if a state does not gain or lose congressional seats, 

redistricting is often a constitutional imperative after each 

census due to geographic population shifts.

¶13 Wisconsin's founders also guaranteed equal 

representation by population in our state constitution, which 

places an affirmative duty on the legislature to implement 

redistricting plans for the state legislature every ten years, 

after the federal census, to account for population shifts. 

Wis. Const. art. IV, § 3. No provision of the Wisconsin 

Constitution requires the legislature to apportion or district 

anew the state's congressional districts.4 Other federal and 

state laws, discussed in more detail in the remainder of this 

opinion, place further limitations on the legislature's 

discretion when implementing redistricting plans.

B. The 2020 Census

¶14 The legislature enacted the current maps in 2011. 

2011 Wis. Act 44; 2011 Wis. Act 43. Wisconsin's eight 

congressional districts are mapped in Wis. Stat. §§ 3.11 to 3.18 

(2019–20).5 See also Wis. Stat. § 3.001 ("This state is divided 

into 8 congressional districts."). The state's 99 assembly 

 

4 The Petitioners agree this court has never held any 

provision of the Wisconsin Constitution imposes a one person, 

one vote requirement on congressional districts. Omnibus Am. 

Pet., ¶1 n.2.

5 All subsequent references to the Wisconsin Statutes are to 

the 2019–20 version.
No. 2021AP1450-OA

10

districts are mapped in Wis. Stat. §§ 4.01 to 4.99, although a 

federal district court made a slight adjustment to Assembly 

Districts 8 and 9 after concluding the map violated the VRA. 

Baldus, 862 F. Supp. 2d at 863. The state's 33 senate districts 

are mapped in Wis. Stat. § 4.009. See also Wis. Stat. § 4.001 

("This state is divided into 33 senate districts, each composed 

of 3 assembly districts.").

¶15 In August 2021, the United States Census Bureau 

delivered redistricting data to the State of Wisconsin based 

upon the 2020 census. According to census data, the population 

of Wisconsin grew from 5,686,986 to 5,893,718. In order to 

realize equal legislative representation across districts, the 

ideal congressional district should have 736,715 people, the 

ideal assembly district should have 59,533, and the ideal senate 

district should have 178,598. While the ideal size of each 

district has changed, the number of districts remains the same. 

Wisconsin has not lost or gained any congressional seats, and 

the number of assembly and senate districts is set by Wisconsin 

statutes. Wis. Stat. §§ 3.001, 4.001.

¶16 The Wisconsin voters and many intervenors live in 

malapportioned districts, meaning they live in districts that 

are overpopulated. For example, one Wisconsin voter, Johnson, 

lives in Assembly District 78, which has a population of 66,838—

—7,305 more than ideal. If the districts are not reapportioned, 

Johnson's vote will be diluted in the ensuing elections.

C. The Impasse

¶17 On November 11, 2021, the legislature passed 
No. 2021AP1450-OA

11

redistricting plans. One week later, the governor vetoed the 

legislation. The legislature has failed to override his veto. 

¶18 At this point, the political branches have reached an 

impasse, and our involvement in redistricting has become 

appropriate. See Johnson v. WEC, No. 2021AP1450-OA, unpublished 

order, at 2 (Wis. Sept. 22, 2021, amended Sept. 24) (per curiam) 

(granting the petition for leave to commence an original action) 

("[J]udicial relief becomes appropriate in reapportionment cases 

only when a legislature fails to reapportion according to 

constitutional requisites in a timely fashion after having had 

an adequate opportunity to do so." (citation omitted)). The 

parties present diametrically opposed views regarding the manner 

in which this court should remedy what all parties agree is an 

unconstitutional malapportionment of congressional and state 

legislative districts. 

¶19 Notwithstanding a history of judicial involvement in 

redistricting, in our constitutional order it remains the 

legislature's duty. State ex rel. Reynolds v. Zimmerman

(Zimmerman I), 22 Wis. 2d 544, 569–70, 126 N.W.2d 551 (1964). 

Article IV, Section 3 of the Wisconsin Constitution commands, 

"[a]t its first session after each enumeration made by the 

authority of the United States, the legislature shall apportion 

and district anew the members of the senate and assembly, 

according to the number of inhabitants." "The Framers in their 

wisdom entrusted this decennial exercise to the legislative 

branch because the give-and-take of the legislative process, 

involving as it does representatives elected by the people to 
No. 2021AP1450-OA

12

make precisely these sorts of political and policy decisions, is 

preferable to any other." Jensen v. Wis. Elections Bd., 2002 WI 

13, ¶10, 249 Wis. 2d 706, 639 N.W.2d 537 (per curiam). The 

political process failed this year, necessitating our 

involvement. As should be self-evident from this court's lack 

of legislative power, any remedy we may impose would be in 

effect only "until such time as the legislature and governor 

have enacted a valid legislative apportionment plan." State ex 

rel. Reynolds v. Zimmerman (Zimmerman II), 23 Wis. 2d 606, 606, 

128 N.W.2d 16 (1964) (per curiam).

III. OUR REVIEW

A. Exercising Our Original Jurisdiction

¶20 We review this case under our original jurisdiction 

conferred by Article VII, Section 3(2) of the Wisconsin 

Constitution, pursuant to which "[t]he supreme court . . . may 

hear original actions and proceedings." Generally, we exercise 

our original jurisdiction when the case concerns "the 

sovereignty of the state, its franchises or prerogatives, or the 

liberties of its people." Petition of Heil, 230 Wis. 428, 436, 

284 N.W. 42 (1938) (per curiam) (quoting Att'y Gen. v. Chi. & 

N.W. Ry., 35 Wis. 425, 518 (1874)). We granted the petition in 

this case because "[t]here is no question . . . that this matter 

warrants this court's original jurisdiction; any reapportionment 

or redistricting case is, by definition publici juris, 

implicating the sovereign rights of the people of this state." 

Jensen, 249 Wis. 2d 706, ¶17 (citing Heil, 230 Wis. at 443).
No. 2021AP1450-OA

13

B. Principles of Interpretation

¶21 This case requires us to interpret the United States 

Constitution and the Wisconsin Constitution. "Issues of 

constitutional interpretation . . . are questions of law." 

James v. Heinrich, 2021 WI 58, ¶15, __ Wis. 2d __, 960 

N.W.2d 350 (citation omitted). We are bound by United States 

Supreme Court precedent interpreting the United States 

Constitution. State v. Jennings, 2002 WI 44, ¶18, 252 

Wis. 2d 228, 647 N.W.2d 142 (citation omitted). As the state's 

highest court, we are "the final arbiter of questions arising 

under the Wisconsin Constitution[.]" Jensen, 249 Wis. 2d 706, 

¶25.

¶22 Our goal when we interpret the Wisconsin Constitution 

is "to give effect to the intent of the framers and of the 

people who adopted it[.]" State v. Cole, 2003 WI 112, ¶10, 264 

Wis. 2d 520, 665 N.W.2d 328 (quotation marks and citations 

omitted). "[W]e focus on the language of the adopted text and 

historical evidence [of its meaning] including 'the practices at 

the time the constitution was adopted, debates over adoption of 

a given provision, and early legislative interpretation as 

evidenced by the first laws passed following the adoption.'" 

State v. Halverson, 2021 WI 7, ¶22, 395 Wis. 2d 385, 953 

N.W.2d 847 (quoting Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020 

WI 67, ¶28 n.10, 393 Wis. 2d 38, 946 N.W.2d 35).

¶23 This case also requires interpretation of statutory 

provisions governing redistricting. "Issues of statutory 
No. 2021AP1450-OA

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interpretation and application present questions of law." 

James, __ Wis. 2d __, ¶15 (citation omitted). 

IV. DISCUSSION

A. Relevant Considerations Under Federal and State Law

1. Federal Constitutional Requirements

¶24 Both federal and state laws regulate redistricting. 

Article I, Section 2 of the United States Constitution requires 

members of the House of Representatives to be chosen "by the 

People of the several states." The United States Supreme Court 

construed this section to mean "that as nearly as is practicable 

one man's vote in a congressional election is to be worth as 

much as another's." Wesberry, 376 U.S. at 7–8. Similarly, the 

United States Supreme Court held, "the Equal Protection Clause 

requires that a State make an honest and good faith effort to 

construct districts, in both houses of its legislature, as 

nearly of equal population as practicable." Reynolds v. Sims, 

377 U.S. 533, 577 (1964); see also Maryland Comm. for Fair 

Representation v. Tawes, 377 U.S. 656, 674–75 (1964) (holding 

even state senate districts must comply with the one person, one 

vote principle).

¶25 As a matter of federal constitutional law, the one 

person, one vote principle applies more forcefully to 

congressional districts than to state legislative districts. 

The United States Supreme Court declared: "[There is] no excuse 

for the failure to meet the objective of equal representation 

for equal numbers of people in congressional districting other 

than the practical impossibility of drawing equal districts with 
No. 2021AP1450-OA

15

mathematical precision." Mahan v. Howell, 410 U.S. 315, 322 

(1973). "[P]opulation alone" is the "sole criterion of 

constitutionality in congressional redistricting under Art. I, 

§ 2[.]" Id. For congressional districts, even less than a one 

percent difference between the population of the largest and 

smallest districts is constitutionally suspect. Karcher v. 

Dagget, 462 U.S. 725, 727 (1983). "[A]bsolute population 

equality" is "the paramount objective." Abrams v. Johnson, 521 

U.S. 74, 98 (1997) (quoting Karcher, 462 U.S. at 732).

¶26 In contrast, the Equal Protection Clause, as applied 

to state legislative districts, imposes a less exacting one 

person, one vote principle. Mahan, 410 U.S. at 322. Consistent 

with principles of federalism, states have limited flexibility 

to pursue other legitimate policy objectives, such as 

"maintain[ing] the integrity of various political subdivisions" 

and "provid[ing] for compact districts of contiguous territory." 

Brown v. Thomson, 462 U.S. 835, 842 (1983) (quoting Reynolds, 

377 U.S. at 578) (modifications in the original).

2. Federal Statutes

¶27 Federal statutes also govern redistricting. 2 U.S.C. 

§ 2c prohibits multimember congressional districts. See also

Wis. Stat. § 3.001 (same). The VRA prohibits the denial or 

abridgment of the right to vote on account of race, color, or 

membership in a language minority group, which implicates 

redistricting practices. It provides, in relevant part:

(a) No voting qualification or prerequisite to voting 

or standard, practice, or procedure shall be imposed 
No. 2021AP1450-OA

16

or applied by any State or political subdivision in a 

manner which results in a denial or abridgement of the 

right of any citizen of the United States to vote on 

account of race or color, or in contravention of the 

guarantees set forth in section 10303(f)(2)[, which 

protects language minority groups,] of this title, as 

provided in subsection (b).

(b) A violation of subsection (a) is established if, 

based on the totality of circumstances, it is shown 

that the political processes leading to nomination or 

election in the State or political subdivision are not 

equally open to participation by members of a class of 

citizens protected by subsection (a) in that its 

members have less opportunity than other members of 

the electorate to participate in the political process 

and to elect representatives of their choice. The 

extent to which members of a protected class have been 

elected to office in the State or political 

subdivision is one circumstance which may be 

considered: Provided, That nothing in this section 

establishes a right to have members of a protected 

class elected in numbers equal to their proportion in 

the population.

52 U.S.C. § 10301. The "dispersal" of a minority group among 

several districts can render the group an "ineffective" voting 

bloc. Cooper v. Harris, 137 S. Ct. 1455, 1464 (2017) (quoting 

Thornburg v. Gingles, 478 U.S. 30, 46 n.11 (1986)). Such a 

result may violate the VRA, even if the map drawers lacked 

discriminatory intent. Thornburg, 478 U.S. at 71. All parties 

in this case agree we should ensure any remedy we impose 

satisfies the requirements of the VRA.

3. Wisconsin Constitutional Requirements

¶28 Via the Wisconsin Constitution, the people of 

Wisconsin have imposed additional requirements on redistricting. 

Article IV, Section 3 of the Wisconsin Constitution provides, 

"[a]t its first session after each enumeration made by the 
No. 2021AP1450-OA

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authority of the United States," i.e., the census, "the

legislature shall apportion and district anew the members of the 

senate and assembly, according to the number of inhabitants." 

(Emphasis added.) As we stated in our seminal decision in State 

ex rel. Attorney General v. Cunningham:

It is proper to say that perfect exactness in the 

apportionment, according to the number of inhabitants, 

is neither required nor possible. But there should be 

as close an approximation to exactness as possible, 

and this is the utmost limit for the exercise of 

legislative discretion.

81 Wis. 440, 484, 51 N.W. 724 (1892). Our decision in 

Cunningham comports with the provision's original meaning. 

¶29 The one person, one vote principle had been 

"germinating" since the nation's founding——although the phrase 

is a twentieth-century invention. James A. Gazell, One Man, One 

Vote: Its Long Germination, 23 W. Pol. Q. 445, 462 (1970). As 

a delegate to the federal constitutional convention, founding 

father James Wilson was an outspoken advocate for equal 

representation by population: "[E]qual numbers of people ought 

to have an equal no. of representatives. . . . Representatives 

of different districts ought clearly to hold the same proportion 

to each other, as their respective constituents hold to each 

other." 1 The Records of the Federal Convention of 1787 179–80 

(Max Farrand ed., 1911) (statement of James Wilson, Penn.); see 

also James Wilson, Of the Constitutions of the United States and 

of Pennsylvania——Of the Legislative Department (1790–91), in 2 

The Works of the Honourable James Wilson, L.L.D., 117, 129

(1804) ("Elections are equal, when a given number of citizens, 
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in one part of the state, choose as many representatives, as are 

chosen by the same number of citizens, in any other part of the 

state."). 

¶30 In choosing per capita representation for the House of 

Representatives, the founders rejected England's infamous rotten 

boroughs:

The number of inhabitants in the two kingdoms of 

England and Scotland cannot be stated at less than 

eight million. The representatives of these eight 

millions in the House of Commons amount to five 

hundred and fifty-eight. Of this number, one ninth 

are elected by three hundred and sixty-four persons, 

and one half, by five thousand seven hundred and 

twenty-three persons. It cannot be supposed that the 

half thus elected . . . can add any thing either to 

the security of the people against the government, or 

to the knowledge of their circumstances and interests 

in the legislative councils.

The Federalist No. 56, at 349 (James Madison). In contrast, the 

equal proportion of representation prescribed by the 

Constitution "will render the [House of Representatives] both a 

safe and competent guardian of the interests which will be 

confined to it." Id. at 350.

¶31 The Northwest Ordinance of 1787 further evidences the 

founders' regard for equal representation by population. It 

states, in relevant part, "[t]he inhabitants of the said 

territory shall always be entitled to . . . a proportionate 

representation of the people in the legislature[.]" Northwest 

Ordinance § 14, art. 2 (1787). Its enactment guaranteed the 

equality of representation for newly admitted states. 

¶32 In the first redistricting case this court decided, a 
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concurring justice referenced the Northwest Ordinance. 

Cunningham, 81 Wis. at 512 (Pinney, J., concurring). He 

explained the phrase "according to the number of inhabitants" in 

Article IV, Section 3 of the Wisconsin Constitution was 

"intended to secure in the future" a pre-existing right of the 

people, specifically, "'proportionate representation,' and 

apportionment 'as nearly equal as practicable among the 

several counties for the election of members' of the 

legislature[.]" Id. 

¶33 Early legislative redistricting practices confirm this 

original meaning. Id. In 1851, the state's first governor, 

Nelson Dewey, vetoed the legislature's first redistricting plan, 

explaining in his veto message:

I object to the provisions of this bill, because the 

apportionment in many cases, is not made upon the 

constitutional basis. A comparison of some of the 

senatorial districts with the ratio and with each 

other, will clearly present its unconstitutional 

features.

1851 Wis. Assemb. J. 810. Consistent with its federal 

counterpart, Article IV, Section 3 of the Wisconsin Constitution 

gives the legislature the duty to enact a redistricting plan 

after each federal census to prevent one person's vote——in an 

underpopulated district——from having more weight than another's 

in an overly populated district. Zimmerman I, 22 Wis. 2d at 

564–69.

¶34 In addition to proportional representation by 

population, the Wisconsin Constitution establishes principles of 

"secondary importance" that circumscribe legislative discretion 
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when redistricting. Wis. State AFL-CIO v. Elections Bd., 543 

F. Supp. 630, 635 (E.D. Wis. 1982). In this case, the parties 

raise only malapportionment claims; no one claims the current 

maps violate one of these secondary principles. Nevertheless, 

in remedying the alleged harm, we must be mindful of these 

secondary principles so as not to inadvertently choose a remedy 

that solves one constitutional harm while creating another.

¶35 Article IV, Section 4 of the Wisconsin Constitution 

directs assembly districts "be bounded by county, precinct, town 

or ward lines[.]" Applying the one person, one vote principle 

may make bounding districts by county lines nearly impossible. 

See Wis. State AFL-CIO, F. Supp. at 635 (stating the maintenance 

of county lines is "incompatib[le] with population equality"); 

see also 58 Wis. Att'y Gen. Op. 88, 91 (1969) ("[T]he Wisconsin 

Constitution no longer may be considered as prohibiting assembly 

districts from crossing county lines, in view of the emphasis 

the United States Supreme Court has placed upon population 

equality in electoral districts."). Nonetheless, the smaller 

the political subdivision, the easier it may be to preserve its 

boundaries. See Baumgart v. Wendelberger, No. 01-C-0121, 2002 

WL 34127471, at *3 (E.D. Wis. May 30, 2002) ("Although avoiding 

the division of counties is no longer an inviolable principle, 

respect for the prerogatives of the Wisconsin Constitution 

dictate that wards and municipalities be kept whole where 

possible.").

¶36 Article IV, Section 4 of the Wisconsin Constitution 

further commands assembly districts be "contiguous," which 
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generally means a district "cannot be made up of two or more 

pieces of detached territory." State ex rel. Lamb v. 

Cunningham, 83 Wis. 90, 148, 53 N.W. 35 (1892). If annexation 

by municipalities creates a municipal "island," however, the 

district containing detached portions of the municipality is 

legally contiguous even if the area around the island is part of 

a different district. Prosser v. Elections Bd., 793 

F. Supp. 859, 866 (W.D. Wis. 1992).

¶37 Article IV, Section 4 of the Wisconsin Constitution 

also requires assembly districts to be "in as compact form as 

practicable[.]" We have never adopted a particular measure of 

compactness, but the constitutional text furnishes some latitude 

in meeting this requirement. Additionally, Article IV, 

Section 4 prohibits multi-member assembly districts; therefore, 

each district may have only a single representative. Finally, 

Article IV, Section 5 states no assembly district can be 

"divided in the formation of a senate district," and senate 

districts must consist of "convenient contiguous territory" with 

each senate district served by only a single senator. 

¶38 In summary, the Wisconsin Constitution "commits the 

state to the principle of per capita equality of representation 

subject only to some geographical limitations in the execution 

and administration of this principle." Zimmerman I, 22 

Wis. 2d at 556. In determining a judicial remedy for 

malapportionment, we will ensure preservation of these 

justiciable and cognizable rights explicitly protected under the 

United States Constitution, the VRA, or Article IV, Sections 3, 
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4, or 5 of the Wisconsin Constitution.

B. This Court Will Not Consider the Partisan Makeup of 

Districts 

¶39 The simplicity of the one person, one vote principle, 

its textual basis in our constitution, and its long history 

stand in sharp contrast with claims that courts should judge 

maps for partisan fairness, a concept untethered to legal 

rights. The parties have failed to identify any judicially 

manageable standards by which we could determine the fairness of 

the partisan makeup of districts, nor have they identified a 

right under the Wisconsin Constitution to a particular partisan 

configuration. Because partisan fairness presents a purely 

political question, we will not consider it.

1. Partisan Fairness Is a Political Question 

¶40 "Sometimes, . . . 'the law is that the judicial 

department has no business entertaining [a] claim of 

unlawfulness——because the question is entrusted to one of the 

political branches or involves no judicially enforceable 

rights.'" Rucho, 139 S. Ct. at 2494 (quoting Vieth v. 

Jubelirer, 541 U.S. 267, 277 (2004) (plurality)). For this 

reason, "political questions" are non-justiciable, that is, 

"outside the courts' competence[.]" Id. (quoting Baker v. Carr, 

369 U.S. 186, 217 (1962)). Whether a map is "fair" to the two 

major political parties is quintessentially a political question 

because: (1) there are no "judicially discoverable and 

manageable standards" by which to judge partisan fairness; and 

(2) the Wisconsin Constitution explicitly assigns the task of 
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redistricting to the legislature——a political body. See Baker, 

369 U.S. at 217.

¶41 The lack of standards by which to judge partisan 

fairness is obvious from even a cursory review of partisan 

gerrymandering jurisprudence. Partisan "gerrymandering" is 

"[t]he practice of dividing a geographical area into electoral 

districts, often of highly irregular shape, to give one 

political party an unfair advantage by diluting the opposition's 

voting strength." Gerrymandering, Black's Law Dictionary (11th 

ed. 2019). The United States Supreme Court declared partisan 

gerrymandering claims to be non-justiciable under the United 

States Constitution, and the very existence of such claims is 

doubtful. Rucho, 139 S. Ct. 2484; Vieth, 541 U.S. 267. See 

generally Daniel H. Lowenstein, Vieth's Gap: Has the Supreme 

Court Gone from Bad to Worse on Partisan Gerrymandering, 14 

Cornell J.L. & Pub. Pol'y 367 (2005). Writing for the Court in 

Rucho v. Common Cause, Chief Justice Roberts noted at the outset 

the Court has never struck down a map as an unconstitutional 

partisan gerrymander and acknowledged that several decades of 

searching for a judicially manageable standard by which to judge 

maps' partisan fairness had been in vain. 139 S. Ct. at 2491. 

¶42 "Partisan gerrymandering claims invariably sound in a 

desire for 'proportional representation.'" Id. at 2499. 

Advocated by several parties in this case, proportional 

representation is the political theory that a party should win a 

percentage of seats, on a statewide basis, that is roughly equal 

to the percentage of votes it receives. See Proportional 
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representation, Black's Law Dictionary. This theory has no 

grounding in American or Wisconsin law or history, and it 

directly conflicts with traditional redistricting criteria. 

Davis v. Bandemer, 478 U.S. 109, 145 (1986) (O'Connor, J., 

concurring in judgment), abrogated on other grounds by Rucho, 

139 S. Ct. 2484. "It hardly follows from the principle that 

each person must have an equal say in the election of 

representatives that a person is entitled to have his political 

party achieve representation in some way commensurate to its 

share of statewide support." Rucho, 139 S. Ct. at 2501. 

¶43 To begin with, measuring a state's partisan divide is 

difficult. Wisconsin does not have party registration, so 

voters never formally disclose their party membership at any 

point in the electoral process. Democratic Party v. Wisconsin, 

450 U.S. 107, 110–11 (1981). According to one recent survey, 

more than one-third of Wisconsinites self-identify as 

independents, affiliating themselves with no party at all. 

Marquette Law School Poll (Aug. 3–8, 2021), 

https://law.marquette.edu/poll/wpcontent/uploads/2021/10/MLSP66Toplines.html.

¶44 Even if a state's partisan divide could be accurately 

ascertained, what constitutes a "fair" map poses an entirely 

subjective question with no governing standards grounded in law. 

"Deciding among . . . different visions of fairness . . . poses 

basic questions that are political, not legal. There are no 

legal standards discernable in the Constitution for making such 
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judgements[.]" Rucho, 139 S. Ct. at 2500. Nor does the 

Wisconsin Constitution provide any such standards.

¶45 The people have never consented to the Wisconsin 

judiciary deciding what constitutes a "fair" partisan divide; 

seizing such power would encroach on the constitutional 

prerogatives of the political branches. Vieth, 541 U.S. at 291. 

In contrast to legislative or executive action, "'judicial 

action must be governed by standard, by rule,' and must be 

'principled, rational, and based upon reasoned distinctions' 

found in the Constitution or laws." Rucho, 139 S. Ct. at 2507 

(quoting Vieth, 541 U.S. at 278–79). Nothing in the Wisconsin 

Constitution authorizes this court to recast itself as a 

redistricting commission in order "to make [its] own political 

judgment about how much representation particular political 

parties deserve——based on the votes of their supporters——and to 

rearrange the challenged districts to achieve that end." Id. at 

2499.

¶ 46 Nothing in the United States Constitution or the 

Wisconsin Constitution commands "that farmers or urban dwellers, 

Christian fundamentalists or Jews, Republicans or Democrats, 

must be accorded political strength proportionate to their 

numbers[.]" Vieth, 541 U.S. at 288; see also id. at 308 

(Kennedy, J., concurring in judgment) (stating there is "no 

authority" for the notion that a Democrat majority of voters in 

Pennsylvania should be able to elect a Democrat majority of 

Pennsylvania's congressional delegation); Nathaniel Persily, In 

Defense of Foxes Guarding Henhouses: The Case for Judicial 
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Acquiescence to Incumbent-Protecting Gerrymanders, 116 Harv. L. 

Rev. 649, 672–73 (2002) ("So long as the state's majority has 

its advocate in the executive, is it necessarily true that the 

state's majority should control the legislature as well?").

¶47 Not only is a right to proportional party 

representation nonexistent in either constitution but the theory 

conflicts with principles that are constitutionally protected. 

The theory is irreconcilable with the requirement that 

congressional and state legislative districts be single-member 

districts. See 2 U.S.C. § 2c; Wis. Const. art. IV, §§ 4–5. For 

state legislative districts, the theory is particularly ill 

suited because Article IV of the Wisconsin Constitution 

specifies requirements that favor the preservation of 

communities of interest, irrespective of individual partisan 

alignment. See Wis. Const. art. IV, §§ 4–5 (explaining state 

assembly districts must be compact, contiguous, and respect 

political boundary lines and state senate districts must be 

contiguous and not divide assembly districts in their 

formation); Prosser, 793 F. Supp. at 863 (stating there is a 

"correlation between geographical propinquity and community of 

interest, and therefore compactness and contiguity are desirable 

features in a redistricting plan").

¶48 A proportional party representation requirement would 

effectively force the two dominant parties to create a 

"bipartisan" gerrymander to ensure the "right" outcome——

obliterating many traditional redistricting criteria mandated by 

federal law and Article IV of the Wisconsin Constitution. See 2 
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U.S.C. § 2c; Wis. Const. art. IV, §§ 4–5. Democrats tend to 

live close together in urban areas, whereas Republicans tend to 

disperse into suburban and rural areas. See Baumgart, 2002 WL 

34127471, at *6 ("Wisconsin Democrats tend to be found in high 

concentrations in certain areas[.]"). As a result, drawing 

contiguous and compact single-member districts of approximately 

equal population often leads to grouping large numbers of 

Democrats in a few districts and dispersing rural Republicans 

among several. These requirements tend to preserve communities 

of interest, but the resulting districts may not be politically 

competitive——at least if the competition is defined as an interrather than intra-party contest. Davis, 478 U.S. at 159; see 

also Larry Alexander & Saikrishna B. Prakash, Tempest in an 

Empty Teapot: Why the Constitution Does Not Regulate 

Gerrymandering, 50 Wm. & Mary L. Rev. 1, 42 n.117 (2008) 

(explaining "competitive primaries" often produce 

"responsiveness, accountability, and 'ritual cleansing'"). 

Democrats in urban cities may win by large margins, thereby 

skewing the proportion of Democrat votes statewide relative to 

the proportion of Democrat victories.

¶49 Perhaps the easiest way to see the flaw in 

proportional party representation is to consider third party 

candidates. Constitutional law does not privilege the "major" 

parties; if Democrats and Republicans are entitled to 

proportional representation, so are numerous minor parties. If 

Libertarian Party candidates receive approximately five percent 

of the statewide vote, they will likely lose every election; no 
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one deems this result unconstitutional. The populace that voted 

for Libertarians is scattered throughout the state, thereby 

depriving them of any real voting power as a bloc, regardless of 

how lines are drawn. See Robert Redwine, Comment, 

Constitutional Law: Racial and Political Gerrymandering——

Different Problems Require Different Solutions, 51 Okla. L. Rev. 

373, 396–97 (1998). Only meandering lines, which could be 

considered a gerrymander in their own right, could give the 

Libertarians (or any other minor party) a chance. Proportional 

partisan representation would require assigning each third party 

a "fair" share of representatives (while denying independents 

any allocation whatsoever), but doing so would in turn require 

ignoring redistricting principles explicitly codified in the 

Wisconsin Constitution.

¶50 To sacrifice textually grounded requirements designed 

to safeguard communities of interest in favor of proportional 

representation between dominant political parties mandated 

nowhere in the constitution would ignore not only the text but 

its history. "The roots of Anglo-American political 

representation lie in the representation of communities[.]" 

James A. Gardner, One Person, One Vote and the Possibility of 

Political Community, 80 N.C. L. Rev. 1237, 1243 (2002). "The 

idea that the political interests of communal groups of 

individuals correlated strongly with territory served, for 

example, as an axiom in Madison's famous defense of the large 

republic in The Federalist No. 10." James A. Gardner, Foreword, 

Representation Without Party: Lessons from State Constitutional 
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Attempts to Control Gerrymandering, 37 Rutgers L.J. 881, 935 

(2006). Proportional party representation is simply 

incompatible with the constitutionally prescribed form of 

representative government chosen by the people of Wisconsin.

¶51 The Wisconsin Constitution's "textually demonstrable 

constitutional commitment" to confer the duty of redistricting 

on the state legislature evidences the non-justiciability of 

partisan gerrymandering claims. Baker, 369 U.S. at 217. 

Article IV, Section 3 of the Wisconsin Constitution 

unequivocally assigns the task of redistricting to the 

legislature, leaving no basis for claiming that partisanship in 

redistricting raises constitutional concerns. "[P]artisan 

intent is not illegal, but is simply the consequence of 

assigning the task of redistricting to the political branches of 

government." Whitford v. Gill, 218 F. Supp. 3d 837, 939 (W.D. 

Wis. 2016) (Griesbach, J., dissenting), rev'd sub nom., Gill v. 

Whitford, 138 S. Ct. 1916 (2018). "[P]oliticians pass many 

statutes with an eye toward securing their elections and giving 

their party a leg up on the competition. Gerrymandered 

districts are no different in kind." Alexander & Prakash, 

Tempest in an Empty Teapot, at 7. 

¶52 The Wisconsin Constitution, like its federal 

counterpart, "clearly contemplates districting by political 

entities, . . . and unsurprisingly . . . [districting] turns out 

to be root-and-branch a matter of politics." Vieth, 541 U.S. at 

285 (citations omitted). For the same reasons cited by the 

United States Supreme Court, we "have no license to reallocate 
No. 2021AP1450-OA

30

political power between the two major political parties," 

because "no legal standards [exist] to limit and direct [our] 

decisions." Rucho, 139 S. Ct. at 2507. The Wisconsin 

Constitution contains "no plausible grant of authority" to the 

judiciary to determine whether maps are fair to the major 

parties and the task of redistricting is expressly assigned to 

the legislature. Id. Adjudicating claims of "too much" 

partisanship in the redistricting process would recast this 

court as a policymaking body rather than a law-declaring one. 

2. The Wisconsin Constitution Says Nothing About Partisan 

Gerrymandering

¶53 The United States Supreme Court has been unable to 

identify "what it is in the Constitution that . . . might be 

offended by partisan gerrymandering." Lowenstein, Vieth's Gap, 

at 369. We are told if we look hard enough, we will find a 

right to partisan fairness in Article I, Sections 1, 3, 4, or 22 

of the Wisconsin Constitution. Having searched in earnest, we 

conclude the right does not exist. As the United States Supreme 

Court explained when it considered a partisan gerrymandering 

challenge to Wisconsin's current state legislative maps, courts 

are "not responsible for vindicating generalized partisan 

preferences." Gill, 138 S. Ct. at 1933. 

¶54 The first section in the Wisconsin Constitution's 

Declaration of Rights states: "All people are born equally free 

and independent, and have certain inherent rights; among these 

are life, liberty and the pursuit of happiness; to secure these 

rights, governments are instituted, deriving their just powers 
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from the consent of the governed." Wis. Const. art. I, § 1. 

This section enshrines a first principle of our nation's 

founding: "[T]he only source of political power is in the 

people; . . . they are sovereign, that is to say, the aggregate 

community, the accumulated will of the people, is sovereign[.]" 

Cunningham, 81 Wis. at 497.

¶55 Article I, Section 1 of the Wisconsin Constitution has 

nothing to say about partisan gerrymanders. "The idea that 

partisan gerrymandering undermines popular sovereignty because 

the legislature rather than the people selects representatives 

is rhetorical hyperbole masked as constitutional argument. When 

legislatures draw districts, they in no way select who will 

occupy the resulting seats." Alexander & Prakash, Tempest in an 

Empty Teapot, at 43. Voters retain their freedom to choose 

among candidates irrespective of how district lines are drawn. 

Id. 

¶56 Contriving a partisan gerrymandering claim from the 

text of the Wisconsin Constitution (aside from overstepping our 

judicial role) would require us to indulge a fiction——that 

partisan affiliation is permanent and invariably dictates how a 

voter casts every ballot. Of course, political affiliation "is 

not an immutable characteristic, but may shift from one election

to the next[.]" Vieth, 541 U.S. at 287. "[V]oters can——and 

often do——move from one party to the other[.]" Davis, 478 U.S. 

at 156. Not only is political affiliation changeable, but selfidentified partisans can——and do——vote for a different party's 

candidates.
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32

¶57 If the constitution were misinterpreted to make 

changeable characteristics relevant factors in evaluating 

redistricting plans, "we fail to see why it demands only a 

partisan political mix." Alexander & Prakash, Tempest in an 

Empty Teapot, at 21. "[W]hy would a Constitution that never 

mentions political parties, much less Republicans[] [and] 

Democrats . . . grant special status to partisan identity?" Id. 

If we opened the floodgates, what would stop claims seeking 

proportional representation for "gun owners" or "vegetarians"? 

Id. Nothing distinguishes partisan affiliation from hundreds——

perhaps thousands——of other variables. Id. at 22. 

Dispositively, none of these factors are mentioned in the text 

of the constitution.

¶58 Nothing supports the notion that Article I, Section 1 

of the Wisconsin Constitution was originally understood——or has 

ever been interpreted——to regulate partisanship in 

redistricting. After discussing the concept of popular 

sovereignty in Cunningham, Justice Pinney declared: "The rules 

of apportionment and the restrictions upon the power of the 

legislature are very simple and brief." 81 Wis. at 511. He 

then proceeded to discuss only those requirements found in 

Article IV of the Wisconsin Constitution. Id. Regulation of

partisanship is not among them.

¶59 Likewise, Article I, Sections 3 and 4 of the Wisconsin 

Constitution do not inform redistricting challenges. These 

sections state:
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Section 3. Every person may freely speak, write and 

publish his sentiments on all subjects, being 

responsible for the abuse of that right, and no laws 

shall be passed to restrain or abridge the liberty of 

speech or of the press. In all criminal prosecutions 

or indictments for libel, the truth may be given in 

evidence, and if it shall appear to the jury that the 

matter charged as libelous be true, and was published 

with good motives and for justifiable ends, the party 

shall be acquitted; and the jury shall have the right 

to determine the law and the fact.

Section 4. The right of the people peaceably to 

assemble, to consult for the common good, and to 

petition the government, or any department thereof, 

shall never be abridged.

Collectively, these sections protect four related freedoms: 

(1) freedom of speech; (2) freedom of the press; (3) freedom of 

assembly; and (4) freedom of petition. The First Amendment of 

the United States Constitution also secures these rights.

¶60 Nothing about the shape of a district infringes 

anyone's ability to speak, publish, assemble, or petition. Even 

after the most severe partisan gerrymanders, citizens remain 

free to "run for office, express their political views, endorse 

and campaign for their favorite candidates, vote, and otherwise 

influence the political process through their expression." 

Radogno v. Ill. State Bd. of Elections, No. 11-CV-04884, 2011 WL 

5025251 at *7 (N.D. Ill. Oct. 21, 2011) (quoted source omitted). 

¶61 Parties urging us to consider partisan fairness appear 

to desire districts drawn in a manner ensuring their political 

speech will find a receptive audience; however, nothing in 

either constitution gives rise to such a claim. "The first 

amendment's protection of the freedom of association and of the 

rights to run for office, have one's name on the ballot, and
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34

present one's views to the electorate do not also include 

entitlement to success in those endeavors. The carefully 

guarded right to expression does not carry with it any right to 

be listened to, believed or supported in one's views." 

Washington v. Finlay, 664 F.2d 913, 927–28 (4th Cir. 1981). 

Associational rights guarantee the freedom to participate in the 

political process; they do not guarantee a favorable outcome. 

See Badham v. Eu, 694 F. Supp. 664, 675 (N.D. Cal. 1988). As 

the United States Supreme Court has explained, "[n]one of our 

cases establishes an individual's right to have a 'fair shot' at 

winning[.]" New York State Bd. of Elections V. Torres, 552 

U.S. 196, 205 (2008). Nor does the constitution.

¶62 Article I, Section 22 of the Wisconsin Constitution 

provides: "[t]he blessings of a free government can only be 

maintained by a firm adherence to justice, moderation, 

temperance, frugality and virtue, and by frequent recurrence to 

fundamental principles." Wis. Const. art. I, § 22. To 

fabricate a legal standard of partisan "fairness"——§ 22 does not 

supply one——would represent anything but "moderation" or 

"temperance[.]" Whatever operative effect Section 22 may have, 

it cannot constitute an open invitation to the judiciary to 

rewrite duly enacted law by imposing our subjective policy 

preferences in the name of "justice[.]" 

¶63 Unlike the Declaration of Rights, Article IV, 

Sections 3, 4, and 5 of the Wisconsin Constitution express a 

series of discrete requirements governing redistricting. These 

are the only Wisconsin constitutional limits we have ever
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35

recognized on the legislature's discretion to redistrict. The 

last time we implemented a judicial remedy for an 

unconstitutional redistricting plan, we acknowledged Article IV 

as the exclusive repository of state constitutional limits on 

redistricting:

[T]he Wisconsin constitution itself provides a 

standard of reapportionment 'meet [sic] for judicial 

judgment.' The legislature shall reapportion 

'according to the number of inhabitants' subject to 

some geographical and political unit limitations in 

execution of this standard. We need not descend into 

the 'thicket' to fashion standards whole-cloth.

Zimmerman I, 22 Wis. 2d at 562 (emphasis added) (quoted sources 

omitted). In other words, the standards under the Wisconsin 

Constitution that govern redistricting are delineated in Article 

IV. To construe Article I, Sections 1, 3, 4, or 22 as a 

reservoir of additional requirements would violate axiomatic 

principles of interpretation, see James, __ Wis. 2d __, ¶¶21–22, 

while plunging this court into the political thicket lurking 

beyond its constitutional boundaries. Zimmerman I, 22 

Wis. 2d at 562.

C. We Will Utilize a "Least-Change" Approach

¶64 The constitutional confines of our judicial authority 

must guide our exercise of power in affording the Petitioners a 

remedy for their claims. The existing maps were adopted by the 

legislature, signed by the governor, and survived judicial 

review by the federal courts. See Gill, 138 S. Ct. 1916; 

Baldus, 862 F. Supp. 2d 860. Treading further than necessary to 

remedy their current legal deficiencies, as many parties urge us 
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to do, would intrude upon the constitutional prerogatives of the 

political branches and unsettle the constitutional allocation of 

power.

¶65 For the paramount purpose of preserving liberty, the 

Wisconsin Constitution embodies a structural separation of 

powers among the three branches of government, restraining this 

court from exercising anything but judicial power. "No 

political truth is certainly of greater intrinsic value, or is 

stamped with the authority of more enlightened patrons of

liberty" than the separation of powers. The Federalist No. 47, 

at 301 (James Madison); see also The Federalist No. 51, at 321–

22 (James Madison) ("[The] separate and distinct exercise of the 

different powers of government . . . is admitted on all hands to 

be essential to the preservation of liberty."). "While the 

separation of powers may prevent us from righting every wrong, 

it does so in order to ensure that we do not lose liberty." 

Morrison v. Olson, 487 U.S. 654, 710 (1988) (Scalia, J., 

dissenting).

¶66 This court's precedent declares that the legislature's 

enactment of a redistricting plan is subject to presentment and 

a gubernatorial veto. Zimmerman I, 22 Wis. 2d at 559. If the 

legislature and the governor reach an impasse, the judiciary has 

a duty to remedy the constitutional defects in the existing 

plan. See Zimmerman II, 23 Wis. 2d 606 (implementing a 

judicially-created plan). But a duty to remedy a constitutional 

deficiency is not a prerogative to make law. See Cunningham, 81 

Wis. at 482–83 (majority opinion) (describing the lawmaking 
No. 2021AP1450-OA

37

prerogative).

¶67 While courts sometimes declare statutes 

unconstitutional and may enjoin their enforcement, typically the 

judiciary does not order government officials to enforce a 

modified, constitutional version of the statute. See generally

Gimbel Bros. v. Milwaukee Boston Store, 161 Wis. 489, 496, 154 

N.W. 998 (1915) (citing 1 James High, A Treatise on the Law of 

Injunctions § 2 (edition and year not specified in the 

citation)) ("While the power to issue mandatory injunctions is 

vested in courts of equity, it is a power which is sparingly 

used."). Courts issue mandatory injunctions, an equitable 

remedy, "with extreme caution" and "only in cases of equitable 

cognizance[.]" 1 James High, A Treatise on the Law of 

Injunctions § 2 (4th ed. 1905) (emphasis added).

¶68 Redistricting litigation presents a unique problem. 

Unlike the constitutional monarchies of old England, which could 

exist in the absence of Parliament, our republican form of 

government presupposes the existence of a legislature. U.S. 

Const. art. IV, § 4 ("The United States shall guarantee to every 

State in this Union a Republican Form of Government[.]"). If 

the legislature and the governor reach an impasse, merely 

declaring the maps unconstitutional and enjoining elections 

pursuant to them creates an intractable impediment to conducting 

elections, imperiling our republican form of government. 

Judicial action becomes appropriate to prevent a constitutional 

crisis. But we must "limit the solution to the problem." See

Ayotte v. Planned Parenthood of N. New England, 546 U.S. 320, 
No. 2021AP1450-OA

38

328 (2006).

¶69 Court involvement in redistricting, as in any other 

case, is judicial in nature. In Jensen v. Wisconsin Elections 

Board, we stated: "Courts called upon to perform redistricting 

are, of course, judicially legislating, that is, writing the law 

rather than interpreting it, which is not their usual——and 

usually not their proper——role." 249 Wis. 2d 706, ¶10. With 

few exceptions confined to the judicial sphere——none of which 

are relevant to this case——we have no power to "judicially 

legislate."6 "Safeguarding constitutional limitations on the 

exercise of legislative power is particularly important in light 

of its awesome sweep." Fabick v. Evers, 2021 WI 28, ¶55, 396 

Wis. 2d 231, 956 N.W.2d 856 (Rebecca Grassl Bradley, J., 

concurring). The people vested the power in the legislature——

not the executive and certainly not the judiciary. Id. 

"Because the people gave the legislature its power to make laws, 

the legislature alone must exercise it." Id., ¶56.

¶70 "From the very nature of things, the judicial power 

cannot legislate nor supervise the making of laws." League of 

Women Voters of Wis. v. Evers, 2019 WI 75, ¶35, 387 Wis. 2d 511, 

929 N.W.2d 209 (quoting State ex rel. Rose v. Sup. Ct. of 

Milwaukee Cnty., 105 Wis. 651, 675, 81 N.W. 1046 (1900)). By 

design, the judicial power has long been kept distinct from the 

 

6 We have limited legislative power to regulate certain 

subject matter related to the court system. See, e.g., Rao v. 

WMA Sec., Inc., 2008 WI 73, ¶35, 310 Wis. 2d 623, 752 

N.W.2d 220.
No. 2021AP1450-OA

39

legislative power. See Neil Gorsuch, A Republic, If You Can 

Keep It 52–53 (Forum Trade Paperback ed., 2020) (2019) ("To the 

founders, the legislative and judicial powers were distinct by 

nature and their separation was among the most important 

liberty-protecting devices of the constitutional design, an 

independent right of the people essential to the preservation of 

all other rights later enumerated in the Bill of Rights."). 

¶71 We have the power to provide a judicial remedy but not 

to legislate. We have no authority to act as a "superlegislature" by inserting ourselves into the actual lawmaking 

function. Flynn v. Dep't of Admin., 216 Wis. 2d 521, 528–29, 

576 N.W.2d 245 (1998) ("If we are to maintain the public's 

confidence in the integrity and independence of the judiciary, 

we must exercise that power with great restraint, always resting 

on constitutional principles, not judicial will. We may differ 

with the legislature's choices, as we did and do here, but must 

never rest our decision on that basis lest we become no more 

than a super-legislature."). Courts "lack the authority to make 

the political decisions that the Legislature and the Governor 

can make through their enactment of redistricting 

legislation[.]" Hippert v. Ritchie, 813 N.W.2d 374, 380 (Minn. 

Spec. Redistricting Panel 2012) (citing LaComb v. Growe, 541 

F. Supp. 145, 151 (D. Minn. 1982), aff'd sub nom. Orwoll v. 

LaComb, 456 U.S. 966). Stated otherwise, "[o]ur only guideposts 

are the strict legal requirements."7 In re Legislative 

 

7 The judiciary lacks the institutional competency to make 

the kind of factual determinations necessary to properly 
No. 2021AP1450-OA

40

Districting of the State, 805 A.2d 292, 298 (Md. 2002) (emphasis 

added). 

¶72 Because our power to issue a mandatory injunction does 

not encompass rewriting duly enacted law, our judicial remedy 

"should reflect the least change" necessary for the maps to 

comport with relevant legal requirements. See Wright v. City of 

Albany, 306 F. Supp. 2d 1228, 1237 (M.D. Ga. 2003) (citations 

omitted). Using the existing maps "as a template" and 

implementing only those remedies necessary to resolve 

constitutional or statutory deficiencies confines our role to 

its proper adjudicative function, ensuring we fulfill our role 

as apolitical and neutral arbiters of the law.8 See Baumgart, 

 

consider various extra-legal factors. In re Legislative 

Districting of the State, 805 A.2d 292, 298 (Md. 2002) ("When 

the Court drafts the plan, it may not take into account the same 

political considerations as the Governor and the Legislature.

Judges are forbidden to be partisan politicians. Nor can the 

Court stretch the constitutional criteria in order to give 

effect to broader political judgments, such as . . . the 

preservation of communities of interest. More basic, it is not 

for the Court to define what a community of interest is and 

where its boundaries are, and it is not for the Court to 

determine which regions deserve special consideration and which 

do not. . . . Our instruction to the consultants was to prepare 

for our consideration a redistricting plan that conformed to 

federal constitutional requirements, the Federal Voting Rights 

Act, and the requirements of Article III, § 4 of the Maryland 

Constitution.").

8 The legislature asks us to use the maps it passed during 

this redistricting cycle as a starting point, characterizing 

them as an expression of "the policies and preferences of the 

State[.]" Legislature Br. at 16 (quoting White v. Weiser, 412 

U.S. 783, 795 (1973)). The legislature's argument fails because 

the recent legislation did not survive the political process. 

The existing plans are codified as statutes, without a sunset 

provision, and have not been supplanted by new law.
No. 2021AP1450-OA

41

2002 WL 34127471, at *7 ("The court undertook its redistricting 

endeavor in the most neutral way it could conceive——by taking 

the 1992 reapportionment plan as a template and adjusting it for 

population deviations."); see also Robert H. Bork, The Tempting 

of America: The Political Seduction of the Law 88–89 (First 

Touchstone ed. 1991) (1990) (describing how Robert H. Bork, as 

special master in a redistricting case, drew lines without any 

consideration of the partisan effect of his remedy). A leastchange approach is nothing more than a convenient way to 

describe the judiciary's properly limited role in redistricting.

¶73 The least-change approach is far from a novel idea; 

many courts call it the "minimum change doctrine," reflecting 

its general acceptance among reasonable jurists. It was applied 

in numerous cases during the last two redistricting cycles. 

See, e.g., Crumly v. Cobb Cnty. Bd. of Elections & Voter 

Registration, 892 F. Supp. 2d 1333, 1345 (N.D. Ga. 2012) ("In 

preparing the draft map, the Court began with the existing map 

drawn by Judge Carnes in 2002. The Court followed the doctrine 

of minimum change[.]"); Martin v. Augusta-Richmond Cnty., Ga., 

Comm'n, No. CV 112-058, 2012 WL 2339499, at *3 (S.D. Ga. June 

19, 2012) ("Essentially, the Court is required to change only 

the faulty portions of the benchmark plan, as subtly as 

possible, in order to make the new plan constitutional. Keeping 

the minimum change doctrine in mind, the Court only made changes 

it deemed necessary to guarantee substantial equality and to 

honor traditional redistricting concerns." (Internal citation 

omitted)); Stenger v. Kellet, No. 4:11-cv-2230, 2012 WL 601017, 
No. 2021AP1450-OA

42

at *3 (E.D. Mo. Feb. 23, 2012) ("A frequently used model in 

reapportioning districts is to begin with the current boundaries 

and change them as little as possible while making equal the 

population of the districts. This is called the 'least change' 

or 'minimal change' method . . . . The 'least change' method is 

advantageous because it maintains the continuity of 

representation for each district and is by far the simplest way 

to reapportion[.]"); Below v. Gardner, 963 A.2d 785, 794 (N.H. 

2002) ("[W]e use as our benchmark the existing senate districts 

because the senate districting plan enacted in 1992 is the last 

validly enacted plan and is the clearest expression of the 

legislature's intent." (Quotation marks and quoted source 

omitted)); Alexander v. Taylor, 51 P.3d 1204, 1211 (Okla. 2002) 

("A court, as a general rule, should be guided by the 

legislative policies underlying the existing plan. The starting 

point for analysis, therefore, is the 1991 Plan."); Bodker v. 

Taylor, No. 1:02-cv-999, 2002 WL 32587312, at *5 (N.D. Ga. June 

5, 2002) ("The court notes . . . that its plan represents only a 

small, though constitutionally necessary, change in the district 

lines in accordance with the minimum change doctrine."); Markham 

v. Fulton Cnty. Bd. of Registrations & Elections, No. 1:02-cv1111, 2002 WL 32587313, at *6 (N.D. Ga. May 29, 2002) ("Keeping 

the minimum change doctrine in mind, the Court made only the 

changes it deemed necessary to guarantee substantial equality 

and to honor traditional redistricting concerns.").

¶74 In declaring this court's role in resolving 

redistricting cases, we are mindful that "Wisconsin adheres to 
No. 2021AP1450-OA

43

the concept of a nonpartisan judiciary." SCR 60.06(2)(a). "In 

the debate over the Wisconsin Constitution, objections to an 

elected judiciary had centered upon the dangers of partisanship. 

The debate was resolved with the mandate that elections for 

state courts be distinctly non-partisan in character." Ellen 

Langill, Levi Hubbell and the Wisconsin Judiciary: A Dilemma in 

Legal Ethics and Non-Partisan Judicial Elections, 81 Marq. L. 

Rev. 985, 985 (1998). The Wisconsin Constitution discourages

judicial partisanship. Wis. Const. art. IV, § 9 ("There shall 

be no election for a justice or judge at the partisan general 

election for state or county officer, nor within 30 days either 

before or after such election."). Similarly, the Judicial Code 

of Conduct prohibits judges from "be[ing] swayed by partisan 

interests[.]" SCR 60.04(1)(b). 

¶75 To dive into the deepest of "political thicket[s],"9 as

redistricting has been described, with the intention of doing 

anything more than securing legal rights would be profoundly 

incompatible with Wisconsin's commitment to a nonpartisan 

judiciary. If a simple majority of this court opted to draw 

maps from scratch, thereby fundamentally altering Wisconsin's 

political landscape for years, it would significantly "increase 

the political pressures on this court in a partisan way that is 

 

9 Colegrove v. Green, 328 U.S. 549, 556 (1946) (plurality), 

abrogation recognized by Evenwel v. Abbott, 577 U.S. 937 (2016) 

("Courts ought not to enter this political thicket. The remedy 

for unfairness in districting is to secure State legislatures 

that will apportion properly, or to invoke the ample powers of 

Congress.").
No. 2021AP1450-OA

44

totally inconsistent with our jobs as [a] nonpartisan 

judiciary." Wisconsin Supreme Court Open Administrative 

Conference (Open Administrative Conference), at 33:36 (Jan. 22, 

2009) (statements of Roggensack, J.), 

https://wiseye.org/2009/01/22/supreme-court-open-administrativeconference-3/.

¶76 Many intervenors have argued the 2011 maps entrenched 

a Republican Party advantage, so using them as a starting point 

perpetuates a partisan gerrymander. In other words, these 

intervenors argue we must tip the partisan balance to benefit 

one party in order to avoid accusations of partisanship. We 

reject this demand to "[s]imply undo[] the work of one political 

party for the benefit of another[.]" Henderson v. Perry, 399 

F. Supp. 2d 756, 768 (E.D. Tex. 2005), rev'd in part on other 

grounds sub nom., League of United Latin Am. Citizens v. Perry, 

548 U.S. 399, 420 (2006) (plurality). Endeavoring to rebalance 

the allocation of districts between the two major parties would 

be a decidedly nonjudicial exercise of partisanship by the 

court. Instead, we adopt a neutral standard. While the 

application of neutral standards inevitably benefits one side or 

the other in any case, it does not place our thumb on any 

partisan scale, as some intervenors urge us to do.

¶77 "Putting courts into politics, and compelling judges 

to become politicians, in many jurisdictions has almost 

destroyed the traditional respect for the Bench." Roscoe Pound, 

The Causes of Popular Dissatisfaction with the Administration of 

Justice (1906), as reprinted in Roscoe Pound Kindles the Spark 
No. 2021AP1450-OA

45

of Reform, 57 A.B.A. J. 348, 351 (1971). A least-change 

approach safeguards the long-term institutional legitimacy of 

this court by removing us from the political fray and ensuring 

we act as judges rather than political actors. 

¶78 The judiciary has been repeatedly subject to "purely 

political attacks" by people who "did not get the result from 

the court . . . [they] wanted." Patience Drake Roggensack, 

Tough Talk and the Institutional Legitimacy of Our Courts, 

Hallows Lecture (Mar. 7, 2017), in Marq. Law., Fall 2017, at 45, 

46. These often partisan onslaughts threaten the 

"[i]nstitutional legitimacy" of the judiciary, which, in turn, 

threatens the "rule of law" itself. Id. By utilizing the 

least-change approach, we do not endorse the policy choices of 

the political branches; rather, we simply remedy the 

malapportionment claims. Attempting to redress the criticisms 

of the current maps advanced by multiple intervenors would 

amount to a judicial replacement of the law enacted by the 

people's elected representatives with the policy preferences of 

unelected interest groups, an act totally inconsistent with our 

republican form of democracy.

¶79 We close by addressing Article IV, Section 3 of the 

Wisconsin Constitution, which says, in each redistricting cycle, 

"the legislature shall apportion and district anew[.]" 

(Emphasis added.) Focusing on the word "anew," an intervenor 

and an amicus curiae argue the court must make maps from 
No. 2021AP1450-OA

46

scratch.10 Although the proponents of this interpretation 

attempt to ground their argument in the provision's text, they 

miss the forest for the trees. Read as a whole, the provision 

means the legislature must implement a redistricting plan each 

cycle and the language cannot reasonably be read to require the 

court to make maps at all, let alone from scratch.

V. CONCLUSION

¶80 This case illustrates the extraordinary danger of 

asking the judiciary to exercise "FORCE" and "WILL" instead of 

legal "judgment." The Federalist No. 78, at 465 (Alexander 

Hamilton). Manufacturing a standard of political "fairness" by 

which to draw legislative maps in accordance with the subjective 

preferences of judges would refashion this court as a committee 

of oligarchs with political power superior to both the 

legislature and the governor. See In re Review of the Code of 

Judicial Ethics, SCR Chapter 60, 169 Wis. 2d xv, xxv (1992) 

(Day, J., concurring, joined by a majority) ("Tyranny need not 

be dressed in a military uniform, it can also wear a black 

robe!"). Judges must refuse to become "philosopher kings 

empowered to 'fix' things according to the dictates of what we 

fancy is our superior insight[.]" Tyler v. Hillsdale Cnty. 

Sheriff's Dep't, 837 F.3d 678, 707 (6th Cir. 2016) (Batchelder, 

J., concurring in part).

¶81 In this case, we will implement judicial remedies only 

to the extent necessary to remedy the violation of a justiciable 

 

10 BLOC Br. at 31–36; Whitford Amicus Br. at 5–6.
No. 2021AP1450-OA

47

and cognizable right found in the United States Constitution, 

the VRA, or Article IV, Sections 3, 4, or 5 of the Wisconsin 

Constitution. We will not consider the partisan makeup of 

districts because it does not implicate any justiciable or 

cognizable right. We adopt the least-change approach to 

remedying any constitutional or statutory infirmities in the 

existing maps because the constitution precludes the judiciary 

from interfering with the lawful policy choices of the 

legislature. 

By the court.——Rights declared.
No. 2021AP1450-OA.bh

1

¶82 BRIAN HAGEDORN, J. (concurring). To the extent 

feasible, a court's role in redistricting should be modest and 

restrained. We are not the branch of government assigned the 

constitutional responsibility to "apportion and district anew" 

after each decennial census; the legislature is.1 The job of the 

judiciary is to decide cases based on the law.2 Here, the laws 

passed in 2011 establishing legislative and congressional 

districts cannot govern future elections as written due to 

population shifts. Accordingly, our role is appropriately 

limited to altering current district boundaries only as needed 

to comply with legal requirements.3 The majority opinion so 

concludes, and I join it in almost all respects.4

 

1 Wis. Const. art. IV, § 3; Jensen v. Wis. Elections Bd., 

2002 WI 13, ¶6, 249 Wis. 2d 706, 639 N.W.2d 537.

2 Serv. Emps. Int'l Union, Loc. 1 v. Vos, 2020 WI 67, ¶1, 

393 Wis. 2d 38, 946 N.W.2d 35.

3 Upham v. Seamon, 456 U.S. 37, 43 (1982) ("Whenever a 

district court is faced with entering an interim reapportionment 

order that will allow elections to go forward it is faced with 

the problem of 'reconciling the requirements of the Constitution 

with the goals of state political policy.' An appropriate 

reconciliation of these two goals can only be reached if the 

district court's modifications of a state plan are limited to 

those necessary to cure any constitutional or statutory defect." 

(citation omitted)); White v. Weiser, 412 U.S. 783, 795 (1973) 

("In fashioning a reapportionment plan or in choosing among 

plans, a district court should not pre-empt the legislative task 

nor 'intrude upon state policy any more than necessary.'" 

(quoting another source)).

4 I concur in the majority's conclusions that: (1) remedial 

maps must comply with the United States Constitution; the Voting 

Rights Act; and Article IV, Sections 3, 4, and 5 of the 

Wisconsin Constitution; (2) we should not consider the partisan 

makeup of districts; and (3) our relief should modify existing 

maps under a least-change approach. I join the entirety of the 

majority opinion except ¶¶8, 69-72, and 81. The paragraphs I do 
No. 2021AP1450-OA.bh

2

¶83 Where the political process has failed and modified 

maps are needed before the next election, the court's function 

is to formulate a remedy——one tailored toward fixing the legal 

deficiencies.5 The majority opinion asserts that only legal 

requirements may be considered in constructing a fitting remedy. 

That is not quite correct. 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.6 For example, one universally 

recognized redistricting criterion is communities of interest.7 

It is not a legal requirement, but it may nonetheless be an 

 

not join contain language that would foreclose considerations 

that could be entirely proper in light of the equitable nature 

of a judicial remedy in redistricting. I address this below.

The dissent uses the term "majority/lead opinion" to 

reflect that not all paragraphs of the court's opinion reflect 

the opinion of four justices. While this is true, I use 

"majority opinion" for ease of use and to convey that the 

opinion is a majority except in the limited area of disagreement 

with the paragraphs I do not join.

5 North Carolina v. Covington, 137 S. Ct. 1624, 1625 (2017) 

(per curiam) ("Relief in redistricting cases is 'fashioned in 

the light of well-known principles of equity.'" (quoting 

Reynolds v. Sims, 377 U.S. 533, 585 (1964))); New York v. 

Cathedral Acad., 434 U.S. 125, 129 (1977) ("[I]n constitutional 

adjudication as elsewhere, equitable remedies are a special 

blend of what is necessary, what is fair, and what is workable." 

(quoting another source)).

6 Covington, 137 S. Ct. at 1625 (explaining that a court in 

a redistricting action "must undertake an 'equitable weighing 

process' to select a fitting remedy for the legal violations it 

has identified" and noting "there is much for a court to weigh" 

(quoting another source)).

7 See Abrams v. Johnson, 521 U.S. 74, 99-100 (1997).
No. 2021AP1450-OA.bh

3

appropriate, useful, and neutral factor to weigh.8 Suppose we 

receive multiple proposed maps that comply with all relevant 

legal requirements, and that have equally compelling arguments 

for why the proposed map most aligns with current district 

boundaries. In that circumstance, we still must exercise 

judgment to choose the best alternative. Considering 

communities of interest (or other traditional redistricting 

criteria) may assist us in doing so.9 In other words, while a 

remedy must be tailored to curing legal violations, a court is 

not necessarily limited to considering legal rights and 

requirements alone when formulating a remedy.

¶84 This does not mean our remedial powers are without 

guardrails.10 And this is where the dissent errs. 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. 

 

8 Id. (noting with approval that a federal district court 

properly considered traditional redistricting criteria 

"includ[ing] maintaining core districts and communities of 

interest" when adopting a redistricting plan).

9 Another example of a traditional and neutral redistricting 

criterion that may assist us, but does not implicate a legal 

right per se, is the goal of minimizing the number of voters who 

must wait six years between voting for their state senator. See

Prosser v. Elections Bd., 793 F. Supp. 859, 864 (W.D. Wis. 

1992).

10 Schroeder v. Richardson, 101 Wis. 529, 531, 78 N.W. 178 

(1899) ("[W]hile the power of a court of equity is quite broad 

where a remedy is called for and legal remedies do not meet the 

situation, it does not extend so far as to clothe the court with 

power to substitute judicial notions of justice for the written 

law.").
No. 2021AP1450-OA.bh

4

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.

¶85 The majority opinion aptly explains that our judicial

role forecloses this; our remedial powers are not so unbounded.11 

It is appropriate for us to start with the laws currently on the 

books because they were passed in accordance with the 

constitutional process and reflect the policy choices the people 

made through their elected representatives.12 Our task is 

therefore rightly focused on making only necessary modifications 

to accord with legal requirements.13 A least-change approach is 

the most consistent, neutral, and appropriate use of our limited 

 

11 Whitcomb v. Chavis, 403 U.S. 124, 161 (1971) ("The 

remedial powers of an equity court must be adequate to the task, 

but they are not unlimited.").

12 Laws do not become any less authoritative simply because 

newly-elected politicians disapprove of them. This court has no 

license to ignore laws based on our own personal policy 

disagreements or those of today's elected officials. The law 

changes by legislation, not by elections. See Vos, 393 

Wis. 2d 38, ¶1.

13 It appears that we also used the pre-existing statutory 

maps as our starting point in State ex rel. Reynolds v. 

Zimmerman, 23 Wis. 2d 606, 128 N.W.2d 16 (1964). While we did 

not expressly adopt a least-change approach, the similarities 

between the remedial maps and the pre-existing statutory maps 

are striking. For example, of the 33 senate districts the court 

drew, 31 consisted of some or all of the same counties as the 

parallel predecessor districts. Compare Reynolds, 23 Wis. 2d at 

617-18 with Wis. Stat. § 4.02 (1963-64). In contrast, only two 

districts——the 28th and the 31st——contained none of the same 

counties as they did under the prior maps. Id.
No. 2021AP1450-OA.bh

5

judicial power to remedy the constitutional violations in this 

case.14

¶86 We asked the parties to brief whether we should use a 

least-change approach, and if not, what approach we should use. 

The main alternative we received15 was an entreaty to use this as 

an opportunity to rearrange district boundaries with the goal of 

reversing what the dissent calls "an obsolete partisan agenda."16 

As the majority opinion explains, the Wisconsin Constitution 

does not preclude the legislature from drawing districts with 

partisan interests in mind.17 In reality, we are being asked to 

make a political judgment cloaked in the veneer of neutrality. 

Namely, we are being asked to conclude that the current maps are 

likely to result in the election of too many representatives of 

one party, so we should affirmatively and aggressively redesign 

maps that are likely to result in the election of more members 

of a different political party. The petition here——that we 

should use our equitable authority to reallocate political power 

 

14 The legislature, on the other hand, may decide for itself 

whether to defer to prior maps when enacting new districts into 

law. The Wisconsin Constitution gives the legislature wide 

discretion to draft new maps from scratch based on the policy 

considerations it chooses. Wis. Const. art. IV, §§ 1, 3.

15 The Legislature suggested we start with their proposed 

maps. But those maps, if not enacted into law, are mere 

proposals deserving no special weight.

16 Dissent, ¶114.

17 The majority opinion concludes a claim for partisan 

gerrymandering is neither cognizable nor justiciable under the 

Wisconsin Constitution. I agree and join the majority's 

holdings and analysis explaining why this is so.
No. 2021AP1450-OA.bh

6

in Wisconsin——is not a neutral undertaking. It stretches far 

beyond a proper, focused, and impartial exercise of our limited 

judicial power.

¶87 With this in view, parties are invited to submit 

congressional and state legislative maps that comply with all 

relevant legal requirements, and that endeavor to minimize 

deviation from existing law.18 Parties should explain in their 

proposals why their maps comply with the law, and how their maps 

are the most consistent with existing boundaries. Parties 

should not present arguments regarding the partisan makeup of 

proposed districts. While other, traditional redistricting 

criteria may prove helpful and may be discussed, our primary 

concern is modifying only what we must to ensure the 2022 

elections are conducted under districts that comply with all 

relevant state and federal laws.

 

18 The Wisconsin Constitution explicitly requires the 

legislature to draw new state assembly and state senate 

districts after each census. Wis. Const. art. IV, § 3. This 

section does not refer to congressional districts. The parties 

dispute whether other provisions of the Wisconsin Constitution 

have anything to say about congressional districts. Regardless 

of the answer to that question, we have explained that 

"congressional reapportionment and state legislative 

redistricting are primarily state, not federal, prerogatives," 

and that "the United States Constitution and principles of 

federalism and comity dictate that the states' role is primary." 

Jensen, 249 Wis. 2d 706, ¶5. Where judicial action is 

necessary, this includes the primary role of state supreme 

courts. Id., ¶11. Accordingly, it is fitting for us to address 

congressional malapportionment claims as well, whether under 

state or federal law.
No. 2021AP1450-OA.rfd

1

¶88 REBECCA FRANK DALLET, J. (dissenting). 

Redistricting is an "inherently political and legislative——not 

judicial——task," even when judges do it. See Jensen v. Wis. 

Elections Bd., 2002 WI 13, ¶10, 249 Wis. 2d 706, 639 N.W.2d 537 

(per curiam). 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. See Johnson v. WEC, No. 2021AP1450-OA, unpublished 

order, at 15-16 (Wis. Sept. 22, 2021) (Dallet, J., dissenting). 

But now that we have stepped out of our traditional judicial 

role and into the "the political thicket" of redistricting, it 

is vital that this court remain neutral and nonpartisan. See

Evenwel v. Abbott, 136 S. Ct. 1120, 1123 (2016). The majority1

all but guarantees that we cannot. First, the majority 

adopts 2011's "sharply partisan" maps as the template for its 

"least-change" approach. See Baldus v. Members of Wis. Gov't 

Accountability Bd., 849 F. Supp. 2d 840, 844 (E.D. Wis. 2012). 

And second, it effectively insulates future maps from being 

challenged as extreme partisan gerrymanders. 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. I therefore 

dissent.

 

1 I refer to Justice Rebecca Grassl Bradley's opinion as the 

"majority/lead opinion," because a majority of the court does 

not join it in its entirety. I refer to the "majority" only 

when discussing conclusions in the majority/lead opinion that 

garnered four votes. 
No. 2021AP1450-OA.rfd

2

I

¶89 The majority/lead opinion's adoption of a "leastchange" approach to evaluating or crafting remedial maps does 

not "remov[e] us from the political fray and ensur[e] we act as 

judges rather than political actors." Majority/lead op., ¶77. 

It does the opposite, inserting the court directly into politics 

by ratifying outdated partisan political choices. In effect, a 

least-change approach that starts with the 2011 maps nullifies 

voters' electoral decisions since then. 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. 

¶90 Although no court in Wisconsin, state or federal, has 

ever adopted a least-change approach, the majority/lead opinion 

would have you believe that other jurisdictions commonly use 

such an approach when starting from legislatively drawn maps. 

But the cases it cites provide virtually no support for this 

approach. One simply involves a state's supreme court approving 

the trial court's selection of a congressional map. Alexander 

v. Taylor, 51 P.3d 1204, 1211 (Okla. 2002). All but one of the 

remaining cases began with court-drawn maps or involved local 

maps drawn for county boards and commissions. See Below v. 

Gardner, 963 A.2d 785, 794 (N.H. 2002). 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. See majority/lead op., ¶73. 

¶91 To be sure, there may be limited circumstances in 

which a least-change approach is appropriate. For example, when 
No. 2021AP1450-OA.rfd

3

a court is redrawing maps based on a prior court-drawn plan, it 

may make sense to make fewer changes since the existing maps 

should already reflect neutral redistricting principles. 

See, e.g., Hippert v. Ritchie, 813 N.W.2d 374, 380 (Minn. 

Special Redistricting Panel 2012) (explaining that the panel 

utilizes a least-change strategy "where feasible"); see also

Zachman v. Kiffmeyer, No. C0-01-160, unpublished order, at 6 

(Minn. Special Redistricting Panel Mar. 19, 2002) (adopting the 

plan that the Hippert court used as its template). Another 

situation where minimizing changes may be appropriate is when a 

court finds localized problems with a plan validly enacted 

through the political process. See Baldus, 849 F. Supp. 2d 

at 859-60 (E.D. Wis. 2012) (holding that two Milwaukee-area 

assembly districts violated the Voting Rights Act, but 

emphasizing that "the re-drawing of lines for [those districts] 

must occur within the combined outer boundaries of those two 

districts" to avoid disrupting the otherwise valid state map).

¶92 Here, however, we are dealing with neither of those 

situations. We are adopting statewide maps to replace a 2011 

plan that the parties all agree is now unconstitutional. More 

to the point, however, the 2011 map was enacted using a "sharply 

partisan methodology" by a legislature no longer in power and a 

governor who the voters have since rejected. See id.

at 844, 851 (adding that it was "almost laughable" that anyone 

would assert that those maps "were not influenced by partisan 

factors"). The partisan character of the 2011 maps is evident 

both in the process by which they were drawn——"under a cloak of 
No. 2021AP1450-OA.rfd

4

secrecy," totally excluding the minority political party2——and in 

their departure from neutral traditional redistricting criteria. 

See id. at 850 (explaining that the court shared "in many 

respects" plaintiffs' expert's concerns that the 2011 maps 

contained "excessive shifts in population, disregard for core 

district populations, arbitrary partisan motivations related to 

compactness, and unnecessary disenfranchisement"). 

¶93 It is one thing for the current legislature to 

entrench a past legislature's partisan choices for another 

 

2 At the outset of the 2011 redistricting process, "the 

Republican legislative leadership announced to members of the 

Democratic minority that the Republicans would be provided 

unlimited funds to hire counsel and consultants" to assist in 

redistricting, while "Democrats . . . would not receive any 

funding." Baldus, 849 F. Supp. 2d at 844-45. One of the 

drafters met with "every single Republican member of the State 

Assembly," but "[h]e did not meet with any Democrats." Id. at 

845. Before each meeting, the participants were required to 

sign confidentiality agreements. Id. Another drafter held 

meetings "with the Republican members [of Congress]," who 

"expressed their desire to draw districts that would maximize 

the chances for Republicans to be elected." Id. at 846. In 

addition to keeping the plan secret from Democratic legislators, 

"[e]very effort was made to keep this work out of the public 

eye." Id. at 845. 
No. 2021AP1450-OA.rfd

5

decade.3 It is another thing entirely for this court to do the 

same. For starters, the least-change approach is not the 

"neutral standard" the majority/lead opinion portrays it as. 

Rather, applying that approach to 2011's maps affirmatively 

perpetuates the partisan agenda of politicians no longer in 

power. It doesn't matter which political party benefits from 

the 2011 maps, only that we cannot start with them and maintain 

judicial neutrality. Moreover, a least-change approach risks 

entrenching 2011's partisan agenda in future redistricting 

cycles. If the party that benefits from the maps adopted in 

this case controls only the legislature for the next 

redistricting cycle, it has every incentive to ensure an 

impasse. After all, an impasse will result in the court 

changing the maps as little as possible——thus preserving that 

party's hold on power. The point is, the least-change approach 

is anything but a "neutral standard." Majority/lead op., ¶76. 

 

3 The majority/lead opinion hints that a least-change 

approach is appropriate because the 2011 maps were "codified as 

statutes, without a sunset provision, and have not been 

supplanted by new law." Majority/lead op., ¶72 n.8. But both 

the Wisconsin and U.S. Constitutions require that all maps be 

redrawn every ten years to account for population shifts since 

the prior census. See Wis. Const. art. IV, § 3 (requiring the 

legislature to "apportion and district anew the members of the 

senate and assembly" in the first session after each census); 

see also Reynolds v. Sims, 377 U.S. 533 (1964); Baker v. Carr, 

369 U.S. 186 (1962). These are the sunset provisions. In this 

respect, the 2011 maps are unlike an ordinary unconstitutional 

statute, since they were enacted without any expectation of 

longevity. Indeed, at this point they are a practical nullity. 

Accordingly, the majority/lead opinion's comparisons to the 

typical remedies when a court finds a statute unconstitutional 

are inapt. See id., ¶¶67, 72 & n.8. And the fact that the maps 

have "not been supplanted by new law," id., ¶72 n.8, is 

precisely the reason why the court is redistricting at all. It 

is hardly a reason to treat the prior maps as a valid template.
No. 2021AP1450-OA.rfd

6

¶94 True neutrality could be achieved by instead adhering 

to the neutral factors supplied by the state and federal 

constitutions, the Voting Rights Act, and traditional 

redistricting criteria. The population equality (i.e., "one 

person, one vote") principles in the state and federal 

constitutions and the federal Voting Rights Act, 52 

U.S.C. § 10301(a), are universally acknowledged as politically 

neutral and central to any redistricting plan. Likewise for the 

remaining requirements of the Wisconsin Constitution, 

compactness, contiguity, and respect for political subdivision 

boundaries. Wis. Const. art. IV, §§ 3, 4. In addition to these 

constitutional and statutory baselines, neutral factors include 

other "traditional redistricting criteria" such as compactness,4

preserving communities of interest, and minimizing "senate 

disenfranchisement."5 E.g., Baumgart v. Wendelberger, 

No. 01-C-0121, 2002 WL 34127471, at *3 (E.D. Wis. May 30, 2002). 

¶95 The traditional redistricting criteria, however, are 

glaringly absent from the majority/lead opinion. A charitable 

 

4 Unlike the Wisconsin Constitution, the U.S. Constitution 

does not impose a compactness requirement on congressional 

districts. Nonetheless, compactness is one of the traditional 

redistricting criteria applied by courts drawing congressional 

maps or reviewing legislatively-drawn ones. See, e.g., 

Baldus, 849 F. Supp. 2d at 850; Prosser v. Elections Bd., 793 

F. Supp. 859, 863 (W.D. Wis. 1992).

5 Senate disenfranchisement occurs when a voter is shifted 

from an odd-numbered senate district (which votes only in 

midterm election years) to an even-numbered senate district 

(which votes only in presidential election years), thereby 

delaying for two years the voter's ability to vote for her state 

senator. See Baumgart v. Wendelberger, No. 01-C-0121, 2002 WL 

34127471, at *3 (E.D. Wis. May 30, 2002). 
No. 2021AP1450-OA.rfd

7

read of the majority/lead opinion is that whatever factors it 

doesn't discuss——preserving communities of interest and 

minimizing senate disenfranchisement, for example——are 

sufficiently baked into the 2011 maps such that we can simply 

rebalance the populations of existing districts and call it a 

day. But, as mentioned previously, there is good reason to 

doubt that the 2011 maps meaningfully balanced any of the 

traditional redistricting criteria.

¶96 For one thing, while the 2011 maps were attacked in 

federal court for failing to satisfy some of the traditional 

redistricting criteria, the federal court examined those 

criteria only to the extent needed to justify constitutionally 

suspect population deviations between districts. See

Baldus, 849 F. Supp. 2d at 849-52. As a result, the federal 

court made no finding, for example, that the prior maps 

adequately accounted for communities of interest. In fact, the 

federal court noted that it shared many of plaintiffs' expert's 

concerns that the maps did not do so. See id. at 851. 

¶97 For another thing, even if the 2011 maps reflected the 

traditional redistricting criteria when they were adopted, we 

cannot assume that they still reflect those criteria today. 

Population shifts over the last ten years may have expanded or 

altered existing communities of interest, and various ways of 

equalizing the populations of state legislative districts may 

result in unnecessary senate disenfranchisement. This is why 

even when other courts use a least-change approach, they 

acknowledge that traditional redistricting criteria might still 

require more substantial changes. See, e.g., Alexander, 51 P.3d 
No. 2021AP1450-OA.rfd

8

at 1211 (starting with the prior legislatively enacted map but 

considering "[w]idely recognized neutral redistricting criteria"

including core retention, communities of interest, and avoiding 

incumbent pairing); Hippert, 813 N.W.2d at 380-82, 385-86 (using 

"a least-change strategy where feasible" alongside 

considerations of communities of interest and incumbent 

residences).

¶98 In this case we are adopting new maps, not reviewing 

legislatively enacted ones. We should therefore ensure that the 

maps we adopt are the "best that c[an] be managed" under all 

relevant criteria, especially since we know that there is no 

single dispositive factor in crafting districts. See Prosser v. 

Elections Bd., 793 F. Supp. 859, 863 (W.D. Wis. 1992); see also

Baldus, 849 F. Supp. 2d at 850 (explaining that "factors like 

homogeneity of needs and interests, compactness, contiguity, and 

avoidance of breaking up counties, towns, villages, wards, and 

neighborhoods," not just population equality, "are all necessary 

to achieve" a representative democracy). Adopting the best maps 

possible based on all the relevant criteria protects our 

neutrality and ensures that the resulting districts foster a 

representative democracy. That is, in part, why the last three 

federal courts to draw Wisconsin's districts took a similar 

tack. See Baumgart, 2002 WL 34127471, at *2 ("The 

reapportionment of state legislative districts requires 

balancing of several disparate goals."); Prosser, 793 F. Supp. 

at 865 ("The issue for us is therefore remedy: not, [i]s some 

enacted plan constitutional? But, [w]hat plan shall we as a 

court of equity promulgate in order to rectify the admitted 
No. 2021AP1450-OA.rfd

9

constitutional violation? What is the best plan?"); Wis. State 

AFL-CIO v. Elections Bd., 543 F. Supp. 630, 637 (E.D. Wis. 1982)

(discussing the traditional redistricting criteria before 

adopting the court's own plan, without deference to the last set 

of maps adopted by the legislature). Along the way, we may have 

to make fewer changes in some places, and more changes in 

others. See Robert Yablon, Gerrylaundering, 97 N.Y.U. L. Rev. 

(forthcoming 2022) (explaining that in redistricting "we should 

not reflexively embrace the past for the sake of stability," but 

"we also should not reflexively embrace change above all else"). 

But resorting to a least-change approach does not help us 

balance the relevant factors. 

¶99 More concerning than its silence regarding the 

traditional redistricting criteria is the possibility that the 

majority/lead opinion will prioritize its atextual least-change 

approach over the text of the Wisconsin Constitution. The 

Wisconsin Constitution imposes several substantive requirements 

on assembly districts, including that they be in "as compact 

form as practicable." Wis. Const. art. IV, § 4. The 

majority/lead opinion's reasoning suggests that, despite that 

constitutional directive and even if a more compact set of 

population-equalizing assembly maps is "practicable," the court 

is free to adopt a less compact set of maps simply because they 

make fewer changes to the 2011 plan. That cannot be right. The 

least-change principle is found nowhere in the Wisconsin or U.S. 

Constitutions. Constitutionally mandated criteria do not take a 

back seat to extra-constitutional methods like least-change. 

See Yablon, supra (explaining that nothing would "license the 
No. 2021AP1450-OA.rfd

10

legislature to adopt a map that subordinates the[] criteria [of 

the Wisconsin Constitution] to an extra-legal preference" for 

minimal changes to the previous maps). 

¶100 Likewise, the text of the Wisconsin Constitution 

provides no support for the majority's hierarchical distinctions 

between its various criteria. Nowhere does the Constitution 

relegate to "secondary importance" the requirements of 

compactness, contiguity, and respect for political subdivision 

boundaries found in Article IV, § 4. Contra majority/lead 

op., ¶34 (citing Wis. State AFL-CIO, 543 F. Supp. at 635). And 

the majority offers no legitimate explanation for why some 

constitutional requirements are more important than others. The 

source it cites for this supposed primary/secondary 

distinction——Wisconsin State AFL-CIO——is of no help because that 

case found the distinction in an Illinois case citing the 

Illinois Constitution. See Wis. Stat. AFL-CIO, 543 F. Supp. 

at 635 (citing People ex rel. Scott v. Grivetti, 277 N.E.2d 881 

(Ill. 1971)). Just as we cannot allow an atextual approach, 

such as least-change, to supersede the Constitution's text, we 

cannot pretend that some constitutional provisions are more 

important than others. 

¶101 Finally, the majority fails to flesh out exactly what 

a least-change approach entails, thus leaving the parties with 

little actual guidance. What exactly, should the parties change 

the least? Does "least change" refer to the fewest changes to 

districts' boundary lines? The fewest number of people moved 

from one district to the next? Moreover, based on recent 

population shifts, what is the feasibility of a least-change 
No. 2021AP1450-OA.rfd

11

approach? Hippert, 813 N.W.2d at 381 ("[P]opulation shifts 

within the state, however, sometimes [render] a least-change 

approach . . . not feasible."). For example, Dane County has 

gained more than 73,000 residents since the last census——more 

than the optimal population of an entire assembly district.6 

Meanwhile, Milwaukee County and many of the state's rural areas 

have seen slow growth or outright declines in population.7 These 

population shifts suggest that the 2011 district lines, 

particularly on a legislative level, may not provide a very 

useful template for crafting a remedial plan.

II

¶102 In an unnecessary and sweeping overreach, the majority 

effectively insulates future maps from constitutional attack by 

holding that excessive partisan gerrymandering claims are not 

viable under the Wisconsin Constitution. It gets there by 

answering a constitutional question that we never asked, that 

the parties did not brief, and that is immaterial to this case.8 

The majority seems to think that, because it fails to "find a 

right to partisan fairness in . . . the Wisconsin Constitution," 

the court cannot consider, for any reason, the partisan effects 

of remedial maps. Majority/lead op., ¶53. But there is no 

 

6 See https://www.census.gov/quickfacts/fact/table/milwaukee

countywisconsin,danecountywisconsin,marinettecountywisconsin/PST

045219.

7 See id.

8 The question we actually asked was whether the "partisan 

makeup of districts [is] a valid factor for us to consider in 

evaluating or creating new maps." Johnson v. WEC, 

No. 2021AP1450-OA, unpublished order, at 2 (Wis. Oct. 14, 2021).
No. 2021AP1450-OA.rfd

12

logical connection between these conclusions. In fact, 

willfully blinding the court to the partisan makeup of districts

increases the risk that we will adopt a partisan gerrymander.

A

¶103 The majority's gratuitous discussion of whether claims 

of extreme partisan gerrymandering are cognizable under the 

Wisconsin Constitution starts with a flawed reading of the 

United States Supreme Court's decision in Rucho v. Common Cause, 

139 S. Ct. 2484 (2019). There, the Court held that excessive 

partisan-gerrymandering claims were not justiciable under the 

federal constitution because there were no judicially manageable 

standards by which federal courts could determine that 

gerrymandering had gone too far. Id. at 2498-2502 (clarifying 

that the Court does "not condone excessive partisan 

gerrymandering"). The Court observed, however, that this 

remained an open question under state constitutions. Id.

at 2507-08. It should be obvious that here, because we have no 

partisan gerrymandering claim before us, Rucho is irrelevant. 

Several parties have urged us not to adopt a map tantamount to a 

partisan gerrymander, and some have pointed out that Wisconsin's 

current legislative and congressional districts are the result 
No. 2021AP1450-OA.rfd

13

of a "sharply partisan methodology."9 See Baldus, 849 

F. Supp. 2d at 844. But nobody argues that we should strike 

down any existing map on the basis that it is an extreme 

partisan gerrymander. Without an excessive partisangerrymandering claim before us, there is no reason for the 

majority to issue an advisory opinion about whether such claims 

are cognizable under the Wisconsin Constitution.

¶104 That said, even if someone had brought such a claim, 

the majority is wrong that determining when partisan 

gerrymandering has gone too far is a non-justiciable political 

question under the Wisconsin Constitution. It is not, as the 

majority claims, "obvious[ly]" impossible to develop judicially 

manageable standards for judging when partisan gerrymandering is 

excessive. Indeed, other state courts have done it. See League 

of Women Voters of Pa. v. Pennsylvania, 178 A.3d 737, 814, 821 

(Pa. 2018) (holding that claims of extreme partisan 

gerrymandering are cognizable under the Pennsylvania 

Constitution and striking down the state's congressional map on 

that basis); Common Cause v. Lewis, No. 18CVS014001, 2019 

WL 4569584, at *2-3 (N.C. Super. Ct. Sept. 3, 2019) (striking 

down state legislative maps as "extreme partisan 

 

9 The majority mischaracterizes this argument as advocating 

a "proportional party representation" requirement. See

majority/lead op., ¶¶42, 47. No party has suggested that the 

court should radically reform our system of government to ensure 

the political parties are represented in proportion to their 

percentage of the statewide vote. In fact, the only party that 

argues for a constitutional requirement that the court consider 

partisan metrics acknowledges that proportional representation 

by political party is unattainable given single-member districts 

and the political geography of Wisconsin.
No. 2021AP1450-OA.rfd

14

gerrymandering"). And the federal courts had done it before 

Rucho. See, e.g., Ohio A. Philip Randolph Inst. v. 

Householder, 373 F. Supp. 3d 978, 1078 (S.D. Ohio 2019) 

(concluding that "workable standards, which contain limiting 

principles, exist so that courts can adjudicate [partisan] 

gerrymandering claims just as they have adjudicated other types 

of gerrymandering claims"), vacated and remanded sub nom. Chabot 

v. Ohio A. Philip Randolph Inst., 140 S. Ct. 102 (2019); League 

of Women Voters of Mich. v. Benson, 373 F. Supp. 3d 867, 911-12 

(E.D. Mich. 2019) (explaining that "lower federal courts have 

formulated judicially-manageable standards for adjudicating 

partisan gerrymandering claims"), vacated and remanded sub nom.

Chatfield v. League of Women Voters of Mich., 140 S. Ct. 429 

(2019). There is no reason why we could not develop similar 

standards to judge such claims in Wisconsin. 

¶105 In any case, there is no need for us to decide this 

question now. We have no claim of excessive partisan 

gerrymandering before us. We should wait until we do and then

decide——with the benefit of full briefing from the parties——

whether our Constitution protects a practice that is 

"incompatible with democratic principles." See Ariz. State 

Legis. v. Ariz. Ind. Redistricting Comm'n, 135 S. Ct. 2652, 2658 

(2015).

B

¶106 Although the majority's rejection of extreme partisangerrymandering claims has no effect on the outcome of this case, 

it likely has far-reaching consequences for future redistricting 
No. 2021AP1450-OA.rfd

15

cycles. Discarding a potential limitation on partisan 

gerrymandering gives future legislators and governors a green 

light to engage in a practice that robs the people of their most 

important power——to select their elected leaders. See The 

Federalist No. 37, at 4 (James Madison) ("The genius of 

republican liberty seems to demand on one side, not only that 

all power should be derived from the people, but that those 

[e]ntrusted with it should be kept in independence on the 

people.").

¶107 Extreme partisan gerrymandering strikes at the 

foundation of that power. Representative government demands 

"that the voters should choose their representatives, not the 

other way around." Ariz. State Legis., 135 S. Ct. at 2677 

(internal quotation marks omitted). Extreme partisan 

gerrymandering turns that on its head. It allows a party in 

power to draw district lines that guarantee its hold on power 

for a decade or more, no matter what the voters choose.

¶108 No problem, the majority says, "[e]ven after the most 

severe partisan gerrymanders, citizens remain free" to run for 

office, express their views, and vote for the candidates of 

their choice. Majority/lead op., ¶60. But the problem with 

extreme partisan gerrymandering isn't that it literally denies 

people the right to vote or run for office. It's that extreme 

gerrymandering distorts the political process so thoroughly that 

those rights can become meaningless. No matter how warped the 

process becomes, post-Rucho, the federal courts cannot 

intervene. Now, the majority all but guarantees that we won't 

either.
No. 2021AP1450-OA.rfd

16

C

¶109 The majority's misapplication of Rucho leads it to 

conflate how the court might analyze legislatively drawn maps 

with how it should select or draw remedial ones. That error is 

evident from the start, as the majority frames the analysis 

around the question of whether we "should judge maps for 

partisan fairness," regardless of who draws them. Majority/lead 

op., ¶39. But "who draws them" makes all the difference. There 

is a significant difference between second-guessing the partisan 

fairness of a map drawn by an inherently partisan legislature, 

which "would have the virtue of political legitimacy," and our 

task here, which is to "pick[] the [plan] (or devis[e] our own) 

most consistent with judicial neutrality." See Prosser, 793 F. 

Supp. at 867. We are not asked to determine if maps enacted by 

the legislature through the normal legislative process amount to 

an unconstitutional partisan gerrymander. Cf. Rucho, 139 S. Ct. 

at 2507. Rather, we are adopting maps because that process has 

failed. In doing so, we must act consistent with our role as a 

non-partisan institution and avoid choosing maps designed to 

benefit one political party over all others. See Prosser, 793 

F. Supp. at 867. The people rightly expect courts to redistrict 

in neutral ways.

¶110 The majority claims that considering partisanship for 

any reason is inconsistent with judicial neutrality. That allor-nothing position distorts the nuanced reality of the court's 

role in redistricting. Other courts' redistricting experience 

shows that partisanship is just another one of the many factors 

a court must balance when enacting remedial maps.
No. 2021AP1450-OA.rfd

17

¶111 The last three courts to tackle redistricting in 

Wisconsin all considered partisan effects alongside other 

generally accepted neutral factors when evaluating and choosing 

remedial maps. See Baumgart, 2002 WL 34127471, at *3-4 

(rejecting maps proposed by the parties on the grounds that they 

were drawn to preserve or obtain partisan advantage); 

Prosser, 793 F. Supp. at 867-68, 870-71 (analyzing the partisan 

effects of several proposals before ultimately adopting a courtdrawn plan that was "the least partisan"); Wis. State 

AFL-CIO, 543 F. Supp. at 634. Those courts considered the 

partisan effects of their decisions not to enact their 

subjective view of what is politically fair but because courts, 

unlike legislatures, should not behave like political entities:

Judges should not select a plan that seeks partisan 

advantage——that seeks to change the ground rules so 

that one party can do better than it would do under a 

plan drawn up by persons having no political agenda——

even if they would not be entitled to invalidate an 

enacted plan that did so.

Prosser, 793 F. Supp. at 867; see also Baumgart, 2002 

WL 34127471, at *3 (following Prosser); Jensen, 249 

Wis. 2d 706, ¶12 (quoting Prosser). The Indiana Supreme Court 

likewise declined to enact "a plan that represents one political 

party's ideas of how district boundaries should be drawn 

[because doing so] does not conform to the principle of judicial 

independence and neutrality." Peterson v. Borst, 786 

N.E.2d 668, 675 (Ind. 2003).

¶112 Indeed, although it sounds contradictory, the only way

for the court to avoid unintentionally selecting maps designed 

to benefit one political party over others is by considering the 
No. 2021AP1450-OA.rfd

18

maps' likely partisan effects. The United States Supreme Court 

has suggested as much, explaining that taking a "politically 

mindless approach" to redistricting may lead to "grossly 

gerrymandered results," "whether intended or not." Gaffney v. 

Cummings, 412 U.S. 735, 753 (1973). Refusing to consider 

partisan effects only increases the risk that the court will be 

used, intentionally or not, to achieve partisan ends. This is 

especially true when our starting point is 2011's indisputably 

partisan maps.

III

¶113 I close with a lingering question that the 

majority/lead opinion surprisingly leaves unaddressed: Exactly 

what maps are we talking about——congressional and state 

legislative maps or only the latter? There is evidence in the 

majority/lead opinion to support both answers. On the one hand, 

the majority/lead opinion begins by discussing the legislature's 

duty under Article IV, § 3 of the Wisconsin Constitution "to 

apportion and district anew the members of the senate and 

assembly," and later explains that this requirement does not 

apply to congressional districts. See majority/lead op., ¶¶1, 

13 & n.4. That suggests only state legislative maps are at 

play. On the other hand, the majority/lead opinion identifies 

redistricting principles applicable to congressional maps under 

the federal constitution, but without stating that it intends to 

draw new congressional maps. See id. ¶¶24-25. Similarly, the

majority/lead opinion states at different times that it intends 

to remedy the "malapportionment" of "each legislative district," 
No. 2021AP1450-OA.rfd

19

id., ¶4 (emphasis added), but also that "any judicial remedy" in 

this case will be confined "to making the minimum changes 

necessary in order to conform the existing congressional and 

state legislative redistricting plans to constitutional and 

statutory requirements." Id., ¶8 (emphasis added). At least 

two parties, the Hunter Plaintiffs and the Congressmen, have 

suggested that they intend to litigate what, if anything, the 

Wisconsin Constitution has to say about congressional 

redistricting, but so far the court has no motion or other 

briefing on that question. So it is unclear from the start what 

the majority/lead opinion is even addressing.

IV

¶114 The majority repeatedly protests that any approach 

other than its preferred one would undermine our non-partisan 

role and imperil the legitimacy and independence of the 

judiciary. But the neutral principles supplied by the U.S. and 

Wisconsin Constitutions, the Voting Rights Act, and the 

traditional redistricting criteria can preserve our independence 

while still guiding the parties and the court towards resolving 

this case. The majority deals a striking blow to representative 

government in Wisconsin by ignoring those neutral principles and 

committing the court to an approach that prioritizes an obsolete 

partisan agenda. I therefore dissent. 

¶115 I am authorized to state that Justices ANN WALSH 

BRADLEY and JILL J. KAROFSKY join this dissent.
No. 2021AP1450-OA.rfd