The viability of partisan gerrymandering claims in Wisconsin is unclear. In the wake of the state legislature and governor’s inability to enact legislative maps for the 2020 redistricting cycle, the Wisconsin Supreme Court declined to consider partisan fairness when assessing which remedial legislative plan to adopt. Johnson v. Wis. Elections Comm’n, 967 N.W.2d 469, 482 (Wis. 2021). Echoing Rucho’s interpretation of the federal constitution, the court stated that assessing partisan fairness presented a nonjusticiable political question under the state constitution. Id. at 482–85. It also concluded that the Wisconsin Constitution lacks a right “to a particular partisan configuration.” Id. at 482, 485–88. However, after a judicial election changed the court’s composition, the court disavowed its prior ruling and held that it should seek to assure partisan neutrality when choosing a map to remedy the violation of other constitutional provisions. Clarke v. Wis. Elections Comm’n, 998 N.W.2d 370, 399–400 (Wis. 2023).[1] Though the court has yet to adjudicate a partisan gerrymandering claim, it has signaled an openness to doing so. See id. at 380 (noting that a claim for partisan gerrymandering “present[s] an important and unresolved legal question” and declining to review the petitioners’ partisan gerrymandering claim in the first instance because it would require “extensive fact-finding” better suited for a trial court).
Endnote
[1] The court articulated four other principles in addition to maintaining partisan fairness that will guide it in adopting remedial plans, including the maps’ compliance with (1) population equality requirements; (2) the Wisconsin Constitution’s redistricting criteria (Art. IV, §§ 2, 4–5); (3) federal law; and (4) traditional redistricting criteria not specifically outlined in the Wisconsin Constitution or United States Constitution but still commonly considered by courts required to draw maps. Id. at 398–99.