Maps, Elections, and Governmental Power: A review of the Wisconsin Supreme Court’s 2021-22 Term & preview of 2022-23

By: Dustin Brown, Senior Staff Attorney

The Wisconsin Supreme Court term that ended in July will leave a lasting imprint on the state’s democratic system. This recap of the court’s 2021-22 term highlights four of the court’s most consequential cases—two involving elections and two involving the scope and balance of governmental powers.

In perhaps its most important case, the court stepped into the redistricting impasse between the political branches and adopted so-called “least change” maps that carry forward the previous decade’s partisan gerrymanders. In a separate election-related case, the court prohibited ballot drop boxes and barred voters from letting someone else hand in their absentee ballot. The court also weighed in on the scope and distribution of government powers. It held that a holdover executive appointee from a previous administration could continue to serve even after his term had expired, thwarting the governor’s bid to replace him. Meanwhile, in a case involving the government’s response to COVID-19, the court affirmed the ability of local executive officials to issue and enforce public health orders.

Division among the court’s seven justices was unprecedented. The court split 4-3 in 54 percent of the term’s 52 decisions, with the justices often exchanging heated rhetoric. This was the highest rate of 4-3 decisions in the 75 years of records maintained by Marquette University Professor Alan Ball’s SCOWstats website.[1] One-third of the term’s decisions were unanimous, and 14 percent had one or two dissenters.[2]

Six justices consistently fell within two voting blocs. Three of the court’s more conservative members (Chief Justice Annette Ziegler and Justices Patience Roggensack and Rebecca Grassl Bradley) voted together in 92 percent of cases. Their three more liberal colleagues (Justices Ann Walsh Bradley, Rebecca Dallet, and Jill Karofsky) were only slightly less cohesive at 88 percent. Justice Brian Hagedorn, a jurist with a conservative judicial philosophy, solidified his status as the court’s swing justice by joining the majority in all but four of the court’s 4-3 rulings. Out of those 24 decisions, he voted equally with the court’s conservative and liberal wings.[3]

Looking ahead, the court opened its 2022-23 term in September with a case challenging the language of the ballot question under which Wisconsin voters adopted Marsy’s Law, a constitutional amendment enhancing the rights of crime victims. Meanwhile, with Justice Patience Roggensack having announced her retirement at the end of this term, the April 2023 election to fill her seat opens the potential to shift the court’s balance following years of conservative dominance.

Voting rights: Gerrymandering survives—but drop boxes don’t.

In a case with major implications for the state’s political landscape, Johnson v. Wisconsin Elections Commission, the Wisconsin Supreme Court waded into the redistricting thicket for the first time in more than half a century.[4] The court’s string of three decisions—one of which was summarily reversed by the U.S. Supreme Court—produced a set of legislative and congressional maps that reflect the “least changes” from the previous decade’s heavily gerrymandered districts. The result is the most politically skewed state legislative map that any U.S. court has adopted in at least a generation.[5]

In Wisconsin’s previous round of redistricting back in 2011, the state legislature—with a Republican majority and Governor Scott Walker in office—adopted “sharply partisan” maps that distributed voters in a way that ultimately ensured Republican control of the legislature for the next ten years.[6] Although a panel of federal judges concluded in 2016 that the maps were an “unconstitutional political gerrymander” and ordered that they be redrawn,[7] the U.S. Supreme Court later foreclosed such claims as presenting “political questions” that are “beyond the reach of the federal courts.”[8] And so the maps remained.

The legislature took those maps as its starting point when the U.S. Census Bureau released the results of the 2020 census, which triggered a new round of redistricting. Given that the previous decade’s partisan gerrymander had been so effective, no significant changes were needed for Republicans to retain their structural advantage.

Unlike ten years earlier, however, the governor’s office in 2021 was occupied by a Democrat, Tony Evers, who vetoed the legislature’s maps when they reached his desk.[9] The impasse meant that the maps would have to be adopted by a court—but an initial question was, which one? In three of the four prior redistricting cycles, a federal court had drawn maps for the state,[10] but the Wisconsin Supreme Court was also a potential forum—and, indeed, federal courts are generally required to give state courts the first opportunity to establish maps when the political branches deadlock.[11] After competing groups of plaintiffs filed suit in state and federal court, the Wisconsin Supreme Court in September 2021 voted 4-3 to hear the case as an original action.[12] The court’s conservatives formed the majority, while the three liberals would have left the matter to the federal courts. It was the first time the court assumed responsibility for redistricting since 1964.[13]

The court issued three published opinions in less than five months. The first was perhaps the most significant. Again by a 4-3 vote, with conservatives in the majority, the court held that it would adopt maps reflecting “the ‘least change’ necessary for the maps to comport with relevant legal requirements” and would not consider the partisan makeup of the districts.[14] Echoing the U.S. Supreme Court’s reading of the federal constitution, the court concluded that the Wisconsin Constitution does not establish a right to partisan fairness.[15] As a result, the Wisconsin Supreme Court closed a door that Chief Justice John Roberts had left open two years earlier when, in foreclosing partisan gerrymandering claims in federal court, he identified state constitutions and state courts as a potential bulwark against politically skewed maps.[16] In dissent, Justice Dallet accused the majority of elevating “outdated partisan choices over neutral redistricting criteria” with “potentially devastating consequences for representative government in Wisconsin.”[17]

Having set the parameters in its first opinion, the court still needed to adopt the maps themselves. Rather than drawing districts itself, the court chose to select from among options presented by the parties. In its second opinion, the court again divided 4-3, but this time with Justice Hagedorn authoring an opinion joined the court’s three more liberal justices.[18] They selected the maps Governor Evers submitted for congressional districts, the state senate, and state assembly. Those maps, they concluded, best adhered to the court’s earlier “least change” directive because they moved the fewest people to new districts—a concept known as “core retention.”[19] The court also found that there were “good reasons” to think that the federal Voting Rights Act required the addition of a seventh majority-Black assembly district in the Milwaukee area, which the governor’s plan included.[20]

Although that result won a majority, six of the seven justices voiced objections. In a concurrence joined by Justices Dallet and Karofsky, Justice Ann Walsh Bradley reiterated her misgivings about the court’s “least change” directive—even as she agreed that the governor’s maps best adhered to that approach.[21] Meanwhile, Chief Justice Ziegler and Justices Roggensack and Rebecca Bradley, each writing dissents joined by the other two, explained that they would have adopted the legislature’s proposed maps rather than the governor’s.[22] The dissenters accused the majority of misconstruing the “least change” analysis and unconstitutionally considering race in the Milwaukee assembly districts.[23]

That last conclusion prompted the legislature and its allies to seek review from the U.S. Supreme Court, which summarily reversed the Wisconsin Supreme Court as to the legislative districts and called for a more probing factual analysis to determine whether a seventh Black-majority district was indeed necessary.[24] Dissenting, Justice Sonia Sotomayor described the U.S. Supreme Court’s intervention as “unprecedented.”[25] The U.S. Supreme Court did not disturb the Wisconsin Supreme Court’s decision to adopt the governor’s congressional map.

On remand, the Wisconsin Supreme Court issued its third and final opinion, once again splitting 4-3. With Justice Hagedorn rejoining the other members of the court’s conservative bloc, the court adopted the state legislature’s proposed assembly and senate maps, concluding that they “are race neutral” and “exhibit minimal changes to the existing maps.”[26] In a dissent joined by Justices Ann Walsh Bradley and Dallet, Justice Karofsky described the court’s foray into redistricting as an ill-advised “odyssey,” featuring “numerous wrong turns” that led to “legally unacceptable maps.”[27] In the end, the maps the court chose—like the maps they replace—virtually guarantee a Republican majority in the state assembly, state senate, and Wisconsin congressional delegation, even if Democrats win more votes statewide.

In the term’s second major voting rights case, Teigen v. Wisconsin Elections Commission, two voters challenged guidance from the Wisconsin Elections Commission that aimed to facilitate absentee voting during the COVID-19 pandemic.[28] The pair of memos, issued by WEC Administrator Meagan Wolfe ahead of 2020’s spring and fall elections, authorized municipal clerks to collect absentee ballots in unmanned drop boxes and also declared that “[a] family member or another person . . . may return the ballot on behalf of the voter.”[29] By spring 2021, local election had installed 570 ballot drop boxes[30]—echoing a nationwide trend that saw drop boxes deployed in 39 states for the 2020 presidential election.[31]

In another 4-3 opinion, Justice Rebecca Bradley rejected WEC’s guidance and held that ballot drop boxes are contrary to state law.[32] The majority focused on language in Wisconsin’s absentee voting statute that requires absentee ballots to “be mailed by the elector, or delivered in person, to the municipal clerk.”[33] According to the majority, depositing an absentee ballot in a drop box does not qualify as submission to a clerk; instead, absentee ballots may only be returned to the clerk’s office or a designated alternate voting site.[34] The majority additionally concluded that, because the law refers to absentee ballots being “delivered in person,” voters may only submit their own absentee ballots and may not return the completed ballots of family members or others.[35] The majority declined to address whether voters who choose to return their absentee ballots by mail may have someone else assist them.[36]

In dissent, Justice Ann Walsh Bradley contended that the majority’s reading “ignores an important distinction”: the statute says “municipal clerk” and not—as the statutes do elsewhere—the municipal clerk’s office.[37] In the dissent’s view, nothing in the statute precludes municipal clerks from establishing a drop box as “simply another way” for voters “to deliver a ballot ‘to the municipal clerk.’”[38] The dissent likewise rejected the majority’s understanding of the phrase “delivered in person,” explaining that the statute nowhere stated that the in-person delivery had to be made by the elector. The dissent reasoned that the statute’s use of the passive voice indicated that the legislature was indifferent to the deliverer’s identity.[39]

Additionally, the dissent took issue with the majority’s permissive approach to legal standing, expressing concern that will “create a free-for-all” because it “delineates no bounds whatsoever on who may challenge election laws.” As the dissent saw it, the plaintiffs in the case had not experienced the sort of injury that is traditionally required to initiate a lawsuit.[40]

In the wake of the court’s ruling, a federal lawsuit was filed by homebound voters with disabilities who cannot return their absentee ballots without assistance. An order issued in that case at the end of August held that federal law gives such voters a right to be assisted and ordered the WEC to “instruct municipal clerks on their duty to accommodate disabled voters,”[41] which the WEC did the following week.[42]

 Executive power and government accountability: Local health officials—and holdover state board members—retain power (for now).

In the first of two important cases addressing executive power, Becker v. Dane County, the court rejected a challenge to the authority asserted by Dane County’s public health officer during the pandemic and declined to apply a reinvigorated non-delegation doctrine to constrain local officials.[43] The plaintiffs in Becker questioned the validity of orders issued by Janel Heinrich, the director of Public Health Madison & Dane County—a position jointly appointed by the mayor and county executive, with approval by the county board and city common council. The contents of her orders, which mandated face masks and restricted gatherings (among other things), were not at issue—only her ability to make them. To that end, Wisconsin statutes empower local health officials like Heinrich to “promptly take all measures necessary to prevent, suppress and control communicable diseases” and “do what is reasonable and necessary for the prevention and suppression of disease.”[44]

Dividing 4-3, the court concluded in an opinion by Justice Karofsky that the verbs “take” and “do” “plainly support acting by order,” and that state statutes do not preempt the Dane County ordinance that allowed Heinrich to enforce her orders with civil citations.[45] In addition, the court rejected the argument that Heinrich’s powers reflected an unconstitutional delegation of legislative authority—by the state legislature or the county board—to a local health officer.[46]

In reaching that last conclusion, the majority refused to expand Wisconsin’s non-delegation doctrine to cover local governments.[47] The doctrine, an outgrowth of the constitutional separation of powers, limits a legislature’s ability to delegate its power elsewhere (like to an executive agency or official). Although it is rare for courts to fault legislatures for making excessive delegations, members of the U.S. Supreme Court have recently expressed an interest in revitalizing the doctrine, a development with potential to reverberate at the state level.[48]

Notably, while Justice Hagedorn joined the majority and agreed that the plaintiffs failed to make their case for “a more robust judicial enforcement of the non-delegation doctrine” at the state and local level, he stressed in a concurrence his openness to “more broadly reconsidering our approach to the nondelegation doctrine in future cases.”[49] In dissent, the court’s other conservative justices expressed support for just such a reconsideration. Justice Rebecca Bradley characterized Heinrich’s orders as “tyranny” and her powers as “dictatorial”—language that drew a rebuke from the majority.[50] Zeroing in on the nondelegation question, the dissenters acknowledged that the Wisconsin Constitution permitted the legislature to delegate power to elected county boards, but they balked at the county board’s sub-delegation to anyone else.[51]

While local health officials retained their authority, the governor lost his own power struggle with the legislature over his executive appointment authority in State ex rel. Kaul v. Prehn.[52] That case arose out of the refusal of Fred Prehn, a Scott Walker-appointee to the Department of Natural Resources Board, to vacate his seat when his six-year-term expired on May 1, 2021. Board members are nominated by the governor and appointed with the advice and consent of the senate.[53] Although Governor Evers appointed Sandra Dee E. Naas to replace Prehn, the Republican-controlled senate has not acted on her nomination. Attorney General Josh Kaul sued to remove Prehn and open the seat for Naas.

In an opinion by Chief Justice Ziegler, a conservative majority of four (which included Justice Hagedorn) rebuffed the governor’s efforts to replace Prehn with the board member of his choice.[54] The court’s analysis hinged on the existence—or, rather, absence—of a vacancy. The governor generally has the power to make a provisional appointment while awaiting senate action on a nominee, but that power can only be used to fill a vacancy—and the majority held that the expiration of Prehn’s term did not create one.[55] That’s because the statute defining when “a public office is vacant” includes when “the incumbent’s term expires,” but only “[i]f the office is elective.”[56] Because Prehn’s office is appointed, not elective, the court concluded that the statute’s plain text excluded the expiration of his term as a vacancy-creating event. The court also invoked Wisconsin common law allowing holdovers officeholders to continue to serve beyond a term’s expiration until a successor is appointed and qualified. Thus, in the majority’s view, Prehn is “lawfully retaining office as a holdover until a successor is legally appointed, i.e., nominated and confirmed by the senate.”[57]

As the dissent observed, the upshot of the court’s ruling is that holdover officials from a prior administration can continue to serve indefinitely whenever the state senate declines to act on a governor’s nominee. Calling the majority’s holding “absurd,” Justice Dallet offered an alternative statutory analysis that she believed would produce a more logical result.[58] As she and her fellow dissenters saw it, a catch-all provision in the vacancy statute offers a basis for concluding that the expiration of Prehn’s term in fact created a vacancy to fill.[59]

The 2022-23 term

 The court is again confronting important questions about the democratic process at the start of its 2022-23 term, which opened on September 6. In its first case, Wisconsin Justice Initiative, Inc. v. Wisconsin Elections Commission,[60] the court will decide whether voters were given adequate information when they voted in 2020 to approve Marsy’s Law, a state constitutional amendment that expanded rights for crime victims. The plaintiffs contend that the ballot question—a 69-word summary of the 800-word amendment—failed to capture potential effects on the rights of the accused. The circuit court agreed, invalidating the amendment but staying its decision pending appeal; the court of appeals certified the case to go directly to the Wisconsin Supreme Court.

Existing precedent on the language of ballot questions is thin in Wisconsin. Therefore, the court’s decision about Marsy’s Law will likely provide a blueprint for drafting and evaluating ballot language for future constitutional amendments. Four proposed amendments to Wisconsin’s constitution are currently in the pipeline, having been approved by the legislature in its current session and referred to the next legislature for a second consideration.[61] To become law, they would need to be endorsed by the next legislature and receive a majority of votes at the polls.[62] The legislature translates proposed amendments into ballot questions, and the standard that emerges from the court’s consideration of Marsy’s Law will shape the way these or other proposals are presented to voters.

Other cases implicating elections and the balance of power may appear on the court’s docket later this term. The midterm elections on November 8 include high-profile races for governor, attorney general, the state legislature, congress, and one of Wisconsin’s two U.S. Senate seats. In the event a close race leads to a recount, the Wisconsin Supreme Court could hear an appeal and play a decisive role in an election’s outcome.[63]

Finally, the end of the 2022-23 term will see a change in the court’s membership. Justice Patience Roggensack, who has served on the court since 2003 (including as chief justice from 2015 to 2019), will retire when her second ten-year term ends this summer. Justice Roggensack is one of the court’s four more conservative members, and the statewide election to fill her seat in April 2023 has the potential to shift the court’s ideological balance to a liberal majority. Interest in the election is already strong, with at least three candidates having entered the race.[64]


Endnotes

[1] Alan Ball, The Supreme Court’s 2021-22 Term: Some Initial Impressions, SCOWstats (July 13, 2022).

[2] Id.

[3] Id.

[4] Johnson v. Wis. Elections Comm’n, No. 2021AP1450 (Wis.). For a comprehensive history of redistricting in Wisconsin, see Wisconsin Legislative Reference Bureau, Redistricting in Wisconsin 2020: The LRB Guidebook (2020).

[5] Robert Yablon, Gerrylaundering, 97 N.Y.U. L. Rev. 985, 1053 n.317 (2022).

[6] See Baldus v. Members of Wis. Gov’t Accountability Bd., 849 F. Supp. 2d 840, 844 (E.D. Wis. 2012).

[7] Whitford v. Gill, 218 F. Supp. 3d 837, 843 (W.D. Wis. 2016), vacated and remanded, Gill v. Whitford, 138 S. Ct. 1916 (2018); Whitford v. Gill, No. 15-CV-421-BBC, 2017 WL 383360, at *3 (W.D. Wis. Jan. 27, 2017), amended, No. 15-CV-421-BBC, 2017 WL 2623104 (W.D. Wis. Feb. 22, 2017).

[8] Rucho v. Common Cause, 139 S. Ct. 2484, 2507 (2019).

[9] Governor Tony Evers, Gov. Evers Vetoes GOP’s “Gerrymandering 2.0” Maps, YouTube (Nov. 18, 2021).

[10] See Baldus, 849 F. Supp. 2d at 844 (“In 1982, 1992, and 2002, Wisconsin’s legislative districts were drawn by a three-judge court.”).

[11] See Growe v. Emison, 507 U.S. 25 (1993).

[12] Johnson v. Wis. Elections Comm’n, No. 2021AP1450-OA, unpublished order (Wis. Sept. 22, 2021).

[13] The last case in which the Wisconsin Supreme Court resolved a redistricting dispute over legislative and congressional districts was State ex. rel. Reynolds v. Zimmerman, 22 Wis. 2d 544, 126 N.W.2d 551 (1964).

[14] Johnson v. Wis. Elections Comm’n (“Johnson I”), 2021 WI 87, ¶¶ 64–79, 399 Wis. 2d 623, 967 N.W.2d 469.

[15] Id. ¶¶ 3, 39–52.

[16] Rucho, 139 S. Ct. at 2507.

[17] Johnson I, 2021 WI 87, ¶ 88 (Dallet, J., dissenting).

[18] Johnson v. Wis. Elections Comm’n (“Johnson II”), 2022 WI 14, 400 Wis. 2d 626, 971 N.W.2d 402, cert. granted, opinion rev’d sub nom. Wis. Legis. v. Wis. Elections Comm’n, 142 S. Ct. 1245 (2022).

[19] Id. ¶¶ 4–9.

[20] Id. ¶ 10.

[21] Id. ¶¶ 53–54 (A.W. Bradley, J., concurring).

[22]  Id. ¶¶ 66–177 (Ziegler, J., dissenting); id. ¶¶ 178–207 (Roggensack, J., dissenting); id. ¶¶ 208–261 (R.G. Bradley, J., dissenting).

[23] Johnson II, 2022 WI 14, ¶¶ 69–73, 133–36 (Ziegler, J., dissenting).

[24] Wis. Legis. v. Wis. Elections Comm’n, 142 S. Ct. 1245 (2022).

[25] Id. at 1251 (Sotomayor, J., dissenting).

[26] Johnson v. Wis. Elections Comm’n (“Johnson III”), 2022 WI 19, ¶ 3, 401 Wis. 2d 198, 972 N.W.2d 559.

[27] Id. ¶ 157 (Karofsky, J., dissenting).

[28] Teigen v. Wis. Elections Comm’n, 2022 WI 64, 403 Wis. 2d 607, 976 N.W.2d 519.

[29] Id. ¶¶ 6–7.

[30] Id. ¶ 8.

[31] Axel Hufford, Ballot Drop Boxes in the 2020 Elections, Stanford-MIT Healthy Elections Project (Mar. 10, 2021).

[32] Teigen, 2022 WI 64, ¶ 4.

[33] Wis. Stat. § 6.87(4)(b)1. (quoted in Teigen, 2022 WI 64, ¶ 55).

[34] Teigen, 2022 WI 64, ¶ 62.

[35] Id. ¶¶ 73-83.

[36] Id. ¶ 5.

[37] Id. ¶ 219 (A.W. Bradley, J., dissenting).

[38] Id. ¶ 225 (A.W. Bradley, J., dissenting).

[39] Id. ¶¶ 236–41 (A.W. Bradley, J., dissenting).

[40] Id. ¶¶ 210–15 (A.W. Bradley, J., dissenting).

[41] Carey v. Wis. Elections Comm’n, No. 22-cv-402, 2022 WL 3910457 (W.D. Wis. Aug. 31, 2022).

[42] Guidance on Absentee Ballot Return Options Under the Federal Voting Rights Act, Wisconsin Elections Commission (Sept. 7, 2022).

[43] Becker v. Dane Cnty., 2022 WI 63, 403 Wis. 2d 424, 977 N.W.2d 390.

[44] Wis. Stat. § 252.03(1)–(2) (quoted in Becker, 2022 WI 63, ¶ 4).

[45] Becker, 2022 WI 63, ¶¶ 12–28.

[46] Id. ¶¶ 29–42.

[47] Id. ¶¶ 32–33.

[48] Gundy v. United States, 139 S. Ct. 2116, 2131 (2019) (Gorsuch, J., dissenting); Mila Sohoni, Opinion analysis: Court refuses to resurrect nondelegation doctrine, SCOTUSblog (June 20, 2019 at 10:32pm) (“The lineup in Gundy shows that there are four justices on the court willing to reconsider the nondelegation doctrine from the ground up.”).

[49] Becker, 2022 WI 63, ¶¶ 50, 55–57 (Hagedorn, J., concurring).

[50] Id. ¶ 84 (R. Bradley, J., dissenting); id. ¶ 44 (“The dissent’s resort to disparaging a public servant—who has no opportunity to defend herself—is a poor substitute for legal argument. Such personal aspersions have no place in a judicial opinion.”).

[51] Becker, 2022 WI 63, ¶¶ 93–141 (R. Bradley, J., dissenting).

[52] State ex rel. Kaul v. Prehn, 2022 WI 50, 402 Wis. 2d 539, 976 N.W.2d 821.

[53] Wis. Stat. §§ 15.07(1)(a), 15.34(1) & (2)(a) (cited in Prehn, 2022 WI 50, ¶ 18).

[54] Prehn, 2022 WI 50, ¶¶ 1–3.

[55] Id. ¶¶ 16–35.

[56] Wis. Stat. § 17.03(10) (quoted in Prehn, 2022 WI 50, ¶ 20).

[57] Prehn, 2022 WI 50, ¶ 28.

[58] Id. ¶¶ 57–58 (Dallet, J., dissenting).

[59] Id. ¶¶ 64–68 (Dallet, J., dissenting).

[60] Wis. Justice Initiative, Inc. v. Wis. Elections Comm’n, No. 20AP2003 (Wis.).

[61] 2021 S.J. Res. 101, 2021-22 Leg. (Wis. 2022); 2021 Ass. J. Res. 107, 2021-22 Leg. (Wis. 2022); 2021 S.J. Res. 84, 2021-22 Leg. (Wis. 2022); 2021 S.J. Res. 32, 2021-22 Leg. (Wis. 2022).

[62] Wis. Const. art. XII, § 1 (Constitutional amendments).

[63] See generally Wis. Stat. § 9.01 (setting out procedures for recounts and appeals).

[64] Molly Beck, Former Wisconsin Supreme Court Justice Daniel Kelly announces 2023 run to rejoin the court, Milwaukee J. Sentinel, Sept. 8, 2022.