Wisconsin Supreme Court – Clarke v. Wisconsin Elections Commission Amicus Brief Filed

On November 8, the State Democracy Research Initiative’s faculty co-directors Miriam Seifter and Rob Yablon filed an amicus brief along with five other legal scholars in Clarke v. Wisconsin Elections Commission, a redistricting case pending before the Wisconsin Supreme Court.

The case considers whether Wisconsin’s current state legislative maps violate various provisions of the Wisconsin Constitution, including its separation-of-powers principles. The Wisconsin Supreme Court put the current maps in place in 2022 after the legislature and governor failed to agree on new maps following the 2020 decennial census. In November 2021, the Republican-controlled legislature passed new maps on a party-line vote, but the governor vetoed them, complaining that they perpetuated the partisan skews of the state’s prior maps. Applying a “least change” approach, the court in Johnson v. WEC ultimately adopted the legislature’s proposed maps—the exact ones the governor had vetoed. Those are the maps now being challenged in Clarke.

The amicus brief filed Wednesday delves into the history and structure of the Wisconsin Constitution, arguing that the court should be guided in its analysis by the Constitution’s fundamental commitments to popular sovereignty, political equality, and majority rule. In particular, it argues that Wisconsin’s existing state legislative maps violate the separation of powers in two mutually reinforcing ways: They do not satisfy the judiciary’s obligation to remedy a redistricting failure, and they misallocate authority between the legislature and governor. To redress these violations and advance the Wisconsin Constitution’s foundational democratic precepts, the brief argues, the court should adopt new maps that do not structurally advantage supporters of any political party.

The group of legal scholars includes Richard Briffault (Columbia Law School), Jessica Bulman-Pozen (Columbia Law School), James A. Gardner (University at Buffalo School of Law), Jonathan Marshfield (University of Florida Levin College of Law), and Robert F. Williams (Rutgers University School of Law). Staff Attorney Bryna Godar contributed to this brief.