In a challenge to the map adopted by the court in Johnson v. Wisconsin Elections Commission, the State Democracy Research Initiative filed an amicus brief arguing that adoption of those maps violates separation of powers by failing to remedy a redistricting failure and misallocating authority between the legislature and the governor. In 2023, the Wisconsin Supreme Court held that the maps violated the constitution's contiguity requirement and asserted that it should seek partisan neutrality when selecting maps to remedy violations of other constitutional provisions. The legislature and governor subsequently reached a deal to enact new legally compliant maps.
This case considered whether Wisconsin’s current state legislative maps violated 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 were the maps now being challenged in Clarke.
On November 8, 2023, the State Democracy Research Initiative filed an amicus brief describing 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), Miriam Seifter (University of Wisconsin Law School), Robert Yablon (University of Wisconsin Law School), and Robert F. Williams (Rutgers University School of Law).
On December 22, 2023, the Wisconsin Supreme Court held that the maps violated the constitution's contiguity requirement and asserted that it should seek partisan neutrality when selecting maps to remedy violations of other constitutional provisions.
During the map selection phase, the State Democracy Research Initiative filed a second brief on behalf of the same group of legal scholars offering historical and constitutional reasons for the court to adopt legislative maps that evenhandedly promote majority rule. It emphasizes that, prior to 2011, Wisconsin’s state legislative maps reliably translated the people’s aggregate statewide voting preferences into legislative majorities. From the advent of the “one person, one vote” era in the mid-1960s until 2010, a period spanning more than 20 Wisconsin legislative elections, a party never won control of both the Assembly and Senate despite winning only a minority of the total statewide votes for each chamber. And even in the decades prior, counter-majoritarian outcomes were exceedingly rare. The brief argues that majoritarian outcomes—outcomes where the majority statewide vote translates to a majority in the legislature—accord with the Wisconsin Constitution’s foundational democratic commitments.
In February 2024, the Wisconsin Legislature and governor reached agreement on new maps, enacting them via legislation without the need for the court to impose revised maps.