Commentary: Wisconsin redistricting 2022 is historic and surprising

By Dan Russler

The Supreme Court of Wisconsin released its first-ever set of Wisconsin Districting Maps in a surprising majority opinion written by conservative Justice Brian Hagedorn. Justice Hagedorn was joined in the majority by all three liberal justices in selecting Governor Evers’ set of election district maps. Not only was this a unique event in the history of Wisconsin courts; the nature of the decision was unanticipated; and the message he sent to the petitioners was clear. 

Justice Hagedorn built his opinion upon a very strict application of one controversial technical measurement in redistricting called “population core retention.” Population core retention measurements count the number of people who will change election district numbers when voting, which some consider undesirable. The three conservative justices objected in the dissent, noting: “Least Change Is Not Core Retention.” Yet, these three justices did not make this opinion clear in their Nov. 30, 2021 charge to the petitioners. Unfortunately, the result was that most petitioners focused on core retention. In contrast, the three liberal justices, who still joined the opinion, reminded the public that the three of them had dissented against Least Change in the Nov. 30, 2022 decision. 

However, in strictly applying core retention, Hagedorn quickly eliminated consideration of all proposed maps except those submitted by the Wisconsin Legislature and those submitted by Governor Evers. Next, he stated: “we look to whether the maps meet constitutional standards, not whether they perform comparatively better or worse…” After detailed analysis of previous court cases, he concluded: “The Governor’s proposed maps fall comfortably within the relevant constitutional requirements…” 

In selecting the governor’s set of maps, which have better core retention than the Legislatures’ maps, Hagedorn also anticipated a pending federal review of the maps focused on compliance with the Federal Voting Rights Act (VRA) in Milwaukee County, a suit already in progress; he commented, “…we have some concern that a six-district [majority-Black] configuration could prove problematic under the VRA…we see good reasons to conclude a seventh majority-Black assembly district may be required.” Of the two sets of maps, only the governor’s Assembly map supported the seventh majority-Black district. 

Although not mentioned in the Supreme Court opinion, political analysis data of the Legislature’s and the governor’s Assembly map proposals are available from the Wisconsin Map Analysis Project. These data demonstrate that the governor gave the Republicans more “safe districts” statewide, districts which tend to guarantee Republican wins. In exchange, he created slightly more competition in some of the other Republican-leaning districts. Democratic safe seats were the same in both maps. For example, in the Green Bay area, District 5 became safe for Republicans in the governor’s map, but District 4 became a more competitive Republican-leaning district. In the Jefferson County area, District 33 in the south became safe for the Republicans, while Republican District 38 in the north became slightly more competitive. 

Statewide, probability statistics grant only one additional Assembly district that leans in favor of the Democrats. In other words, probability still predicts that Republicans will win most of the remaining, potentially competitive districts. 

Instead of just focusing on differences, what both the Legislature’s map and the governor’s map delivered to the public is also important to note. This important change in both the Legislature’s and governor’s 2022 map proposals was the increased emphasis on comparing the splitting rates of cities, villages and towns. Although emphasis on the topic is admirable, Hagedorn complained about the nature of this emphasis, saying: “The Legislature provided an accounting of county and municipal splits in the proposed legislative maps, but no one submitted data documenting how many of those splits were present in the 2011 maps, or how many previously split municipalities were unified.” 

In other words, the Legislature reported out the basic splitting measurements, but did not discuss the inexplicable splitting of River Falls, Sheboygan, Beloit, Whitewater or some other small municipalities. At the same time, due to Least Change, fewer cities and villages were unified by all of the submitted maps than voters wanted, as voters described in previous citizen district mapping initiatives. 

To summarize the state-level implications of our State’s Supreme Court decision: 

• The decision was historic because the Supreme Court of Wisconsin has never before accepted the responsibility for approving redistricting maps in the history of Wisconsin.

• The decision was surprising because three conservative justices backpedaled on the strict application of least change and three liberal justices joined a conservative justice on the strict application of least change.

Justice Hagedorn’s messages to the other justices, the public and their elected representatives are clear: “Do not come to the Court to get your governance policy problems fixed.” Or in other words, “Use your legislative powers to create policies that clarify the specific meaning of terms in the Wisconsin Constitution; don’t expect the State Courts to do the hard work for you and write these policies,” and finally, “Keep Wisconsin’s own issues out of Federal Court.” 

To summarize the Jefferson County implications of Wisconsin Redistricting 2022:

• Instead of two Assembly representatives who live in Waukesha County, Jefferson area will probably have two representatives who live within Jefferson County.

• The Republican advantage is still prominent in Jefferson County.

• None of our Jefferson County border municipalities are split into two.

Further, in Jefferson County and the state at-large, the public is asked to hold public representatives accountable to the Wisconsin Constitution, without ignoring “consent of the governed” and “district anew.” Specifically, the public should ask our four, new, potential Assembly representatives in Jefferson County to discuss Constitutional clarifications regarding districting, and provide assurances that Jefferson County can help solve Wisconsin’s governance issues, as encouraged by Justice Hagedorn. The public must withhold their consent to govern from public representatives who refuse to comply. When running for office in 2022, candidates for election must discuss how to interpret and apply 1848 constitutional, districting direction when creating Wisconsin’s missing, modern, districting legislation over the next two years. 

Dan Russler is a member of two ad hoc analytical groups: Fair Maps of Jefferson County and the Wisconsin Map Assessment Project (WIMAP), and he is one of 36 “Concerned Voters of Wisconsin,” a citizens’ group which submitted in January an amicus brief, also known as a “friends of the court” document, asking the Wisconsin Supreme Court to reject the Wisconsin Legislature’s proposed Assembly map. Russler is a resident of Jefferson County. An explanation of the role played in the redistricting process by WIMAP is here: https://www.wispolitics.com/2021/wimap-comments-on-the-wi-legislatures-maps/.