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Wisconsin Justices Skeptical Of GOP Redistricting Proposal

Interior view of the Wisconsin Supreme Court courtroom, inside the Wisconsin State Capitol building, Madison.

Updated at 4:45 p.m. CST

A Republican-backed push to fast-track redistricting lawsuits in the Wisconsin Supreme Court met with skepticism during a Thursday hearing, with the court's conservative chief justice questioning why the proposal was necessary and how the thinly staffed court could be expected to draw maps.

The state’s highest court is deciding whether to adopt a rule that would require any state lawsuits filed over the maps to start in the Wisconsin Supreme Court, rather than lower courts. The hearing is one of the earliest legal salvos in what could be a long fight over which maps finally get enacted.

Redistricting is the once-a-decade task of drawing new political boundary lines for the state Legislature and congressional districts. The Legislature, controlled by Republicans, draws the maps, but they must be signed by the governor — currently Democrat Tony Evers — to become law. When the government is divided, the courts typically must intervene to resolve disputes.

Those who support the proposed rule that would have redistricting disputes go straight to the state Supreme Court include the Republican leaders of the Legislature, Wisconsin’s five GOP members of Congress and Wisconsin Manufacturers and Commerce. They say the rule would ensure that state courts, instead of federal ones, resolve such disputes.

"The rule does not, as many objectors contend, substitute this court for the legislature," said Wisconsin Institute for Law and Liberty attorney Rick Esenberg, arguing in favor of the rule. "It simply provides that an action challenging existing maps can be begun in this court or in any state court for that matter."

Opponents include both Republican and Democratic voters and former office holders, groups formed to create nonpartisan maps, law professors from Harvard University, Northwestern University and the University of Wisconsin, the League of Women Voters, the Wisconsin Association for Justice, Common Cause Wisconsin and Wisconsin Faith Voices for Justice. Nearly 2,000 comments in opposition were submitted.

They argue that the change would benefit Republicans, allow for lawsuits to be brought prematurely without proper fact-finding in lower courts, and sow distrust among the public that the state Supreme Court is on the side of Republicans.

During Thursday's hearing, several Wisconsinites called for a fair, transparent redistricting process instead of partisan gerrymandering.

"I don’t want to be used and I don’t want anyone else to be used as a pawn in these political games," said Lena Eng, with the Waukesha County Fair Maps Coalition.

Chief Justice Patience Roggensack asked supporters of the proposal why it was necessary, given that the court can already take a redistricting case directly, bypassing lower courts, if it wants to. She also questioned the practicality of a part of the rule that would allow the state Supreme Court to draw maps.

“Drawing maps would take a huge staff. We don’t have them,” Roggensack said. ”I don’t know how in the world you think the court could ever draw the map. ... This rule makes the court proactive, that’s just not how we operate.”

The rule was proposed by former Republican Assembly Speaker Scott Jensen, who is represented by the Wisconsin Institute for Law and Liberty, a conservative legal group that has led the charge against Democrats and their policies. The group’s leader, attorney Esenberg, said the court would be reacting to maps drawn by the Legislature and not be a “cartographer.”

Esenberg, Jensen and Misha Tseytlin, attorney for the Republican members of Congress, said it was important for legal challenges to remain in state courts, rather than federal ones, with a process that would allow for quick resolutions.

But liberal Justice Jill Karofsky questioned the merits of putting the challenges on a “rocket docket,” saying redistricting is one of the most fact-heavy issues that could come before the court. Not creating a factual record in lower courts would be problematic, she said.

The state Supreme Court has repeatedly rejected similar attempts to hear redistricting lawsuits, deferring instead to federal courts. The court in 2002 declined to hear such cases and following a six-year review of whether it should adopt a rule like the one being requested now, it declined to do so. Roggensack and Justice Annette Ziegler, both conservatives, rejected making rule changes 12 years ago. The court is controlled 4-3 by conservatives, but Justice Brian Hagedorn has sided with liberals in several high-profile cases.

The state Supreme Court will discuss the proposal privately and issue a decision later. The Legislature will vote on new maps later this year.

Wisconsin's current maps were drawn by Republicans in 2011 and helped cement their party's legislative majority over the past decade. Liberals sued, challenging them as being illegally gerrymandered, but the U.S. Supreme Court refused to overturn the maps, ruling that federal courts can’t consider allegations that election maps unfairly favor one political party over another.

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