Instead, much of the debate will center on exactly how to interpret the word “contiguous.” And the map shapes that are likely to get attention have elicited comparisons to Swiss cheese.
Fifty-five of the state’s 99 Assembly districts and 21 of 33 in the Senate contain “disconnected pieces of territory,” according to the most recent petition filed with the state Supreme Court by 19 Wisconsin voters. The suit seeks to have the state’s maps declared unfair and redrawn.
Some sections of the state’s maps “look like a 2-year-old drew them,” said Democratic Rep. Jodi Emerson, who represents the city of Eau Claire in northwestern Wisconsin.
In the interior of her district, the 91st, sits a free-floating chunk that actually belongs to the turf of the adjacent lawmaker, Republican Karen Hurd.
That may seem odd, but what is often left unsaid in discussions of Wisconsin maps is that the islands are not random parcels created by mapmakers to advantage Republicans at the behest of a Republican legislature. Rather, the irregular blobs largely follow municipal maps that reflect the history of Wisconsin cities and villages adding to their tax base by annexing bits of land in nearby areas. The practice often leaves towns with irregular maps and legislative districts with holes and satellites.
The plaintiffs, who are Democratic voters, claim that the legislative district boundaries violate Article IV, Section 4 of the state constitution, which says Assembly members must be elected from districts consisting of “contiguous territory.”
But the same section of Article IV also requires that Assembly districts “be bounded by county, precinct, town or ward lines.”
Senate districts, which are each made up of three Assembly districts, are governed by Section 5. It says they must consist of “convenient contiguous territory.”
So, which trumps which? Contiguity or municipal lines?
"This is the only case I’m aware of where contiguity has been the focus of a challenge,” said University of Colorado Law Professor Doug Spencer, an expert in redistricting. “This could give the new Supreme Court in Wisconsin a way to overturn the maps on neutral grounds."
Much is at stake. The case could decide the future of Wisconsin state politics, with possible ramifications for such hot-button issues as abortion and voting rights.
One election law expert, after reviewing the constitution, saw the Senate language as more straightforward to challenge. Section 5 does not mention a need for Senate maps to be bounded by any kind of government or municipal lines. It only mentions contiguity.
That language is “more of a slam dunk” for the plaintiffs, said Michael McDonald of the University of Florida’s political science department, where he studies mapping issues.
GOP legislators who oppose the suit argue in one legal brief that insisting all parts of a district must physically touch flouts prior court rulings and “is absurd and unworkable.”
Marooned on a Voting Island
The U.S. Supreme Court ruled in 1964 that state legislative districts should have roughly equal populations, while federal law prohibits drawing lines that dilute the voting power of minorities. In addition to those parameters, states have adopted their own principles, which frequently include keeping districts contiguous.
The rationale behind contiguity is to create local districts where lawmakers live near and share common concerns with their constituents.
Contiguous means “you can draw a district without ever having to lift up your pencil,” Spencer explained.
But that’s not Wisconsin’s method.
According to the legal complaint, the majority of Wisconsin’s Assembly districts are noncontiguous — each consisting of between two and 40 disconnected pieces of territory. Two-thirds of the state’s Senate districts are noncontiguous — each with between two and 34 disconnected pieces.
Consider just a few of the Assembly districts referenced in the case.
High Stakes on the Highest Court
Wisconsin’s maps have long been a contentious political topic, even becoming an issue earlier this year in a fiercely competitive race for a seat on the state Supreme Court, a contest that attracted tens of millions of dollars in campaign donations and outside spending.
The liberal-leaning candidate, Janet Protasiewicz, won, tipping the balance of the court to the left for the first time in 15 years. During the race, she expressed her support for legal abortion and her concern that the legislative maps were “rigged.”
One day after Protasiewicz’s Aug. 1 swearing-in ceremony, the group of Democratic voters filed suit, challenging the maps as “extreme partisan gerrymanders.” The high court declined to hear arguments about how the maps created a political advantage and, instead, narrowed the case to two arcane issues. One was “contiguity.” The other was “separation of powers,” centering on whether the prior Supreme Court overstepped its authority last year when it adopted the Legislature's maps despite a veto by the state’s Democratic governor, Tony Evers.
When Protasiewicz and the liberal majority decided in favor of hearing the case, conservatives on the court didn’t hide their displeasure.
“Redistricting should not be an annual event,” griped Chief Justice Annette Kingsland Ziegler in a written dissent. She added that the decision to focus solely on contiguity and separation of powers, which are state Constitutional issues, was “an attempt to dodge appellate review.”
Another justice, Rebecca Grassl Bradley, expressed her dismay with the case by liberally citing Lewis Carroll’s “Alice’s Adventures in Wonderland” and its sequel.
“Through the Looking Glass we go,” she wrote of what she considered to be a purely political, madcap exercise.
As the court date approaches, Republican legislators have been calling for Protasiewicz’s impeachment, claiming she’s biased. But she has said she won’t prejudge the issue and won’t recuse herself.
So far, Republicans haven’t acted on the impeachment threat. But even talk of such an extreme measure shows how significant the maps’ case is.
If redrawn, districts could become more competitive and less safe for incumbents — perhaps changing the power balance in the state capital. Republicans could lose complete control of the Legislature or, even if they retain power, lose their opportunity to gain a supermajority that would allow them to override Evers’ vetoes. A weakened state GOP could also be less helpful in 2024 to any Republicans who seek to again dispute presidential election results in Wisconsin, a swing state.
John Johnson, a Marquette University researcher who studies redistricting, noted that, ironically, it was Democrats who favored noncontiguous districts three decades ago.
Back then, maps drawn under the oversight of a Democratic legislature had created islands. Wisconsin Republicans at the time favored the dictionary definition, embracing “literal contiguity,” according to a key 1992 federal redistricting case that has been cited in the current controversy.
A federal three-judge panel, considering broader issues, didn’t endorse the islands but tolerated them, noting that the distance in the Democratic plan between the towns and the islands was slight.
The court held that “compactness and contiguity are desirable features in a redistricting plan,” but “only up to a point.”
Reaching “perfect contiguity and compactness,” the judges feared, would require “breaking up counties, towns, villages, wards and even neighborhoods.”