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Gerrymandering Loses Big

In a closely watched judicial election, Wisconsin voters demanded fair maps.

April 5, 2023

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There was big legal news yesterday, far from a certain Manhattan courtroom. In Wisconsin, liberal Janet Protasiewicz beat conservative Dan Kelly for a state supreme court seat, winning with a stunning 11-point margin. This tilts the state’s high court in a progressive direction for the first time in 15 years.

The election shows the rapidly realigning politics on two major issues: abortion and gerrymandering.

These are two issues where the right-wing supermajority on the U.S. Supreme Court announced it would not protect equal rights across the nation, showily sending matters to the states. It turns out that voters may not share the Federalist Society’s predilections. Just as in the 2022 midterms, reaction to the Supreme Court’s Dobbs ruling and concern for the health of democracy drove voters and turnout. 

Wisconsin’s abortion ban is a long-defunct 1849 law that reared into view after Dobbs last summer. State courts are deciding whether the law — dating from an era when women were barred from voting — can be enforced. Protasiewicz made clear her position on the right to an abortion, and she may well cast the decisive vote. Voters spoke loudly.

The other big issue in the race seems more arcane but, as is increasingly recognized, has huge consequences: redistricting. Wisconsin has among the most gerrymandered maps in the country. In 2011, Republican legislators enacted an aggressive gerrymander that entrenched party power. Wisconsin is a closely divided state, yet Republicans have held uninterrupted control of both houses of the state legislature for over a decade. In 2012, Republicans won 60 of the 99 seats in the state assembly with just 48.6 percent of the two-party statewide vote. In 2014, Republicans won just 52 percent of the vote but garnered 63 seats. 

Wisconsin’s partisan gerrymander was so extreme that a federal court had already ruled it violated the U.S. Constitution. In 2019, though, the U.S. Supreme Court saved Wisconsin’s misbegotten maps when it ruled that federal courts have no power to intervene. No problem, Chief Justice John Roberts and the other conservative justices said, state courts and state constitutions could do the job. 

In 2021, the conservative majority on the Wisconsin Supreme Court decided that the most important factor in developing new legislative maps was keeping them as similar as possible to the existing legislative maps. (The justices called this the “least change” principle, which appears nowhere in the state constitution.) That made little sense when it came to representation in a changing state. It made all too much sense if the goal was preserving party power.   

Protasiewicz and Kelly jousted over gerrymandering for months. The liberal decried existing maps as “unfair,” while conservative Kelly insisted that redistricting is a fundamentally political process immune to judicial intervention. Ads and social media called for “fair maps.” Rarely has the wonky topic of gerrymandering been the subject of such intense public politicking. 

Unprecedented sums of money poured into the campaign. By late March, spending on the race reached $37 million. The state’s last supreme court race in 2020 saw nearly $10 million in campaign spending, and the previous national record for spending on a judicial campaign was $15 million. Much of it came in undisclosed “dark money.” All this is a worrying omen for future races.

For now, though, Wisconsin’s voters spoke loudly. They care about women’s rights and reproductive freedom. And — perhaps improbably — they not only understand but care passionately about fairness and equality in our democracy. That message likely will ring loudly in months and years to come.