Analysis: WI Congressional Maps Unlikely To Change

Democrats may have grabbed a very expensive seat on the Wisconsin Supreme Court, but they’re unlikely to get their money’s worth in the battle to redraw congressional maps and take back the U.S. House of Representatives. 

A new legal memo lays out why the overheated fear that Wisconsin’s liberal-led Supreme Court could play an outsized role in next year’s midterms is just so much hot air. 

“This is not the slam dunk that it was made out to be by partisans in this political contest,” Lucas Vebber, deputy counsel for the Wisconsin Institute for Law & Liberty (WILL) told The Federalist in a phone interview Monday. 

In its memo, the Milwaukee-based conservative law firm argues that any effort to reconfigure the Badger State’s congressional maps ahead of next year’s elections faces “significant practical and legal problems in both state and federal court, and are, ultimately, unlikely to succeed.” 

While those who value the Constitution have much to be concerned about in the court’s bought-and-paid for leftist majority, a successful quest to redraw the current district lines shouldn’t keep conservatives up at night. 

But … there’s always a “but” in the politics of power. 

Big Money, Big Promises

In last week’s nationally watched Wisconsin Supreme Court election, far-left Dane County Judge Susan Crawford soundly defeated conservative Waukesha County Judge Brad Schimel. The race, pegged to cost north of $100 million, ballooned into the most expensive judicial race in U.S. history, coming in at nearly twice as much as the previous record — the 2023 Wisconsin Supreme Court race. With the costly victory, liberals will continue to hold a narrow 4-3 majority for the foreseeable future. 

As the taxpayer-funded beneficiary the Associated Press reported following the election, the “cemented” liberal-controlled court is expected to take up a host of hot-button cases, from public-sector bargaining reforms to abortion limits to the congressional maps.  

“Crawford’s backers, including Democratic U.S. House Minority Leader Hakeem Jeffries, said electing Crawford was important so she and other liberal justices can order Wisconsin’s congressional boundary lines to be redrawn,” the AP noted. 

Conservatives are understandably concerned. Crawford, after all, appeared at a donor advisory meet-and-greet in January promoting the judge’s election success as critical to helping Democrats take back the House. The invitation declared that “winning this race could also result in Democrats being able to win two additional US House seats, half the seats needed to win control of the House in 2026.” The idea sold to well-heeled national investors in the race was that electing Crawford could open the door for a favorable ruling on redrawn Wisconsin congressional maps. Under the current district lines, Republicans hold six of the Badger State’s eight House seats.

But it’s not so simple, Vebber said. 

Map Battle

In 2022, the Wisconsin Supreme Court was forced to intervene and decide the state’s disputed congressional maps. Under state law, the legislature draws up new political boundaries following each decennial census. The governor may sign or veto the plan. In the politically divided Badger State, the Republican-controlled legislature’s redistricting plan was rejected by Democrat Gov. Tony Evers. So the court got involved. 

At the time, WILL filed an original action in the Wisconsin Supreme Court alleging that the 2020 census revealed that the existing maps had become malapportioned and seeking judicial reapportionment. The court, controlled by conservatives, invited the litigants in the case to submit congressional map proposals based on the previous maps approved in 2011. The court demanded the map makers follow a “least change” path the the 2011 maps, which had survived federal court challenges. In fact, the ruling in Baldus vs. Members of the Wisconsin Government Accountability Board found the maps were constructed with “a bipartisan process,” incorporating “feedback” from Wisconsin Republicans and Democrats. 

“At no time had these congressional maps ever been found to be gerrymandered,” WILL’s memo states. 

That hasn’t stopped leftists like the oft-confused Rep. Mark Pocan from crying “gerrymander!”

“If you have two seats out of eight in a purple, 50-50 state, clearly there’s gerrymandering going on,” the Madison Democrat told the AP, apparently shrugging off the fact that a significant portion of the left’s “50” resides in the state’s two biggest cities, Milwaukee and Madison, which happen to be in the congressional districts Democrats control.

In 2022, the Wisconsin Supreme Court selected Evers’ map proposal from four submissions. Justice Brian Hagedorn, who ran for the court as a conservative but has been a swing vote over his term, joined the three liberals on the bench in approving the Democrat-drawn congressional map. 

Republicans have still won in subsequent House elections, keeping their 6-2 advantage in Wisconsin’s delegation.  

No ‘Obvious Basis’

In January 2024, the usual leftist suspects, led by election integrity denier Marc Elias’ lawfare firm, attempted to challenge the congressional maps and reopen the case. Suddenly, the Democrat-skewed boundaries weren’t skewed enough for the left’s liking.

The court rejected the request 6-0, with liberal Justice Janet Protasiewicz opting out of the case. With foot-in-mouth, Protasiewicz had successfully campaigned for her seat in 2023 insisting that Wisconsin’s districts were “rigged” in favor of Republicans, specifically saying of the congressional maps, “[W]e know something’s wrong.” The justice’s comments sure sounded prejudicial in an issue likely to come before the court. The Wisconsin Institute for Law & Liberty requested she recuse herself. Protasiewicz instead stepped aside on the grounds that she was not a member of the court when it issued its initial decision. 

Vebber said he’s confident litigants will try to resurrect the case and take it to the state Supreme Court. With so much money invested and the power to stall President Trump’s agenda at stake, you can bet on a challenge. 

But in the memo, Vebber points out that all six members who declined to reopen the case last year remain on the court. At least three justices who adopted the governor’s congressional maps plan “would need to not only reverse their initial decision from 2022, but also to reverse their decision to decline to reopen the case just last year,” Vebber writes. 

And then there’s Crawford. Her appearance at the donor advisory Zoom session raises some serious conflict questions, although justices alone are the final arbiter on whether to recuse themselves in a case. 

Should the court cross that hurdle, Vebber argues there is no “obvious basis” for bringing back the case. Still, it would seem liberal litigants are itching to bring back the long-moribund horse of gerrymandering, even after Evers’ maps arguably gerrymandered Democrats into a more favorable position.  

“Such a claim would be complicated by the fact that it was Governor Evers’ maps that were chosen…,” WILL’s memo states. While would-be plaintiffs might argue that the court’s requirement of ‘least changes’ from the 2011 maps continued a pre-existing gerrymander, that claim was rejected by the federal court at the time. 

‘Unconstitutionally Intrude’

But if the left and liberal courts have proven anything, especially of late, it’s that they’re willing to sidestep precedent, laws, and the Constitution in the pursuit of their policies and power. Should the Wisconsin Supreme Court tinker with the existing congressional maps, Vebber said the U.S. Supreme Court would likely step in. Such an effort, he notes, would violate the Elections Clause of the U.S. Constitution. 

In a 2023 ruling on a North Carolina redistricting case — Moore v. Harper — the U.S. Supreme Court ruled that “state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to the state legislature.” 

“Any effort by the Wisconsin Supreme Court to throw out the Governor Evers map it adopted just three years ago (and declined to revisit just last year), would almost certainly fall within what the United States Supreme Court’s warned state courts could not do,” Vebber writes in the memo. 

While the attorney said combatants on both sides of the Wisconsin Supreme Court race leaned hard on the congressional maps talking point to gin up votes, making a change before next year’s election would be an uphill battle. 

“Now that the dust has settled, while it is certainly a possibility that the Wisconsin Supreme Court will again be asked to re-draw Wisconsin’s congressional district maps before the next census, it is clear that such a legal challenge would have to overcome a number of significant hurdles,” WILL’s memo advises.  

Matt Kittle is a senior elections correspondent for The Federalist. An award-winning investigative reporter and 30-year veteran of print, broadcast, and online journalism, Kittle previously served as the executive director of Empower Wisconsin.