Frederica Freyberg:

The field for the upcoming Supreme Court election has been narrowed down to two candidates, and they are a study in contrasts. One of the biggest differences is how they view past decisions by the court. Over the next couple of weeks, “Here & Now” political reporter Zac Schultz will take us through some of the most significant cases of the past few years and show us whether these candidates agreed with the decisions. Tonight, we look at the issue of redistricting.

Zac Schultz:

On April 4th, voters will choose between Janet Protasiewicz and Daniel Kelly and determine the future ideological balance of the Wisconsin Supreme Court. But that same election will determine whether the court will look backwards as well.

Janet Protasiewicz:

So that’s when I say, yes, those maps are rigged.

Zac Schultz:

Protasiewicz has made clear she believes Wisconsin’s legislative maps are gerrymandered in favor of Republicans and she says the Wisconsin Supreme Court erred twice on its path to approving those maps. The first error came in 2021 when court’s conservative majority announced they would not draw new legislative boundaries but would instead choose from maps submitted by Governor Tony Evers and the Republican Legislature. The best map, according to the court, was one that kept the new boundaries as close to the current boundaries as possible so as to have the fewest number of voters switch legislative districts. It was called the “least changed” methodology, a new precedent invented by the court.

Janet Protasiewicz:

There’s no legal precedent. There’s nothing in the Constitution. There’s nothing in case law. You get this “least change” rule that, quite frankly, if you talk to an uneducated voter about it, they might say, “you know, it sounds like it kind of makes sense, kind of on its face makes sense, keeping the districts together.”

Zac Schultz:

However, “least change” only cemented in the advantage Republicans drew for themselves 10 years ago. Even the “least change” map submitted by Governor Evers still created districts that ensured a Republican majority in the Legislature.

Janet Protasiewicz:

This is where I say democracy is on the line. You look at the fact that the maps were, you know, 10 years ago, a problem. I would say that the maps are a bigger problem. You’ll hear people argue that the Republicans used very, very sophisticated computer technology to draw those maps and to draw those maps in a way that are absolutely the most favorable to them. So that’s when I say, yes, those maps are rigged.

Zac Schultz:

Daniel Kelly served on the court from 2016 until he lost re-election in 2020 and was not on the bench when the court decided the redistricting case. However, he says their decision makes sense.

Daniel Kelly:

And so the phrase, “least change,” is meant to encompass the idea that we take the maps as they’re written and then we look for the legal errors and we fix the legal errors and we leave everything else the same.

Zac Schultz:

Past redistricting cases were decided in federal court but Republicans wanted this case before the Wisconsin Supreme Court. Kelly says the idea of fairness in the maps is a political question, something the court must avoid.

Daniel Kelly:

The members of this court have not been entrusted with making political decisions, only legal decisions. And so their job is just to address those legal imperfections in that map, and when they’re done addressing those, it is to step aside and then wait for the people of Wisconsin to work on their legislature and their governor to get to a map that is politically acceptable to the state.

Zac Schultz:

In the spring of 2022, using the “least change” criteria, Justice Brian Hagedorn joined the three liberals on the court to choose Tony Evers legislative maps which included an additional African-American Assembly seat in the Milwaukee area, something they argued was required under the Voting Rights Act. Republicans appealed to the United States Supreme Court, which struck down the maps, saying there wasn’t enough evidence to support invoking the VRA. Hagedorn then joined the conservatives in picking the Republican-drawn maps which Protasiewicz says was the court’s second major error and something she expects the court to revisit if she wins.

One of the things that was in the dissent from the Supreme Court regarding redistricting case, especially after it came back from the U.S. Supreme Court, was they felt that the court could hold a trial to actually determine whether it was warranted to add an additional district under the Voting Rights Act in Milwaukee or not. Is that an issue you would expect to come back before the court given that the dissent almost envisioned it?

Janet Protasiewicz:

I would think so. I would think so.

Zac Schultz:

Reporting from Madison, I’m Zac Schultz for “Here & Now.”