Judicial Despotism

Dan O’Donnell breaks down the shockingly bad Wisconsin Supreme Court decision to strike down the state’s electoral maps less than a year before the 2024 elections.


Jan. 3, 2024
Perspective by Dan O’Donnell


It is not an exaggeration to suggest that the Wisconsin Supreme Court’s eleventh-hour rejection of the state’s electoral maps is the worst decision in the Court’s history; it might be an understatement.

In the ultimate Friday afternoon news dump less than 36 hours before Christmas Eve, the Court’s four liberal justices struck down maps the Court approved less than two years ago, threw the 2024 elections into chaos less than a year out, and unconstitutionally usurped authority from both the legislative and executive branches.

This wasn’t judicial activism; it was judicial despotism.

As such, it should hardly be surprising that the majority allowed an unprecedented collateral attack on a Court ruling as recent as April 2022.  Following the 2020 Census, the Republican-controlled Wisconsin Legislature redrew the state’s Assembly and Senate districts to reflect changes in population. Governor Tony Evers, a Democrat, rejected those maps and drew his own, sending the dispute to the then-conservative-controlled Supreme Court.

The case, Johnson v. Wisconsin Elections Commission, ended with conservative Justice Brian Hagedorn siding with the Court’s three liberals in adopting Governor Evers’ maps.  However, the United States Supreme Court held that those maps violated the 14th Amendment through an unconstitutional racial gerrymander and invalidated them. Three weeks later, the Wisconsin Supreme Court ruled that the Legislature’s maps would be in place for the 2022 midterm elections.

When far-left Justice Janet Protasiewicz was elected to the Court (after unlawfully prejudging the redistricting case by declaring the Republican-drawn maps “rigged”), Democrat-aligned groups wasted no time—literally one day after she was sworn in—filing a new lawsuit seeking to throw out the Legislature’s maps.

A Court concerned with lawful and constitutional jurisprudence would have refused to hear such a case as it was an impermissible collateral attack on a previously decided issue. The concept of “res judicata” (Latin for “a matter judged”) bars such an attack when a case has already been decided on its merits.

To get around this, the Court’s four liberals simply pretended that another long-settled issue was suddenly a major constitutional problem: Municipal islands.  Article IV, Section 4 of the Wisconsin Constitution requires that congressional and state legislative districts “consist of contiguous territory and be in as compact form as practicable.”  The Republican-drawn maps, the Court’s liberal majority held, are therefore unconstitutional because they contain territory annexed by a municipality but are surrounded by a different legislative district.

These so-called “municipal islands” are in fact permitted and have been for decades. In 1992, the U.S. District Court for the Western District of Wisconsin held in Prosser v. Elections Board that “if annexation by municipalities creates a municipal ‘island’…the district containing detached portions of the municipality is legally contiguous even if the area around the island is part of a different district.”

Every set of maps drawn since has included municipal islands…including the ones Governor Evers drew and the Supreme Court selected just two years ago.  This means that the three liberal justices who were on the Court then—Jill Karofsky, Ann Walsh Bradley, and Rebecca Dallet—all held that municipal islands did not violate the Wisconsin Constitution. Now, though, they suddenly do.

That these justices based their ruling on this specific issue reveals it to be even more transparently political than it might appear at first blush.  Municipal islands are almost all vanishingly small—many have fewer than 20 inhabitants—and finding a plaintiff who has legal standing to sue over them proved next to impossible.

The majority brushed aside these concerns by asserting that since Governor Evers is one of the plaintiffs, even if none of the others has standing, he does, and the case can therefore be decided on its merits. This is an interesting argument to make since Governor Evers was the one who submitted maps with municipal islands…municipal islands that he is now arguing are unconstitutional.

Under the doctrine of claim preclusion, the Governor must be barred from bringing a claim that has already been decided on the merits, as his was in Johnson v. Wisconsin Elections Commission.

The Court’s liberal majority, however, ignored this doctrine (and three of its members’ own ruling) to arrive at a decision that not only allows them to unconstitutionally draw their own maps, but to draw maps that will consider “partisan impact.” What does that mean exactly? No one is quite sure: The majority never actually defined the phrase.

The four liberals, however, do know that they will eventually get to draw their own maps.  They even plan on hiring consultants to help them pick the best ones!  As they held:

In broad strokes, all parties will be given the opportunity to submit remedial legislative district maps to the court, along with expert evidence and an explanation of how their maps comport with the principles laid out in this opinion. The court will appoint one or more consultants who will aid in evaluating the remedial maps.

It should not have to be pointed out that nowhere in the Wisconsin Constitution are consultants picked by four Supreme Court justices responsible for reapportionment. Article IV, Section 3 gives this power to the Legislature and the Legislature alone, while the Governor has the power to either sign into law the maps the Legislature draws or veto them.

Governor Evers has already pledged to veto whatever maps the Republican Legislature draws—and given the fact that the Court has ordered an impossible 21-day timeline in which to draw them—so judge- and consultant-drawn maps are all but inevitable. This is more than just a violation of state constitutional rights; it is a violation of 14th Amendment due process rights.

So too was Justice Protasiewicz’s refusal to recuse herself from the case despite obviously prejudging it on the campaign trail. In a direct violation of the standard the U.S. Supreme Court set in just 15 years ago in Caperton v. A.T. Massey Coal Co, the plaintiffs in Wisconsin’s redistricting case essentially selected Protasiewicz by dumping tens of millions of dollars into her campaign because they knew she would be the deciding vote to give Democrats a partisan edge in redistricting.

Chief Justice Annette Ziegler summed up the issue thusly in her dissent:

“The crux of Caperton is that a due process violation occurs when a party who would like that judicial officer to hear their case, essentially picks that judicial officer to hear their case, by funding that judge’s election, and knowing that the newly minted judge will surely sit in judgment of that interested party’s case in the near future.

The majority, perhaps sensing that there was no way to defend Protasiewicz from the unconstitutional bias she displayed during her campaign, dismissed the 14th Amendment concerns in two sentences in a footnote to their opinion by calling them “underdeveloped, and as such, we do not address them.”

The most obvious reason for this is that the liberal majority desperately wanted to avoid ruling on any federal constitutional issue that would open the door for their decision to be appealed to the U.S. Supreme Court.

For the sake of due process, the separation of powers, and the reining in of a rogue court, the US Supreme Court must step in and reverse this travesty of a ruling.