There is No Legal or Factual Basis to Overturn Wisconsin’s Congressional Map

Overturning Wisconsin's Maps? Good Luck

You’ve got to hand it to left-wing attorney Marc Elias: He waited an entire month after radical liberal Susan Crawford was elected to the Wisconsin Supreme Court to try to gerrymander the state’s Congressional map. This shows remarkable patience, as liberal group Law Forward challenged Wisconsin’s state legislative map the day after far-left justice Janet Protasiewicz was sworn in two years ago.

That December, the Court’s new liberal majority struck down that map on laughably flimsy legal grounds and threatened to gerrymander their own. Rather than risk it, the Wisconsin Legislature adopted Governor Evers’ map…and promptly lost 10 seats in the State Assembly and four in the State Senate last November.

Now the Elias Law Group wants the Court’s liberal majority to do the same, handing Democrats the two Congressional seats that were promised during Crawford’s campaign. In January, she attended a high-profile donor call to discuss the “chance to put two more House seats in play for 2026” that her election would present.

“After Janet Protasiewicz was elected to the WI Supreme Court in an April 2023 election, the new pro-democracy majority struck down Wisconsin’s super-gerrymandered state legislative districts,” an email invitation to the call noted. “Democrats then gained 14 state legislative seats in 2024, creating the potential to win chamber control in 2026. Now one of the judges who make up the pro-democracy majority is retiring, putting control of the WI Supreme Court up for grabs again.

“[W]inning 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 obvious implication is that, once elected, Crawford would do exactly what Protasiewicz did two years earlier and strike down Wisconsin’s Congressional map and approve a new one that gerrymanders Republicans Derrick Van Orden and Bryan Steil right out of their seats.

That was the plan (which has now been set in motion), but its success might not be as preordained as these corrupt leftists believe it to be.

First, the Elias Law Group would have to explain why it said in a news release that “Wisconsin’s current congressional map has unfairly rewarded Republicans with a significant electoral advantage and will continue to do so for the remainder of the decade.”

That map, you might recall, was drawn by Governor Tony Evers, a Democrat. A Democrat who presumably does not want to give Republicans a significant electoral advantage. Either this Democrat is either a secret Republican double agent or Elias’ central claim of a Republican gerrymander is a lie.

Two of the Court’s four liberal justices certainly didn’t believe Evers’ map to be gerrymandered. Jill Karofsky and Rebecca Dallet both accepted Evers’ map over the Republican-controlled Legislature’s in 2022 and then voted to reject a challenge to it just 14 months ago.

Did Evers’ map suddenly get more gerrymandered over the past year? Or is the challenge to it frivolous and, as such, must be rejected again? Karofsky and Dallet would have to tie themselves into an impossible rhetorical pretzel (and, in so doing, reveal themselves to be partisan hacks and not actual jurists) to take up the Elias lawsuit now.

Striking down the maps would also very likely violate the U.S. Supreme Court precedent set in Moore v. Harper, a 2023 case that held “state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislature.”

This means that while the Wisconsin Supreme Court may review legislative and congressional maps, it may not do so in a way that makes it and not the state legislature the primary architect of legislative boundaries. In other words, precisely what the Elias Law Group is asking the Court’s liberal majority to do.

The most difficult challenge in overturning the map, however, may well be the fact that there is no basis in fact for doing so. The primary argument Elias makes is that because Wisconsin is a 50-50 state in statewide elections, there must be four Democrat-leaning and four Republican-leaning Congressional districts. The fact that Republicans currently hold six of eight Congressional seats, then, is proof that the districts are gerrymandered.

They most certainly are not, and data analyst Joe Handrick’s research into the liberal justice’s own elections proves it. Earlier this year, Crawford won four of the state’s eight congressional districts en route to a statewide win.

Two years earlier, Protasiewicz also won four of the eight congressional districts.

This illustrates that the current congressional map was as close to perfectly proportional as it can possibly be and that Democrats—even ones as far to the left as Crawford and Protasiewicz—can easily win the two closest congressional districts. They aren’t gerrymandered at all.

Democrats just don’t run congressional candidates that are as strong as their statewide candidates. In 2022, Governor Tony Evers won three of the eight congressional districts on the same ballot that Democrat congressional candidates won two of the eight.

The map isn’t gerrymandered in favor of Republicans at all. In fact, it was actually drawn to give Democrats an advantage. As The Milwaukee Journal Sentinel reported last March:

It is logically impossible to argue that a map gerrymandered to favor Republicans could drop a nine-point GOP advantage to a two-point edge. Yet that is exactly what the Elias Law Group is arguing.

The Wisconsin Supreme Court’s liberal majority should reject this challenge to the congressional map as it did the last one if it wants to retain even a shred of credibility. Striking down the map now would further expose the justices as partisan puppets bound by no legal or ethical standard save for the political machinations of the Democratic Party.

Should they opt for such naked electoral opportunism, they would almost certainly suffer the deep embarrassment of a sharp rebuke from the U.S. Supreme Court, which would undoubtedly overturn a decision as a violation of its ruling in Moore v. Harper.

The justices may still take up the case and even entertain the idea of overturning Wisconsin’s map, but actually doing so might be far more difficult than they think.