Just before Christmas, the Wisconsin Supreme Court issued an important ruling that invalidated the district lines (enacted by state legislators and the governor) that had been in use for elections for state legislative elections. The gist of the court’s reasoning wasn’t complicated. As the court observed: “Article IV, Sections 4 and 5 of the Wisconsin Constitution . . . provide that state legislative districts must consist of ‘contiguous territory’ [and yet] the number of state legislative districts containing territory completely disconnected from the rest of the district is striking. . . [inasmuch as a]t least 50 of 99 [state] assembly districts and at least 20 of 33 [state] senate districts include separate, detached territory.” The court readily concluded that “contiguous” means “connected,” and that for this reason the existing district lines are unlawful and cannot be used going forward:
Wisconsin’s state legislative districts must be composed of physically adjoining territory. The constitutional text and our precedent support this common-sense interpretation of contiguity. Because the current state legislative districts contain separate, detached territory and therefore violate the [state] constitution’s contiguity requirements, we enjoin the Wisconsin Elections Commission from using the current legislative maps in future elections.
Many conservatives have criticized the ruling as partisan (the ruling was 4-3, with the four justices in the majority being generally regarded as liberals and the three in dissent generally considered conservative) insofar as the existing legislative district lines tend to favor the Republican party and so invalidating and replacing them with new lines (lines that are negotiated between the Republican legislators and the Democratic governor, or lines that are adopted by the state supreme court in the event the legislators and governor are unable to cut a deal) is likely to redound to the benefit of the state Democrats. The Wall Street Journal (in an editorial on December 24) characterized the ruling as a “Gerrymander Coup,” and criticized the state court majority in particular for overturning precedent to reach its outcome: “All of this extraordinary because the contiguity gaps have existed for 50 years in district maps drawn by both parties. The Wisconsin Supreme Court upheld the constitutionality of the maps as recently as 2022.”
I have no basis for knowing that the ruling wasn’t affected by partisan considerations; unfortunately, in both the state and federal judiciaries, partisan factors sometimes (but not always) probably do play an unfortunate role. I will say, however, that the fact that the Wisconsin ruling overturns precedent—even recent precedent—ought not in and of itself to trouble conservatives like those who run the Wall Street Journal Editorial Board. The overturning of the federal constitutional right to abortion by the U.S. Supreme Court in the Dobbs case in 2022 was celebrated by the editorial board at the Journal, precisely because (according Dobbs’ supporters) the Dobbs majority honored the straightforward text and history of the Constitution (which did not contain any distinctive language that seemed to speak to abortion), notwithstanding 50 years of judicial precedent, including cases that had been decided just a handful of years before Dobbs. If honoring constitutional text notwithstanding judicial precedent is good in Dobbs, why is the Wisconsin Supreme Court’s ruling honoring (even more seemingly straightforward) constitutional text (requiring contiguity) not good as well?
For those who disagree with the Wisconsin court ruling, is there any judicial recourse? Some analysts seem to think the U.S. Supreme Court could step in to undo the state-court decision interpreting the state constitution. As one political science professor in the state of Wisconsin mused on an academic listserv:
Now the Wisconsin court has ordered the Republican dominated legislature to come up with new districts that the Democratic governor will sign, or else the court will draw districts on its own guided by experts . . . . Enter whatever is left of the “Independent State Legislature” [ISL] theory [at issue in the U.S. Supreme Court’s June ruling in Moore v. Harper.] The Supreme Court [in Moore] told us that state courts have a role but may not go “too far” where districts for federal elections are concerned. So . . .
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[W]ill the Supreme Court say that the Wisconsin court [cannot arrogate] to itself the role of drawing new [lines]?
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[I]f so, and if no new districts are approved by the legislature and signed by the governor by date X, will the Supreme Court invoke the [so-called] Purcell rule [forbidding federal-court intervention in elections too close to Election Day] and say that the unconstitutional districts must be used for purposes of the 2024 election? Has date X already passed?
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[C]ould there be different districts for purposes of state and federal elections in Wisconsin?
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As someone who has written extensively about the ISL theory, I have two initial reactions to this set of questions. First is that the questions might reflect some confusion about what ISL is and is not. ISL is not an assertion that each elected state legislature enjoys complete control over all election regulation (including the drawing of district lines) notwithstanding what the state constitution (interpreted by state courts) has to say about limits on such regulation, and the role of other actors (such as governors, courts, etc.) in engaging in such regulation. ISL is a particular reading of Articles I and II of the U.S. Constitution (in particular, the meaning of the term “legislature” of the states in those Articles) in connection with the regulation of congressional and presidential elections. Articles I and II have nothing to do with the regulation of state elections, and the recent Wisconsin Supreme Court ruling dealt only with state legislative districts—not congressional districts—lacking in contiguity. So ISL, even had it been embraced in Moore v. Harper (and as explained below, it was in fact repudiated), would have nothing to do with the power of an elected state legislature to regulate state elections in contravention of the state constitution as that constitution is interpreted by state courts. So, in answer to the last question posed above, of course states can (and do) have different districts for purposes of state and federal elections, and (more relevantly) states can have different lawmaking systems for drawing state and federal districts. And even if ISL had won the day and had been held to constrain states’ power to limit elected legislatures in drawing federal districts, ISL would still not constrain the states’ power to limit elected legislatures in drawing state districts.
But ISL isn’t the only kind of argument under the federal Constitution that people who worry that state courts can go too far in interpreting and implementing state constitutions can make. If a state court ruling is so aberrant, unexpected, lacking in traditional legal reasoning, etc., it might be said to violate due process or republican-form-of-government principles.
And this leads to my second reaction to the set of questions posed above: In an indirect way, the Wisconsin Supreme Court case could be thought to be relevant to whatever is left of ISL after Moore. As I have argued extensively in an academic article, the Court’s repudiation of ISL in Moore—and the Court’s embrace of the idea that each state retains broad latitude to confer power to draw congressional district lines in whatever way the state wishes—means that there is nothing left of ISL, except that Articles I and II could be read to require states to follow their own state law, whatever that state law is. And if state courts can be said to be flouting—rather than interpreting—state law, state courts would be in fact running afoul of limits imposed not just by Articles I and II, but (as noted above) by other provisions of the U.S. Constitution, such as due process and the guarantee of republican government, as well. As I pointed out, one of the most powerful implications of this post-Moore reality is that if a federal court is prepared to say that a state’s court’s interpretation of state law is so aberrant or non-judicial as to violate due process and the like and thus could not be applied to federal elections, then that same state court ruling also could not be allowed to apply to state elections. (This is unlike ISL, which, as pointed out above, sought to impose distinctive limitations on state courts with respect to federal elections.)
And that (barring a state court ruling from applying in both state and federal elections) is a high bar for a federal court to meet; federal courts aren’t lightly going to tell state courts that the state-court interpretations of state constitutions are so lawless that such interpretations cannot be applied to state elections. If, post-Moore, federal courts have to afford the same level of deference to state-court rulings interpreting state constitutions whether federal or state elections are involved, federal court oversight should be very limited and infrequent indeed.
And in this way the Wisconsin Supreme Court case does provide some useful information on federal court review of state courts in the wake of Moore. To me, it is inconceivable that a federal court could conclude that the Wisconsin Supreme Court ruling (applying straightforward text in the state constitution) has violated federal due process or republican government principles. For that reason, the state-court ruling is constitutionally unobjectionable as applied to the regulation of state elections. And, given Moore’s repudiation of the core of ISL, if the state court ruling had arisen in the context of federal election-regulation, that result too would have been unobjectionable (under the U.S. Constitution.) In this way, the Wisconsin case does illustrate how little is left for federal courts to do in overseeing state court interpretations of state law after Moore v. Harper.
