Wisconsin Republicans have asked the state Supreme Court to reconsider its decision to overturn the state’s legislative maps, saying lawmakers can’t draw new maps by the Court’s Jan. 12 deadline. 

In a motion filed last week, the attorneys for Senate Republicans argued the lawmakers wouldn’t be able to hit the Jan. 12 deadline to produce new maps that follow the Court’s order that districts be contiguous. 

“And now, announced the Friday before Christmas, the parties have been given 21 days — a third of them falling on weekends and state holidays — to submit proposed remedies, lengthy remedial briefs, and expert reports,” the Republican attorneys state in a filing. “The message is clear: The regular rules apply to Republicans. But here, Democrats get special solicitude.”

The Republicans also argue that the Court didn’t listen to their arguments, pre-decided the case and didn’t give them a chance to respond to the deadline for new maps. 

On Dec. 22, the Court ruled in a 4-3 decision that Wisconsin’s current maps are unconstitutional because they include many districts that aren’t contiguous — a requirement under the state constitution. The Court ordered the Legislature and the other parties involved in the lawsuit to submit new maps by Jan. 12, with supporting arguments due 10 days later. 

In order to be in place in time for the 2024 legislative elections, the maps must be set by mid-March, state election officials have said. 

The maps submitted by the parties will also be assessed by two referees the Court has appointed: University of California, Irvine political science professor Bernard Grofman and Carnegie Mellon University postdoctoral fellow Jonathan Cervas. 

For more than a decade, despite Wisconsin’s near 50-50 political divide, Republicans have enjoyed a disproportionately large majority in both houses of the Legislature because of the severe partisan gerrymander they instituted in 2011. That gerrymander, which experts have often cited as one of the worst in the country, was continued in 2022 when the Supreme Court, then under a conservative majority, imposed maps drawn by the Legislature. 

In addition to their request that the state Supreme Court reconsider its decision, Republicans have also suggested plans to appeal the decision to the U.S. Supreme Court. 

That course of action, however, would require Republicans to find a violation of federal law in a case and decision that are almost entirely focused on issues of state law. 

“We will pursue all federal issues arising out of the redistricting litigation at the U.S. Supreme Court,” Assembly Speaker Robin Vos (R-Rochester) said in a statement after the state Court’s decision. 

Before the decision, Republicans suggested that they would challenge Justice Janet Protasiewicz’s participation in the case at the U.S. Supreme Court. 

For months, Republicans alleged Protasiewicz had “pre-judged” the case because of comments about the legislative maps she made on the campaign trail and donations her campaign received from the state Democratic Party. Republicans threatened that if she didn’t recuse from the case, they’d move to impeach her. 

Protasiewicz denied the request for recusal, saying that the Democratic Party wasn’t a litigant in the case so its political donations to her didn’t affect the case and that recusing because of donations from one party would set a difficult precedent for the other members of the Court who have received campaign cash from either of the parties. 

The impeachment threat has subsided, but Republicans could argue in federal court that her participation violated their due process rights. 

Such an argument would be made under a federal precedent set in a 2009 Supreme Court case, Caperton v. Massey. In Caperton, a West Virginia judge had refused to recuse himself from the appeal of a $50 million jury verdict after the CEO of the plaintiff in the case had donated $3 million to the judge’s campaign. 

In addition to the facts in the case being different, the Caperton precedent was set by a liberal majority, so the current conservative leaning U.S. Supreme Court — which has regularly ruled in favor of money in politics — might be hesitant to endorse its argument. 

Other federal claims could be made after the maps are chosen. In the legal battle that led to the imposition of the current maps, the U.S. Supreme Court stepped in to say the Wisconsin Supreme Court couldn’t select legislative maps drawn by Gov. Tony Evers because they violated the Voting Rights Act by attempting to create too many majority-minority districts around Milwaukee. 

Vos said he expects a similar outcome this time. 

“Last time around, the Democrats’ maps racially gerrymandered voters to obtain a political goal,” he said. “I expect they’ll do so again. The Supreme Court wasn’t fooled by the overt racial gerrymandering before, and it’s my hope that the Court will refuse to allow that or any other violation of federal law this time around, too.”