The state of Wisconsin does not choose its state legislature in free and fair elections, and it has not done so for a very long time. A new lawsuit, filed just one day after Democrats effectively gained a majority on the state Supreme Court, seeks to change that.
The suit, known as Clarke v. Wisconsin Elections Commission, seeks to reverse gerrymanders that have all-but-guaranteed Republican control of the state legislature — no matter which party Wisconsin voters supported in the last election.
In 2010, the Republican Party had its best performance in any recent federal election, gaining 63 seats in the US House of Representatives and making similar gains in many states. This election occurred right before a redistricting cycle, moreover — the Constitution requires every state to redraw its legislative maps every 10 years — so Republicans used their large majorities in many states to draw aggressive gerrymanders.
Indeed, Wisconsin’s Republican gerrymander is so aggressive that it is practically impossible for Democrats to gain control of the state legislature. In 2018, for example, Democratic state assembly candidates received 54 percent of the popular vote in Wisconsin, but Republicans still won 63 of the assembly’s 99 seats — just three seats short of the two-thirds supermajority Republicans would need to override a gubernatorial veto.
The judiciary, at both the state and federal levels, is complicit in this effort to lock Democrats out of power in Wisconsin. In Rucho v. Common Cause (2019), for example, the US Supreme Court held that no federal court may ever consider a lawsuit challenging a partisan gerrymander, overruling the Court’s previous decision in Davis v. Bandemer (1986).
Three years later, Wisconsin drew new maps which were still very favorable to Republicans, but that included an additional Black-majority district — raising the number of state assembly districts with a Black majority from six to seven. These new maps did not last long, however, because the US Supreme Court struck them down in Wisconsin Legislature v. Wisconsin Elections Commission (2022) due to concerns that these maps may have done too much to increase Black representation.
That’s not quite how it works. They each are assigned a circuit but that’s not for deciding which cases are heard. All appeals go to all 9 of them and if 4 of them decide they want to hear it, then they do.