MADISON, Wis. (CN) - The Wisconsin Supreme Court on Tuesday appointed judicial panels to review two separate lawsuits challenging the constitutionality of the state's congressional maps.

Every 10 years, Wisconsin is required by its constitution to draw up new congressional maps using census data to divide the state into roughly equal congressional districts, from which members of Congress are elected.

In 2020, the process broke down.

Wisconsin's Republican-controlled Legislature passed a bill outlining eight congressional districts, which Democratic Governor Tony Evers vetoed, prompting the state Supreme Court to step in. The court employed a "least change" approach that kept the maps largely the same as the prior decade.

However, the prior decade's map - known as Act 44, signed into law by former Governor Scott Walker in 2011 - was challenged at the time as an extreme partisan gerrymander. The state Supreme Court stepped in then, too, and applied the least change principles to revise the Act 44 map.

Two lawsuits were filed in July in Dane County Circuit Court challenging the congressional maps drawn up after the 2020 census. One claims the current map is biased against Democrats, while the other says it unconstitutionally favors incumbents.

On Tuesday, the Wisconsin Supreme Court appointed a panel of three circuit court judges to each case, finding that both constitute valid challenges to the "apportionment" of congressional districts.

The first challenge was filed by Wisconsin Business Leaders for Democracy, a liberal voting rights group, against the Wisconsin Elections Commission. The second was filed by 11 voters in different congressional districts also against the elections commission.

Although the two suits raise slightly different issues with the congressional map, both had to argue as a threshold issue that their challenges are to "apportionment."

The definition of that word was up for debate in subsequent briefs due to the court's use of the terms "redistricting," "apportionment" and "reapportionment" interchangeably to mean redrawing the state's congressional and state legislative districts.

In two nearly identical five-page orders, the justices acknowledged this complex linguistic landscape and declined to take a "cramped reading" of the statute governing these types of challenges.

The primary claim of the business leaders' suit is one of anticompetitive gerrymandering, which differs from partisan gerrymandering in that the former benefits those already in office while the latter "packs" and "cracks" voters likely to support the disfavored party.

The group claims that the authors of the Act 44 map avoided putting incumbents together in the same district and avoided flipping districts in order to insulate incumbents from electoral competition.

When it was time to redraw in 2021, and the Wisconsin Supreme Court applied the least change approach, the new map perpetuated the "primary flaws" of the 2011 map, according to the business leader plaintiffs.

The result is incumbent victories by upwards of 30% across the entire map, they say, and an unconstitutional voting scheme.

The second challenge, spearheaded by Elizabeth Bothfeld of Dodgeville, mirrors many of the first's claims: The 2011 map was gerrymandered, the 2021 map was created by making the least amount of possible changes to the 2011 map and so the current map remains unconstitutional.

The voters depart on the kind of violation, arguing instead that the Wisconsin Supreme Court ignored the partisan impact when adopting the remedial maps, which it called a "neutral standard" at the time.

The state Supreme Court has since rebuked the least change approach in a lawsuit challenging the state's legislative maps, finding that it creates an unclear standard.

This stark reversal of strategy by the court brings into question how the appointed panels can offer any remedy in the cases before them. The dissenting justices largely argued that they have no authority to rule on the issue, or that the panels and venue were chosen improperly by the majority.

"To be clear, I am not suggesting the judicial panel will fail to do its job with integrity and impartiality," Justice Brian Hagedorn said. "But this approach is an odd choice in the face of a statute so clearly designed to deter litigants from selecting their preferred venue and judge."

To the business leaders' lawsuit, the court appointed Dane County Circuit Court Judge David Conway, Portage County Circuit Court Judge Patricia Baker and Marathon County Circuit Court Judge Michael Moran.

Dane County Circuit Court Judge Julie Genovese, Milwaukee County Circuit Court Judge Mark Sanders and Outagamie County Circuit Court Judge Emily Lonergan will preside over the voters' parallel challenge.

Both lawsuits will be heard in Dane County where they were originally filed, and the Dane County judges originally assigned to the cases will be on the respective panels.

Justices Annette Ziegler and Rebecca Bradley, both part of the conservative minority, echoed their previous claims of a "pattern of partisan judicial activism," as Ziegler put it in her nine-page dissent.  

Justices Susan Crawford and Janet Protasiewicz denied motions by the Legislature to recuse themselves.

"Today is not a good day for Wisconsin's judicial system," Ziegler said in conclusion.

Source: Courthouse News Service