The Path To Fair Maps in Wisconsin Starts Up North and Winds Its Way Through a Newly Progressive State Supreme Court
Kirk here. I’m back after skipping many weeks of writing over the holidays to focus on selling beer. This “Dry January” tradition might be good for your bodies, but it's not necessarily great for us brewers, so we gotta make hay while the Christmas bells are still ringing:)
Now that we’re all back in the saddle of 2023, it’s time to focus on the Wisconsin Supreme Court Election coming on April 4th (and its equally important antecedent Primary on February 21st).
If you’ve been paying attention, you’ve read that this Supreme Court election is our last chance until 2030 to stop democracy-killing gerrymandering in Wisconsin.
Why? Because if we elect a progressive judge, we can change the balance of our Supreme Court and re-litigate the Republican-drawn maps that gave them a near veto-proof majority in the statehouse even while Democratic Governor Tony Ever's won statewide.
So if we do elect a progressive judge, what happens next? How might we actually get fairer maps?
I asked my friend and former United States Attorney for Wisconsin’s Eastern District, Jim Santelle, to guide me through some of the legal aspects of my hypothetical scenarios of what actually needs to happen to “Make Wisconsin Fair Again.”
Scenario 1—Democratic Attorney General Josh Kaul sues the Republican State Legislature (or another official entity) for disenfranchising Wisconsin Voters.
This SHOULD be the path forward, but speaking only for myself, I’ve not been impressed with Kaul’s appetite for fighting tough battles and don’t think he’ll wade into this all-important fight to mend Wisconsin’s diseased democracy.
I stopped criticizing him too much before the last election because his Republican opponent would have been much worse for Wisconsin and it was important for us progressives to unite. But in reality, Kaul didn’t lift a finger to hold any of Wisconsin’s January 6th insurrectionists accountable--including Ron Johnson, Scott Fitzgerald, Tom Tiffany, and Derrick van Orden; nor did he prosecute our fraudulent electors—all of whom committed obvious crimes. And unlike Michigan’s Attorney General Dana Nessel, he waited until AFTER Roe was overturned to attempt to invalidate Wisconsin’s 174-year-old barbaric abortion ban, prolonging the suffering of poor women who don’t have the resources to travel across state lines and receive reproductive healthcare.
I don't think we can rely on Josh Kaul to do the hard work of fixing Wisconsin. So, without the help of our Attorney General, where else do we turn?
I believe the fight for fair maps should start WAY Up North in Douglas, Bayfield, and Ashland Counties.
Scenario 2: Residents of Douglas, Bayfield, and Ashland counties should sue the State of Wisconsin for disenfranchisement if a progressive judge is elected to the Wisconsin Supreme Court on April 4, 2023
I think the most egregious example of gerrymandering is WAY UP NORTH in Douglas, Bayfield, and Ashland Counties.
These counties, full of descendants of Socially Democratic Scandinavian countries, have been voting blue for decades. Up until the last election, they were governed by a Democratic State Senator (Janet Bewley), two Democratic Assemblymen (Nick Milroy, Beth Myers) and only one Republican (David Armstrong)
As you can see from the new State Assembly maps, the most populous Democratic county, Douglas, was cut in half, which diluted those two blue districts sufficiently to flip the Democratic Senate seat and both the Democratic Assembly seats for the Republicans—a clean sweep of red in a solidly blue area.
It is pretty clear that the Democrats in these three counties have become disenfranchised because not even one out of their three assembly districts represents them.
IF A PROGRESSIVE JUDGE IS ELECTED ON APRIL 4th, Former United States Attorney Jim Santelle believes that some residents in these three counties, presumably Democrats, have standing to sue on the basis that their right to representation through a fair vote has been denied.
What does STANDING mean? It means that the plaintiffs have been injured in some identifiable, provable way that has resulted in real damages to them. And the injury the residents of these three counties have, of course, is that their votes no longer matter when it comes to state representation.
Even better, since these three counties lean progressive, they’re more likely to have progressive county judges who will rule in their favor, which will mean the cases should make their way, maybe through the appellate court (District III in that portion of our state), to the Wisconsin Supreme Court.
And that’s why this vote for on April 4th matters so much. If we tilt the balance of Wisconsin’s Supreme Court by voting for a progressive judge, there’s a high likelihood that the Supreme Court will overturn those completely unfair Republican maps and force Wisconsin to come up with fairer maps for 2024—a presidential year that could make or break all of America.
But what about the 6 conservative zealots on SCOTUS who overturned the first decision of the Wisconsin Supreme Court to accept Tony Evers’ maps--which led to Wisconsin Justice Brian Hagedorn reversing his previous position and handing Republicans (and all of us) the most unfair maps in Wisconsin's history? Hasn’t our Trump-infused SCOTUS shown that they will ignore all precedent in order to legislate from the bench?
Well, in Rucho v. Common Cause and Lamone v. Benisek—both decided on June 27, 2019—the United States Supreme Court ruled that federal courts have no authority to block partisan/political gerrymandering. Conservative Chief Justice John Roberts, writing for a 5-4 majority said, “We conclude that partisan gerrymandering claims present political questions beyond the reach of the federal courts.” To do otherwise would accomplish “an unprecedented expansion of judicial power.”
So if the United States Supreme Court decides to wade into a progressive Wisconsin Supreme Court decision to make our maps more fair before 2024, they’d be committing an act of grand hypocrisy merely 3 years after concluding they shouldn’t get involved. In the end, it’s more likely that, based on claims of partisan gerrymandering, SCOTUS (and all federal courts, including those in Wisconsin) would stay out of this fight.
So folks, absent any grand hypocrisy from SCOTUS, I think this is the path to MAKE WISCONSIN A DEMOCRACY again, and it starts on February 21st. In less than 6 weeks we have to GO TO THE POLLS and vote for progressive judge Janet Protasiewicz. We're endorsing her over the other progressive candidate Everett Mitchell because we think Janet has a much better chance of winning statewide and there is a HIGH RISK that both progressive candidates could split the progressive vote and advance two conservative candidates to the general election on April 4th. We don't want to take that chance and thus are endorsing Janet early.
The Minocqua Brewing Company Super PAC will be laser-focused on this election from now until then, and next week we’ll talk about how you can help.
Although all this legal mumbo jumbo is exhausting, we have to dig into it in order to understand how much is at stake.
Thanks for digging in, and thanks for sticking with the Minocqua Brewing Company. Together, we'll sue our way back to Fair Maps--and we'll probably need a few beers along the way.
Owner Minocqua Brewing Company
Founder, Minocqua Brewing Company Super PAC
P.S. Thanks again to former United States Attorney Jim Santelle for his legal input on this essay. He also reminds me that the federal courts still do get involved in cases of racial gerrymandering—as shown by the important (and troubling) case pending before SCOTUS even now, Merrill v. Milligan, challenging the disenfranchisement of voters of color by the Alabama legislature as a violation of the Voting Rights Act.