Jensen v. Wisconsin Elections Bd.

• Court: Wisconsin Supreme Court
• Citation: Jensen v. Wisconsin Elections Bd., 639 N.W.2d 537, 249 Wis 2d 706, 2002 WI 13 (Wis. 2002)
• Decision Date: 12 February 2002
• Docket Number: No. 02-0057-OA.,02-0057-OA.
• Parties: Scott R. JENSEN, personally and as Speaker of the Wisconsin Assembly and Mary E. Panzer, personally and as Minority Leader of the Wisconsin Senate, Petitioners, v. WISCONSIN ELECTIONS BOARD, an independent agency of the State of Wisconsin, Jeralyn Wendelberger, its chairman, and each of its members in his or her official capacity, David Halbrooks, R.J. Johnson, John P. Savage, John C. Schober, Steven V. Ponto, Brenda Lewison, Christine Wiseman and Kevin J. Kennedy, its executive director, Respondents, STATE SENATE MAJORITY LEADER CHARLES J. CHVALA, State Assembly Minority Leader Spencer Black, Intervenors-Respondents, WISCONSIN EDUCATION ASSOCIATION COUNCIL, a voluntary association, Stan Johnson, its elected president, and several of its members, Tommie Lee Glenn, Paul Hambleton and Dianne Catlin Lang, Intervenors-Respondents.

249 Wis.2d 706

2002 WI 13

639 N.W.2d 537

Scott R. JENSEN, personally and as Speaker of the Wisconsin Assembly and Mary E. Panzer, personally and as Minority Leader of the Wisconsin Senate, Petitioners, v. WISCONSIN ELECTIONS BOARD, an independent agency of the State of Wisconsin, Jeralyn Wendelberger, its chairman, and each of its members in his or her official capacity, David Halbrooks, R.J. Johnson, John P. Savage, John C. Schober, Steven V. Ponto, Brenda Lewison, Christine Wiseman and Kevin J. Kennedy, its executive director, Respondents, STATE SENATE MAJORITY LEADER CHARLES J. CHVALA, State Assembly Minority Leader Spencer Black, Intervenors-Respondents, WISCONSIN EDUCATION ASSOCIATION COUNCIL, a voluntary association, Stan Johnson, its elected president, and several of its members, Tommie Lee Glenn, Paul Hambleton and Dianne Catlin Lang, Intervenors-Respondents.

No. 02-0057-OA.

Supreme Court of Wisconsin.

Oral Argument February 5, 2002.

Decided February 12, 2002.

For the petitioners there was oral argument by James R. Troupis of Michael, Best & Friedrich, Madison.

For intervenors-respondents, Charles J. Chvala and Spencer Black, there was oral argument by Michael P. May of Boardman, Suhr, Curry & Field, LLP, Madison.

For intervenor-respondent, WEAC, there was oral argument by Brady C. Williamson, Jr., of LaFollette, Godfrey & Kahn, Madison.

For the respondents the cause was argued by Thomas J. Balistreri, assistant attorney general.

¶ 1. PER CURIAM.

This matter involves the decennial problem of legislative redistricting. On January 7, 2002, Assembly Speaker Scott R. Jensen and Senate Minority Leader Mary E. Panzer, representing Assembly and Senate Republicans, petitioned this court for leave to commence an original action on the issue of state legislative redistricting. Senate Majority Leader Charles J. Chvala and Assembly Minority Leader Spencer Black, representing Senate and Assembly Democrats, and the Wisconsin Education Association Council (WEAC), along with its president and several of its members, were each permitted to intervene on the initial jurisdictional question. ¶ 2. The petitioners ask this court to declare the existing legislative districts constitutionally invalid due to population shifts now documented by the 2000 census. They further ask that we enjoin the respondent Wisconsin Elections Board (Elections Board) from conducting the 2002 elections using the existing districts. Finally, claiming a legislative impasse, they ask this court to remap the state's Senate and Assembly districts in time for the rapidly approaching 2002 election cycle.

¶ 3. The intervenors argue against our assumption of original jurisdiction in this matter because a three-judge panel of the federal district court in Milwaukee has already taken jurisdiction over state legislative redistricting, has scheduled a trial, and is ready, willing, and, under present circumstances, better able to decide the state and federal questions presented by this case. The Elections Board, by a 4-3 margin, supports the petition for original jurisdiction (four Republican appointees in favor, two Democratic appointees and one court-appointee against).

¶ 4. This case raises important state and federal legal and political issues that go to the heart of our system of representative democracy.¹ In the absence of a timely legislative compromise, our participation in the resolution of these issues would ordinarily be highly appropriate. For the reasons that follow, however, we decline to accept original jurisdiction in this matter, and therefore deny the petition without prejudice.

I

[1, 2]

¶ 5. It is an established constitutional principle in our federal system that congressional reapportionment and state legislative redistricting are primarily state, not federal, prerogatives.² Growe v. Emison, 507 U.S. 25, 34 (1993); Chapman v. Meier, 420 U.S. 1, 27 (1975); Scott v. Germano, 381 U.S. 407, 409 (1965). Although the federal and state courts have concurrent jurisdiction to decide the federal and state constitutional and statutory issues presented by redistricting litigation, the United States Constitution and principles of federalism and comity dictate that the states' role is primary:

`[R]eapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court.' Chapman v. Meier, 420 U.S. 1, 27, 95 S.Ct. 751 (1975). Absent evidence that these state branches will fail timely to perform that duty, a federal court must neither affirmatively obstruct state reapportionment nor permit federal litigation to be used to impede it.

Growe, 507 U.S. at 34. ¶ 6. The Wisconsin Constitution sets forth standards for redistricting,³ and commits to the state legislature the authority and responsibility of drawing State Senate and Assembly district boundaries: "At its first session after each enumeration made by the authority of the United States, the legislature shall apportion and district anew the members of the senate and assembly, according to the number of inhabitants." Wis. Const. art. IV, § 3.

¶ 7. However, in the four decades since Baker v. Carr, 369 U.S. 186 (1962), and Reynolds v. Sims, 377 U.S. 533 (1964), the matter of redistricting in Wisconsin has been resolved by the legislature without court involvement exactly once, in 1972. The last time this court was involved in redistricting was 1964. See State ex rel. Reynolds v. Zimmerman, 22 Wis. 2d 544, 126 N.W.2d 551 (1964) ("Zimmerman I"); State ex rel. Reynolds v. Zimmerman, 23 Wis. 2d 606, 128 N.W.2d 16 (1964) ("Zimmerman II")

¶ 8. In Zimmerman I, this court followed the United States Supreme Court's Baker v. Carr lead and overruled prior cases that precluded judicial review of redistricting statutes valid when enacted but allegedly invalid under the Wisconsin Constitution due to subsequent population shifts. State ex rel. Reynolds, 22 Wis. 2d at 562-63 ("Zimmerman I"). Noting that the earlier cases were based upon the "political question" nonjusticiability rationale of Colegrove v. Green, 328 U.S. 549 (1946), distinguished by Baker v. Carr, 369 U.S. at 208-09, 234, this court held that:

The citizens of this state can now obtain affirmative judicial relief from federal courts upon a showing that the voting power discriminations resulting from malapportionment deny them equal protection. Since a denial of voting rights deemed to be a denial of the general standards of equal protection of the law under the Fourteenth amendment would also be a denial of the specific standard of representation in direct ratio to population in art. IV [of the Wisconsin Constitution], there is no reason for Wisconsin citizens to have to rely upon the federal courts for the indirect protection of their state constitutional rights.

State ex rel. Reynolds, 22 Wis. 2d at 564 ("Zimmerman I") (emphasis added).

¶ 9. Notwithstanding Zimmerman I's unequivocal assertion of this court's institutional interest in vindicating the state constitutional rights of Wisconsin citizens in redistricting matters, redistricting combatants have either sought or ended up in federal court following both the 1980 census and the 1990 census. See Wisconsin State AFL-CIO v. Elections Board, 543 F. Supp. 630 (E.D. Wis. 1982); Prosser v. Elections Board, 793 F. Supp. 859 (W.D. Wis. 1992). In 1982, this court granted a petition for leave to commence an original action in the matter of legislative redistricting, but its jurisdiction was brief and inconsequential: the case was promptly removed to federal court in Milwaukee and consolidated with a redistricting lawsuit already pending there. Wisconsin State AFL-CIO, 543 F. Supp. at 632-33; State ex rel. Dreyfus v. Election Board, No. 82-480-OA (Wis. S. Ct. 1982) (petition for original action granted). [3]

¶ 10. Despite the reality that redistricting is now almost always resolved through litigation rather than legislation, we are moved to emphasize the obvious: redistricting remains an inherently political and legislative — not judicial — task. Courts called upon to perform redistricting are, of course, judicially legislating, that is, writing the law rather than interpreting it, which is not their usual — and usually not their proper — role.⁴ Redistricting determines the political landscape for the ensuing decade and thus public policy for years beyond. The framers in their wisdom entrusted this decennial exercise to the legislative branch because the give-and-take of the legislative process, involving as it does representatives elected by the people to make precisely these sorts of political and policy decisions, is preferable to any other.

¶ 11. But the requirement of a remedy for constitutional or Voting Rights Act violations stipulated or adjudicated in redistricting litigation has impelled the federal courts to take up seemingly permanent residency in what Justice Frankfurter warned was a "political thicket" that judges "ought not to enter." Colegrove, 328 U.S. at 556 (plurality opinion). It is not a comfortable place for any court, state or federal. See Jeffrey C. Kubin, Note, The Case for Redistricting Commissions, 75 Tex. L. Rev. 837, 841 (1997) ("[w]hile straightforward in principle, the redistricting process is complicated by the political arena in which it operates and the judiciary's attempts to police this political arena.").⁵ We read Growe as the United States Supreme Court's effort to put the state supreme courts back into the equation.

II

[4]

¶ 12. We are at this moment well into the first legislative session following the 2000 census enumeration, and not far (just three and a half months) from the official commencement of the next election season (nomination paper circulation begins June 1). Wis. Stat. § 10.72(2) (1999-2000). And yet, neither the Democratic-controlled State Senate nor the Republican-controlled State Assembly has submitted a legislative redistricting bill. Accordingly, were we...