A lawsuit seeking to throw out Wisconsin’s congressional maps on the basis that they’re unconstitutionally anti-competitive was dismissed Tuesday by a panel of three circuit court judges. 

The lawsuit was brought last summer by bipartisan business group Wisconsin Business Leaders for Democracy Coalition, represented by the progressive nonprofit Law Forward. 

For more than a decade, Wisconsin has been a national symbol of the effects of extreme partisan gerrymandering and Tuesday’s dismissal comes amid a effort by both major parties to redraw maps ahead of this fall’s midterm elections. 

A national mid-decade redistricting tit-for-tat started last year when Texas Republicans drew new maps, at President Donald Trump’s request, in an attempt to limit the number of Democrats in the House of Representatives. A number of other Republican states, including Missouri and North Carolina, followed suit. In response, voters in California and Virginia voted to change state laws to allow Democrats to re-draw their maps to minimize Republican seats. 

This week, Florida Gov. Ron DeSantis introduced a bill that would redraw his state’s maps to give Republicans four more seats. 

While both parties have drawn political maps to favor their own candidates, only congressional Democrats have proposed a bill that would ban partisan gerrymandering. In Wisconsin, state Democrats have long pushed for the adoption of a non-partisan redistricting commission. 

Wisconsin’s current congressional maps were adopted in 2021 by the state Supreme Court after Gov. Tony Evers and Republicans in the Legislature were unable to reach a deal on their own. When forced to weigh in, the Supreme Court instituted a “least change” rule that required any maps proposed to the Court to hew as closely as possible to the maps instituted by Republicans in 2011. The map the Court chose was proposed by Evers, a Democrat, but resulted in a heavily Republican congressional delegation, since they were drawn to adhere to the “least change” standard.

The 2011 political maps and the least change decision allowed Republicans to hold six of the state’s eight congressional seats. The state Supreme Court tossed out the state’s legislative maps in 2023 — which remained heavily gerrymandered under the “least change” standard — on the grounds that the shapes of the districts, some of which were broken into noncontiguous parts, were illegal. 

Over the years, the court system has heard a number of challenges to Wisconsin’s congressional maps on the basis that they are an illegal partisan gerrymander. A separate three-judge panel dismissed another lawsuit on partisan gerrymandering grounds late last month. 

Despite that dismissal, the Law Forward lawsuit argued that its claims were new and therefore deserved to be considered by the courts. The lawsuit argued that the maps were drawn to unfairly give incumbents of both parties an advantage, pointing to the fact that only one of the state’s congressional districts, western Wisconsin’s 3rd CD, is regularly decided by a single-digit margin. 

“After the Wisconsin Legislature adopted the 2011 congressional map, congressional races over the ensuing decade were, as intended, highly uncompetitive,” the lawsuit stated. “The Court’s adoption … of the ‘least change’ congressional map necessarily perpetuated the essential features — and the primary flaws — of the 2011 congressional map, including the 2011 congressional map’s intentional and effective effort to suppress competition.”

Republicans and their allies intervened in the case, arguing that it should be dismissed because the anti-competitive argument treads the same ground as the partisan gerrymandering claims the Court has already declined to hear. 

The three-judge panel, made up of Dane County Judge David Conway, Marathon County Judge Michael Moran and Portage County Judge Patricia Baker, agreed and dismissed the case, noting that the makeup of the state’s political maps is a question best left to the political branches of government, not the judicial system.

“Plaintiffs’ anti-competitive gerrymandering claims are functionally equivalent to partisan gerrymandering claims, at least for purposes of the political question analysis,” the judges wrote. “In a two-party system, partisan fairness and competitiveness are correlated: a more competitive map is typically a fairer map, whereas less competition usually means less partisan fairness. The objective of both theories is to change ‘the partisan makeup of districts,’ whether by achieving proportional representation, electoral competitiveness, or both.” 

Doug Poland, Law Forward’s director of litigation, said in a statement Tuesday that it’s disappointing the panel dismissed the case before it had the opportunity to hear evidence. He also said the panel’s ruling will be appealed directly to the Supreme Court. 

“This is the first anti-competitive gerrymandering case ever filed in Wisconsin courts, and it deserves to be heard,” Poland said. “We believe that the circuit court was wrong in concluding that anti-competitive gerrymandering is ‘functionally equivalent’ to partisan gerrymandering. They are different claims, based on different evidence, that target different ways of manipulating representation to the detriment of voters.”

Republican lawmakers want a lawsuit challenging the state’s school funding formula as unconstitutional dismissed, according to court filings. 

The lawsuit challenging Wisconsin’s current school funding system was filed in February by Law Forward, a public interest law firm, in Eau Claire Circuit Court. The progressive legal group filed it on behalf of a group of school districts, parents, teachers, students and two advocacy organizations, the Wisconsin PTA and the Wisconsin Public Education Network (WPEN). The suit argues that the state Legislature is not fulfilling its constitutional obligation to provide a “sound basic education” under the current school funding formula.

GOP lawmakers, including Assembly Speaker Robin Vos (R-Rochester), Senate Majority Leader Devin LeMahieu (R-Oostburg) and members of the Joint Finance Committee, called the lawsuit “meritless” in their filing and said that the majority of questions asked in the lawsuit have been previously answered in previous court cases, including in the state Supreme Court’s Vince v. Voight decision. That 2000 lawsuit found that the state’s school funding formula was constitutional. 

“For all of plaintiffs’ sky-is-falling assertions, the school finance system that plaintiffs challenge here is the same system that the Wisconsin Supreme Court upheld against similar (indeed, mostly identical) constitutional claims in Vincent v. Voight,” the filing states. “That system, Vincent explained, complies with the Wisconsin Constitution because it affords every student the opportunity to obtain a constitutionally adequate education. The Supreme Court reached this conclusion notwithstanding various complaints relating to test scores, school facilities, teacher staffing, and the like — complaints that are materially indistinguishable from those that Plaintiffs raise here.”

The lawmakers said the plaintiffs in the suit are asking the judiciary to take over the Legislature’s constitutional role in determining funding for primary and secondary education, even as the Legislature has fulfilled its constitutional responsibilities by enacting a comprehensive school finance system for the state’s public schools. 

The new lawsuit argues that declines in student proficiency for Wisconsin’s reading and math test scores are the result of declining investments in schools. It also argues that the growth of the state’s school voucher programs, which use state money to cover the cost of private school tuition, have contributed to declining funding for Wisconsin public schools.

The lawsuit asks the court for a declaration that the Legislature hasn’t fulfilled and cannot “shirk” its constitutional obligation to fund schools at a sufficiently high level to “ensure that every Wisconsin student has an equal opportunity to obtain a sound basic education that equips them for their roles as citizens and enables them to succeed economically and personally in a tuition free public school where the character of instruction is as uniform as practicable.” It calls for the current funding system to be ruled invalid.

Jeff Mandell, co-founder of Law Forward, called the motion to dismiss a “predictable attempt to avoid accountability” in a statement.

“We filed this lawsuit because families, educators, and communities across Wisconsin are seeing firsthand that the current system is not meeting that promise — forcing schools to rely on referendums, widening inequities, and leaving too many students without the resources they need,” Mandell said. “We maintain that this case deserves to be heard and are confident that the court will agree.”

The lawmakers also argue in the filing that the five school districts named in the suit, including the Adams-Friendship Area School District, the School District of Beloit, the Eau Claire Area School District, the Green Bay Area Public School District and the Necedah Area School District, should be dismissed from the case, arguing that they lack standing to challenge the constitutionality of the school finance system as a political subdivision of the state.

The lawmakers argue that the issues the plaintiffs pointed to in the lawsuit are not sufficient evidence of the state not upholding its constitutional obligation.

The lawsuit specifically points to the increasing reliance of Wisconsin school districts on asking voters to help them keep up with operating costs by increasing local property taxes through ballot measures (with varying results) as well as the decline in the state’s special education reimbursement rate.

The state currently picks up a little more than one-third of special education costs, despite the state budget promising to cover 42% of costs this year. The Necedah Area School District, which recently failed to pass a  referendum in April, has diverted all of its revenue from its previous operational referendum requests, about $6.6 million, to its special education fund. Meanwhile, the special education reimbursement rate for private voucher schools is 90%. 

“The Wisconsin Constitution makes clear that localities are expected to cover a significant portion of the cost of funding public schools,” the Republicans’ filing states. “That some school districts have had to use some of their own general education funds to cover the costs of special education is not constitutionally significant in the absence of any plausible allegations that any student has been deprived of the opportunity to obtain a sound basic education. And as for districts’ need to use referenda to exceed the revenue limits here, this too is constitutionally irrelevant.” 

The Legislature appropriated more than $7 billion in school aid in the 2024–25 fiscal year, the Republican filing noted. 

Democratic lawmakers on the Joint Finance Committee submitted their own filing, which was supportive of the lawsuit. 

“A constitutional promise is not optional,” the lawmakers wrote. “Wisconsin children cannot receive one level of educational opportunity in communities that can raise and pass local referenda and another in communities that cannot.”

The lawsuit also lays out how the state’s private-school choice system, which was launched in the 1990s and has grown exponentially over the years, has contributed to the erosion in  funding for public schools. There are four distinct school voucher programs in the state: the Wisconsin Parental Choice Program, the Milwaukee Parental Choice Program, the Racine Parental Choice Program and the Special Needs Scholarship Program. Wisconsin is paying about $700 million this year for more than 60,000 students to participate in the voucher programs.

Republican lawmakers rejected the assertion that the choice programs are related to the lawsuit’s claims.

“This is a baseless attempt to tar these longstanding, alternative educational offerings that are both highly effective and extremely popular across the State,” the lawmakers stated. 

The Wisconsin Institute for Law and Liberty on behalf of parents and School Choice Wisconsin Action are also seeking to intervene in the case as are parents represented by EdChoice Legal Advocates, a school choice litigation firm.

What are the odds the soon-to-retire Republican leaders of the state Legislature are seriously considering Gov. Tony Evers’ call to end partisan gerrymandering? 

Evers called the special session that began and ended with no action this week, asking legislators to take up a constitutional amendment to ban the practice of drawing voting maps that give a disproportionate advantage to one political party. 

Legislators didn’t exactly refuse — they’ve kicked the can down the road, adjourning temporarily until later this month. As Baylor Spears reports, Senate Majority Leader Devin LeMahieu explained that legislators need to “gain public input in order to make an informed decision on how to proceed.” Assembly Speaker Robin Vos and Majority Leader Tyler August said they want to have more discussions with Evers to reach a “transparent and balanced solution that reflects the interests of all Wisconsinites.” 

Or maybe they just want to run out the clock, do nothing and then blame the governor for their failure to act. 

After all, President Donald Trump, the Republicans’ national leader, has been strong-arming GOP legislators in red states to hold extraordinary mid-decade redistricting sessions to draw him some extra seats to shore up an unpopular Republican House majority. Wisconsin Republicans would be swimming against the tide if they made their last act in office a good-government effort to lock in fair maps. 

Giving up power is not exactly on brand for Wisconsin Republicans. These are the same legislators who drew themselves into the most partisan gerrymandered districts in the country back in 2010. When it came time to draw another round of maps after the 2020 census, they gathered copious public input, holding hearings in which an overwhelming majority of voters told them that they wanted fair maps, and then ignored the public and gerrymandered the maps again. Only after the state Supreme Court declared those maps unconstitutional did they relent and accept 50/50 maps that lean slightly toward Republicans majorities.

Now they’re quitting in droves rather than work in a Legislature where they’ve lost the disproportionate power they conferred on themselves through gerrymandering.

Still, staring down the possibility of Democratic trifecta control of government, it’s possible Republicans could take the long view and try to protect their 50/50 stake before the other party has a shot at redrawing the districts. 

Then again, Republicans have shown very little appetite for that kind of sensible, good-government approach. As the Milwaukee Journal Sentinel reported this week, Republican legislative leaders are paying private attorneys $550 per hour in taxpayer money to defend their practice of hiring private attorneys at the taxpayers’ expense.

This freewheeling expenditure of your tax dollars follows a lawsuit filed by the public interest law firm Law Forward in February challenging the use of expensive private attorneys by GOP leaders. That practice started in the lame duck session after Evers was first elected, when Republican legislative leaders began frantically grabbing powers from the new Democratic administration. 

“It’s all about an unwillingness to exist within the bounds of checks and balances,” says Jeff Mandell of Law Forward. “It smacks of a sense that the Legislature, and particularly its leadership, is beyond accountability.”

That kind of arrogance is on its way out, along with the legislative leaders who, for more than a decade, treated government as their private club, hoarding power and ignoring the will of the voters. The best way to make sure it never returns is to permanently guarantee fair maps.

A legal brief filed late last week seeks to have a Dane County judge declare that an 1897 law banning the practice of fusion voting is unconstitutional because it restricts the rights to a “free government,” equal protection and freedom of speech through a law that was passed to explicitly create a partisan electoral advantage. 

The motion was filed on Friday in a lawsuit brought last year by United Wisconsin, a nascent centrist political party hoping to offer voters an alternative to the “duopoly” of the Democratic and Republican parties. The group is represented by the voting rights focused firm Law Forward. 

Fusion voting is a practice through which multiple political parties can nominate the same candidate to the ticket. Under the system, a minor party such as United could choose to nominate its own candidate, but more often the party would endorse one of the major party candidates. Voters would be able to cast their votes for the same preferred candidate under either party line. 

At a conference on fusion voting hosted at UW-Madison last year, political scientists and proponents of the system said that in theory it can give minor parties more influence. A third party candidate under the current system is unlikely to win, but a minor party’s policy preferences are harder to ignore if the party has just enough sway to swing an election result in either direction.

The brief describes a hypothetical congressional race in which United cross-endorses the Democratic candidate, given the name Olson. After the hypothetical votes are counted, the Republican candidate has earned 48.2% of the vote on the Republican ticket while Olson has earned 45.9% of the vote on the Democratic ticket and 4.9% on the United line. When added together, this gives Olson the win with 50.8% of the total vote. 

In Wisconsin, where elections are often decided by single digit margins, this could result in meaningful considerations of the desires of the minor party voters — rather than the current system under which third party candidates, such as Ralph Nader in the 2000 presidential election, are seen as spoilers who can pull enough support away from the closest ideological major party candidate to help the other side win. 

“That is fusion voting in action. United Wisconsin will claim, with merit, to have helped her over the finish line,” the brief states. “No doubt Olson will be more attentive to her ‘home’ party, but if she’s a competent politician, she won’t ignore the priorities of the moderates and centrists in the United Wisconsin Party. If she does, United Wisconsin, and its key bloc of voters, might cross-nominate her opponent in the next election.”

Fusion voting is often considered alongside ideas such as ranked choice voting and multi-member congressional districts as a reform proposal that could help prevent the country from sliding into an authoritarian government. 

“Fusion offers the opportunity to create meaningful new political identities,” the legal brief states. “It allows voters of all ideological stripes to vote for their values without having to support a rival or opposing party with a mostly intolerable program.”

In the 19th century, fusion voting was used across the country. The practice was phased out in most of the country but exists currently in New York and Connecticut. The brief, which includes as many examples from history and political science as it does legal citations, states that Wisconsin’s fusion voting ban was enacted by the Republican Party in 1897 as it surged to become the state’s dominant political force in a direct effort to limit the ability of the Democratic Party and other minor parties to win. 

“History shows the ban was enacted as a form of invidious political discrimination,” the brief states.

The lawsuit argues the state has no direct interest in maintaining the power of the Democratic and Republican parties, so the law must be put under “strict scrutiny” for fundamentally restricting the speech of Wisconsinites. 

“When political parties cannot nominate their candidates of choice, they cannot effectively organize, campaign, advance priorities, or exercise political power,” the brief states. “They are relegated for perpetuity to a spoiler role, whereby any electoral effort they make is not only futile in advancing their own candidate and platform, but also seriously risks helping their least-favored major-party candidate win the race and get to govern. While the ban still allows political parties to nominate most candidates, it prohibits them from nominating the only candidates who can win; and while it allows political parties some degree of speech, it constrains their speech in the context for which political parties exist — the ballot.”