Answering questions about proposed special session on gerrymandering
Wisconsin is extremely familiar with the scourge of partisan gerrymandering. Despite the adoption of fairer state legislative maps in 2024, the threat of partisan gerrymandering remains. After every decennial census, both state and federal law require the Wisconsin Legislature to redraw our state’s legislative and congressional district lines, offering another opportunity for Wisconsin legislators to gerrymander our legislative districts in an effort to obtain partisan advantage. Although the Legislature’s actions are subject to the Governor’s veto and court oversight, the recent outbreakof mid-cycle congressional redistricting across the country for overtly partisan purposes underscores that the risk of backsliding into partisan gerrymandering is always present.
Recently, Governor Evers signed Executive Order #285, calling the Wisconsin Legislature into special session on April 14, 2026. The purpose of the special session is to consider and act upon a proposed constitutional amendment banning partisan gerrymandering in drawing state legislative districts.
Article IV, Section 3 of the Wisconsin Constitution requires the Legislature to establish new districts for the state Senate and the state Assembly after each federal census (a process commonly called redistricting or reapportionment). The proposed constitutional amendment would add the following to that section: “Districts shall not provide a disproportionate advantage or disadvantage to any political party. Partisan gerrymandering is prohibited.” This seemingly simple and straight forward language raises several questions.
- Does the proposed amendment prohibit the partisan gerrymandering of Wisconsin’s congressional districts?
In short, no. Except for Wisconsin’s very first congressional apportionment in 1848, congressional districts have never been expressly addressed by the Wisconsin Constitution. The proposed amendment of Article IV, Section 3 would not change that. Instead, congressional redistricting is mandated by Article I, Section 1 of the United States Constitution and subject to requirements established under federal statutes and federal case law. This conclusion is clear based on the plain language of Article IV, Section 3 and is supported both by historical analysis of the Wisconsin Constitution and the common understanding of Article IV, Section 3 for decades.
Our state courts, and especially the Wisconsin Supreme Court, ultimately interpret and decide what the Wisconsin Constitution means. Although it is not possible to predict with certainty how a specific court will decide an issue, courts are generally required to follow long-standing rules of interpretation. When applied to the proposed amendment, the long-standing rules of Wisconsin law tell us that Article IV, Section 3 of the Wisconsin Constitution applies only to state legislative districts.
When interpreting a constitutional provision, courts first look to the meaning of the specific words, reading them reasonably and both in context and with a view for where the provision exists within the constitutional structure. If the meaning is clear, then the express words typically control. If, however, the meaning is ambiguous, then the courts look to other sources of information to determine what the words were intended to mean when they were adopted. Other relevant sources may include historical analysis of the constitutional debates and practices in existence in 1848 and the first statutes adopted by the Legislature interpreting the disputed constitutional language.
Under that analytical framework, the meaning of Article IV, Section 3 is clear. Article IV of the Wisconsin Constitution establishes the form, duties, and privileges of the Wisconsin Legislature which, pursuant to Article IV, Section 1 comprises a “senate and assembly.” Section 3 says that “the legislature shall apportion and district anew the members of the senate and assembly” (emphases added), meaning the Wisconsin Senate and the Wisconsin Assembly.
It is extremely unlikely that those terms would be deemed ambiguous, as they have been applied many times over decades of redistricting litigation without their meaning being questioned. But even if they were found to be ambiguous, a review of the Wisconsin Constitution in its original form supports the conclusion that Article IV, Section 3 refers only to state legislative redistricting. The Constitution as adopted in 1848 included several provisions applicable to Wisconsin’s transition from a territory to a state, including Article XIV, Section 10 addressing “Congressional apportionment,” and Article XIV, Section 12, addressing “Legislative apportionment.” Those provisions were related only to Wisconsin’s first apportionments and were quickly rendered irrelevant.
Article XIV, Sections 10 and 12 were repealed in 1982 because Congressional redistricting after the first apportionment was controlled by federal law and Wis. Stat. ch. 3, and state legislative redistricting after the first apportionment was controlled by Article IV, Section 3 of the Wisconsin Constitution. But their prior existence demonstrates two important principles that aid in interpreting the scope of Article IV, Section 3 as it stands today: (1) from statehood, the Wisconsin Constitution addressed congressional districts and state legislative districts separately; and (2) if the Governor’s proposed amendment were intended to address congressional districts, it would say so expressly (and likely in a new constitutional provision, rather than in the existing provision about state legislative redistricting).
- Does the Wisconsin Constitution already prohibit partisan gerrymandering?
In our view, yes. Partisan gerrymandering of both state legislative districts and congressional districts is already unconstitutional. The Wisconsin Constitution guarantees equal protection under the law (Article I, Section 1), freedom of speech (Article I, Section 3), freedom of association (Article I, Section 4), and maintenance of a free government (Article I, Section 22). Article I (Sections 1 and 22) and Article III also guarantee Wisconsin citizens the right to vote. Partisan gerrymandering violates all of these constitutional guarantees by deliberately manipulating how many voters of a particular political party reside within a district specifically to advantage one party over another. This means that voters of the disadvantaged party are treated differently under the law; the power of their votes—a protected form of speech—is minimized; and their freedom to associate with likeminded voters in support of their preferred candidate is hindered. Maintenance of a free government requires “firm adherence to justice,” a principle clearly violated by any legislative action designed to suppress voters’ rights, especially their fundamental right to vote.
By adding express language to the Wisconsin Constitution banning partisan gerrymandering for only state legislative districts, the proposed amendment could bolster claims that partisan gerrymandering is not already unconstitutional under Articles I and III—which it is. And if the amendment were adopted, those claims could be used to justify gerrymandering Wisconsin’s congressional districts on a partisan basis.
- Does the proposed amendment require or prohibit the establishment of an independent redistricting commission?
No. The proposed constitutional amendment has no impact on the establishment of an independent redistricting commission. It bans only partisan gerrymandering, leaving the duty to engage in redistricting with the Wisconsin Legislature. Establishing an independent redistricting commission would take responsibility for redistricting out of the hands of legislators who benefit from partisan gerrymandering. It is our view that requiring redistricting Wisconsin’s state legislative and congressional districts be done by an independent redistricting commission—that, by law, must avoid partisanship in its redistricting work—is the best way to ensure that congressional and state legislative districts are not drawn for partisan advantage. For more information about independent redistricting commissions, see the work of the Wisconsin Fair Maps Coalition and the Campaign Legal Center.
By: Rachel Snyder, Policy Counsel. March 23, 2026.