The Data is In: Wisconsin’s Legislative Maps Are Neutral and Competitive, Returning to Wisconsin Voters the Power to Select Their State Representatives and Senators
Since the approaching holidays and end of the year naturally invite reflection on significant events over the past year, it is timely to celebrate that just last month, the website PlanScore released an analysis confirming that in November 2024, for the first time in 14 years, Wisconsin voters cast their ballots to elect state legislators in districts that were not gerrymandered to provide candidates, based solely on their partisan affiliation, advantage significant enough to violate voters’ constitutional rights. The PlanScore analysis confirms that, for the first time since 2000, Wisconsin held an election in which the state legislative districts were politically neutral.
In other words, we finally have fair maps!
This result did not come about by simple happenstance. It came through a long, hard, deliberate legal process culminating in the Wisconsin Supreme Court’s December 22, 2023 ruling in Clarke v. Wisconsin Elections Commission, a lawsuit that Law Forward and several collaborating law firms brought, which forced the Legislature to finally work with the Governor to adopt fair and politically neutral maps. The struggle to achieve fair and politically neutral state legislative districts has been a long and arduous one in Wisconsin. Revisiting how we arrived at this landmark achievement can provide strategies and hope as we confront other developing and continuing challenges to our democracy.
Remembering the REDMAP Gerrymander
The seeds of the struggle for fair maps were planted in the 2010 midterm elections when Republicans swept into power in Wisconsin. Voters gave Republicans control of the assembly, senate, and governor’s office, putting the Republican Party solely in control of the legislative process. They immediately embarked on an effort to secure Republican control of the Legislature for an entire decade. They did this through the process of redistricting, which occurs in the year following the decennial United States census. Upon assuming office in early 2011, the new Republican majority in the Wisconsin State Legislature and then-Governor Scott Walker enacted new state legislative district boundaries that were designed to give—and did give—the Republican candidates an effectively insurmountable advantage in a majority (and, at times, a supermajority) of Wisconsin’s 99 assembly and 33 senate districts. As was discovered and revealed six years later by investigative journalist David Daley, Wisconsin was one of seven states nationally that the Republican Party had targeted in the 2010 midterm elections as part of its REDMAP program to adopt new state legislative districts designed to so heavily favor Republican candidates that they would hold nearly a supermajority of seats in both chambers and essentially insulate Republicans from losing control of the Legislature for the entire decade.
The assembly and senate districts that the Legislature and Governor Walker enacted through 2011 Wisconsin Act 43 were a textbook example of an extreme partisan gerrymander. Representing the interests of a diverse set of voters, including Law Forward’s current Community Liaison, Carlene Bechen (who, at the time, was a middle school teacher), Law Forward co-founder Doug Poland and Milwaukee lawyer Peter Earle brought and tried a lawsuit in federal court in Milwaukee challenging Act 43. Although they won some adjustments to the boundaries of two Milwaukee assembly districts that, the court found, violated the Voting Rights Act, the statewide map remained largely unchanged.
In the very first election after their adoption, the gerrymandered districts proved just how skewed they were in Republicans’ favor. In November 2012, although Democratic candidates for the Wisconsin State Assembly won 51.4% of the votes cast to Republicans’ 48.6% share of votes cast statewide, the districts were so skewed that Democratic candidates won only 39 (39%) of the seats in the 99-seat assembly, whereas Republican candidates won 60 (60%) of the seats.
The imbalance continued throughout the decade, including in the 2018 general election, which saw Democrat Tony Evers defeat incumbent Governor Scott Walker and Democrat Josh Kaul defeat incumbent Attorney General Brad Schimel. In an election where voters in Wisconsin’s statewide races voted overwhelmingly for Democratic candidates, Democratic candidates for the assembly won 52.99% of the votes but just 36% (33) of the seats in the assembly, whereas Republican candidates won just 44.75% of the votes cast but nonetheless were elected to represent 63% (63) of the seats in the assembly. None of this was accidental; rather, it was all by design, as was demonstrated by a second lawsuit challenging Act 43, Whitford v. Gill, brought in federal court in 2015.
The First Challenge to the Legislative Gerrymander: Whitford v. Gill
Conceived by University of Wisconsin law professor Bill Whitford, Representative Fred Kessler, Peter Earle, political consultant Sachin Chheda, and others, the Whitford case was brought solely as partisan gerrymandering challenge to Act 43, alleging that the intentional drawing of state assembly and senate districts in 2011 to give Republican candidates an extreme and durable advantage that would allow them to control the Legislature over the entire decade violated the U.S. Constitution’s Equal Protection clause and First Amendment.
Whitford was the first lawsuit that used a new analytical tool—the “Efficiency Gap”—to measure the advantage that candidates affiliated with one political party had over others by virtue of the legislative district boundaries. The Efficiency Gap, or EG, was developed by then-University of Chicago law professor Nick Stephanopoulos and political scientist Eric McGhee as a way to measure partisan asymmetry in legislative districts. If districts are perfectly neutral from a partisan standpoint, i.e., that the district boundaries give the candidates from both major political parties an equal chance of prevailing in an election in that district, the EG would be zero. The more that the way a district is drawn gives a Democratic candidate an inherent advantage over a Republican candidate, or vice-versa, . Although the EG began as an academic exercise, it soon was used as a cornerstone in an ever-expanding number of court challenges to partisan gerrymanders.
In May 2016, a legal team comprising Doug Poland, Peter Earle, Nick Stephanopoulos, and attorneys Gerry Hebert, Ruth Greenwood, and Annabelle Harless of the Campaign Legal Center tried a partisan gerrymandering claim to a panel of three federal court judges in Madison. Whitford was the first partisan gerrymandering case to go to trial in 30 years, and the challenge prevailed largely because of the development of the Efficiency Gap. Among the evidence presented to the court—and relied upon by the court in finding Act 43 an unconstitutional partisan gerrymander—was that the districts were so intentionally skewed to favor Republican candidates that they gave Republicans more than a 12% advantage over Democratic candidates (as measured by the EG) simply by virtue of how the district boundaries were drawn.
That evidence further showed that Act 43 gave Republicans such a lopsided advantage that it was the fourth most extreme partisan gerrymander—for either political party—anywhere in the United States between 1972 and 2014. That extreme partisan asymmetry, the three-judge panel held, violated the federal constitution. And the Whitford panel was not alone: in the two years that followed, three-judge panels in other cases found that intentional and extreme partisan gerrymanders in Maryland, Michigan, North Carolina, and Ohio violated the constitutional rights of voters in those states.
Although the result in Whitford was vacated by the U.S. Supreme Court in a 2018 decision holding that the plaintiffs had failed to present adequate evidence in the 2016 trial proving that they had legal standing to pursue their claims in federal court, the Supreme Court’s opinion said nothing about the viability of the Whitford plaintiffs’ partisan gerrymandering claims or whether they had sufficiently proven those claims at trial.
The Supreme Court even sent the case back to the three-judge panel to allow the plaintiffs to present new evidence of their standing to bring their claims. However, in June 2019, as the plaintiffs were preparing for a new trial the following month, the Supreme Court released its opinion in Rucho v. Common Cause, an appeal from a three-judge panel’s decision holding the North Carolina state legislative districts to be an unconstitutional partisan gerrymander. In Rucho, the Supreme Court held that partisan gerrymandering claims are inherently political claims that cannot be brought in federal courts. Consequently, the Whitford case was dismissed and the Act 43 districts continued in force.
The Second Challenge: Johnson v. Wisconsin Elections Commission
The next round of redistricting in Wisconsin occurred after the 2020 census. When the census data were released in 2021, the Legislature (still controlled by Republicans elected under the Act 43 districts) adopted new districts but Democratic Governor Tony Evers vetoed them. This teed up a legislative impasse, requiring the courts to decide on new districts. Competing lawsuits were filed in the federal court in Madison and the Wisconsin Supreme Court, with the federal court standing down and deferring to the Wisconsin Supreme Court to rule on new districts. In Johnson v. Wisconsin Elections Commission, the state supreme court considered arguments from six different parties, including groups represented by Law Forward’s then sole Staff Counsel, Mel Barnes, along with Doug Poland and Jeff Mandell (both then with Stafford Rosenbaum) and lawyers from Campaign Legal Center, including , and others.
The Johnson court issued an opinion in November 2021 ordering the parties to submit proposed state legislative maps for the court to consider, but with two important conditions. One condition was that the maps that the parties submitted, and that the court would consider, must make the “least changes” from the previous districts necessary to rebalance the populations of the districts. A second condition was that the parties could not submit. and the court would not consider. evidence of the partisan makeup of the districts in the proposed maps. These two conditions necessarily guaranteed that all of the parties’ submissions, and therefore the maps that the court would select, would preserve the Republican gerrymander enshrined in Act 43. And indeed, the assembly districts that the court ultimately adopted, which were submitted by the Legislature, gave the Republicans an even greater advantage than they had given themselves through Act 43. The new districts had a pro-Republican EG of 13%, preserving Republicans’ massive electoral advantage in the Legislature.
The districts that the Johnson court adopted had a fatal flaw, however: as was later discovered by a team of lawyers from Law Forward, Stafford Rosenbaum, Campaign Legal Center, the Election Law Clinic at Harvard Law School, and Arnold & Porter, 54 of the 99 assembly districts were not contiguous as required by the Wisconsin Constitution. Rather, 54 of the districts consisted of multiple pieces of land that had boundaries that did not touch.
The Final Challenge: Clarke v. Wisconsin Election Commission
In August 2023, the legal team filed a petition for an original action in Clarke v. Wisconsin Elections Commission, asking the Wisconsin Supreme Court to declare the Johnson districts void because they were non-contiguous. The Clarke Petitioners’ legal team further asked the state supreme court to adopt new districts but this time to abandon the “least changes” framework that had been employed in Johnson to preserve the Act 43 partisan gerrymander and to require all proponents of new districts to identify whether their proposed districts would skew in favor of one political party and, if so, the extent of the partisan skew.
In December 2023, after receiving extensive briefs from the parties and hearing oral argument (including Mark Gaber’s argument for the Clarke Petitioners), the Wisconsin Supreme Court granted the relief the Clarke Petitioners requested, holding the Johnson assembly districts to be in violation of the state constitution’s contiguity requirement and ordering the parties to that lawsuit to submit new proposed districts. The court overruled the Johnson court’s adoption of the “least changes” framework, holding that it was no longer the law, and further required the parties to identify the magnitude of any partisan skew in the districts they proposed. After the parties to the Clarke lawsuit submitted proposed districts, and a court-appointed team of two experts submitted their evaluations of those maps to the supreme court, the Legislature and Governor reached a compromise solution before the court adopted districts on its own.
The districts that were enacted as a result of that compromise were in effect for the first time in the elections held in November 2024. Those elections saw a huge increase in participation. More people showed up to run for office, leading to a massive increase in contested races around the state. And more people showed up to vote; in fact, Wisconsin stood alone in November 2024 as the only state where voter participation increased that year. Moreover, we can now see, thanks to the analysis released just last month by PlanScore, that the persistent efforts by lawyers, activists, political organizers, elected officials, and others paid off in finally achieving fair legislative districts in Wisconsin. The state legislative districts enacted through bipartisan legislation in February 2024 have an EG that is 1% pro-Democratic, while three other, different methodologies of measuring partisan symmetry estimate that the districts have a pro-Republican advantage of between 0.08% and 4%.
Taken as a whole, the picture that the PlanScore analyses paint is undeniable: after 14 years of elections in which the incumbent representatives in the majority party of the Legislature chose who their voters would be to ensure that they and their fellow partisan legislators would remain in office, the power finally has returned to the voters of Wisconsin to choose their representatives, regardless of their party affiliation. And for that, we should all be thankful.
The Next Step in Empowering Wisconsin Voters: Ensuring Competitive Districts
A legal team including lawyers who have represented Wisconsin voters seeking fair maps in cases from the Baldus through the Clarke cases recently brought another lawsuit designed to further empower Wisconsin voters. In Wisconsin Business Leaders for Democracy v. Wisconsin Elections Commission, a team of lawyers from Law Forward and the Election Law Clinic at Harvard Law School are asking a panel of three circuit court judges (appointed by the Wisconsin Supreme Court) to hold that the eight current Wisconsin congressional districts, adopted in 2022 by the Wisconsin Supreme Court in the Johnson case and in use since then, are an anti-competitive gerrymander that violates the Wisconsin Constitution. Like the Whitford case in 2015, the WBLD case advances legal and analytical theories that have not previously been applied in Wisconsin. Considering that the analytical tools and legal theories that were regarded as academic in nature and groundbreaking in application in Whitford are now widely used by plaintiffs and courts across the country, the lawyers and plaintiffs in WBLD seek to do for anti-competitive gerrymandering claims what Whitford did for partisan gerrymandering claims: to bring them into the mainstream and further empower voters.
By: Doug Poland, Director of Litigation. December 16, 2025.