Voters reject the dirty trick of gerrymandering. ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌  ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌  ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌  ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌  ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌  ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ 
Brennan Center for Justice The Briefing
There was big legal news yesterday, far from a certain Manhattan courtroom. In Wisconsin, liberal Janet Protasiewicz beat conservative Dan Kelly for a state supreme court seat, winning with a stunning 11-point margin. This tilts the state’s high court in a progressive direction for the first time in 15 years.
The election shows the rapidly realigning politics on two major issues: abortion and gerrymandering.
These are two issues where the right-wing supermajority on the U.S. Supreme Court announced it would not protect equal rights across the nation, showily sending matters to the states. It turns out that voters may not share the Federalist Society’s predilections. Just as in the 2022 midterm elections, a reaction to the Supreme Court’s Dobbs ruling and concern for the health of democracy drove voters and turnout.
Wisconsin’s abortion ban is a long-defunct 1849 law that reared into view after Dobbs last summer. State courts are deciding whether the law — dating from an era when women were barred from voting — can be enforced. Protasiewicz made clear her position on the right to an abortion, and she may well cast the decisive vote. Voters spoke loudly.
The other big issue in the race seems more arcane but, as is increasingly recognized, has huge consequences: redistricting. Wisconsin has among the most gerrymandered maps in the country. In 2011, Republican legislators enacted an aggressive gerrymander that entrenched party power. Wisconsin is a closely divided state, yet Republicans have held uninterrupted control of both houses of the state legislature for over a decade. In 2012, Republicans won 60 of the 99 seats in the state assembly with just 48.6 percent of the two-party statewide vote. In 2014, Republicans won just 52 percent of the vote but garnered 63 seats.
Wisconsin’s partisan gerrymander was so extreme that a federal court had already ruled it violated the U.S. Constitution. In 2019, though, the U.S. Supreme Court saved Wisconsin’s misbegotten maps when it ruled that federal courts have no power to intervene. No problem, Chief Justice John Roberts and the other conservative justices said, state courts and state constitutions could do the job.
In 2021, the conservative majority on the Wisconsin Supreme Court decided that the most important factor in developing new legislative maps was keeping them as similar as possible to the existing legislative maps. (The justices called this the “least change” principle, which appears nowhere in the state constitution.) That made little sense when it came to representation in a changing state. It made all too much sense if the goal was preserving party power.
Protasiewicz and Kelly jousted over gerrymandering for months. The liberal decried existing maps as “unfair,” while conservative Kelly insisted that redistricting is a fundamentally political process immune to judicial intervention. Ads and social media called for “fair maps.” Rarely has the wonky topic of gerrymandering been the subject of such intense public politicking.
Unprecedented sums of money poured into the campaign. By late March, spending on the race reached $37 million. The state’s last supreme court race in 2020 saw nearly $10 million in campaign spending, and the previous national record for spending on a judicial campaign was $15 million. Much of it came in undisclosed “dark money.” All this is a worrying omen for future races.
For now, though, Wisconsin’s voters spoke loudly. They care about women’s rights and reproductive freedom. And — perhaps improbably — they not only understand but care passionately about fairness and equality in our democracy. That message likely will ring loudly in months and years to come.

 
Reenvisioning Domestic Intelligence at DHS
The Department of Homeland Security’s Office of Intelligence and Analysis gathers, analyzes, and disseminates a huge amount of information on Americans. Incidents of overreach and abuse are too frequent due to overbroad mandates and weak safeguards. Officers have repeatedly targeted people who are exercising their First Amendment rights. Under certain circumstances, DHS is also permitted to surveil people based on constitutionally protected traits like race, religion, or gender. A new Brennan Center report offers concrete recommendations for reforms that would properly protect civil rights and civil liberties. Read more
Defending American Democracy
The next presidential election will take place amid several daunting challenges: ongoing election denialism, the rise of misinformation, mounting harassment and violence against election officials, and the risk of foreign interference. Public officials at the state, local, and federal levels must do substantial work to protect the people, systems, and infrastructure necessary for elections. And with the 2024 election on the horizon, “now is the time to further shore up the system’s defense against threats foreign and domestic to help ensure that the democratic process is protected when Americans go to the polls,” Lawrence Norden and Derek Tisler write in Foreign Affairs. READ MORE
Federal Agencies Need a Lifeline
For more than a decade, cabinet-level agencies have been strained by underfunding, inadequate staffing, and mounting workloads — issues that were exacerbated by cuts made during the Trump era. The Biden administration has taken steps to rebuild these hollowed-out agencies, but it’s clear that they need more support to continue delivering critical services and meeting contemporary challenges. “Federal agencies serve the public and address national crises — protecting agencies’ ability to fulfill their missions is crucial to a well-functioning democracy,” Mekela Panditharatne writes. Read more
Addressing Racial Bias in the Justice System
In a significant decision last month, the Washington Supreme Court pointed to racial disparities in law enforcement to curb police’s search and seizure authority. The court concluded that police tactics that are both discriminatory and unnecessary are constitutionally suspect. “While federal courts often decline to grapple with racial disparities and the impact of systemic racism in the justice system, the Washington Supreme Court and other judges are showing how state constitutional law provides an alternative path,” Kyle Barry writes for State Court Report. Read more
Legislating from the Bench
State supreme courts often have broad authority to skip lower court review and hear a case for the first time. This power of “original jurisdiction” is increasingly being used to address significant matters such as gun rights and abortion access — and state lawmakers are taking note of its capacity to serve partisan ends. “Given the high levels of polarization and the high salience of the issues that are included in original jurisdiction, there is a good chance that legislatures will increasingly turn to original jurisdiction as a means of achieving policy goals,” law professor Zachary Clopton writes for State Court Report. READ MORE

 
Coming Up
Thursday, April 20, 6–7 p.m. ET
 
Misinformation abounds on social media and cable news. A new book points out that this applies not only to current events but to our nation’s history as well. Join us for a live virtual conversation with the editors of the book, Myth America: Historians Take On the Biggest Legends and Lies About Our Past, and some of the writers featured in it. RSVP today
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News
  • Alice Clapman on Florida leaving voter data cooperative ERIC // TALLAHASSEE DEMOCRAT
  • Sean Morales-Doyle on Virginia’s regressive criminal disenfranchisement policy // WVTF
  • Sean Morales-Doyle on restrictive voting laws targeting college students // NEW YORK TIMES
  • Lawrence Norden on the departure of election officials // PROPUBLICA

 
 
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