Oops. He did it again. Last week Wisconsin Supreme Court Justice Brian Hagedorn sided with liberals on an important case.
The case was Zignego v. WEC, and what was at stake was the potential disenfranchisement of some 70,000 voters. (Earlier estimates were closer to 200,000.) The conserviitve law firm Wisconsin Institute for Law and Liberty claimed that these voters had moved without registering to vote at their proper address and so, the Wisconsin Elections Commission should have ordered local election officials to expunge them from the rolls.
Hagedorn disagreed on mostly technical grounds. He found that the statutes didn’t provide the Elections Commission with any affirmative duty to make such an order. Even more surprising than Hagedorn’s vote was that of conservative Chief Justice Pat Roggensack, who also joined the majority. That left only hard right Justices Annette Ziegler and Rebecca Bradley in the minority.
Breaking with his conservative colleagues has become a pattern for Hagedorn. The Capital Times has reported that, in non-unanimous cases, he has sided more often with liberal Justice Ann Walsh Bradley than with conservative Justice Rebecca Bradley. (The Bradleys are, most definitely, unrelated.)
All of this raises an intriguing question: What will he do if it’s up to him to decide the inevitable gerrymandering case in the next year or so?
Here is what will almost certainly happen. The Republican-controlled Legislature will once again pass maps that heavily benefit them and lock in their majorities for another decade. Democratic Gov. Tony Evers will veto those maps.
Then everybody goes to court. A crucial question is which court. Democrats would rather fight this out before a federal court where they figure their chances for a fair outcome would be better. Republicans want this to come to the state Supreme Court so bad that they’ve actually tried to juice the rules so that the court would get primary jurisdiction.
But they might want to be careful what they wish for. With Hagedorn the swing vote, it’s entirely possible that he will join the liberals and rule the gerrymandered maps out of bounds. What happens then is anybody’s guess. The court could appoint someone, like a retired judge, to work on fair maps or it could select another ready-made map, like the one an Evers-appointed committee is drawing up. Or it could send the whole thing back to the Legislature with instructions that they do better.
Democrats have won 10 of the last 11 statewide races since Donald Trump’s narrow victory here in 2016. (Ironically, the one they lost was Hagedorn’s.) And yet, Republicans control the Assembly 60-39 and the Senate 22-11.
Now, even with fair maps, Democrats may not have a majority. Democratic voters cluster in cities making it harder to draw balanced maps even when that is the goal. And when you add up all the votes cast for legislative candidates in recent years, the Democrats tend to get between 48 percent and 52 percent. Still, no matter how you look at it, by rights, the partisan split in the Legislature should be much closer than it is.
While the moral and political case for fair maps is pretty clear, the legal one may not be. There is a built-in presumption that the legislative majority gets to redraw the boundaries, even if they give themselves a partisan advantage. In that Cap Times story Hagedorn signalled that he might defer to them. “The judiciary has an important role, but it’s a modest role,” he said. “I think it’s important to allow space for other branches of government and the private parties to work things out.”
Hagedorn hasn’t become a liberal Democrat overnight and he has proven himself to be a pretty consistent strict constructionist. He’s not likely to do anything that he isn’t convinced it is in the power of the court to do.
All we know for sure is that he is not the extreme partisan that Ziegler and Rebecca Bradley are. He will listen to the arguments. If Democrats can get before him and make a convincing case that, as a matter of law, he can and should insist on fair maps there’s at least a chance that he’ll do the right thing.
At this point, that’s a better deal than we could have anticipated when he took his seat on the bench.
This post originally appeared in Isthmus. Just as this was about to be posted, news came down that Hagedorn sided with conservatives to strike down the governor’s emergency order on capacity limits for bars, restaurants and other establishments. That was little surprise as Hagedorn had been siding with the majority on emergency orders in some previous rulings.