A leftist-led lawsuit aimed at undoing Wisconsin’s congressional maps in advance of November’s midterm elections has gone down in flames.
It’s another loss for Russia collusion hoax peddler Marc Elias and his lawfare operation.
On Tuesday, a three-judge panel denied the Washington, D.C.-based Elias Law Group’s motion asking the court to invalidate the Badger State’s current maps, opening the door to the redrawing of new congressional district boundaries more to Democrats’ liking. Democratic Party power players were banking on the change to help the left grab additional seats in November in pursuit of taking back the House of Representatives. It’s among several nakedly partisan attempts by Democrats to gerrymander their way back into power.
The attorneys, representing Wisconsin voter Elizabeth Bothfeld and 10 other plaintiffs, thought they had a slam-dunk case in filing a motion for judgment on the pleadings. The confident legal maneuver seeking a court remedy ahead of a finding of facts hit a brick wall, however, when the panel of liberal state circuit court judges ruled that they had no authority to rule and dismissed the case.
“Because Plaintiffs’ have not shown that they are entitled to judgment as a matter of law, their motion for judgment on the pleadings is denied,” the panel’s order states. “Moreover, because only the Wisconsin Supreme Court can determine whether it violated the separation-of-powers doctrine when it applied the least-change methodology, this claim must be dismissed.”
Republicans hold six of Wisconsin’s eight congressional seats under the current maps, which, interestingly, were assembled by far-left Gov. Tony Evers’ communist-sounding People’s Maps Commission. Democrats are itching for a mid-decade partisan gerrymander that goes well beyond Evers’ compromise maps, as they attack the existing boundaries as the product of “unlawful partisan gerrymandering.”
Yes, the hypocrisy should be lost on no one.
‘Is the Panel Authorized to Rule?
With divided government in 2022, Democrats in control of the executive branch and Republicans holding the majority in the legislature, the Wisconsin Supreme Court was forced to weigh in on the disputed state and federal political maps. The conservative majority on the court at the time ruled that the maps must comply with all constitutional requirements and that they follow a “least change” method. In other words, the court-approved redistricting plan would have to remain as consistent with the previous maps crafted after the 2010 census as possible. Evers’ proposed maps most precisely fit the requirements, the court ruled.
The plaintiffs argue that those maps violated the constitutional separation-of-powers doctrine because the court relied on “least change” methodology, “improperly” substituting “the partisan judgment that prevailed in the 2011 political process for its own.” That’s a rich argument. Democrats loathed the “political process” behind the 2011 maps, which was controlled by the winners of the 2010 elections — Republicans. Democrats sued then, too.
But a subsequent Supreme Court led by liberals didn’t take issue with the “least change” methodology. The court didn’t rule on that issue.
“Without a clear holding from the Wisconsin Supreme Court, that the abandonment of the least change methodology applies to more than the crafting of remedial maps, this panel has no basis to find the current congressional map invalid,” the panel’s order states. The order quotes a previous case affirming that lower courts cannot “overrule a holding by our Supreme Court.”
More so, the panel is suffering from a bit of an identity crisis, thanks to the liberal-led Supreme Court that balked at weighing in on the lawsuit and instead laid it on the shoulders of the three circuit court judges. After denying multiple petitions to take the case, the Supreme Court created the panel “without mention of appointing a referee to conduct necessary fact-finding under statute.”
“Neither the statute nor the order appointing this panel provides guidance on the panel’s authority or scope,” the order states.
“Is this panel a circuit court, an arm of the state supreme court, a referee or something else?” the judges ask as if they have found themselves on the judicial Island of Misfit Toys. “Is the mission purely fact-finding, or is the panel authorized to rule on legal issues too?”
‘Significant Practical and Legal Problems’
The panel also took aim at the liberals’ claims that the 2022 congressional map “perpetuates partisan unfairness.” Federal courts have found the 2011 political lines on which the existing boundaries were largely drawn “did not suggest an abuse of partisan advantage.” The U.S. Supreme Court subsequently declared such partisan gerrymandering claims to be “nonjudiciable [not able to be decided by a court] political questions under the federal constitution.” There are no workable standards to do so, the high court found.
“Likewise, we cannot overrule the holding of our highest court that there is no recognized claim for excessive partisan gerrymandering,” the panel’s order states, adding that should the Wisconsin Supreme Court “determine that such a claim is judiciable, this panel is prepared to engage in the extensive fact finding necessary to the resolution of such claims.”
But the liberal-led court seems reticent to take on the issue. They have good reason to be.
A memo last year prepared by the Wisconsin Institute for Law & Liberty (WILL) argued that the Elias suit and a similar pending case face “significant practical and legal problems in both state and federal court, and are, ultimately, unlikely to succeed.”
‘Rigged’
At least one of the liberal justices on the state Supreme Court has a clear conflict of interest. As The Federalist previously reported, Susan Crawford, the newest justice on the court, appeared at a donor advisory meet-and-greet a couple of months before Wisconsin’s 2024 Supreme Court election. Organizers said a Crawford victory would be critical in helping Democrats take back the House.
The invitation declared that “winning this race could also result in Democrats being able to win two additional US House seats, half the seats needed to win control of the House in 2026.” The idea sold to well-heeled national investors in the race was that electing Crawford could open the door for a favorable ruling on redrawn Wisconsin congressional maps. Crawford’s victory kept the left in control of the court for the foreseeable future. Her appearance at the donor advisory Zoom session raises serious conflict questions.
The court also rejected — on a 6-0 vote — a previous request by Elias’ lawfare firm to decide the redistricting controversy. Liberal Justice Janet Protasiewicz begged off the case. With foot-in-mouth, Protasiewicz had successfully campaigned for her seat in 2023 insisting that Wisconsin’s districts were “rigged” in favor of Republicans, specifically saying of the congressional maps, “[W]e know something’s wrong.”
Expect the leftists to appeal. They’ll have to take their case directly to the state Supreme Court. Legal experts tell The Federalist it is very unlikely there will be any change in the congressional map this year, as the campaign season begins to heat up.
Lucas Vebber, deputy counsel at WILL, said the judges on the panel made the right call on a lawsuit that had no merit from its inception.
“While [the plaintiffs] continue to try to thwart the constitution to get what they want, thankfully our courts continue to be the backstop we need,” Vebber told The Federalist in an interview following the order’s release. WILL filed successful motions to intervene in the two challenges to the congressional maps, arguing that the three-judge panel lacks authority to overrule the Wisconsin Supreme Court.
‘Ruthless’
After Democrats took an electoral beating in the 2024 election, Elias promised to use more “ruthless” tactics to stop President Donald Trump, according to a report by RealClear Investigations.
“Democrats need to oppose, and not simply resist, a second Trump presidency,” the lawyer said following the election.
“All legal tactics must be on the table,” Elias added in a blog post. “We must be comfortable using every legal tool available to challenge Trumpism in court.”
The lawfare tool has shown he’s not opposed to using any tool available to attack Trump. Elias, failed presidential candidate Hillary Clinton’s former campaign attorney, played a central role in the Russia collusion hoax. He hired opposition research firm Fusion GPS and ex-FBI informant Christopher Steele to manufacture the infamous dossier falsely linking Trump and his 2016 presidential campaign to the Kremlin. The scheme was aimed at crippling Trump’s first term in office.
Matt Kittle is a senior elections correspondent for The Federalist. An award-winning investigative reporter and 30-year veteran of print, broadcast, and online journalism, Kittle previously served as the executive director of Empower Wisconsin.
