The Wisconsin decision involves some plain text!

SATURDAY, DECEMBER 23, 2023

The decision in Maine? Maybe not! In the past two days, we've disputed the notion that Section 3 of the 14th Amendment is written in "simple language"—that it involves a "plain text."

It's easy to see why many smart people have mistakenly thought that Section 3 does involve a "plain text." Consider:

The passage in question doesn't involve any technical language—the kind of language which instantly lets us see that we're on unfamiliar ground as we examine a text.

It doesn't involve statistical measures of a type we've never encountered before.  It doesn't seem to rely on some type of specialized knowledge which readers may know they don't have.

Then again, there may have been some wishful thinking as blue tribe members rushed to say that Candidate Trump could be sent to the showers in an unambiguous, legally mandated way, based on the 14th Amendment. 

To us, that seems like a bit of a pipe dream. Possibly by way of contrast, consider a news report in today's New York Times.

This news report does involve a bit of simple, clear language. It does involve a constitutional provision which contains, or at least seems to contain, an unmistakable bit of "plain text."

The report involves the famously gerrymandered maps for Wisconsin's state legislative districts. Headline included, the news report starts as shown:

Justices in Wisconsin Order New Legislative Maps

The Wisconsin Supreme Court said on Friday that the state’s heavily gerrymandered legislative maps that favor Republicans were unconstitutional and ordered new maps before the 2024 election. The ruling has the potential to produce a seismic political shift in a crucial presidential swing state.

Justice Jill J. Karofsky, writing for the majority, said that Wisconsin’s current maps violate a requirement in the State Constitution “that Wisconsin’s state legislative districts must be composed of physically adjoining territory.”

“Given the language in the Constitution, the question before us is straightforward,” she wrote. “When legislative districts are composed of separate, detached parts, do they consist of ‘contiguous territory’? We conclude that they do not.”

In this matter, the constitutional language is "straightforward," Justice Karofsky wrote. She then quoted a key phrase, in which the State Constitution orders that legislative districts must consist of "contiguous territory."

That seems to be a clear requirement expressed in simple, clear language. Moving right along:

A few months ago, we noted the fact that Wisconsin's gerrymandered districts actually are, at least in some cases, "composed of separate, detached parts." In part on that basis, Wisconsin's state legislative districts have long been described as the most gerrymandered in the entire country.

As far as we know, most of Wisconsin's legislative districts are not composed of separate, detached parts. Still, the overall gerrymandering has been substantial enough to produce, or at least to help produce, this improbable outcome:

Democrats will now have the opportunity to make gains in a legislature that is currently heavily tilted to favor Republicans. In a state with an electorate that is split roughly equally between Democrats and Republicans, Republicans hold a 64-35 majority in the Assembly and a 22-11 supermajority in the Senate. The Democratic governor, Tony Evers, was re-elected to a second term in 2022 and will serve until at least 2026.

As we've long noted, it's possible to imagine a state in which the geographic distribution of the population could produce that sort of outcome even without gerrymandering. Plainly, though, Wisconsin doesn't seem to be some such state.

As far as we know, Justice Karofsky is right! Wisconsin's constitution does present simple, clear language concerning the need to create legislative districts which aren't composed of geographically separate parts. 

As far as we know, that constitutional language is about as clear as clear language can get. That said, a bit of wishful thinking may have surfaced in response to yesterday's ruling, this time from a red tribe source:

In an angry dissent, Justice Annette Ziegler, one of three conservatives on the panel, denounced the liberal majority as “robewearers” who “grab power and fast-track this partisan call to remap Wisconsin.”

“The court of four takes a wrecking ball to the law, making no room, nor having any need, for longstanding practices, procedures, traditions, the law, or even their coequal fellow branches of government,” she wrote. “Their activism damages the judiciary as a whole.”

The specified bit of constitutional language would seem to be quite clear. That said, Justice Ziegler has issued an angry, name-calling dissent. 

In fairness, is it possible that Justice Ziegler has some sort of a point? As of now, we can't say that we're totally sure. Consider:

As we've noted, it's been our impression that the large majority of Wisconsin's districts actually are composed of "contiguous territory." That would suggest the possibility that the yesterday's order represented a bit of an overreach in response to a more limited constitutional offense.

That had always been our impression—and then we read a more detailed report in today's Washington Post. Headline included, the report in the Post starts by saying this:

Wisconsin Supreme Court overturns GOP-favored legislative maps

The Wisconsin Supreme Court on Friday overturned Republican-favored legislative maps, ordering new boundary lines for the state less than a year before the 2024 election.

In a 4-3 decision along ideological lines, the justices said that at least 50 of the 99 Assembly districts and at least 20 of the 33 Senate districts in the map violate a mandate in the state’s constitution that requires state legislative districts be composed of “contiguous territory.” Many of the state’s districts include portions that are not attached to other parts of the same district.

Say what? Do that many legislative districts actually violate the "contiguous territory" requirement? 

We've never seen maps of Wisconsin's districts which seemed to show some such state of affairs. (Neither the Post nor the Times links to any map.)

Many of Wisconsin's districts don't seem to be compact, in some cases to a clownish extent. But are there really that many districts which contain wholly separate parts?

We have no idea. We find ourselves wondering this:

Is it possible that the Democratic majority on the court has adopted a somewhat fanciful interpretation of a provision of the State Constitution which seems to involve a bit of "plain text?" Is it possible that the Democratic majority is stretching the meaning of the apparently straightforward term, "contiguous territory?"

We don't know how to answer that question—and everything is always possible! After several hours of searching today, we felt less sure about the facts than we were when we started out.

That said, wishful thinking tends to play a powerful role in human affairs. Another report in today's New York Times appears beneath these headlines:

Maine’s Secretary of State to Decide Whether Trump Can Stay on Ballot
Shenna Bellows, a Democrat, has said she would decide next week whether Maine will join Colorado in disqualifying former President Donald J. Trump from its primary ballot.

A Democratic official in the state of Maine may kick Trump off that state's ballot in the coming year!

Unavoidably, that would be a fraught proposition even where the relevant constitutional language was unmistakably clear. In the current situation, can we blue tribe members see how that decision will inevitably look to those inside red tribe tents?

The woods are dark and deep! Plain text comes and plain text goes, and few things are ever real clear.

Recalling Paul Reiser's old joke: We thought we understood the situation in Wisconsin. Then we read that second report, the one in the Washington Post.

Once again, we recall Paul Reiser's old joke, the joke he referred to as Goldberg's Law:

The man with one watch always knows the time. The man with two watches is never quite sure.