How the Democracy Principle could redeem the Wisconsin Supreme Court

The Wisconsin Supreme Court is due for a reset. This spring, voters will elect a new justice to replace retiring Justice Patience Roggensack. Come August, the Court will have a new member, a new dynamic, and an opportunity to refine its approach to the consequential cases it decides.

This could not be happening at a more critical time for our democracy. The current Court has repeatedly decided cases in ways that undermine the will of the voters, consolidate power in the gerrymandered state Legislature, and, adding insult to injury, adhere to no consistent methodology. But there is a better way. What if the Court prioritized our state’s constitutional commitment to democracy to drive its decisions?

The idea of a state constitutional “Democracy Principle” comes from University of Wisconsin Law School professor Miriam Seifter and her Columbia University colleague, Jessica Bulman-Pozen. You can read their articles in full here and here. Seifter and Bulman-Pozen argue that the American democratic experiment takes place in the interplay between federal and state constitutional contexts. When the framers drafted the U.S. Constitution, they knew the states had or would have their own constitutions, and state constitutional drafters wrote with an eye to the guarantees of the U.S. Constitution. The documents talk to each other.

Big picture, the U.S. Constitution created a framework where the “tyranny of the majority” would be constrained by institutions like the unelected, life-term-serving U.S. Supreme Court, the Electoral College and the U.S. Senate. Each of these institutions has played its role in thwarting the will of large majorities of the American people. That is by design. In theory, this system can protect the rights of vulnerable minorities, and it has done so at times. For example, the federal government played a crucial role in enforcing legal equality for non-white citizens of the South during and after the civil rights movement, despite violent opposition from local white majorities. 

More often, however, these institutions play a conservative or reactionary role. Consider the Supreme Court’s infamous Plessy v. Ferguson decision codifying “separate but equal” as a legal principle, or how a handful of Senators representing only a few Americans have wielded the filibuster to prevent progress on vital issues like gun safety regulations, health care, and climate change.

State constitutions, by contrast, display a robust commitment to democracy, and especially majority rule. Whereas the federal Constitution seeks to protect the minority, state constitutions seek to protect the interests of the majority from the tyranny of the minority. Each state constitution is different, but according to Seifter and Bulman-Pozen, state constitutions generally evince a shared commitment to three democratic principles: popular sovereignty, majority rule, and political equality. In other words, state constitutions recognize that state governments get their power from the voters; that the majority of the voters should generally get their way; and that every citizen has equal political power.

The Wisconsin Constitution certainly includes these ideals. Article I, Section 1 declares: “All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted, deriving their just powers from the consent of the governed.” In short, our government has power because we consent to it.

Article III, Section 1 describes our right to vote: “Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that district.” There are no classes of electors — all Wisconsin voters are equal.

Article VI, Section 31 of the Wisconsin Constitution severely limits the Legislature’s ability to pass “special or private laws.” Seifter and Bulman-Pozen explain that provisions like this one exist to prevent state legislatures from legislating in their own or their friends’ interests, instead of the public interest — a fear that most early state constitutional framers had, and which has proven justified.

These are just a few examples.

What would it look like for the Wisconsin Supreme Court to embrace the democracy principle? Let’s take an obvious example, the state’s extreme partisan gerrymander. Our courts have never fully applied the state constitution’s underlying principles that prohibit partisan gerrymandering. The Democracy Principle requires justices to grapple with Article III, Section 1, which makes all Wisconsin voters equal and cannot support maps which empower some voters above others. And how can our government derive its just powers from the consent of the governed if legislative districts are not drawn in a way that allows voters to meaningfully consent to their legislative representatives? Courts in North Carolina and Pennsylvania have already scrapped their gerrymandered maps for pro-democracy reasons. Our current maps do not respect the political equality of voters or allow majorities of Wisconsinites to set the agenda of the state.

In addition, if the Court hears a case where a statutory text is ambiguous, but one reading furthers democracy, it should rule in favor of democracy. For example, the democracy principle would have counseled the Court to order Frederick Prehn removed from the DNR board when Attorney General Josh Kaul sued to have him removed after his term expired. The statutory text at issue did not directly address the circumstances in that case, but our constitution respects the will of the voters, who had replaced Scott Walker with Tony Evers as governor, indicating that they wanted Evers to exercise gubernatorial powers like appointing members of the DNR board.

Overall, adhering to the Democracy Principle would force the Wisconsin Supreme Court to recognize and respect the state constitution’s commitment to popular sovereignty, majority rule and political equality — and consider these whenever they are implicated in a case before the court.

The Wisconsin Supreme Court candidates are making many public appearances in anticipation of the Feb. 21 primary and April 4 general election. Debate moderators, journalists and voters should ask how the candidates understand the Wisconsin Constitution’s commitment to democracy, and the Court’s role in fulfilling that commitment. The answers matter.