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Republican lawmakers said Tuesday that they think they have no power to make changes to election maps they approved last summer, inserting new questions into fast-changing litigation over those maps.

A trial over those maps began with a surprise Tuesday, when the presiding judge told the attorneys to confer with top legislative leaders and others to consider redrawing the maps taking into account legal challenges from Democrats and Latinos.

After a day of consultation, an attorney for the state told the three federal judges that top Republicans were willing to consider making changes to the maps but believed a 1954 opinion by the state Supreme Court prevented them from doing so. The attorney, Dan Kelly, said the state's high court had found lawmakers can make changes to the maps just once a decade.

Two groups suing the state disagree and say the Legislature has the ability to make changes.

Tuesday's developments left numerous questions in place - including when the trial might continue in earnest. The presiding judge told the attorneys to be available Wednesday to return to court with 45 minutes notice but made clear the court might rule only on the relatively narrow issue of the extent to which an attorney for the Legislature would have to later testify.

The panel - which includes two judges appointed by Republican presi dents and one appointed by a Democratic president - repeatedly has criticized Republican lawmakers in written orders for their secretive process for drawing the maps.

On Tuesday, presiding Judge J.P. Stadtmueller did the same shortly after hearing that attorneys for the legislators had released a new batch of emails Friday that they had not previously disclosed they had. The release of emails came a day after the court had ordered the lawmakers' attorneys to make public a separate group of emails.

"The facts are the facts, and what has occurred here is beyond the pale in terms of lack of transparency (and) secrecy," Stadtmueller said. "Appearances are everything, and Wisconsin has prided itself one generation after another on openness and fairness in doing the right thing. And to be frank we have seen everything but that in the way this case has proceeded."

Secrecy agreements

Almost all lawmakers signed secrecy agreements about the maps, and they tried repeatedly to prevent their aides from having to testify or produce documents. Those attempts were unsuccessful, and last month the panel ordered the Republicans' attorneys to pay the other side $17,500 for filing frivolous motions.

Every 10 years, states must draw new maps of congressional and legislative districts using U.S. Census Bureau data to ensure they are of equal population. Republicans control the Wisconsin statehouse and, as a result, were able to draw maps that favor their party.

But even before they revealed their maps, a group of Democratic citizens sued in federal court. Their case later was consolidated with one by the immigrant rights group Voces de la Frontera.

They argue the maps violate the U.S. Constitution and federal Voting Rights Act because of how they treat Latino areas and because they move 300,000 people into new districts.

The stakes in the case are high for the public because the maps will determine which party has an advantage in campaigns for the Legislature and Congress for the next 10 years.

For the most part in past decades, Democrats and Republicans shared control of the Capitol and could not agree on the maps. That left it to courts to draw the lines.

Because Republicans this time were able to enshrine their maps in law, they have significant advantages. But Tuesday's court proceeding signaled again that they have no guarantees their maps will be upheld.

Limited testimony?

The plaintiffs have taken the unusual step of subpoenaing Jim Troupis, an attorney for the Legislature, to elicit his testimony on how lines were drawn in Latino areas of Milwaukee. Troupis filed a motion Monday asking the court to limit his testimony on the grounds of attorney-client privilege, and Stadtmueller said the panel would rule on that issue Wednesday.

The question appears not to be whether he will have to testify, but how extensive it will be.

"It appears at least from my preliminary scan of the emails he is certainly going to have to testify," Stadtmueller said.

But he also said he wanted Troupis to give a deposition to the plaintiffs before giving testimony in open court, which easily could delay the trial.

Any delays, however, could be limited because election officials need to know what maps to use as soon as April 15, when candidates have to take out nomination papers.

The court also could address the issue Wednesday of whether the Legislature has the ability to redraw the district lines absent a court order. Kelly, one of the attorneys for the state, argued lawmakers can approve maps just once a decade, unless a court tells them to draw new lines.

But Doug Poland, an attorney for the group of Democrats, said lawmakers could draw new maps multiple times during their first two-year session after each census, even if a court had not ordered it to do so.

He noted those who drew the maps wrote in emails last year that they believed they could change the maps after approving them, at one point writing talking points that said they could revise them after last year's state Senate recall elections if they wanted.

Dems happy for pause

Stadtmueller said the panel's one-day pause was not to be taken as a signal of how it would rule on the merits. Nonetheless, Democrats in the Capitol were gleeful at the ruling, seeing it as a chance to win maps that are better for them. Assembly Speaker Jeff Fitzgerald (R-Horicon) and other top Republicans declined to comment.

Among those suing the state over the maps is Judy Robson, a Democrat and former Senate majority leader. She said she did not expect Republican lawmakers to take up the maps in the coming weeks.

"They would have to admit they were wrong," she said. "And given their arrogance, they will never admit they're wrong."

Justin Levitt, a law professor who tracks redistricting closely, said asking lawmakers to consider redrawing the maps was highly unusual but also said courts defer to lawmakers for the most part on where lines are drawn.

The move showed again the panel is taking the case seriously, which it first signaled in October when it refused to dismiss the case, said Levitt, of Loyola Law School in Los Angeles.

"This is a look-within-yourself-and-see moment," he said of the ruling. "It's a way of checking in with the parties - 'OK, we're at the brink here. Are you sure?' And if they're sure, they move forward to trial."

He noted that even if the Legislature draws new maps, Democrats still might be dissatisfied with them. After all, Republicans still control the Capitol, though by a narrower margin now than when they passed them last summer.

If . . . or . . .

If lawmakers decided to revisit the maps, they would do so as the legislative session winds down and Republicans try to pass an overhaul of mining laws before heading into likely recall elections this summer of Walker, Lt. Gov. Rebecca Kleefisch and four GOP senators.

If lawmakers do not change the maps voluntarily and the court later finds problems with them, it is unclear whether the court would draw new ones or send them back to the Legislature with an order that it make changes.

Rewriting the maps would be politically tricky. Republicans control the Senate 17-16 and one of their members, Sen. Dale Schultz of Richland Center, has said lawmakers need to move to a new system of drawing maps so partisanship plays less of a role. He wants to amend the state constitution to have a commission draw the lines after the 2020 census, but that idea has gotten little traction.

Republican leaders in the Legislature retained Troupis and the Michael Best & Friedrich law firm to advise them on drawing the district lines and assist with the litigation. They have committed $400,000 in taxpayer money for their work.

Additionally, Walker hired the Reinhart Boerner Van Deuren firm to assist the state Department of Justice. Those attorneys are working under a contract that is capped at $500,000.

Stadtmueller is a judge with the Eastern District of Wisconsin, and the trial is occurring in his Milwaukee courtroom. The others on the panel are Diane P. Wood of the 7th Circuit Court of Appeals and Robert M. Dow Jr. of the Northern District of Illinois.

Stadtmueller was appointed by Republican Ronald Reagan; Wood by Democrat Bill Clinton; and Dow by Republican George W. Bush.

Federal redistricting cases are unusual in that they are heard by a panel rather than a single judge. Any appeals go directly to the U.S. Supreme Court, which must take up the matter.

Jason Stein of the Journal Sentinel staff contributed to this report from Madison.