Wednesday, November 30, 2022 | Back issues
Courthouse News Service Courthouse News Service

Wisconsin GOP gets high court to junk electoral maps

The legislative districts drawn by Wisconsin’s Democratic governor failed to make it through the conservative court’s shadow docket.

WASHINGTON (CN) — Republican lawmakers succeeded Wednesday at discarding new electoral maps for Wisconsin that created an extra majority-Black district.

The lawmakers had sought an emergency injunction against the maps, having failed to secure relief from the Wisconsin Supreme Court. Instead, the U.S. Supreme Court treated the application as a petition for certiorari, and it summarily reversed the lower court’s order without the benefit of oral arguments.

Justice Sonia Sotomayor, joined by Justice Elena Kagan, dissented. It is otherwise unclear who signed on to the majority’s unsigned opinion.

Like other states greeting new population numbers after the 2020 census, the Wisconsin Legislature adopted new maps to reapportion its state assembly and senate. When the maps were vetoed, however, by Wisconsin Governor Tony Evers, the state Supreme Court stepped in and had parties propose new maps based on the state constitution, the U.S. Constitution and the Voting Rights Act. The Wisconsin Supreme Court adopted Evers' proposal, which included the creation of one more majority-Black district in Milwaukee. Wisconsin Republicans then turned to the high court. 

Lawmakers claimed the new maps made the state home to a “21st-century racial gerrymander,” and that the state Supreme Court adopted them based on a rewriting of the Voting Rights Act. They also claim the governor’s map violates the Equal Protection Clause.

The court’s majority agreed, leaning on its precedent in Cooper v. Harris. Using Cooper, the court said if a state is going to use Section 2 of the Voting Rights Act to justify race-based districting, it must show strong evidence for why that would be required. 

“The Wisconsin Supreme Court concluded that the Governor’s intentional addition of a seventh majority-black district triggered the Equal Protection Clause and that Cooper’s strict-scrutiny test must accordingly be satisfied,” the majority wrote. “Accepting those conclusions, we hold that the court erred in its efforts to apply Cooper’s understanding of what the Equal Protection Clause requires.” 

Justices in the majority said Evers’ additional majority-Black district did not hold up to strict scrutiny.  

“The question that our VRA precedents ask and the court failed to answer is whether a race-neutral alternative that did not add a seventh majority-black district would deny black voters equal political opportunity. Answering that question requires an ‘intensely local appraisal’ of the challenged district,” the majority wrote. “When the Wisconsin Supreme Court endeavored to undertake a full strict-scrutiny analysis, it did not do so properly under our precedents, and its judgment cannot stand.” 

The majority also found that the state Supreme Court did not properly apply preconditions required in Gingles

“Rather than carefully evaluating evidence at the district level, the court improperly relied on generalizations to reach the conclusion that the preconditions were satisfied,” the majority wrote. 

Sotomayor criticized the ruling as unprecedented and based on existing precedent that is “hazy at best.”  

Looking at the Cooper framework the majority used, Sotomayor claims precedent does not clearly say if that framework should be applied in this case. 

“It is far from clear whether this burden-shifting framework should also apply in the unusual circumstance where, as here, a state court is adopting a map in the first instance with no Equal Protection Clause claim before it,” the Obama appointee wrote. 

She went on to say that, even if one were to accept the framework, it’s still unclear how courts should apply them in these cases. 

“Our precedents offer no clear answers to the question whose motives should be analyzed in these circumstances (the four justices who selected the map based on the ‘least change’ criteria, the Governor, or some combination) or how,” Sotomayor wrote. “The Court does not purport to answer this question.” 

Sotomayor also said the majority really didn’t have to act in this case. 

“This Court’s intervention today is not only extraordinary but also unnecessary,” Sotomayor wrote. “The Wisconsin Supreme Court rightly preserved the possibility that an appropriate plaintiff could bring an equal protection or VRA challenge in the proper forum. I would allow that process to unfold, rather than further complicating these proceedings with legal confusion through a summary reversal.” 

In a separate shadow docket ruling on Wednesday, the court turned down another request from Wisconsin Republicans to throw out challenge congressional maps. The case also involved maps proposed by Evers and approved by the state Supreme Court. The court did not provide any explanation for this ruling. 

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.

Loading
Loading...