MADISON, Wis. (CN) — The conservative-majority Wisconsin Supreme Court on Thursday gave the green light to voting maps submitted by the state’s Democratic governor, though the maps largely preserve partisan advantages from those Republicans drew in the previous redistricting cycle.
As is common practice in Wisconsin, the drawing of new legislative and congressional voting maps — always a bitter fight between conservatives and liberals looking for any upper hand possible in a crucial battleground — had to be settled in court after Governor Tony Evers and the Wisconsin Legislature failed to agree. For the new maps responding to 2020 census data, the state Supreme Court took up the issue instead of the federal courts for the first time since 1964 after a nonprofit conservative law firm petitioned it to settle the dispute.
Republicans with majorities in both chambers of the Legislature drew maps in secret in 2011 that were widely criticized as an outrageously partisan ploy to dilute Democratic votes. Liberal voters sued and a federal panel in 2016 struck down the maps as unconstitutional, but the U.S. Supreme Court vacated the federal court ruling two years later, saying the plaintiffs lacked standing to sue.
The maps proposed by Evers and adopted by the high court are, for the most part, a continuation of the maps from a decade ago, with some alterations that would give Democrats a shot at a few more seats in the Wisconsin Assembly and Senate without disrupting Republican majorities, as well as make one congressional district more competitive. The Princeton Gerrymandering Project gave Evers’ maps an overall “A” rating.
Part of the deal the high court ordered the more than half dozen partisans and interest groups proposing maps to abide by was they had to make as few changes to the current maps as possible while still passing constitutional, statutory and Voting Rights Act tests, dubbed the “least-change” approach. More than five hours of arguments over the maps followed in January.
For the 4-3 majority signed onto Thursday’s decision, Evers’ maps best satisfied those criteria.
Justice Brian Hagedorn earned his reputation as an occasionally intriguing swing vote and joined the court’s three-judge liberal minority in approving Evers’ maps, also writing the majority opinion.
Hagedorn said the justices “rejected an approach that involved this court making significant policy decisions or weighing competing policy criteria,” and “rejected invitations to consider the partisan makeup of proposed districts” to focus solely on legal requirements and using the current maps for reference.
Evers’ congressional and legislative maps moved the least number of voters by a significant margin, Hagedorn said, while also passing muster under the state and federal constitutions.
A major issue at arguments was how to most fairly represent minority voters in and around Milwaukee, the state’s largest city and a liberal stronghold. The 2011 maps had six legislative districts with a majority of Black and Latino voters, and Evers and some activist groups argued a seventh such majority-minority district was necessary given demographic changes in order to bring the maps in line with Voting Rights Act requirements.
Hagedorn and the majority agreed, saying “there are good reasons to believe a seventh majority-Black district is need to satisfy the VRA.”
Under the high court’s order, the Wisconsin Elections Commission must implement Evers’ maps for all upcoming elections, starting with the August 2022 primaries. Those primaries include closely watched contests for Ron Johnson’s U.S. Senate seat, retiring Democratic congressman Ron Kind's district covering much of Wisconsin's western edge, and the race for governor, in which Evers is running for reelection.
Justices Jill Karofksy, Ann Walsh Bradley and Rebecca Dallet joined Hagedorn in the majority. Bradley wrote a brief concurring opinion in which she renewed her objection to the least-change approach the court adopted.
In a scathing dissent, Chief Justice Annette Ziegler said the majority opinion “amounts to nothing more than an imposition of judicial will.”
“I dissent because here, the majority’s decision to select Governor Tony Evers’ maps is an exercise of judicial activism, untethered to evidence, precedent, the Wisconsin Constitution, and basic principles of equal protection.”
Most galling to Ziegler was the majority’s focus on race in picking the maps, which she alleged was “imbued with personal preference” instead of legal analysis, a blatant violation of the U.S. Constitution’s equal protection clause, and “disrespects the VRA.”
“But to the majority, the equal protection clause is a mere box to check, a speedbump on the path to dividing Wisconsin into racial categories,” Ziegler said.
Ziegler, joined in her dissent by fellow conservative Justices Patience Roggensack and Rebecca Grassl Bradley, said the court should have picked maps submitted by the Wisconsin Legislature and the state’s five Republican congressmen.
The issue of race came up in Roggensack’s separate dissent as well. She said Evers’ legislative maps amount to racial gerrymandering and for that reason expressed hope that the U.S. Supreme Court will be asked to review the maps. She pointed to the recent success of a handful of Black candidates in state and federal elections in Milwaukee County with white crossover voting as proof that a seventh majority-minority district in the region was unnecessary.
Grassl Bradley, too, wrote a dissenting opinion, in which she said “the majority’s decision represents a startling departure from the rule of law and an alarming affront to the people of Wisconsin who elected us to uphold the constitutions.”
More litigation over Wisconsin’s maps could be on the way, as it remains to be seen whether Republicans will ask to bring back a stayed federal lawsuit over the maps or try making their case to the U.S. Supreme Court.
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