MADISON, Wis. (CN) — The Wisconsin Supreme Court on Friday adopted new legislative voting maps drawn by Republicans in the state Legislature a little more than one month after greenlighting maps drawn by the state’s Democratic governor.
Drawing new legislative and congressional voting maps in Wisconsin usually goes to the courts. This decennial process was no different as Governor Tony Evers, a Democrat, and the Republican-majority Wisconsin Legislature could not reach a consensus through the normal processes.
Federal courts traditionally adjudicate the highly politicized redistricting process, but this go-round the state Supreme Court got involved for the first time since 1964.
The justices ordered the more than half dozen parties that proposed maps to abide by a “least-change approach,” meaning they had to make as few changes as legally possible to widely criticized maps legislative Republicans drew in 2011 that were tossed by a federal court but ultimately reinstated by the U.S. Supreme Court.
The state high court — split ideologically 4-3 in favor of conservatives — accepted Evers’ maps in early March after months of legal wrangling and more than five hours of oral arguments. Conservative Justice Brian Hagedorn, who has sided the court’s liberal minority in high-profile cases, including over voting and elections, crossed the aisle in that decision.
Evers’ maps — awarded an “A” rating by the Princeton Gerrymandering Project — largely kept in place Republican advantages baked into the 2011 maps, but they also added a seventh legislative district in the Milwaukee area with a majority of Black voters. The governor and activist groups argued this was necessary to bring the maps in line with Voting Rights Act requirements.
GOP leaders promptly asked the U.S. Supreme Court for emergency review. The nation’s highest court obliged, then discarded Evers’ maps on the basis that its race-based districting was unjustifiable and out of line with the court’s precedent and told the Wisconsin justices to try again.
This time, Hagedorn rejoined his conservative colleagues in a 4-3 decision selecting maps drawn by Republican legislators.
The governor’s maps increased Milwaukee’s minority-majority legislative districts from six to seven. The Republicans' maps decreased such districts from six to five.
Penned by Chief Justice Annette Ziegler, the majority opinion said the Republicans’ maps were most supported by the evidence and expert testimony, do not violate the Voting Rights Act and pass muster under the Wisconsin and U.S. constitutions and the court’s least-change mandate.
The issue of race animated concurring and dissenting opinions in which the justices, all of whom are white, accused the opposition of using race to their own advantage.
In concurrence, Justice Rebecca Grassl Bradley, a conservative, said “this redistricting cycle proceeded in a manner heavily focused on color, supposedly for remedial purposes, but accomplishing nothing but racial animosity as showcased by the dissent’s race-baiting rhetoric and condescension toward people of color.”
The Legislature, Grassl Bradley said, was the only party not to regard race with its maps in keeping with the constitutional imperative for “a color-blind remedy for the protection of all citizens, irrespective of color,” whereas Evers' maps "violate the Constitution by insidiously sorting people into districts based on the color of their skin."
Hagedorn, ever the deciding vote, regretted that the court had limited time and an incomplete record to comply with the U.S. Supreme Court’s mandates and said the process of litigating the maps likely would have been different had the VRA claims involved been paramount from the beginning.
“For better or worse, the only reasonable course I see is selecting a map based on the record we have,” Hagedorn said, and since they were the only ones specifically represented as race-neutral, “the Legislature’s state senate and state assembly maps are the only legally compliant maps we received.”
Justice Jill Karofsky, writing for the dissenters, said the state Supreme Court never should have handled redistricting in the first place, pointed to racially-motivated packing and cracking of districts to disavow Republicans’ professions of race-neutrality, and took the majority to task for essentially giving the Legislature a judicial avenue to reverse Evers’ veto of Republican maps the legislators lacked a supermajority to override themselves.
Karofsky drew on long local histories of racial discrimination and inequities, including Wisconsin being the state in the nation with the highest disparity in the poverty rate between Black and white residents, the nation’s highest infant mortality rate for Black infants, and the nation’s highest incarceration rate of Black residents, more than 11 times that of white residents while representing under 8% of the state’s population.
“This has been a profoundly disheartening odyssey,” Karofsky said of the redistricting process, offering that she hopes the high court learns its lesson and stays out of redistricting in the future so federal courts more conducive to fact-finding can take up the mantle.
The Wisconsin Institute for Law & Liberty, the conservative nonprofit law firm that originally petitioned the state Supreme Court over redistricting, applauded the court’s decision to reject the governor’s race-based districting on Friday.
Evers upbraided the high court for backtracking to adopt the Republicans’ maps after initially turning them down and charged that the jurists “abandoned our democracy in our most dire hour.”
“This is an unconscionable miscarriage of justice for which the people of this state will see no reprieve for another decade,” Evers said.
Further federal litigation over Wisconsin’s maps, possibly in the form of continuing a currently stayed case in a Madison district court, is likely.
But since upcoming elections are so near — midterm primaries are in August, and Friday was the day candidates could begin getting signatures to get on the ballot — the Wisconsin maps adopted by the state Supreme Court will almost certainly be the ones used in 2022, including for races for the governorship and a U.S. Senate seat this fall.
Congressional maps Evers drew were left in place by the U.S. Supreme Court’s late March decision and unaffected by Friday's majority opinion.