This blog post continues the focus of the Law School’s Lubar Center on redistricting. 

A Republican appeal of the Wisconsin Supreme Court’s legislative redistricting decision earlier this month could have national significance for the federal Voting Rights Act, according to a Marquette University law professor. To that extent, at least, others agree.

If the U.S. Supreme Court rules in favor of GOP state lawmakers, the federal justices could allow so-called “race-neutral” redistricting nationwide, says Marquette Professor Atiba Ellis, who has written about the landmark 1965 civil rights law. Combined with previous high court decisions reducing the strength of other parts of the Voting Rights Act, such a ruling would amount to “erasing the efforts of Reconstruction” and going back to a time before the 15th Amendment to the U.S. Constitution extended voting rights to people of color, Ellis fears.

“That’s my worst-case scenario,” he says.

Not all agree, of course, and much is uncertain or debatable, even the timing: The U.S. Supreme Court might hold off on a decision until after the fall elections, allowing a map drawn by Democratic Gov. Tony Evers and approved by the state supreme court to be used for those contests, says Robert Yablon, associate professor of law at the University of Wisconsin.

Or the justices might refuse to take up the appeal at all, says Mel Barnes, an attorney at Law Forward, the legal organization that is representing three voting rights groups in the case.

Yablon doesn’t see much chance that the state’s Republican congressmen will prevail in their challenge to one aspect of the state court’s ruling: the part in favor of the U.S. House map drawn by Evers. That appeal rests largely on an argument that the governor’s districts are unconstitutionally unequal because their populations vary by as much as two people, up from one under the current map.

Let’s bring the story up to date and offer some takes by participants or observers.

To break an impasse between Wisconsin’s legislative and executive branches, the state justices ruled, 4-3, on March 3, to select the governor’s congressional and state legislative maps. The GOP-led Legislature sought review in the federal high court on March 7, and the Republican congressmen followed suit on March 9. In both cases, Republicans asked U.S. Supreme Court Justice Amy Coney Barrett to stay the state high court’s decision until the full U.S. Supreme Court rules on the merits of the case.

For the fall elections, GOP legislators asked Barrett to order state election officials to use the Assembly and Senate maps approved by the Legislature—maps that were vetoed by Evers and rejected by the Wisconsin justices. The Republican congressmen asked Barrett to order the U.S. House map redrawn, but to impose the GOP-drawn U.S. House map if the state court could not act fast enough.

The GOP legislators and congressmen also have asked the state justices to stay their ruling until the federal court acts. The last set of briefs in response to the various stay motions was due March 15.

That was the same day that Wisconsin election officials kicked off the fall election cycle with an official notice of the offices that will be on the ballot. Candidates can start circulating nominating petitions on April 15, with a filing deadline of June 1, in advance of the Aug. 9 primaries and Nov. 8 general elections.

All of the maps that were considered by state justices likely would have allowed Republicans to remain in control of both houses of the Legislature and to keep a majority of the state’s congressional delegation. That’s because the state court had ruled Nov. 30 that it would favor maps that made the fewest changes legally possible to the current GOP-drawn maps, which Democrats have criticized as an extreme partisan gerrymander.

Republicans had pushed the court to adopt the least-change approach, as part of a process that Yablon calls “gerrylaundering,” or cleaning up a previous gerrymander to lock it in for another decade. But Evers prevailed by drawing maps that justices deemed to change districts less than the GOP maps, while tilting some districts to become more competitive.

Because past federal court decisions generally have favored deferring to state courts on most redistricting issues, the most likely basis for an appeal to the U.S. Supreme Court involves a claim of racial discrimination under the Voting Rights Act (VRA), the Constitution, or both. That was the path that Republican legislators took in their appeal, filed jointly with the Wisconsin Institute for Law and Liberty, the legal organization that originally brought the state case.

The challenge targets the decision to draw seven Milwaukee-area Assembly districts with a slim majority of Black or partly Black voting-age residents, up from six districts with somewhat larger Black majorities under the current map. The state court’s majority opinion, written by Justice Brian Hagedorn, found “good reasons” to believe that the map submitted by the governor complied with the VRA by increasing the number of majority-Black districts to reflect growth in the Black population.

In her dissent, Chief Justice Annette Ziegler mounted an extensive attack on the majority’s interpretation of the VRA, citing decisions such as Shaw v. Reno (1993), in which the U.S. Supreme Court found that excessive attention to race in redistricting could violate the Equal Protection Clause of the 14th Amendment. Many of the dissent’s points are echoed in the GOP appeal.

“The maps adopted by the majority are nothing short of a racial gerrymander, and the Governor failed to present any material evidence warranting this substantial departure from the principles of equal protection,” Ziegler wrote.

The chief justice also zeroed in on the population symmetry of the seven districts at issue, all falling precisely between 50 percent and 51 percent Black, as evidence that the governor’s map was motivated by race.

But even if that was true, race wasn’t a factor in the court majority’s decision to accept the governor’s map, Assistant Attorney General Anthony Russomanno, representing Evers, wrote in reply to a similar point in the Legislature’s request for a state court stay. Yablon agrees with that argument.

In order to overcome such obstacles as below-average turnout among people of color, WILL President Rick Esenberg says, a district should have more than a bare majority of Black voters to ensure they can elect the candidate of their choice. State Sen. Lena Taylor (D-Milwaukee) agrees, opposing the governor’s districts in a friend-of-the-court brief filed with the U.S. Supreme Court.

Unlike Esenberg, however, Taylor also opposes the Legislature’s maps, which would reduce the number of Black-majority Assembly districts to five. She wants the federal high court to stay the state court’s decision and either order the state justices to redraw the maps or leave the current maps in place for the fall election.

The tension between the Shaw line of cases and earlier interpretations of the VRA has left even state and federal supreme court justices unsure of how to draw districts that meet 14th Amendment standards without diluting the voting strength of communities of color.

In an Alabama redistricting case, U.S. Supreme Court Chief Justice John Roberts recently wrote that his court’s rulings “have engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim.” And in the Wisconsin case, Hagedorn wrote, “Here, we cannot say for certain on this record that seven majority-Black Assembly districts are required by the VRA.”

Ellis views Ziegler’s dissent as an invitation to the federal justices to take up the Wisconsin case, revisit the ambiguity created by the Shaw line, and “settle it once and for all in a way that I think the Republican Party would see in its favor.”

As Ellis notes, Republicans nationwide have been advocating what they call “race-neutral” redistricting, arguing that they can’t be discriminating against people of color if they simply ignore voters’ races when drawing maps. In Wisconsin, Assembly Speaker Robin Vos has said that GOP legislative map-drawers were instructed not to take race into account.

Meanwhile, the U.S. Supreme Court decided in Rucho v. Common Cause (2019) that political-gerrymandering claims have no place in federal court. Rucho did not prohibit state courts from addressing such gerrymandering, but the Wisconsin court’s Nov. 30 opinion, written by Justice Rebecca Bradley, ruled those cases off-limits for this state’s judiciary as well.

The combination of those decisions could open the way to “what some might see as discrimination,” Ellis says.

Ellis says Republicans want to legalize “race-neutral” redistricting because they have “underperformed among African-American communities,” and this approach would allow them to minimize Black-majority districts while contending that they were only trying to minimize Democratic strength.

Esenberg and Taylor turn that argument around, contending that the governor’s maps are diluting Black voting strength to ensure reliably Democratic districts.

The Alabama case now before the U.S. high court focuses on the same sort of racial issues as the Wisconsin case. It’s possible that the Alabama and Wisconsin cases could be decided together, or that a ruling in one could determine the fate of the other, Ellis and Yablon say.

But even if the federal justices agree to consider the Wisconsin case, they are less likely to stay the state court’s order this close to an election, Yablon and Ellis say.

Justices cited their reluctance to disrupt voting preparations in the Alabama case, when they stayed a lower court’s order halting a map approved by the GOP-controlled state government, and in separate North Carolina and Pennsylvania cases, when they refused GOP requests to stay maps approved by state supreme courts.

It seems unlikely that justices would leave the current maps (from the past decade) in place when all parties agreed in court that those maps are unconstitutionally malapportioned under the most recent census data, Barnes and Esenberg say. Nor is it likely that the federal high court would impose the Legislature’s maps after they were rejected in both the political and judicial processes, Yablon and Barnes say.

If the U.S. Supreme Court eventually agrees that Evers erred in how he drew the Milwaukee districts (i.e., that the state supreme court erred in approving them), the federal justices wouldn’t necessarily throw out the entire approved legislative maps. The remedy could be to redraw only Milwaukee-area districts, say Yablon, Ellis, and Esenberg. That would be similar to what a three-judge federal trial court did in 2011, in Baldus v. Government Accountability Board, when it redrew two Milwaukee districts to correct a VRA violation.

Meanwhile, the GOP congressmen face steeper odds in overturning the congressional map that the state court approved, Yablon and Barnes say.

Taking a cue from Ziegler’s dissent, the congressional appeal criticizes the court majority for focusing on “core retention”—the percentage of voters who stay in the same districts—as the metric for determining which map was least changed. Barnes says that’s not a matter of federal law, adding, “It would be incredibly extraordinary if the [U.S.] Supreme Court agreed with the congressmen.”

By contrast, strict population equality among congressional districts is required by the federal high court’s decision in Wesberry v. Sanders (1964). However, Yablon says, the justices have allowed “trivial differences” in population, and no court has ever held that districts that vary by as little as two people are unconstitutional, as the congressmen contend.

If the congressional map stands, Wisconsin would have four strongly red U.S. House districts, two strongly blue districts (in the Milwaukee and Madison areas), and two competitive districts (in the southeastern and southwestern parts of the state), based on an analysis by John D. Johnson, research fellow in the Lubar Center for Public Policy Research and Civic Education at Marquette Law School.

Republicans now hold a 5-3 majority in the state’s delegation, with the only competitive seat belonging to retiring Democratic Rep. Ron Kind.