{"id":30010,"date":"2022-03-21T14:44:41","date_gmt":"2022-03-21T19:44:41","guid":{"rendered":"https:\/\/law.marquette.edu\/facultyblog\/?p=30010"},"modified":"2022-03-21T16:55:53","modified_gmt":"2022-03-21T21:55:53","slug":"gop-appeal-in-wisconsin-redistricting-case-could-have-far-reaching-impact-if-u-s-supreme-court-takes-it-up","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2022\/03\/gop-appeal-in-wisconsin-redistricting-case-could-have-far-reaching-impact-if-u-s-supreme-court-takes-it-up\/","title":{"rendered":"GOP Appeal in Wisconsin Redistricting Case Could Have Far-reaching Impact\u2014If U.S. Supreme Court Takes It Up\u00a0\u00a0"},"content":{"rendered":"

This blog post\u00a0<\/em>continues\u00a0the focus of the Law School\u2019s Lubar Center on redistricting<\/a><\/u>.\u00a0<\/em><\/p>\n

\"\"<\/a>A Republican appeal of the Wisconsin Supreme Court\u2019s 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.<\/p>\n

If the U.S. Supreme Court rules in favor of GOP state lawmakers, the federal justices could allow so-called \u201crace-neutral\u201d 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 \u201cerasing the efforts of Reconstruction\u201d and going back to a time before the 15th Amendment to the U.S. Constitution extended voting rights to people of color, Ellis fears.<\/p>\n

\u201cThat\u2019s my worst-case scenario,\u201d he says.<\/p>\n

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.<\/p>\n

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.<\/p>\n

Yablon doesn\u2019t see much chance that the state\u2019s Republican congressmen will prevail in their challenge to one aspect of the state court\u2019s ruling: the part in favor of the U.S. House map drawn by Evers. That appeal rests largely on an argument that the governor\u2019s districts are unconstitutionally unequal because their populations vary by as much as two people, up from one under the current map.<\/p>\n

Let\u2019s bring the story up to date and offer some takes by participants or observers.<\/p>\n

To break an impasse between Wisconsin\u2019s legislative and executive branches, the state justices ruled, 4-3, on March 3, to select the governor\u2019s congressional and state legislative maps<\/a>. 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\u2019s decision until the full U.S. Supreme Court rules on the merits of the case.<\/p>\n

For the fall elections, GOP legislators asked Barrett to order state election officials to use the Assembly and Senate maps approved by the Legislature\u2014maps 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.<\/p>\n

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.<\/p>\n

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.<\/p>\n

All of the maps that were considered by state justices likely would have allowed Republicans to remain in control<\/a> of both houses of the Legislature and to keep a majority of the state\u2019s congressional delegation. That\u2019s because the state court had ruled Nov. 30 that it would favor maps that made the fewest changes legally possible<\/a> to the current GOP-drawn maps, which Democrats have criticized as an extreme partisan gerrymander<\/a>.<\/p>\n

Republicans had pushed the court to adopt the least-change approach, as part of a process that Yablon calls \u201cgerrylaundering,\u201d<\/a> 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<\/a> than the GOP maps, while tilting some districts to become more competitive.<\/p>\n

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<\/a> 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.<\/p>\n

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\u2019s majority opinion, written by Justice Brian Hagedorn, found \u201cgood reasons\u201d 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.<\/p>\n

In her dissent, Chief Justice Annette Ziegler mounted an extensive attack on the majority\u2019s interpretation of the VRA, citing decisions such as Shaw v. Reno<\/em> (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\u2019s points are echoed in the GOP appeal.<\/p>\n

\u201cThe 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,\u201d Ziegler wrote.<\/p>\n

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\u2019s map was motivated by race.<\/p>\n

But even if that was true, race wasn\u2019t a factor in the court majority\u2019s decision to accept the governor\u2019s map, Assistant Attorney General Anthony Russomanno, representing Evers, wrote in reply to a similar point in the Legislature\u2019s request for a state court stay. Yablon agrees with that argument.<\/p>\n

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\u2019s districts in a friend-of-the-court brief filed with the U.S. Supreme Court.<\/p>\n

Unlike Esenberg, however, Taylor also opposes the Legislature\u2019s maps, which would reduce the number of Black-majority Assembly districts to five. She wants the federal high court to stay the state court\u2019s decision and either order the state justices to redraw the maps or leave the current maps in place for the fall election.<\/p>\n

The tension between the Shaw<\/em> 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.<\/p>\n

In an Alabama redistricting case, U.S. Supreme Court Chief Justice John Roberts recently wrote that his court\u2019s rulings \u201chave engendered considerable disagreement and uncertainty regarding the nature and contours of a vote dilution claim.\u201d And in the Wisconsin case, Hagedorn wrote, \u201cHere, we cannot say for certain on this record that seven majority-Black Assembly districts are required by the VRA.\u201d<\/p>\n

Ellis views Ziegler\u2019s dissent as an invitation to the federal justices to take up the Wisconsin case, revisit the ambiguity created by the Shaw<\/em> line, and \u201csettle it once and for all in a way that I think the Republican Party would see in its favor.\u201d<\/p>\n

As Ellis notes, Republicans nationwide have been advocating what they call \u201crace-neutral\u201d redistricting, arguing that they can\u2019t be discriminating against people of color if they simply ignore voters\u2019 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.<\/p>\n

Meanwhile, the U.S. Supreme Court decided in Rucho v. Common Cause<\/em> (2019) that political<\/em>-gerrymandering claims have no place in federal court. Rucho<\/em> did not prohibit state courts from addressing such gerrymandering, but the Wisconsin court\u2019s Nov. 30 opinion, written by Justice Rebecca Bradley, ruled those cases off-limits for this state\u2019s judiciary as well.<\/p>\n

The combination of those decisions could open the way to \u201cwhat some might see as discrimination,\u201d Ellis says.<\/p>\n

Ellis says Republicans want to legalize \u201crace-neutral\u201d redistricting because they have \u201cunderperformed among African-American communities,\u201d and this approach would allow them to minimize Black-majority districts while contending that they were only trying to minimize Democratic strength.<\/p>\n

Esenberg and Taylor turn that argument around, contending that the governor\u2019s maps are diluting Black voting strength to ensure reliably Democratic districts.<\/p>\n

The Alabama case now before the U.S. high court focuses on the same sort of racial issues as the Wisconsin case. It\u2019s 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.<\/p>\n

But even if the federal justices agree to consider the Wisconsin case, they are less likely to stay the state court\u2019s order this close to an election, Yablon and Ellis say.<\/p>\n

Justices cited their reluctance to disrupt voting preparations in the Alabama case, when they stayed a lower court\u2019s 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.<\/p>\n

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\u2019s maps after they were rejected in both the political and judicial processes, Yablon and Barnes say.<\/p>\n

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\u2019t 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<\/em>, when it redrew two Milwaukee districts to correct a VRA violation.<\/p>\n

Meanwhile, the GOP congressmen face steeper odds in overturning the congressional map that the state court approved, Yablon and Barnes say.<\/p>\n

Taking a cue from Ziegler\u2019s dissent, the congressional appeal criticizes the court majority for focusing on \u201ccore retention\u201d\u2014the percentage of voters who stay in the same districts\u2014as the metric for determining which map was least changed. Barnes says that\u2019s not a matter of federal law, adding, \u201cIt would be incredibly extraordinary if the [U.S.] Supreme Court agreed with the congressmen.\u201d<\/p>\n

By contrast, strict population equality among congressional districts is required by the federal high court\u2019s decision in Wesberry v. Sanders<\/em> (1964). However, Yablon says, the justices have allowed \u201ctrivial differences\u201d in population, and no court has ever held that districts that vary by as little as two people are unconstitutional, as the congressmen contend.<\/p>\n

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,<\/a> research fellow in the Lubar Center for Public Policy Research and Civic Education at Marquette Law School.<\/p>\n

Republicans now hold a 5-3 majority in the state\u2019s delegation, with the only competitive seat belonging to retiring Democratic Rep. Ron Kind.<\/p>\n

 <\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

This blog post\u00a0continues\u00a0the focus of the Law School\u2019s Lubar Center on redistricting.\u00a0 A Republican appeal of the Wisconsin Supreme Court\u2019s 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 […]<\/p>\n","protected":false},"author":284,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[111,349,122],"tags":[],"class_list":["post-30010","post","type-post","status-publish","format-standard","hentry","category-election-law","category-lubar-center","category-public","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/30010","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/284"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=30010"}],"version-history":[{"count":4,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/30010\/revisions"}],"predecessor-version":[{"id":30014,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/30010\/revisions\/30014"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=30010"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=30010"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=30010"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}