In a stark reversal from its decision just one month ago, the Wisconsin Supreme Court on Friday adopted legislative maps submitted by the Republican-led state Legislature. The move follows a U.S. Supreme Court decision last month to reject Democratic Gov. Tony Evers’ maps.
Attorney General Josh Kaul, a Democrat, called the ruling “a travesty for democracy in Wisconsin.”
“This is an unconscionable miscarriage of justice for which the people of this state will see no reprieve for another decade,” Evers said in a statement.
The ruling came at the end of the first day candidates are allowed to start collecting signatures to gain ballot access in the 2022 election — and weeks after the Wisconsin Elections Commission said it needed the maps. Signatures and candidate registrations for the August primary and the Nov. 8 general election are due June 1.
The legal limbo meant that some candidates, whose district boundaries were thrown into question by the legal back-and-forth, went into the first day of signature collection without knowing in which district they were eligible to run.
The U.S. Supreme Court on March 23 rejected legislative maps previously submitted by Evers and approved by the state Supreme Court. The court’s ruling didn’t touch congressional districts drawn by the governor, which will be used for the next decade — creating two “toss-up” U.S. House races in the state.
The state court “committed legal error in its application of decisions of (the U.S. Supreme Court) regarding the relationship between the constitutional guarantee of equal protection and the (Voting Rights Act of 1965),” the unsigned SCOTUS ruling found last month. Justices Sonia Sotomayor and Elena Kagan dissented, arguing the high court’s intervention was “not only extraordinary but also unnecessary.”
On March 3, the state Supreme Court selected Evers’ maps because they best complied with the court’s previous order that new district lines make as few changes to existing districts as possible, conservative Justice Brian Hagedorn wrote in the court’s majority opinion.
At the time, a majority of the justices selected Evers’ maps because they best complied with the court’s previous order mandating any new maps take a “least-change” approach to reapportioning Wisconsin’s electoral districts, Hagedorn wrote at the time.
At issue was the governor’s maps’ creation of a seventh majority-Black state Assembly district. Evers argued the additional district is needed in order to comply with the federal Voting Rights Act, and the state Supreme Court ruled there were “good reasons” to believe that to be true.
Republican lawmakers argued to the U.S. Supreme Court that the governor’s maps violated the Equal Protection Clause of the 14th Amendment because they did not provide sufficient justification for the creation of race-based districts.
The Legislature’s maps will reduce the number of majority-Black “opportunity” Assembly districts from six to five. The reduction in majority-Black districts could result in a federal lawsuit. The redistricting process last decade resulted in a limited lawsuit, with a federal three-judge panel eventually ruling that two opportunity districts in the Milwaukee-area needed to be altered, but left the rest of the map intact.
Evers decried the ruling as “outrageous.”
“At a time when our democracy is under near-constant attack, the judiciary has abandoned our democracy in our most dire hour,” Evers said in a statement. “Wisconsinites want a democracy, they want fair representation, and they want fair maps as they have demanded of this government for ten years. Today, they receive no recourse.”
In the 4-3 opinion issued late Friday afternoon, Chief Justice Annette Ziegler wrote, “Upon review of the record, we conclude that insufficient evidence is presented to justify drawing state legislative districts on the basis of race.”
As he often has since he joined the court in 2019, Hagedorn served as the swing vote — first in approving Evers’ maps last month, and now in approving the Legislature’s maps.
The maps submitted by Evers and other lawmakers and groups aligned with Democrats “are racially motivated and, under the Equal Protection Clause, they fail strict scrutiny,” Ziegler wrote. “By contrast, the maps proposed by the Wisconsin Legislature are race neutral. The Legislature’s maps comply with the Equal Protection Clause, along with all other applicable federal and state legal requirements. Further, the Legislature’s maps exhibit minimal changes to the existing maps (in accordance with the state Supreme Court’s November 2021 decision).”
“As a matter of law,” Ziegler wrote, “the Legislature’s maps are superior to the available alternatives.”
The Republican-led Legislature’s maps, the court found, are “the best, and only viable, proposal.”
In a concurring opinion, conservative Justice Rebecca Bradley wrote that Evers’ maps “violate the Constitution by insidiously sorting people into districts based on the color of their skin. The Wisconsin Legislature drew its maps without regard to race — the only party to do so.”
Bradley’s opinion noted that, during debate last fall, Republican lawmakers introduced maps drawn by Evers’ People’s Maps Commission —in effect, forcing Democratic lawmakers to vote publicly on the commission’s proposal. At the time, the Assembly voted 77-21 against the amendment containing the commission’s maps, with 17 Democrats joining Republicans in voting against the plan.
Bradley quoted heavily from a floor speech made by Rep. Sylvia Ortiz-Velez, D-Milwaukee — her first since being elected to the Assembly. While speaking from the floor, Ortiz-Velez — who was one of the Democrats to oppose the maps — criticized the commission’s proposal for reducing the number of majority-minority districts and replacing them with “minority opportunity districts” — which would likely result in more Democratic seats but potentially fewer lawmakers of color.
Bradley also noted Sen. Lena Taylor, D-Milwaukee, had opposed Evers’ maps, arguing they would ““dilute the voting strength of Black voters in Wisconsin.”
“Governor Evers’ color-emphasizing approach is remarkably different than the Legislature’s color-blind approach,” Bradley wrote.
In his own concurring opinion, Hagedorn painted a different picture of the court’s process.
“As our previous opinion expressed, a majority of this court did not understand itself to be adjudicating a VRA claim,” he wrote. “Had we understood our task this way, this court likely would have taken a different approach to this litigation.”
Hagedorn said the court’s process of choosing “from among a discrete group of proposals … was a poor vehicle for conducting the kind of VRA analysis the Supreme Court indicates we should have done.”
He said the court “did not conduct the sort of fact-specific inquiry and analysis that one sees in federal VRA cases because we did not view our role as adjudicating a full-blown VRA claim.”
Hagedorn suggested the state Supreme Court should have pursued a more fact-intensive approach, given the heavy focus on the VRA. He said the court “could construct (maps) ourselves or with the assistance of an expert, but time and our institutional limitations make that unrealistic at this juncture.”
He continued: “The remaining option is to choose one of the proposed maps we received as the baseline. Only one proposal was represented as race-neutral in its construction: the maps submitted by the Legislature.”
Hagedorn concluded his concurring opinion by saying, in light of the U.S. Supreme Court’s “clarified instructions, the Legislature’s state senate and state assembly maps are the only legally compliant maps we received.”
Accordingly, he wrote, he joined the majority’s opinion.
The conservative justices’ decision to select maps drawn by the Legislature was met by a scorching dissent from liberal Justice Jill Karofsky. Justices Ann Walsh Bradley and Rebecca Dallet, the court’s two other liberals, joined in her opinion.
“This case has been nothing short of an odyssey — a long wandering marked by many changes in fortune,” Karofsky wrote. “Like all odysseys, the travelers (this court) have had to make several navigational decisions along the way; unfortunately, we have taken numerous wrong turns. The sum total of all that misdirection now leads us to the legally unacceptable maps submitted by the Legislature.”
She argued the state’s high court never should have taken on the case, but once they did, “the court wandered astray following the sirens’ call of ‘least change.’”
Karofsky continued: “Although rhetorically appealing, this ‘least change’ approach served only to entrench the prior — and blatantly partisan — district maps.”
Bradley shot back: “Unlike Odysseus, however, this court simply cannot take 10 years to complete its journey. To quote a more modern source, ‘(t)he clock’s run out, time’s up, over, blaow.”
That was a reference, of course, to “Lose Yourself“ — the Academy Award-winning Eminem track from the 2002 soundtrack to “8 Mile.”
Bradley also quoted Radiohead in her response to Karofsky’s dissent: “There’s always a siren, singing you to shipwreck.”
“In this case, the dissent responds to the smooth-sounding siren of racial classifications, a siren whose danger often becomes apparent only upon close examination,” Bradley wrote. “At least for now, this court safely tethers its opinion to the constitutional command of color-blindness.”
Karofsky spent dozens of pages in her dissent dissecting what she said was the majority’s flawed logic in selecting the Republican-drawn legislative districts.
Karofsky concluded her dissent with a “lessons learned” section.
“This has been a profoundly disheartening odyssey,” she wrote. “The unavoidable political nature of remedial redistricting plagued us every step of the way.”
She continued: “Too rarely did this process present true questions of law — this court’s only area of expertise. At every change in the tide, this court seemed to choose what it hoped to be a short-cut to streamline our voyage, only to find ourselves lost and unable to do our work as a non-partisan court of law.”
Karofsky said that she hopes the court will “have learned our lesson” if redistricting comes before the body once again. Instead of taking on the task, she wrote, “I hope that we will permit a politically insulated federal court to manage the task.”
The task of drawing Wisconsin’s maps was handled by federal courts in the 1980s, 1990s and 2000s when divided legislatures and governors failed to reach consensus on boundaries.
But, she wrote, if “this court does … cast off upon this odyssey again in the future, we cannot shy away from the demands of the process.”
“We can and should do so much better,” Karofsky wrote. ￼