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  • March 08, 2022

    In 4-3 Decision, Wisconsin Supreme Court Adopts Governor’s Redistricting Map

    But the Republican-controlled Wisconsin Legislature has already asked the U.S. Supreme Court to overturn the Wisconsin Supreme Court’s decision.

    Jeff M. Brown

    Pipes Next To A Pile Of Dirt And A Trench Behind A House

    March 8, 2022 – Redistricting maps proposed by Gov. Tony Evers, a Democrat, will govern state legislative and congressional elections in Wisconsin for the next ten years, the Wisconsin Supreme Court recently ruled in a 4-3 decision.

    However, in an emergency appeal filed March 7, the Republican-controlled Wisconsin Legislature asked the U.S. Supreme Court to block that decision, review the case, and reverse the state supreme court’s decision in favor of its own maps. 

    Redistricting must take place every 10 years to account for shifts in population, and comply with other federal and state laws.

    The Republican-controlled Wisconsin Legislature draw new maps after the 2020 census but Gov. Evers vetoed the maps, creating an impasse.

    How it Got Here

    Four Wisconsin voters filed an original action petition, asking the court to redraw the existing maps, enacted in 2011 under then-Gov. Scott Walker (litigation regarding the 2011 maps also made it to the U.S. Supreme Court, which remanded the case in 2018).

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    Petitioners in the current litigation argued that the 2011 maps are malapportioned and no longer comply with constitutional requirements. Numerous parties intervened.

    In November 2021, the supreme court ruled that it would not consider the partisan makeup of districts when deciding whether to redraw district boundaries. The court also ruled that it would make the minimum changes necessary – a “least-change approach” – to bring district boundaries into compliance with constitutional and statutory standards.

    Parties were invited to submit one proposed redistricting map for Congress, state senate, and state assembly.

    The court received six state legislative map proposals, including proposals from Gov. Evers and the Republican-controlled Wisconsin Legislature.

    The court received four congressional map proposals, including a proposal from Gov. Evers and a proposal from four Wisconsin members of Congress, all Republicans.

    In Johnson v. WEC, 2021AP1450 (March 3, 2022), the supreme court (4-3) adopted the governor’s maps, noting they comply with requirements established by the federal and state constitutions and the federal Voting Rights Act.

    The majority ruled that state legislative and congressional map proposals submitted by Evers best met the court’s “least-change” directive.

    Justice Brian Hagedorn wrote the majority opinion, joined by Justice Ann Walsh Bradley, Justice Rebecca Dallet, and Justice Jill Karofsky. Justice A.W. Bradley wrote a concurring opinion, joined by Justice Dallet and Justice Karofsky.

    Chief Justice Annette Ziegler, Justice Patience Roggensack, and Justice Rebecca Grassl Bradley dissented, each writing separate dissents.

    ‘Core Retention’ is Key Measure  

    Justice Hagedorn began the majority opinion by reviewing the court’s prior decision in the redistricting lawsuit, which was handed down in November.

    “Rather than craft our own map, we invited all parties to this litigation to submit one proposed map for each set of districts where new district boundaries are required: congress, state senate, and state assembly,” Justice Hagedorn wrote.

    “We said we would choose maps that minimize changes from current law and evaluate maps for compliance with state and federal law.”

    For the congressional maps, Justice Hagedorn explained that “core retention—a measure of voters who remain in their prior districts” was the best way to measure the amount of change made by each proposed map.

    “[Core retention] is thus a spot-on indicator of least change statewide, aggregating the many district-by-district choices a mapmaker has to make,” Justice Hagedorn wrote. “Core retention is, as multiple parties conceded from the beginning of this litigation, central to a least change review.”

    Analysis of Congressional Maps

    With an average core retention of 94.5%, the congressional map submitted by the governor scored higher than the congressional maps submitted by Congressmen Glen Grothman, Bryan Steil Tom Tiffany, and Scott Fitzgerald (93.5%), intervenor- petitioner Lisa Hunter (93.0%), and intervenor-petitioner Citizens Mathematicians and Scientists (CMS).

    “It is not a close call,” Justice Hagedorn wrote. “The Governor’s proposal moves 60,041 fewer people than the next closest submission, that of the Congressmen.”

    The governor’s map also complied with state and federal legal standards, Justice Hagedorn explained. Although the governor’s congressional map had a two-person deviation – the total deviation between the most and least populated districts – 14 states chose maps with greater than one-person deviations after the 2010 census.

    “If the law is clear that a two-person deviation (or more) is unacceptable, then nearly a third of states with more than one congressional district have apparently not gotten the message,” Justice Hagedorn wrote. “We know of no case in which a court has struck down a map based on a two-person deviation.”

    Analysis of State Legislative Maps

    Viewed together, the governor’s state senate and assembly maps also scored the highest on average core retention. The state senate map submitted by the legislature would move 1,958 fewer people than the governor’s map, but the governor’s assembly map would move 96,178 fewer people than the legislature’s assembly map.

    The majority declined to adopt the legislature’s argument that the supreme court measure the amount of change by looking at the number of counties and municipalities that each map would split.

    “We fail to see why this is a relevant least-change metric, however,” Justice Hagedorn wrote. “If a municipality was split under the maps adopted in 2011, reuniting that municipality now—laudable though it may be—would produce more change, not less.”

    The governor’s state legislative maps also complied with Article IV, sections 4-5 of the Wisconsin Constitution, Justice Hagedorn explained.

    Its districts are contiguous, properly nested (three assembly districts inside senate district), and marked by a population deviations (1.20 for senate, 1.88 for the assembly) less than those in prior court-approved redistricting maps.

    The population deviations were also within the range declared acceptable by federal courts in interpreting the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, Justice Hagedorn noted.

    Voting Rights Act Compliance

    The governor’s proposed state legislative maps also complied with the federal Voting Rights Act (VRA), Justice Hagedorn explained.

    It was undisputed, Justice Hagedorn noted, that the Black voting age population in Milwaukee was both large enough and geographical compact enough to form a majority in the seven reasonably configured districts contained in the governor’s maps.

    Additionally, it was undisputed that Black voters in Milwaukee were cohesive, Justice Hagedorn noted. And there was strong evidence white voters in Milwaukee vote often enough in a block to defeat Black-preferred candidates.

    Given those three factors, the majority proceeded to conduct a totality-of-the-circumstances analysis to determine whether Black voters in Milwaukee have fewer opportunities than other voters to elect candidate of their choice, and examined whether the seven Black-majority districts in the governor’s maps were roughly proportional to the African-American share of the Wisconsin population.

    “On this record, we conclude [that] selecting a map with seven districts is within the leeway states have to take ‘actions reasonably judged necessary’ to prevent vote dilution under the VRA,” Justice Hagedorn wrote.

    Concurrence Concerned With Partisan Advantage

    In the prior case, Justice A.W. Bradley – along with Justice Dallet and Justice Karofsky – dissented, citing the majority’s unwillingness to consider the advantage that the maps conferred on Republicans.

    In her concurrence in the present case, Justice A.W. Bradley explained that she was still concerned about that issue. But, she wrote, she was “circumscribed” by the court’s earlier decision.

    “Here, the ‘least change’ approach necessarily enshrines the partisan advantage adopted by the political branches ten years ago,” A.W. Bradley wrote. “Its application undermines, rather than fulfills, the promise of a truly representative government. That being said, I am bound by the court’s earlier determination in this case.”

    ‘Unwarranted Racial Gerrymander’

    Justice Roggensack used her dissent to take issue with the majority’s analysis under the VRA.

    She explained that election results from the last 10 years show that white voters in Milwaukee typically cross over to help Black voters elect candidates of their choice rather than blocking Black voters’ choices, as the majority had asserted.

    That meant that the majority had failed to satisfy one of the three conditions required by U.S. Supreme Court precedent before proceeding to determine whether it was appropriate to take race into account when drawing legislative district lines.

    “It is my hope that the United States Supreme Court will be asked to review Wisconsin’s unwarranted racial gerrymander, which clearly does not survive strict scrutiny,” Justice Roggensack wrote.

    As noted, petitioners have already asked the Wisconsin Supreme Court to grant an emergency stay of the decision pending appeal to the U.S. Supreme Court.

    ‘An Exercise of Judicial Activism’

    In her dissent, Chief Justice Annette Ziegler called the majority opinion “an exercise of judicial activism, untethered to evidence, precedent, the Wisconsin Constitution, and basic principles of equal protection.”

    The governor hadn’t demonstrated a violation of the VRA, Chief Justice Ziegler explained, which meant there was no basis for drawing districts in Milwaukee based on race.

    “Without a violation, there can be no remedy because to take race-based action would violate the Equal Protection Clause,” Chief Justice Ziegler wrote. “In other words, a VRA remedy is constitutionally permissible only as required to remedy a VRA violation.”

    And the “least change” required by the prior supreme court decision was not the same as “core retention,” Chief Justice Ziegler explained. Furthermore, Justice Hagedorn’s majority opinion ignored factors that he had identified as important to the redistricting analysis in his concurrence to the prior decision.

    “Nowhere in that decision did we use the phrase ‘core retention,’” Chief Justice Ziegler wrote. “Not only were the parties not advised that core retention would be the decisive factor in the court’s decision, but the parties were explicitly ‘invited’ by the concurrence to consider factors wholly unrelated to least change … The core retention analysis in the majority is an invention, after-the-fact to justify a policy preference.”

    Chief Justice Ziegler also noted that the governor failed to explain why the population deviations in his maps were more than double the amount of the deviations in the 2011 maps.

    “Given advanced software, there is little doubt that if the Governor were not striving for other goals, based at least in part on race and likely in large part on politics, his core retention could have remained the same while lowering population deviations,” Chief Justice Ziegler wrote.

    ‘A Supreme Court of One’

    In addition to discussing the majority’s analysis of the VRA and least change issues, Justice R.G. Bradley explained that the governor’s maps split local political boundaries in contravention of the Wisconsin Constitution.

    “While one person, one vote, necessitates breaking up counties … it does not necessitate dividing the smallest political units recognized in the state,” Justice R.G. Bradley wrote.

    The legislature’s assembly map would split 34 fewer towns than the governor’s assembly map, Justice R.G. Bradley noted.

    She also explained that Justice Hagedorn’s concurrence in the prior decision was not the controlling opinion in that case.

    “In his concurrence, he ‘invited’ the parties to submit proposed remedial maps and briefing in conformity with his idiosyncratic views—never mind that only this court, acting through a majority of participating justices, can ‘invite’ parties to do anything,” Justice R.G. Bradley wrote. “Justice Hagedorn may have cast the deciding vote in this case, but he does not have the power to act as a supreme court of one.”




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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2022 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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