​April 20, 2022 – Redistricting maps drawn by the Wisconsin Legislature but vetoed by Governor Tony Evers will govern state legislative elections beginning this November, the Wisconsin Supreme Court ruled last week.​

In Johnson v. WEC, 2022 WI 19 (April 15, 2022), the supreme court (4-3) held that the legislature’s maps were the only maps among the six submitted to the court last year that met all the legal requirements for redistricting.

Under the decision, maps dr​awn by Gov. Evers will govern congressional elections in Wisconsin for the next ten years.

Chief Justice Annette Ziegler wrote the majority opinion, joined by Justice Patience Roggensack, Justice Rebecca Grassl Bradley, and Justice Brian Hagedorn. Justice Jill Karofsky dissented, joined by Justice Ann Walsh Bradley and Justice Rebecca Dallet.

How it Got Here

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

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.

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

In November 2021, the Wisconsin 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 proposed redistricting maps for Congress and the state legislature.

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 state supreme court (4-3) adopted the governor’s maps, noting they complied with requirements established by the federal and state constitutions and the federal Voting Rights Act (VRA).

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

The majority also held that the creation of a seventh Black-majority Assembly district in Milwaukee was allowed because Black voters had fewer opportunities to elect candidates of their choice, and because the seven districts were roughly proportional to the African-American share of the state’s population.

The dissent criticized the governor’s Assembly map for the creation of a seventh Black-majority district in Milwaukee, arguing that the district constituted a racial gerrymander that wasn’t required by the VRA and couldn’t withstand strict scrutiny.

Following the decision, the legislature appealed to the U.S. Supreme Court.

In a per curiam decision, issued March 23 on the emergency docket, the U.S. Supreme Court reversed the Wisconsin Supreme Court’s March 3 decision.

The Court held that the governor had failed to provide sufficient evidence to justify using race to draw the seven Black-majority Assembly districts, and remanded the case to the Wisconsin Supreme Court.

In its decision, the Court held that the Wisconsin Supreme Court could either draw its own maps or adopt one of the other five maps submitted by the parties.

Insufficient Evidence

In her opinion for the majority, Chief Justice Ziegler explained that only the legislature’s maps complied with the law.

Gov. Evers failed to show that the VRA required drawing districts based on race, Chief Justice Ziegler wrote.

Without such evidence, Ziegler explained, drawing districts based on race violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution.

Gov. Evers had ample time to produce such evidence, Chief Justice Ziegler noted. However, Ziegler pointed out, the governor stipulated in the joint discovery plan created by the parties that no briefs or export reports produced by outside parties were needed.

“The Governor chose to place his case on the evidentiary support included in his briefs and expert reports, and as the Supreme Court held, that evidence was not sufficient to justify racially motivated district lines,” Ziegler wrote.

Chief Justice Ziegler explained that the same flaw marred maps submitted by three other parties – State Senator Janet Bewley, Black Leaders Organizing Communities (BLOC), and Citizens Mathematicians and Scientists (CMS).

“Without a full and complete accounting of district-specific election results, and the extent to which candidates supported by the relevant black communities are elected to the state senate and assembly in the districts at issue, we cannot conclude that without the use of race, black voters in those districts would lack the same ‘opportunity … to participate in the political process to elect representatives of their choice’ as would other voters,” Ziegler wrote of the BLOC maps, quoting from the VRA.

The legislature’s maps, Chief Justice Ziegler explained were race-neutral. No party argued otherwise, she pointed out.

Additionally, Ziegler explained, the legislature used race-neutral criteria in drawing districts in the Milwaukee area and never argued that the preconditions for using race to draw districts in Milwaukee established in U.S. Supreme Court precedent had been met.

Least Change

In addition to being race-neutral, Chief Justice Ziegler explained, the legislature’s maps also displayed minimal population deviation, and thereby complied with the “one person, one vote” requirement under the Equal Protection clause.

Ziegler pointed out that the districts contained in the legislature’s maps also met redistricting requirements spelled out in the Wisconsin Constitution – they were compact and contiguous, respected local political boundaries, and grouped three Assembly districts inside each Senate district.

The legislature’s maps also had the benefit of making the least change from the 2011 maps, Chief Justice Ziegler explained.

Governor’s Maps Endorsed Stereotype

In a concurrence, Justice R.G. Bradley explained that adopting the governor’s maps would be harmful and violate the concept of a “color-blind” Constitution.

“Imposing a race-based redistricting plan, without strong evidence of necessity, endorses the stereotype that people of the same race must think alike and must think differently than people of other races,” R.G. Bradley wrote.

“Governor Evers’ plan, adopted by this court on March 3, imposed ‘distinctions … based upon race and color alone,’ which is the ‘epitome of that arbitrariness and capriciousness constitutionally impermissible under our system of government.’”

R.G. Bradley also criticized the dissent for an “ambitious attempt to paint Milwaukee County as the Jim Crow-era South.”

In drawing the Black majority districts in Milwaukee, Justice R.G. Bradley argued, Gov. Evers had “[used] the VRA as a shield to justify partisan gerrymandering.”

“Although this court does not consider partisan fairness in redistricting, it should be skeptical of VRA claims presented by partisan actors who do not even try to provide evidence sufficient to survive strict scrutiny,” Justice R.G. Bradley wrote.

No Time for VRA Inquiry

In his concurrence, Justice Hagedorn – who’d voted with the majority in the earlier decision adopting Gov. Evers’ maps; – explained that the supreme court did not consider that decision to be adjudicating a claim under the VRA.

“In other words, we 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 wrote.

It was too close to the next election to conduct such an inquiry now, Justice Hagedorn noted.

Given the U.S. Supreme Court’s directive and given that there was no evidence that the legislature’s maps violated the VRA, the legislature’s maps were the only ones submitted that were legally compliant, Hagedorn explained.

Court’s Path Marked by ‘Wrong Turns’

In her dissent, Justice Karofsky lamented that the course of the redistricting litigation had been marked by a series of “wrong turns.”

The supreme court should have declined taking up the redistricting case as an original action and allowed a federal court to handle the case, Karofsky explained, because – among other reasons – the supreme court had no experience in redrawing redistricting maps.

Additionally, Justice Karofsky wrote, the “least change” rubric “served only to entrench the prior—and blatantly partisan—district maps.”

The supreme court also erred by passing up a chance to conduct an adversarial fact-finding trial to determine whether race-based voting in Milwaukee would have triggered the VRA, Karofsky argued.

Segregation Not Accidental

If the governor’s maps impermissibly used race to draw seven majority-Black assembly districts in Milwaukee, Justice Karofsky asked, didn’t the legislature’s maps – which reduced the number of Black-majority Assembly districts from six to five despite an increase in the Black voting age population in Milwaukee – suffer from the same flaw?

Justice Karofsky wrote at length about the disparate impacts suffered by African-Americans in Milwaukee, the nation’s most segregated city.

She cited the city’s nearly century-long history of housing discrimination, which in turn lead to “hyper-segregated” schools, significant disparities in employment compared to whites, and the largest gap in median household income between Black and white residents in the U.S.

“The Milwaukee area perfectly demonstrates why the VRA’s race-conscious remedy is often needed, “Justice Karofsky wrote. “Segregation of minority communities does not happen accidentally.

“If this country were anywhere close to living up to the ‘goal of a political system in which race no longer matters,’ then maybe we could apply the promise of Equal Protection in a race-blind manner … But the overwhelming evidence shows that we have not lived up to that goal.”

Karofsky also argued that by adopting the legislature’s maps, the supreme court “judicially overrides the Governor’s veto, thus nullifying the will of the Wisconsin voters who elected that governor to office.”