The Supreme Court’s inexplicable blow to Wisconsin’s voting rights law.


On Wednesday, the Supreme Court issued a stunning decision dismissing Wisconsin’s new legislative districts in violation of the Equal Protection Clause. The majority accused a Republican justice to the Wisconsin Supreme Court for giving the green light to a “racial gerrymander” by creating another majority black district in the state assembly. Wednesday’s unsigned ruling, delivered through the shadow docket, offers Republicans in Wisconsin an unexpected victory in their quest to slash black representation in the Legislative Assembly. It also changes the redistricting law in fundamental but cryptic ways that might, to a cynic, seem designed to disadvantage Democrats in every case.

Wisconsin Legislature v Wisconsin Election Commission is an unusual case. It arose because the state’s Democratic governor and GOP-controlled legislature could not agree on new maps after the 2020 census. The Wisconsin Supreme Court stepped in to arbitrate the dispute, allowing parties to submit draft maps for its review, including Governor Tony Evers and legislative leaders. A majority said they would abide by the “least change” rule, selecting the card that made the least change to the current plan. Applying that standard, the court adopted Evers’ map in March. Notably, Judge Brian Hagedorn, a conservative Republican, wrote the majority opinion. His decision largely preserved the current Republican gerrymander, but also increased the number of majority black Assembly districts in Milwaukee from six to seven.

This result was, objectively, quite sensible. The Supreme Court has ruled that the Voting Rights Act prohibits states from diluting the votes of racial minorities, such as dividing them into several different districts. But he also argued that the equal protection clause prohibits the use of race as a “predominant factor” in redistricting. Evers believed that due to the growth of Milwaukee’s black population over the decade, the current map had diluted minority votes in violation of the VRA. Black residents are now crowded into too few neighborhoods and the creation of a seventh would restore their political power. The Wisconsin Supreme Court did not rely on this reasoning in choosing Evers’ map; again, he just chose the most minimalist plan. But in his majority opinion, Hagedorn assessed potential conflicts with the VRA and the Equal Protection Clause. He concluded there were no obvious legal flaws, but noted that plaintiffs could still challenge the card in the future.

Republicans appealed Hagedorn’s decision, arguing that it constituted an illegal “21st century racial gerrymander.” On Wednesday, SCOTUS accepted. The Majority admitted that they weren’t sure whether they blamed Evers or Hagedorn for adopting the Seventh District, so they blamed them both. First, he claimed that Evers presented insufficient evidence demonstrating that without a majority-black Seventh District, the plan would violate the VRA. Second, he faulted Hagedorn for failing to consider “whether a racially neutral alternative that did not add a majority black seventh district would deprive black voters of equal political opportunity”. So he overturned the legislative maps and ordered the Wisconsin Supreme Court to adopt a different plan (with less black representation) or justify Evers’ plan with a “new analysis” consistent “with our case law on ‘equal protection’. (Because state law requires three Assembly seats nested within each Senate seat, a new map will require a substantial adjustment of multiple districts.)

As Judge Sonia Sotomayor explained in a dissent joined by Judge Elena Kagan, this decision is “unprecedented”, “extraordinary” and “unnecessary”. A fundamental problem is that, so far, no party has challenged the equal protection of the legislative map. Hagedorn therefore did not have the opportunity to conduct a full constitutional analysis. Instead, in the Wisconsin Supreme Court, Republicans agreed that the VRA required multiple black-majority districts in Milwaukee. They then ambushed the courts with last-minute complaints about an alleged racial gerrymander. SCOTUS rewarded their behavior, accusing Hagedorn of failing to undertake an analysis that no party asked him to undertake. There is “no precedent,” Sotomayor wrote, requiring a tribunal “to embark on an independent inquiry into matters that the parties have conceded or uncontested.”

A second problem with the majority analysis is that it essentially accuses Hagedorn of engaging in racial discrimination. This suggestion is absurd. Time and time again, Hagedorn has reiterated his goal of adopting a map with the “least change” from the previous plan. He prioritized “base retention” – keeping voters in their current constituencies – over all other factors. Even if Evers violated the equal protection clause by considering race, Hagedorn clearly did not. Why, then, does he not receive the presumption of good faith accorded to legislatures which attract genuine racial gerrymanders? The majority says nothing. As Sotomayor put it: “Our precedents do not offer clear answers to the question of what grounds should be analyzed in these circumstances (the four judges who selected the card based on the ‘least change’ criteria, the governor or a combination) or how. The court does not pretend to answer this question.

There is a third problem with the decision that Sotomayor does not mention: it flagrantly violates the Purcell principle. This rule states that federal courts must not change state election laws shortly before an election. Conservative justices have relied on it relentlessly to freeze lower court rulings expanding voting rights. In February, they deployed him to block a decision requiring Alabama to rescind its (unfortunate) racial gerrymander because the primaries were three and a half months away. Now the Conservatives have set aside Purcell flip Wisconsin’s legislative map with the primaries four and a half months away. Without proof, they claimed their decision gave them “enough time” to adopt a new card. This statement is false; the Wisconsin Elections Commission has pleaded with SCOTUS to make a decision by March 15 or risk sabotaging voter registration for the upcoming primaries. Because SCOTUS exceeded this eight-day deadline, it “increased[d] the risk of errors” in the administration of the election – exactly the kind of thing Purcell not recommended.

Since Wednesday’s decision was made on the shadow case, we don’t know how each judge voted. Only Sotomayor and Kagan noted their dissents; it is possible that Judge Stephen Breyer also dissented, but chose not to note it. (That opacity is an ongoing problem with the Shadow Record.) He may have simply decided not to go public with his disagreement, perhaps choosing not to rock the boat months before his retirement. It is difficult, if not impossible, to believe that Breyer agreed with the majority, since he publicly opposed his approach to the VRA in countless cases.

If you put aside the many bizarre details of this decision, one overriding theme emerges: deep hostility towards the VRA. As my colleague Rick Hasen put it, the ruling “further narrows the scope” of the law, “makes it harder for plaintiffs to win such cases.” Conservative justices are so hostile to “VRA districts” — that is, districts designed to preserve the political power of black voters — that they will upend decades of precedent and prevent an upcoming election just to erase one. from the menu.

The real victims, of course, are black people in Wisconsin who will now have less influence in the state legislature. But again, it’s hard not to feel a little sympathy for the lower court judges as well. Hagedorn has done his job commendably; he fairly applied the precedent, to the dismay of his own party; and yet he was abruptly knocked over the shadow folder anyway in a nonsensical, unsigned opinion. There seems to be only one way for a lower court to spare an election-related decision from the SCOTUS grinder: circumvent all the rules necessary to secure a Republican victory.


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