March 25, 2022 – In a per curiam decision, the U.S. Supreme Court this week reversed a decision by the Wisconsin Supreme Court that chose legislative and congressional redistricting maps submitted by Governor Tony Evers, a Democrat.

The written decision does not note how each justice voted, but Justice Sotomayor dissented, joined by Justice Kagan.

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 are 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 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 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 was 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 for an emergency stay.

Milwaukee District Fails Strict Scrutiny

The U.S. Supreme Court majority held that the Wisconsin Supreme Court erred in applying U.S. Supreme Court precedent that addressed the relationship between the Equal Protection Clause of the Fourteenth Amendment and the VRA.

The majority noted that legislative districts drawn on the basis of race are legal only if they can survive strict scrutiny – if they are narrowly tailored to achieve a compelling state interest.

Under Cooper v. Harris, 137 S. Ct. 1455 (2017), the majority explained, compliance with the VRA is assumed to be a compelling interest.

To meet the “narrowly tailored” requirement, the majority explained, a state that has invoked the VRA to justify drawing a legislative district based on race must show that it had a “strong basis in evidence” for concluding the VRA required the creation of the district.

The creation of a seventh majority-Black legislative district in Milwaukee failed to meet that standard, the majority wrote.

“[The governor’s] main explanation for drawing the seventh majority-black district was that there is now a sufficiently large and compact population of black residents to fill it … apparently embracing just the sort of uncritical majority-minority district maximization that we have expressly rejected.”

‘Strict Scrutiny Requires Much More’

Governor Evers failed to provide any meaningful evidence or analysis regarding whether the VRA required the creation of a seventh Black-majority district in Milwaukee, the majority noted.

“Strict scrutiny requires much more,” the majority wrote.

The Wisconsin Supreme Court misunderstood Cooper, the majority explained, by holding that it in order for the creation of the seventh Black-majority district to withstand strict scrutiny, the court need only conclude that the VRA allowed – rather than required – the creation of such a district.

Insufficient Evidence

Furthermore, the majority explained that the Wisconsin Supreme Court erred in its analysis of the preconditions necessary for concluding that the VRA required the drawing of a race-based district.

Specifically, the majority wrote, the data regarding voting trends and voting cohesion in Milwaukee relied upon by the Wisconsin Supreme Court were insufficient.

“While the court did cite one specific expert report for the third precondition—calculating, based on eight previous races, how often white voters in the Milwaukee area defeat the preferred candidate of black voters—it made virtually no efforts to parse the data at the district level or respond to criticisms of the expert’s analysis.”

The majority also explained that the Wisconsin Supreme Court failed to ask whether drawing an Assembly map without a seventh Black-majority district would deny Black voters equal opportunity.

“When the Wisconsin Supreme Court endeavored to undertake a full strict-scrutiny analysis, it did not do so properly under our precedents, and its judgment cannot stand,” the majority wrote.

On remand, the majority explained, the Wisconsin Supreme Court was free to gather additional evidence if it wished to reconsider the governor’s maps instead of choosing from among the other submitted maps.

Should Cooper Analysis Apply?

In her dissent, Justice Sotamayor criticized the majority for making assumptions about the resolution of questions left unanswered by relevant Supreme Court precedent.

It was a mistake to apply Cooper to the Wisconsin Supreme Court decision, Justice Sotamayor explained, because Cooper established a burden-shifting procedure for handling a claim brought under the Equal Protection Clause by a voter.

“It is far from clear whether this burden-shifting framework should also apply in the unusual circumstance where, as here, a state court is adopting a map in the first instance with no Equal Protection Clause claim before it,” Justice Sotamayor wrote.

And it was wrong to fault the Wisconsin Supreme Court for not properly analyzing each of the conditions that must be met to conclude that VRA required the creation of a race-based district when the parties hadn’t disputed all of the conditions, Sotamayor wrote.

“The Court points to no precedent requiring a court conducting a malapportionment analysis to embark on an independent inquiry into matters that the parties have conceded or not contested, like the Gingles preconditions here.”