March 24, 2022

Supreme Court Decides Wisconsin Legislature v. Wisconsin Elections Commission

On March 23, 2022, the U.S. Supreme Court decided Wisconsin Legislature v. Wisconsin Elections Commission, No. 21A471, holding that the Wisconsin Supreme Court, in accepting state Assembly and Senate maps that the Governor had proposed, failed to answer whether a race-neutral alternative that did not add a seventh majority-black district would deny black voters equal political opportunity.

Following the 2020 decennial census, the Wisconsin legislature passed new maps to account for population shifts within the state. But after Wisconsin’s Governor vetoed these maps, the parties sought guidance from the Wisconsin Supreme Court. Ultimately, the court adopted the Governor’s proposed map, which increased the number of majority-black Assembly districts from six to seven. The court explained that while it could not “say for certain on this record that seven majority-Black assembly districts are required by the [Voting Rights Act of 1965 (“VRA”)],” the map comported with the Equal Protection Clause because “good reasons” counseled that the VRA “may” require the additional majority-black district.

The legislature and a group of Wisconsin voters applied for emergency relief from the U.S. Supreme Court, urging that the decision violated the Equal Protection Clause by selecting race-based maps without sufficient justification. Agreeing that the court erred in interpreting “the relationship between the constitutional guarantee of equal protection and the VRA,” the U.S. Supreme Court construed the application as a petition for certiorari, granted it, and reversed the decision below.

In reversing and remanding, the Supreme Court explained that when race “is the predominant factor” in a legislative district’s creation, a state must show that the district’s design “withstands strict scrutiny.” While complying with the demands of the VRA may satisfy this burden, the Court explained, a state must demonstrate — through a “strong basis in evidence” — ”that its race-based sorting of voters is narrowly tailored to comply with” the statute. This, the Supreme Court held, is where the map selection faltered, regardless of whether the Governor or the Wisconsin Supreme Court was viewed as the state actor initiating the redistricting.

First, the Governor failed to satisfy strict scrutiny because his “main explanation” for the addition of a majority-black district was “that there is now a sufficiently large and compact population of black residents to fill it.” Because the Governor “provided almost no other evidence or analysis supporting his claim,” he did not demonstrate the necessity of the district’s creation through a “strong basis in evidence.”

Additionally, the Wisconsin Supreme Court, for three separate reasons, did not satisfy strict scrutiny in selecting the maps. First, while that court determined “that the VRA might support race-based districting,” a state may not “adopt a racial gerrymander that the State does not, at the time of imposition, judge necessary under a proper interpretation of the VRA.” Second, the court “improperly relied on generalizations” concerning three “preconditions” that must be shown, namely that (1) the minority group must be sufficiently large and compact to constitute a majority in a reasonably configured district, (2) the minority group must be politically cohesive, and (3) a majority group must vote sufficiently as a bloc to enable it to usually defeat the minority group’s preferred candidate. Third, the court reduced a “totality-of-circumstances analysis to a single factor” by focusing “exclusively on [the] proportionality” of the number of districts in which the minority group forms an effective majority compared to its share of the population in the relevant area. In short, because the Wisconsin Supreme Court did not properly “undertake a full strict-scrutiny analysis” under U.S. Supreme Court precedent, its selection of the Governor’s maps could not stand.

The opinion of the Court was per curiam. Justice Sotomayor issued a dissenting opinion, joined by Justice Kagan.

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