The US supreme court threw out Wisconsin’s new state legislative maps on Wednesday, in a ruling that boosts Republicans and takes aim again at one of the last remaining provisions to protect voting discrimination.
The ruling is the latest of many in recent years in which the US supreme court has been hostile to voting rights. In an unsigned ruling, the court took issue with the decision to add an additional Black-majority state assembly district in the Milwaukee area, raising the total in the map to seven. The Wisconsin supreme court picked the plan, drawn by Tony Evers, the state’s Democratic governor, earlier this month.
The state court had taken over the redistricting process after Evers and the GOP-controlled state legislature failed to agree on a plan. The Wisconsin legislature is heavily distorted in favor of Republicans and it is one of the most gerrymandered bodies in the country.
It is virtually impossible for Democrats to win a majority under the current lines. Last year, the state supreme court gave Republicans a boost when they announced they would pick a map that made the least change from the current ones. The court picked Evers’ map earlier this month from a range of submitted proposals, saying it complied with its directive to make the least possible change. It gave Democrats one of the best possible outcomes, even though Republicans still would hold their majority. State Republicans asked the US supreme court to step in anyway.
Now, the US supreme court has sent the case back to the Wisconsin supreme court for further evaluation of the different plans before it. The US supreme court on Wednesday also declined to overturn new congressional districts picked by the state supreme court.
The US supreme court’s opinion said that the state court committed a “legal error” in picking the plan and didn’t appropriately follow the required process to justify the creation of a new district.
“[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,” the US supreme court wrote. “He provided almost no other evidence or analysis supporting his claim that the VRA required the seven majority-Black districts that he drew.”
The Wisconsin supreme court also failed to meet several tests to determine whether the addition of another Black-majority district was required and justified under the voting rights act, the court wrote. “The question that our VRA precedents ask and the court failed to answer is whether a race-neutral alternative that did not add a seventh majority-Black district would deny Black voters equal political opportunity,” the court said.
The US supreme court’s ruling on Wednesday was “unprecedented”, Justices Sonia Sotomayor and Elena Kagan said in a dissenting opinion.
Writing for the pair, Sotomayor noted that the majority had used an emergency ruling to settle issues of uncertain precedent. She noted that the parties in the case did not dispute several of the tests that require the creation of an additional Black-majority district were met. And she pointed out that the Wisconsin supreme court had left open the possibility for resolving several of the issues the supreme court took issue in later litigation.
“Our precedents offer no clear answers to the question whose motives should be analyzed in these circumstances (the four justices who selected the map based on the ‘least change’ criteria, the governor, or some combination) or how. The court does not purport to answer this question,” she wrote.
“This court’s intervention today is not only extraordinary but also unnecessary. The Wisconsin supreme court rightly preserved the possibility that an appropriate plaintiff could bring an equal protection or VRA challenge in the proper forum. I would allow that process to unfold, rather than further complicating these proceedings with legal confusion.”
The court’s decision on Wednesday falls into a series of cases recently where it has either raised the threshold – or indicated it is interested in raising the threshold – for challenging laws under section two of the Voting Rights Act, which outlaws racially discriminatory voting practices. Richard Hasen, an election law professor at the University of California, Irvine, said the supreme court’s ruling in the Wisconsin case was “bizarre”.
“The state supreme court did not purport do to a full VRA analysis: it was adopting maps, and those maps could have been challenged later on VRA or equal protection grounds,” he wrote in a blogpost. “The court used a case in an emergency procedural posture to reach out and decide an issue that could have waited for full briefing and argument either in a lower court in a challenge to the maps or if the supreme court had set the case for argument.
“It decided these issues in ways hostile to minority voting rights without giving a full opportunity for airing out the issues and pointing out how this will further hurt voters of color.”
In February, the US supreme court overturned a court-imposed congressional map in Alabama that would have added another Black-majority congressional district. At the time, it said that Alabama’s 24 May primary elections were too close to impose new maps. Earlier this month, it declined to step in and block new districts in North Carolina and Pennsylvania, but three justices indicated they do not believe state supreme courts can override state legislatures when it comes to redistricting.
