On Wednesday, the Supreme Court issued an astonishing decision throwing out Wisconsin’s new legislative districts as a violation of the equal protection clause. The majority accused a Republican justice on the Wisconsin Supreme Court of greenlighting a “racial gerrymander” by creating one more majority-Black district in the state Assembly. Wednesday’s unsigned decision, issued through the shadow docket, hands Wisconsin Republicans an unexpected victory in their quest to reduce Black representation in the legislature. It also alters the law of redistricting in fundamental yet cryptic ways that might, to a cynic, seem designed to disadvantage Democrats in every single case.
Wisconsin Legislature v. Wisconsin Elections Commission is an unusual case. It arose because the state’s Democratic governor and GOP-controlled legislature could not agree on new maps following the 2020 census. The Wisconsin Supreme Court stepped in to referee the dispute, allowing parties to submit draft maps for its consideration—including Gov. Tony Evers and legislative leaders. A majority declared that it would abide by a “least change” rule, selecting the map that made the fewest changes to the current plan. Applying this standard, the court adopted Evers’ map in March. Notably, Justice Brian Hagedorn, a conservative Republican, authored 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 outcome was, objectively, quite sensible. The Supreme Court has held that the Voting Rights Act bars states from diluting racial minorities’ votes—by, for instance, splitting them up into a bunch of different districts. But it has also held the equal protection clause forbids 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 diluted minority votes in violation of the VRA. Black residents were now packed into too few districts, 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, it just picked the most minimalist plan. But in his majority opinion, Hagedorn did assess potential conflicts with the VRA and the equal protection clause. He concluded that there were no evident legal flaws, but noted that plaintiffs could still challenge the map in the future.
Republicans appealed Hagedorn’s decision, arguing that it constituted an illegal “21st-century racial gerrymander.” On Wednesday, SCOTUS agreed. The majority admitted that it wasn’t sure whether to fault Evers or Hagedorn for adopting the seventh district, so it blamed both of them. First, it claimed that Evers put forth insufficient evidence demonstrating that, without a seventh majority-Black district, the plan would violate the VRA. Second, it faulted Hagedorn for failing to consider “whether a race-neutral alternative that did not add a seventh majority-black district would deny black voters equal political opportunity.” So it overturned the legislative maps and ordered the Wisconsin Supreme Court to either adopt a different plan (with less Black representation) or justify Evers’ plan with “new analysis” that complies “with our equal protection jurisprudence.” (Because state law requires three Assembly seats nested within each Senate seat, a new map will require substantial adjustment of multiple districts.)
As Justice Sonia Sotomayor explained in a dissent joined by Justice Elena Kagan, this decision is “unprecedented,” “extraordinary,” and “unnecessary.” One fundamental problem is that, until now, no party raised an equal protection challenge to the legislative map. So Hagedorn had no opportunity to conduct a full constitutional analysis. Instead, in the Wisconsin Supreme Court, Republicans agreed that the VRA required multiple majority-Black 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 court “to embark on an independent inquiry into matters that the parties have conceded or not contested.”
A second problem with the majority’s analysis is that it essentially accuses Hagedorn of engaging in racial discrimination. This suggestion is absurd. Over and over again, Hagedorn reiterated his goal of adopting a map with the “least change” from the previous plan. He prioritized “core retention”—keeping voters in their current districts—over all other factors. Even if Evers violated the equal protection clause by considering race, Hagedorn’s plainly did not. Why, then, does he not receive the presumption of good faith awarded to legislatures that draw actual racial gerrymanders? The majority doesn’t say. As Sotomayor put it: “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.”
There’s a third problem with the decision that Sotomayor does not mention: It flagrantly violates the Purcell principle. This rule holds that federal courts should not alter state election laws shortly before an election. The conservative justices have invoked it relentlessly to freeze lower court decisions expanding voting rights. In February, they deployed it to block a decision requiring Alabama to undo its (egregious) racial gerrymander because the primaries were three and a half months away. Now the conservatives have pushed aside Purcell to overturn Wisconsin’s legislative map when the primaries are four and a half months away. Without evidence, they asserted that their decision allowed for “sufficient time” to adopt a new map. This claim is false; the Wisconsin Election Commission begged SCOTUS to issue a decision by March 15 or risk sabotaging voter registration for the upcoming primaries. Because SCOTUS missed this deadline by eight days, it has “increase[d] the risk of errors” in administering the election—exactly the kind of thing Purcell counsels against.
Because Wednesday’s ruling was issued on the shadow docket, we don’t know how every justice voted. Only Sotomayor and Kagan noted their dissents; it’s possible that Justice Stephen Breyer dissented as well, but chose not to note it. (This opacity is a perennial problem with the shadow docket.) He may have simply decided not to publicize his disagreement—choosing, perhaps, 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 has publicly opposed its approach to the VRA in innumerable cases.
If you set aside the many bizarre details of this decision, one overarching theme appears: a profound hostility to the VRA. As my colleague Rick Hasen put it, the ruling “further narrows the scope” of the law, “making it harder for plaintiffs to win such cases.” The conservative justices are so hostile to “VRA districts”—that is, districts drawn to preserve Black voters’ political power—that they will upend decades of precedent and impede an upcoming election just to wipe one off the map.
The real victims, of course, are Black Wisconsinites who will now have less influence in the state legislature. But once again, it is hard not to feel a bit of sympathy for the lower court judges, too. Hagedorn did his job commendably; he applied precedent fairly, to the dismay of his own party; and yet he still got brusquely reversed on the shadow docket in a nonsensical, unsigned opinion. It seems there is only one way a lower court can spare an election-related ruling from the SCOTUS shredder: bend any rules necessary to ensure a Republican victory.
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