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Black voters suffer another significant loss in the Supreme Court

The justices are concerned that Wisconsin’s legislative maps may give too much political power to Black people.

Opponents of Republican redistricting plans attend a rally ahead of a joint legislative committee hearing at the Wisconsin State Capitol in Madison on October 28, 2021.
Scott Bauer/AP

On Wednesday, as the Senate Judiciary Committee held a hearing on the first Black woman nominated to the Supreme Court, the incumbent justices handed down a decision undermining the right of Black people to participate equally in America’s elections.

The Court’s decision in Wisconsin Legislature v. Wisconsin Elections Commission strikes down state legislative maps selected by the Wisconsin Supreme Court after the state’s Republican legislature and Democratic governor were unable to agree upon which maps the state should use. The maps that the state court adopted were proposed by Democratic Gov. Tony Evers, but Evers was also constrained by criteria, laid out by the GOP-controlled state supreme court, that favor Republicans.

These maps apply to the state legislature. The Court’s decision does not touch the state’s congressional maps.

The Court relied on a confusing array of legal doctrines governing racial gerrymanders, but one key, inflammatory assumption appears to undergird the decision: That legislative maps with fewer Black-majority districts are often preferred to those that give more power to Black voters.

The US Supreme Court did not reveal how each justice voted in Wisconsin Legislature, but the Court used a process known as “summary reversal” to toss out Wisconsin’s maps — meaning that the Court tossed out the Wisconsin Supreme Court’s decision completely without receiving full briefing or hearing oral arguments. Ordinarily, the Court requires six votes to summarily reverse a lower court’s decision.

Two justices, Sonia Sotomayor and Elena Kagan, publicly dissented.

The majority opinion in Wisconsin Legislature, which is unsigned, faults Evers and the state supreme court for potentially doing too much to protect the voting rights of African Americans. The state’s previous maps included six majority-Black districts, and Evers proposed adding a seventh such district. The Supreme Court struck down that proposal, which was approved by the state’s GOP-controlled supreme court (although with most of the state court’s Republican members in dissent).

Wisconsin Legislature places new hurdles in the way of parties challenging racial gerrymanders

Admittedly, the laws and precedents governing racial gerrymanders are not easily navigated.

The equal protection clause of the Constitution largely forbids mapmakers from considering race when drawing legislative lines. But the Voting Rights Act also forbids maps that dilute the voting power of racial minorities, even if those maps were not intentionally drawn to diminish the political power of voters of color.

These two requirements often come into tension. In order to draw maps that do not unlawfully dilute minority voting power, mapmakers often have to pay very close attention to the state’s racial demographics. For this reason, the Supreme Court held in Cooper v. Harris (2017) that a state has some “breathing room” to draw maps that benefit racial minorities.

Under Cooper, when a state “invokes the VRA to justify race-based districting,” its maps will be upheld if the state had a “strong basis in evidence” for concluding that it needed to consider race while drawing its maps. In close cases, Cooper suggests that judges should err on the side of upholding maps drawn in order to comply with the Voting Rights Act.

The Court’s new decision in Wisconsin Legislature, however, appears to flip this rule on its head, applying a presumption in favor of fewer majority-minority districts. The majority opinion claims that the state supreme court erred because it did not consider “whether a race-neutral alternative that did not add a seventh majority-black district would deny black voters equal political opportunity.”

Thus, before the state could draw a map with seven majority Black districts, it must first have ruled out at least some alternative maps that included only six such districts. That leaves open the possibility that the Wisconsin Supreme Court could reinstate the maps it originally selected, but only after it jumps through new procedural hoops.

The Court raced unusually fast to overturn Evers’s map

Setting aside the novelty of this legal rule — law professor and election law expert Rick Hasen writes that “the way this case was handled is quite bizarre and is another signal of a conservative supermajority of the Supreme Court showing increasing hostility to section 2 of the Voting Rights Act” — there are a number of procedural problems with the Wisconsin Legislature opinion.

For one thing, the Court reaches this new, precedent-setting conclusion despite only minimal briefing — the case arose on the Court’s “shadow docket,” a mix of historically very brief orders and emergency rulings that the justices decide on a expedited basis.

The Court, moreover, raced to decide issues that were barely litigated in the lower courts. As Justice Sotomayor notes in dissent, the state supreme court selected the map at issue here, and it explicitly “preserved the possibility that an appropriate plaintiff could bring an equal protection or VRA challenge” to that map in the future.

Ordinarily, when someone challenges a legislative map, they must wait until the mapmakers finalize that map. Only then can they file a new lawsuit in a state or federal trial court challenging that map. This ordinary process gives the lower courts plenty of time to develop a full record and tease out the nuances of the case before it reaches the Supreme Court. In Wisconsin Legislature, by contrast, the Supreme Court raced to decide the case just weeks after the new maps were finalized.

Finally, it’s unclear how Wednesday’s decision can be squared with the so-called “Purcell principle.”

In Purcell v. Gonzalez (2006), the Court warned that judges should be reluctant to hand down decisions impacting elections as the election itself draws nigh. In recent years, however, the Court’s Republican majority has steadily expanded the window of time when judges are not allowed to alter state election laws. In early February, Justice Brett Kavanaugh wrote an opinion, joined by Justice Samuel Alito, which suggests that this “Purcell window” extends for as much as nine months before the next general election.

Again, the Court did not reveal how each justice voted in Wisconsin Legislature. But if six justices voted to summarily reverse the Wisconsin Supreme Court, that means that either Alito or Kavanaugh — and most likely both — voted with the majority in Wisconsin Legislature.

Neither justice explained why the Purcell principle does not apply in this case, though the majority opinion in Wisconsin Legislature does claim that Wednesday’s decision gives the the Wisconsin Supreme Court “sufficient time to adopt maps consistent with the timetable for Wisconsin’s August 9th primary election.”

The Court, in other words, appears to have gone out of its way to decide an important voting rights case, with minimal briefing, and on an extraordinarily expedited schedule. It also did so despite warnings from conservative justices that judges should be more cautious in election years.

And the upshot of the Court’s opinion is that Black people now have less sway in Wisconsin’s elections — and possibly in those of other states.