Billie Johnson v. Wisconsin Elections Commission ( 2022 )

2022 WI 19SUPREME COURT OF WISCONSIN
CASE NO.: 2021AP1450-OA
COMPLETE TITLE: Billie Johnson, Eric O'Keefe, Ed Perkins and
Ronald Zahn,
Petitioners,
Black Leaders Organizing for Communities, Voces
de la Frontera, League of Women Voters of
Wisconsin, Cindy Fallona, Lauren Stephenson,
Rebecca Alwin, Congressman Glenn Grothman,
Congressman Mike Gallagher, Congressman Bryan
Steil, Congressman Tom Tiffany, Congressman
Scott Fitzgerald, Lisa Hunter, Jacob Zabel,
Jennifer Oh, John Persa, Geraldine Schertz,
Kathleen Qualheim, Gary Krenz, Sarah J.
Hamilton, Stephen Joseph Wright, Jean-Luc
Thiffeault, and Somesh Jha,
Intervenors-Petitioners,
v.
Wisconsin Elections Commission, Marge Bostelmann
in her official capacity as a member of the
Wisconsin Elections Commission, Julie Glancey in
her official capacity as a member of the
Wisconsin Elections Commission, Ann Jacobs
in her official capacity as a member of the
Wisconsin Elections Commission, Dean Knudson in
his official capacity as a member of the
Wisconsin Elections Commission, Robert Spindell,
Jr. in his official capacity as a member of the
Wisconsin Elections Commission and Mark Thomsen
in his official capacity as a member of the
Wisconsin Elections Commission,
Respondents,
The Wisconsin Legislature, Governor Tony Evers,
in his official capacity, and Janet Bewley
Senate Democratic Minority Leader, on behalf of
the Senate Democratic Caucus,
Intervenors-Respondents.
ORIGINAL ACTION
ON REMAND FROM THE SUPREME COURT OF THE UNITED
STATES
OPINION FILED: April 15, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 19, 2022
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
ZIEGLER, C.J., delivered the majority opinion of the Court, in
which ROGGENSACK, REBECCA GRASSL BRADLEY, and HAGEDORN, JJ.,
joined. REBECCA GRASSL BRADLEY, J., filed a concurring opinion,
in which ZIEGLER, C.J., and ROGGENSACK, J., joined. HAGEDORN,
J., filed a concurring opinion. KAROFSKY, J., filed a
dissenting opinion, in which ANN WALSH BRADLEY and DALLET, JJ.,
joined.
NOT PARTICIPATING:
ATTORNEYS:
For the petitioners, there were briefs filed by Richard M.
Esenberg, Anthony F. LoCoco, Lucas T. Vebber and Wisconsin
Institute for Law & Liberty, Milwaukee. There was oral argument
by Richard M. Esenberg.
For the intervenors-petitioners Black Leaders Organizing
for Communities, Voces de la Frontera, League of Women Voters of
Wisconsin, Cindy Fallona, Lauren Stephenson and Rebecca Alwin,
briefs, including amicus briefs, were filed by Douglas M.
Poland, Jeffrey A. Mandell, Rachel E. Snyder, Richard A. Manthe,
Carly Gerads and Stafford Rosenbaum LLP, Madison; Mel Barnes and
Law Forward, Inc., Madison; Mark P. Gaber (pro hac vice),
Christopher Lamar (pro hac vice)and Campaign Legal Center,
Washington, D.C.; Annabelle Harless (pro hac vice) and Campaign
Legal Center, Chicago. There was oral argument by Douglas M.
Poland.
For the intervenors-petitioners Congressmen Glenn Grothman,
Mike Gallagher, Bryan Steil, Tom Tiffany and Scott Fitzgerald
there were briefs, including amicus briefs, filed by Misha
Tseytlin, Kevin M. LeRoy, and Troutman Pepper Hamilton Sanders
LLP, Chicago. There was oral argument by Misha Tseytlin.
2
For the intervenors-petitioners Lisa Hunter, Jacob Zabel,
Jennifer Oh, John Persa, Geraldine Schertz and Kathleen
Qualheim, there were briefs, including amicus briefs filed by
Charles G. Curtis, Jr. and Perkins Coie LLP, Madison; Marc Erik
Elias (pro hac vice), Aria C. Branch (pro hac vice), Daniel C.
Osher (pro hac vice), Jacob D. Shelly (pro hac vice), Christina
A. Ford (pro hac vice), William K. Hancock (pro hac vice) and
Elias Law Group LLP, Washington, D.C. There was oral argument
by John Devaney (pro hac vice), Perkins Coie LLP, Washington,
D.C.
For the intervenors-petitioners Citizens Mathematicians and
Scientists Gary Krenz, Sarah J. Hamilton, Stephen Joseph Wright,
Jean-Luc Thiffeault and Somesh Jha, briefs were filed by Michael
P. May, Sarah A. Zylstra, Tanner G. Jean-Louis and Boardman &
Clark LLP, Madison, and David J. Bradford (pro hac vice) and
Jenner & Block LLP, Chicago. There was oral argument by Sam
Hirsch (pro hac vice), Jenner & Block LLP, Washington, D.C.
For the respondents Wisconsin Elections Commission, Marge
Bostelmann, Julie Glancey, Ann Jacobs, Dean Knudson, Robert
Spindell, Jr. and Mark Thomsen there were letter-briefs filed by
Steven C. Kilpatrick, assistant attorney general, Karla Z.
Keckhaver, assistant attorney general, Thomas C. Bellavia,
assistant attorney general.
For the intervenors-respondents the Wisconsin Legislature
there were briefs, including amicus briefs, filed by Kevin M.
St. John and Bell Giftos St. John LLC, Madison; Jeffrey M.
Harris (pro hac vice), Taylor A.R. Meehan (pro hac vice), James
P. McGlone and Consovoy McCarthy PLLC, Arlington, Virginia and
Adam K. Mortara and Lawfair LLC, Chicago. There was oral
argument by Taylor A.R. Meehan.
2
For the intervenor-respondent Governor Tony Evers there
were briefs filed by Joshua L. Kaul, attorney general, Anthony
D. Russomanno, assistant attorney general and Brian P. Keenan,
assistant attorney general. There was oral argument by Anthony
D. Russomanno.
For the intervenor-respondent Janet Bewley, State Senate
Democratic Minority Leader on behalf of the State Senate
Democratic Caucus there were briefs filed by Tamara B. Packard,
Aaron G. Dumas and Pines Bach LLP, Madison. There was oral
argument by Tamara B. Packard.
There was an amicus brief filed on behalf of William
Whitford, Hans Breitenmoser, Mary Lynne Donohue, Wendy Sue
Johnson and Deborah Patel by Ruth M. Greenwood (pro hac vice),
The Election Law Clinic, Harvard Law School, Cambridge, MA; with
whom on the brief were law student-practitioners Mary F. Brown,
Mark R. Haidar, Meredith A. Manda, Sarah A. Sadlier, Corey M.
Stewart, Harvard Law School and Jakob Feltham and Hawks Quindel,
S.C., Madison.
There was an amicus brief filed on behalf of Concerned
Voters of Wisconsin by Joseph S. Goode, Mark M. Leitner, John W.
Halpin and Laffey, Leitner & Goode, L.L.C., Milwaukee.
There was an amicus brief filed on behalf of Non-Party
Legal Scholars by Allison Boldt, Robert Yablon and the
University of Wisconsin Law School, Madison.
There was an amicus brief filed by Daniel R. Suhr,
Thiensville.
2
2022 WI 19NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2021AP1450-OA
STATE OF WISCONSIN : IN SUPREME COURT
Billie Johnson, Eric O'Keefe, Ed Perkins and
Ronald Zahn,
Petitioners,
Black Leaders Organizing for Communities, Voces
de la Frontera, League of Women Voters of
Wisconsin, Cindy Fallona, Lauren Stephenson,
Rebecca Alwin, Congressman Glenn Grothman,
Congressman Mike Gallagher, Congressman Bryan
Steil, Congressman Tom Tiffany, Congressman
Scott Fitzgerald, Lisa Hunter, Jacob Zabel,
Jennifer Oh, John Persa, Geraldine Schertz,
Kathleen Qualheim, Gary Krenz, Sarah J.
Hamilton, Stephen Joseph Wright, Jean-Luc
Thiffeault, and Somesh Jha,
FILED
Intervenors-Petitioners,
APR 15, 2022
v.
Sheila T. Reiff
Wisconsin Elections Commission, Marge Clerk of Supreme Court
Bostelmann in her official capacity as a member
of the Wisconsin Elections Commission, Julie
Glancey in her official capacity as a member of
the Wisconsin Elections Commission, Ann Jacobs
in her official capacity as a member of the
Wisconsin Elections Commission, Dean Knudson in
his official capacity as a member of the
Wisconsin Elections Commission, Robert
Spindell, Jr. in his official capacity as a
member of the Wisconsin Elections Commission
and Mark Thomsen in his official capacity as a
member of the Wisconsin Elections Commission,
Respondents,
2
The Wisconsin Legislature, Governor Tony Evers,
in his official capacity, and Janet Bewley
Senate Democratic Minority Leader, on behalf of
the Senate Democratic Caucus,
Intervenors-Respondents.
ZIEGLER, C.J., delivered the majority opinion of the Court, in
which ROGGENSACK, REBECCA GRASSL BRADLEY, and HAGEDORN, JJ.,
joined. REBECCA GRASSL BRADLEY, J., filed a concurring opinion,
in which ZIEGLER, C.J., and ROGGENSACK, J., joined. HAGEDORN,
J., filed a concurring opinion. KAROFSKY, J., filed a
dissenting opinion, in which ANN WALSH BRADLEY and DALLET, JJ.,
joined.
ORIGINAL ACTION. On remand from the United States Supreme
court. Relief granted.
¶1 ANNETTE KINGSLAND ZIEGLER, C.J. This is an original
action filed by Petitioners Billie Johnson, Eric O'Keefe, Ed
Perkins, and Ronald Zahn to remedy malapportionment in
Wisconsin's state legislative and congressional districts. On
March 3, 2022, this court selected legislative and congressional
maps drawn by Governor Tony Evers. Johnson v. Wis. Elections
Comm'n, 2022 WI 14, ¶52, 400 Wis. 2d 626, ___ N.W.2d ___. Upon
a request for certiorari review by the United States Supreme
Court, the Supreme Court granted certiorari and summarily
reversed the selection of the Governor's state legislative maps.
Wis. Legislature v. Wis. Elections Comm'n, 595 U.S. ___, 142
S. Ct. 1245, 1251 (2022) (per curiam). Racial motivations drove
the Governor's selection of district lines, and the Supreme
Court reasoned that the court relied on insufficient evidence to
endorse such race-based decision making. Id. at 1249-51. The
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No. 2021AP1450-OA
Supreme Court remanded the case to the court for further
proceedings regarding the Wisconsin State Senate and Assembly
maps. Id. at 1251.
¶2 Upon review of the record, we conclude that
insufficient evidence is presented to justify drawing state
legislative districts on the basis of race. The maps proposed
by the Governor, Senator Janet Bewley, Black Leaders Organizing
for Communities ("BLOC"), and Citizen Mathematicians and
Scientists ("CMS") are racially motivated and, under the Equal
Protection Clause, they fail strict scrutiny.
¶3 By contrast, the maps proposed by the Wisconsin
Legislature are race neutral. The Legislature's maps comply
with the Equal Protection Clause, along with all other
applicable federal and state legal requirements. Further, the
Legislature's maps exhibit minimal changes to the existing maps,
in accordance with the least change approach we adopted in
Johnson v. Wis. Elections Comm'n, 2021 WI 87, 399 Wis. 2d 623,
967 N.W.2d 469. Therefore, we adopt the state senate and
assembly maps proposed by the Legislature for the State of
Wisconsin.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶4 In 2011, the Wisconsin Legislature passed and the
Governor signed state legislative and congressional maps after
the 2010 census. Over the subsequent ten years, the population
of Wisconsin changed; people moved away from some areas and
people moved into others. These changes were recognized in the
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No. 2021AP1450-OA
2020 census, which identified a population increase in the state
from 5,686,986 to 5,893,718. See Johnson, 399 Wis. 2d 623, ¶15.
¶5 The Petitioners filed this original action in August
2021 to remedy alleged malapportionment in Wisconsin's state
legislative and congressional maps.1 In September 2021, this
court accepted the case, and in October 2021, the court directed
the parties to file briefs addressing what factors the court
should consider when selecting new maps. Johnson v. Wis.
Elections Comm'n, No. 2021AP1450-OA, unpublished order (Wis.
Sept. 22, 2021, amend. Sept. 24, 2021); Johnson v. Wis.
Elections Comm'n, No. 2021AP1450-OA, unpublished order (Wis.
Oct. 14, 2021). On November 17, 2021, the court directed the
parties to confer and, if they wished to participate in a
discovery period, to file a joint proposed discovery plan by
December 3, 2021. Johnson v. Wis. Elections Comm'n, No.
2021AP1450-OA, unpublished order (Wis. Nov. 17, 2021).
¶6 On November 30, 2021, the court issued a decision
explaining the framework by which the court would select maps.
The court identified that under the Equal Protection Clause of
The
1 Legislature is constitutionally tasked with
responsibility to act in reapportionment. Wis. Const. art. IV,
§ 3 ("At its first session after each enumeration made by the
authority of the United States, the legislature shall apportion
and district anew the members of the senate and assembly,
according to the number of inhabitants."). In 2021, after
completion of the 2020 census, the Legislature passed new
redistricting maps. However, "[that] legislation did not
survive the political process." Johnson v. Wis. Elections
Comm'n, 2021 WI 87, ¶72 n.8, 399 Wis. 2d 623, 967 N.W.2d 469.
As a result, this court is called upon to select redistricting
maps.
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No. 2021AP1450-OA
the United States Constitution, "a State [must] make an honest
and good faith effort to construct districts, in both houses of
its legislature, as nearly of equal population as practicable."
Johnson, 399 Wis. 2d 623, ¶24 (quoting Reynolds v. Sims, 377
U.S. 533, 577 (1964)). This "one person, one vote" principle
applies with less force when selecting districts for state
legislative maps than it does for congressional maps.
"Consistent with principles of federalism, states have limited
flexibility to pursue other legitimate policy objectives, such
as 'maintain[ing] the integrity of various political
subdivisions' and 'provid[ing] for compact districts of
contiguous territory.'" Id., ¶26 (alterations in original)
(quoting Brown v. Thomson, 462 U.S. 835, 842 (1983)). The court
explained that, in addition to satisfying all Equal Protection
Clause requirements, the court must consider compliance with
Section 2 of the Voting Rights Act ("VRA"). Id., ¶27 (citing 52
U.S.C. § 10301).
¶7 Under state law, the court recognized that the
Wisconsin Constitution, as with the United States Constitution,
imposes a requirement for population equality among legislative
districts. Id., ¶¶28-33 (citing Wis. Const. art. IV, § 3).
Although "perfect exactness in the apportionment, according to
the number of inhabitants, is neither required nor possible,"
"there should be as close an approximation to exactness as
possible." Id., ¶28 (quoting State ex rel. Attorney General v.
Cunningham, 81 Wis. 440, 484, 51 N.W. 724 (1892)). Further, the
court identified a state constitutional interest in retaining
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No. 2021AP1450-OA
assembly districts within "county, precinct, town, [and] ward
lines." Id., ¶35 (quoting Wis. Const. art. IV, § 4). The court
recognized that, under federal one person, one vote
jurisprudence, bounding districts by county lines may not be
possible, but "the smaller the political subdivision, the easier
it may be to preserve its boundaries." Id. Finally, the court
stated that assembly districts must be "contiguous" and "in as
compact form as practicable." Id., ¶¶36-37 (citing Wis. Const.
art. IV, § 4). Both the assembly and senate must have single
member districts, and assembly districts may not be "divided in
the formation of a senate district," i.e., senate districts must
"nest" within assembly district boundaries. Id., ¶37 (citing
Wis. Const. art. IV, §§ 4, 5).
¶8 In its November 30 decision, the court adopted the
"least change approach," whereby the court would select maps
that "comport with relevant legal requirements" while
"reflect[ing] the least change necessary." Id., ¶72 (citation
omitted). The court rejected the suggestion that the court
consider partisan fairness and proportional representation of
political parties when selecting maps. Id., ¶¶40-52.
¶9 Following the court's November 17 order directing the
parties to confer and develop a discovery plan, the parties on
December 3, 2021, submitted a joint discovery plan. The parties
agreed that any discovery in this case and the legal issues
presented therein would be completed by December 23, 2021. They
stipulated that no discovery "beyond the exchange of maps,
expert disclosures, and any documents or data that a party
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No. 2021AP1450-OA
intends to rely upon or an expert has relied upon" was
anticipated. As that information would be included in briefing
with the court, the parties consequently undertook no other
discovery. See Johnson, No. 2021AP1450-OA, unpublished order,
at 2 (Wis. Nov. 17, 2021) (explaining the timeline for filing
briefing with the court).
¶10 Between December 15, 2021, and January 4, 2022, the
court received hundreds of pages of briefing and expert reports
from the parties. The court heard oral arguments on January 19,
2022. Between September 22, 2021, when the court first accepted
this original action, and January 19, 2022, when the court held
oral arguments, the court received no formal request or motion
to permit additional discovery, beyond what was included in the
joint discovery plan, or to modify the court's schedule to
accommodate discovery needs.
¶11 On January 19, 2022, the court heard a total of five
hours of oral arguments over the course of the day. On March 3,
2022, the court issued a decision adopting the Governor's state
legislative and congressional maps. Johnson, 400 Wis. 2d 626,
¶52. The court reasoned that the Governor's maps included the
least alterations to preexisting maps. Id., ¶¶26-33. In
addition, the court said that the Governor's maps complied with
the Equal Protection Clause, the VRA, and the Wisconsin
Constitution. Id., ¶¶34-51.
¶12 After the court issued its March 3 decision, the
Petitioners and the Legislature sought certiorari review by the
United States Supreme Court, asserting that the court's adoption
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No. 2021AP1450-OA
of the Governor's state legislative maps constituted a racial
gerrymander in violation of the Equal Protection Clause.
Congressmen Glenn Grothman, Mike Gallagher, Bryan Steil, Tom
Tiffany, and Scott Fitzgerald ("the Congressmen") filed a
separate appeal to the Supreme Court, challenging this court's
selection of the Governor's congressional map.2
¶13 On March 23, 2022, the United States Supreme Court
reversed the court's decision to select the Governor's state
legislative maps. The Supreme Court confirmed that, under the
Equal Protection Clause, a state government cannot draw district
maps on the basis of race unless the state satisfies strict
scrutiny. Wis. Legislature v. Wis. Elections Comm'n, 142 S. Ct.
at 1248-49. If the state has before it a "strong basis in
evidence" for believing the VRA "require[s] [the state] to move
voters based on race," and the evidence is district specific, a
racially motivated map can satisfy strict scrutiny. Id. at 1249
(quoting Cooper v. Harris, 581 U.S. ____, 137 S. Ct. 1455, 1470
(2017)). However, the state must possess this evidence before
it creates maps based on racial classifications. Id. (quoting
Shaw v. Hunt, 517 U.S. 899, 910 (1996)).
¶14 In the case before this court, the Supreme Court
reasoned that, based on the filings and presentations made by
the Governor, the Governor had failed to present a strong
2The United States Supreme Court denied review of the
Congressmen's appeal. Grothman v. Wis. Elections Comm'n, No.
21A490, 2022 WL 851726 (Mar. 23, 2022) (stay denied). Thus, the
March 3 decision to adopt the Governor's congressional map
remains unchanged.
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No. 2021AP1450-OA
evidentiary basis for believing the VRA mandated the district
lines he drew. Id. at 1249. Specifically, the Supreme Court
identified that the Governor's primary explanation for his
racially drawn maps was the fact that it was cartographically
possible to draw them. Id. According to the Supreme Court,
"[s]trict scrutiny requires much more." Id. Based on the
record, the Governor's maps failed to satisfy this legal
standard. Id.
¶15 The Supreme Court concluded that this court's March 3
decision fell short because this court had concluded only that
the "VRA might support race-based districting." Id. (quoting
Johnson, 400 Wis. 2d 626, ¶47 ("[W]e cannot say for certain on
this record that seven majority-Black assembly districts are
required by the VRA.")). Strict scrutiny requires more: it
requires strong, district-specific evidence that race-based map
drawing is required, not just that it "might" be required. Id.
at 1249-50. The Equal Protection Clause "does not allow a State
to adopt a racial gerrymander that the State does not, at the
time of imposition, 'judg[e] necessary under a proper
interpretation of the VRA.'" Id. at 1250 (quoting Cooper, 137
S. Ct. at 1472).
¶16 Further, the Supreme Court indicated that the court
failed to properly examine the three-step prerequisites to
proving a VRA violation, as stated in Thornburg v. Gingles, 478
U.S. 30, 46-51 (1986). Although, in its March 3 decision, the
court cited electoral history analysis provided by BLOC, the
court failed to thoroughly examine whether and to what extent
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No. 2021AP1450-OA
that report proved a VRA violation. Wis. Legislature v. Wis.
Elections Comm'n, 142 S. Ct. at 1249-50.
¶17 Finally, the Supreme Court noted that, when the court
examined whether under the totality of the circumstances racial
considerations were mandated by the VRA, the court improperly
"focused exclusively on proportionality." Id. at 1250. "[N]o
single statistic provides courts with a shortcut to determine
whether a set of single-member districts unlawfully dilutes
minority voting strength." Id. (quoting Johnson v. De Grandy,
512 U.S. 997, 1020–21 (1994)).
¶18 The Supreme Court concluded, "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." Id. at 1250-51. "Answering that question
requires an 'intensely local appraisal' of the challenged
district." Id. at 1251 (quoted source omitted).
¶19 The Supreme Court remanded the case to us for further
proceedings. The Court explained that we could "choose from
among . . . other submissions." Id. Alternatively, the court
could "take additional evidence if [we] prefer[ed] to reconsider
the Governor's maps." Id. It instructed, however, that "[a]ny
new analysis . . . must comply with our equal protection
jurisprudence." Id.
II. ANALYSIS
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No. 2021AP1450-OA
¶20 Five parties submitted maps for the Wisconsin Senate
and Assembly: the Governor, Senator Janet Bewley, BLOC, CMS,
and the Legislature.
¶21 In line with our November 30 decision, we apply a
"least change approach." We "[t]read[] [no] further than
necessary to remedy current legal deficiencies." Johnson, 399
Wis. 2d 623, ¶64. In so doing, we "begin with the current
boundaries and change them as little as possible." Id., ¶73.
Previously, the court indicated that "core retention," or the
percentage of voters who remain in their preexisting districts,
is an "especially helpful" metric of change. Johnson, 400
Wis. 2d 626, ¶13. Regardless of how much weight is given to
core retention as a measure of change, only the Legislature's
maps comply with the law, as we explain below. As a matter of
law, the Legislature's maps are superior to the available
alternatives.
¶22 Under the record presented before us, and with
clarification from the Supreme Court, we conclude that the
Legislature proposed the only legally compliant maps. The maps
proposed by the Legislature also reflect minimal changes to
existing maps. Thus, the Legislature's maps are the best, and
only, viable proposal. We will first analyze whether the
proposed legislative maps comply with federal and state law. We
will then discuss the least-change principle.
A. Compliance With The Law
1. The Equal Protection Clause and the VRA
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No. 2021AP1450-OA
¶23 Section 1 of the Fourteenth Amendment states that
"[n]o State shall make or enforce any law which shall . . . deny
to any person within its jurisdiction the equal protection of
the laws." In recognition of this basic constitutional
guarantee, the United States Supreme Court has recognized that
"[d]istinctions between citizens solely because of their
ancestry are by their very nature odious to a free people, and
therefore are contrary to our traditions and hence
constitutionally suspect." Fisher v. Univ. of Texas, Austin,
570 U.S. 297, 309 (2013) (citations and quotations omitted);
accord Wis. Legislature v. Wis. Elections Comm'n, 142 S. Ct. at
1248 (explaining that government-endorsed racial distinctions
"are by their very nature odious" (quotations omitted)).
¶24 The Equal Protection Clause strongly protects
individuals from race-based classifications in redistricting.
"Racial classifications with respect to voting carry particular
dangers. Racial gerrymandering, even for remedial purposes, may
balkanize us into competing racial factions[.]" Shaw v. Reno,
509 U.S. 630, 657 (1993). "Race-based assignments [in voting
districts] embody stereotypes that treat individuals as the
product of their race, evaluating their thoughts and efforts——
their very worth as citizens——according to a criterion barred to
the Government by history and the Constitution." Miller v.
Johnson, 515 U.S. 900, 912 (1995). Such behavior "threatens to
carry us further from the goal of a political system in which
race no longer matters——a goal that the Fourteenth and Fifteenth
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No. 2021AP1450-OA
Amendments embody, and to which the Nation continues to aspire."
Shaw v. Reno, 509 U.S. at 657.
¶25 Classifications based on race, in redistricting just
like in other contexts, "are constitutional only if they are
narrowly tailored to further compelling governmental interests."
Grutter v. Bollinger, 539 U.S. 306, 326 (2003). This is a
"searching judicial inquiry," id., that rejects "any but the
most exact connection between justification and classification."
Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551
U.S. 701, 720 (2007) (quotations removed). The Supreme Court
has "assumed that . . . complying with operative provisions of
the Voting Rights Act of 1965" can serve as a compelling
interest. However, the government must still satisfy the narrow
tailoring and "searching judicial inquiry" that strict scrutiny
requires. Grutter, 539 U.S. at 326; Bush v. Vera, 517 U.S. 952,
978 (1996) (plurality) ("Strict scrutiny remains, nonetheless,
strict."). In order to satisfy strict scrutiny, there must be a
"strong basis in evidence" that the VRA requires the drawing of
districts on the basis of race. Miller, 515 U.S. at 922; Wis.
Legislature v. Wis. Elections Comm'n, 142 S. Ct. at 1249
(emphasizing that an observation, based on available records,
that race-based districts "may" be required is insufficient to
satisfy strict scrutiny).
¶26 Section 2 of the VRA prohibits election practices and
procedures that, in the "totality of the circumstances," create
political processes leading to nomination or election
in the State or political subdivision [that] are not
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No. 2021AP1450-OA
equally open to participation by members of a
[protected] class of citizens . . . in that its
members have less opportunity than other members of
the electorate to participate in the political process
and to elect representatives of their choice.
52 U.S.C. § 10301(b). "[I]nteracting with social and historical
conditions," district lines that prevent a cohesive minority
from electing their preferred candidate "impairs the ability of
a protected class to [exercise voting rights] on an equal basis
with other voters." De Grandy, 512 U.S. at 1007. If certain
conditions are met in a specific location, the law may require
the "drawing of [] majority-minority district[s]." Cooper, 137
S. Ct. at 1487.
¶27 The Supreme Court has demanded that three specific
preconditions be met before it can conclude that the creation of
additional majority-minority districts may be necessary: "(1)
the racial group is sufficiently large and geographically
compact to constitute a majority in a single-member district;
(2) the racial group is politically cohesive; and (3) the
majority vote[s] sufficiently as a bloc to enable
it . . . usually to defeat the minority's preferred candidate."
League of United Latin American Citizens v. Perry, 548 U.S. 399,
425 (2006) ("LULAC") (quotations omitted). These three
requirements are called the "Gingles preconditions." Wis.
Legislature v. Wis. Elections Comm'n, 142 S. Ct. at 1250.
¶28 Satisfaction of the Gingles preconditions does not, on
its own, prove a VRA violation. To meet the standard, there
must be an established record of discriminatory, district-
specific effects. The Supreme Court has repeatedly cited a 1982
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No. 2021AP1450-OA
report from the United States Senate which lists numerous
factors of potential significance, including, for example, the
history and practice of state-sponsored discrimination, the
extent to which discrimination hinders the ability of a minority
to effectively participate in democratic elections, and the use
of racial appeals in campaigning. LULAC, 548 U.S. at 426
(citing Gingles, 478 U.S. at 44-45). In addition,
proportionality of effective minority districts to the
minority's "citizen voting-age population" can be relevant to
the totality of the circumstances analysis. LULAC, 548 U.S. at
436; accord Wis. Legislature v. Wis. Elections Comm'n, 142 S.
Ct. at 1249 ("We have identified as relevant to the totality
analysis several factors enumerated in the Senate Report on the
1982 amendments to the VRA, as well as [proportionality].").
Proportionality, however, is "never dispositive." Wis.
Legislature v. Wis. Elections Comm'n, 142 S. Ct. at 1250
(quoting De Grandy, 512 U.S. at 1026 (O'Connor, J.,
concurring)).
¶29 The VRA requires an "intensely local appraisal" which
"pars[es] . . . data at the district level" and evidences a lack
of minority electoral opportunity, such that a race-based remedy
is needed. Id. at 1250-51; LULAC, 548 U.S. at 432-34 (holding
that a majority-Hispanic district was required but an existing
map creating a majority-Hispanic district failed to satisfy the
VRA, explaining that different Hispanic individuals in different
locales had "differences in socio-economic status, education,
employment, health, and other characteristics," and there was
19
No. 2021AP1450-OA
insufficient evidence of "compactness" under the first Gingles
precondition); Cooper, 137 S. Ct. at 1471-72, 1471 n.5
("[G]eneralized conclusion[s]" of state-wide racial polarization
in voting "fail[] to meaningfully (or indeed, at all) address
the relevant local question: whether, in a new version of
District 1 created without a focus on race, black voters would
encounter sufficient[] white bloc-voting to cancel [their]
ability to elect representatives of their choice." (quotations
omitted)). The inquiry is emphatically not to create "the
maximum number of majority-minority districts," regardless of
the on-the-ground characteristics of the minority communities
under consideration. De Grandy, 512 U.S. at 1016 (reversing a
district court's finding of § 2 violation because more Hispanic
majority-minority districts could have been created). In other
words, a district-specific VRA violation must be demonstrated in
evidence before a race-based remedy may be used. Wis.
Legislature v. Wis. Elections Comm'n, 142 S. Ct. at 1249-50
(emphasizing that a state must have evidentiary support for a
race-based action "before" the action is taken (citing Shaw v.
Hunt, 517 U.S. at 910)); Miller, 515 U.S. at 922; LULAC, 548
U.S. at 437; Cooper, 137 S. Ct. at 1471-72, 1471 n.5.
¶30 Without a "strong basis in evidence" that the VRA
requires the use of race to draw legislative districts, Miller,
515 U.S. at 922, race-neutral "traditional districting
principles such as compactness, contiguity, and respect for
political subdivisions" must control. Shaw v. Reno, 509 U.S. at
647; accord Wis. Legislature v. Wis. Elections Comm'n, 142 S.
20
No. 2021AP1450-OA
Ct. 1250-51 (explaining that the VRA requires the use of race in
redistricting only when a "race-neutral alternative . . . would
deny [a protected class of] voters equal political
opportunity").
¶31 Here, examining the available record, we conclude that
there is not a "strong basis in evidence" that the VRA requires
the use of race to draw majority-black legislative districts.
Specifically, there is insufficient evidence to demonstrate that
here, black voters have their choice of candidate blocked by a
cohesive and oppositional voting bloc. See LULAC, 548 U.S. at
436 (explaining the Gingles preconditions).
¶32 The Governor failed to present evidence that a race-
based remedy was necessary under the VRA, but nonetheless drew
districts on the basis of race to create seven majority-black
districts. Wis. Legislature v. Wis. Elections Comm'n, 142 S.
Ct. at 1249; Miller, 515 U.S. at 922. The Supreme Court
recognized that the Governor "provided almost no other evidence
or analysis supporting his claim that the VRA required the seven
majority-black districts that he drew." Wis. Legislature v.
Wis. Elections Comm'n, 142 S. Ct. at 1249. The Supreme Court
further noted that 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." Id. (citation omitted). This is clearly in
violation of the Equal Protection Clause, as a race-based remedy
21
No. 2021AP1450-OA
cannot precede proof of a VRA violation. Id. at 1249-50 (citing
Shaw v. Hunt, 517 U.S. at 910). Supreme Court precedent
confirms this to be the case. De Grandy specifically concluded
that the "failure to maximize cannot be the measure of § 2."
De Grandy, 512 U.S. at 1017.
¶33 The Governor's maps were racially motivated and are
thus subject to strict scrutiny. To determine whether a map is
race based, we must examine "direct evidence going to . . . [the
map-drawer's] purpose," in addition to circumstantial evidence,
such as "a district's shape and demographics." Shaw v. Hunt,
517 U.S. at 905. In briefing and at oral argument, the Governor
repeatedly asserted that the VRA required the drawing of seven
majority-black districts. He stated in his initial brief that
the VRA "requires the drawing of majority-minority districts"
and that his maps "create[] seven majority Black districts"
because there is now a "sufficiently large and compact
population of Black residents" to do so. In the Governor's
response brief he stated, "[S]even majority-minority Black
districts can be drawn in Milwaukee and so 'should be.'" In
addition to his overt reliance on race, he indisputably drew
districts to reach precise racial targets in district
demographics. The Governor drew seven districts all at almost
exactly 51% black voting-age population ("BVAP"), the lowest
BVAP being 50.2% and the highest being 51.4%. See Miller, 515
U.S. at 917-18 (holding that a state subordinated traditional
redistricting criteria to race by noting the objective
characteristics of the district which strongly indicated racial
22
No. 2021AP1450-OA
motivations as well as statements made by map drawers,
confirming the use of race in drawing districts).
¶34 The Governor did not present evidence of a VRA
violation, despite drawing maps on the basis of race. He
produced no evidence of electoral history and no district-
specific evidence demonstrating that the black communities he
moved among districts would be denied the opportunity to
effectively participate in democracy absent his proposed
district lines. See 52 U.S.C. § 10301(b); Cooper, 137 S. Ct. at
1471-72, 1471 n.5; LULAC, 548 U.S. at 432, 437. Upon review of
this case, the Supreme Court confirmed that "the Governor failed
to carry his burden" of showing "the VRA required the seven
majority-black districts that he drew." Wis. Legislature v.
Wis. Elections Comm'n, 142 S. Ct. at 1249. As the Supreme Court
explained, "[s]trict scrutiny requires much more" than what the
Governor produced and relied upon.3 Id.
¶35 Importantly, the Governor had more than adequate
opportunity to produce a sufficient record. The court accepted
this case in September 2021. In November 2021, the court
directed the Governor to confer with the other parties and
develop a joint discovery plan, and in December 2021, an open
The dissent critiques the Supreme Court's Equal Protection
3
Clause jurisprudence and restates arguments made by the
dissenting justices in the Supreme Court's per curiam opinion.
See, e.g., dissent, ¶178 (quoting Wis. Legislature v. Wis.
Elections Comm'n, 595 U.S. ___, 142 S. Ct. 1245, 1251 (2022)
(Sotomayor, J., dissenting)). Obviously, we must follow the
majority's directives.
23
No. 2021AP1450-OA
discovery period was held. Oral arguments were held on
January 19, 2022, four months after the court accepted this case
and two months after the parties conferred on discovery
procedure. Notably, in the joint discovery plan, the Governor
stipulated that no discovery outside briefs and expert reports
produced for the court was needed. Not once did the Governor
notify the court that there was a need to develop a more
detailed record or that the procedures adopted by the court
failed to permit adequate discovery. The Governor chose to
place his case on the evidentiary support included in his briefs
and expert reports, and as the Supreme Court held, that evidence
was not sufficient to justify racially motivated district lines.
Wis. Legislature v. Wis. Elections Comm'n, 142 S. Ct. at 1249-
50.
¶36 The same flaws of the Governor's maps exist for
Senator Bewley's maps. She, like the Governor, contends that
the Gingles preconditions are met and race must be used in order
to comply with the VRA. Like the Governor, Senator Bewley puts
the cart before the horse: she creates a race-based remedy
without district-specific evidence of a VRA violation. To
justify her race-based measures, Senator Bewley relies on a
single statewide general election, which, at most, suggests that
white voters had weaker preference for the Democratic Party
candidate than black voters. Such evidence falls far short of
demonstrating a VRA violation. It fails to prove whether
specific black communities in the Milwaukee-area within Senator
Bewley's racially drawn districts would experience bloc-voting
24
No. 2021AP1450-OA
resistance from a white majority that could effectively and
consistently prevent the election of black-supported candidates.
Wis. Legislature v. Wis. Elections Comm'n, 142 S. Ct. at 1249-
51; LULAC, 548 U.S. at 432, 437; Cooper, 137 S. Ct. at 1471-72,
1471 n.5. Thus, Senator Bewley's legislative maps are likewise
disqualified as there is not a "strong basis in evidence" to
believe that her racially motivated maps are required under the
VRA. Wis. Legislature v. Wis. Elections Comm'n, 142 S. Ct. at
1249-50; Miller, 515 U.S. at 922.4
Hunter
4 Intervenor-Petitioners ("Hunter") originally
submitted state legislative maps. However, Hunter seemingly
withdrew those maps from consideration, contending that the
court should consider the Governor's maps in lieu of their maps.
Hunter's position was made apparent by the conclusion of
briefing. After opening briefing and responses, in its reply
brief, Hunter "urge[d] adoption of the Governor's congressional
map or, alternatively, the Hunter congressional map . . . ." By
contrast, Hunter did not advance support for its state
legislative maps. Hunter stated that the court should
"adopt[] . . . either the Governor's or BLOC's legislative
maps." At oral arguments, Hunter reiterated this position. It
stated that it would "stand by" its congressional maps, despite
the Governor presenting, in Hunter's opinion, a superior
congressional map. [Oral Arguments 1:59.] For state
legislative maps, Hunter asserted that it would "not argue for"
its state legislature maps, reasoning that, in its view, the
available alternatives presented by other parties were superior.
Id. Upon remand from the United States Supreme Court, Hunter
stood by its decision to support the Governor's legislative
maps. Hunter offered only three options for the court on
remand: receive new evidence and "re-adopt the Governor's
proposed maps"; "amend the boundaries of [the Governor's]
particular districts"; or simply select the Governor's maps
without additional analysis on the VRA. Since Hunter filed its
reply brief, it has neither affirmatively asserted nor
implicitly suggested that we should consider its state
legislative maps. Instead, it has dedicated the entirety of its
arguments toward opposing the Legislature's state legislative
maps and supporting the Governor's maps. Even if we were to
25
No. 2021AP1450-OA
¶37 Like the Governor and Senator Bewley, BLOC also
provided maps that were racially motivated. The evidence BLOC
produced in support of a VRA violation, while more than either
the Governor or Senator Bewley, nonetheless falls short of that
required under the law. On close examination of BLOC's
analysis, there exists an inadequate evidentiary basis to
support the use of race in drawing BLOC's legislative districts.
At most, BLOC produced incomplete, regional information that was
not sufficiently district-specific. The record BLOC provided
cannot overcome strict scrutiny.
¶38 There is no doubt race was a driving factor in BLOC's
selection of legislative districts. BLOC argues in briefing
that the VRA requires the use of race to draw seven majority-
black districts. In so doing, BLOC's maps include seven bare
majority-black districts like the Governor's maps. BLOC's maps
target exact 51% BVAP thresholds: seven assembly districts vary
between 50.2% and 52.3% BVAP.
¶39 From the start, it is clear by examining the BVAP of
BLOC's districts that BLOC's remedy for an alleged VRA violation
consider Hunter's maps, they would be rejected for the same
reasons we reject Senator Bewley's maps. Hunter argued that the
Gingles preconditions are satisfied and we must use race to
"create a seventh Black opportunity district." However, Hunter
presents no district-specific evidence that black voters in
particular communities in the Milwaukee area are "usually"
denied the opportunity to elect candidates they support. League
of United Latin American Citizens v. Perry, 548 U.S. 399, 425,
432, 437 (2006) ("LULAC"); Wis. Legislature v. Wis. Elections
Comm'n, 142 S. Ct. at 1249-51; Cooper v. Harris, 581 U.S. ___,
137 S. Ct. 1455, 1471-72, 1471 n.5. (2017).
26
No. 2021AP1450-OA
is to actually reduce, not increase, the population percentages
of black voters. In fact, the BLOC proposed "remedy" is to
reduce minority percentage, ranging from 51% to 62% BVAP, to
about 50%, in all six current majority-black assembly districts.
This same feature is found in the Governor's maps. The Supreme
Court explicitly noted this reduction of minority percentages
when the Court summarily reversed the Governor's maps. Wis.
Legislature v. Wis. Elections Comm'n, 142 S. Ct. at 1247 n.1
(stating that the Governor "intentionally created seven
majority-black districts" by "reducing the black voting-age
population in the other six majority-black districts" to a
cluster around 51% BVAP).5
5 Of course, this concern regarding the reduction of
minority percentages is not the same when the Gingles
preconditions have been satisfied and the VRA requires a
reduction in the percentage of minorities in a given district so
as to avoid "packing." See Johnson v. De Grandy, 512 U.S. 997,
1007 (1994) (indicating that the VRA remedy could be necessary
where minorities are "pack[ed] . . . into one or a small number
of districts to minimize their influence in the districts next
door"). However, the court is not aware of a single case where
a court has found a sufficient evidentiary basis to apply a
race-based remedy and subsequently reduced the percentage of
minorities across multiple districts from safe majorities of
around 60% to a bare 51%. Compare, e.g., Comm. for a Fair &
Balanced Map v. Ill. State Bd. of Elections, 835 F. Supp. 2d
563, 582 (N.D. Ill. 2011) ("60 percent of voting-age population
is reasonably required to ensure minorities a fair opportunity
to elect a candidate of their choice."); Hastert v. State Bd. of
Elections, 777 F. Supp. 634, 647 (N.D. Ill. 1991) (noting that a
"65% minority population [or 60% minority voting-age population]
concentration [is] generally regarded as necessary to ensure
minorities a reasonable opportunity to control a district");
Baumgart v. Wendelberger, Nos. 01-C-0121 & 02-C-0366,
unpublished slip op., 2002 WL 34127471, at *5 (E.D. Wis. May 30,
2002) (recognizing expert testimony that "a minority district
requires an African–American voting age population of at least
27
No. 2021AP1450-OA
¶40 To justify the use of race in drawing district lines,
BLOC selects eight election results to prove the existence of
white voters blocking candidates supported by the black voters.
Notably, BLOC's analysis focuses on five election results from
Milwaukee County and two election results from the City of
Milwaukee. As part of its election analysis, it includes only
one election from an elected office at issue, a party primary
for the 12th assembly district in 2018. But BLOC explicitly
excludes that election from its bloc-voting analysis because it
"only covers a small subset of the wider jurisdiction," i.e., it
is district specific. No other election analysis of senate or
assembly districts for any other district at any other time is
provided, and no other evidence on the existence of the Gingles
preconditions is provided on the district level. The BLOC
analysis is simply devoid of district-specific evidence. Such
local evidence is required under the VRA to first demonstrate a
violation, thereby necessitating a race-based remedy. Wis.
Legislature v. Wis. Elections Comm'n, 142 S. Ct. 1245, at 1249-
51; LULAC, 548 U.S. at 432, 437; Cooper, 137 S. Ct. at 1471-72,
1471 n.5.
¶41 Notably, BLOC does not consider any November general
elections, when the candidates for the public offices at issue
are selected to represent the districts at issue. The
Legislature notes that, in November general elections in the
local districts at issue, the black-preferred candidate is
60% to guarantee the election of candidates of choice").
28
No. 2021AP1450-OA
rarely, if ever blocked by a white coalition. Although primary
data and exogenous elections can be relevant to a VRA analysis,
to exclude completely any consideration of the elections that
decide who holds the seats under consideration in the districts
under consideration is markedly at odds with standard VRA
analysis. See, e.g., Cooper, 137 S. Ct. at 1471-72 (examining
general election history of a congressional district at issue in
the challenge); LULAC, 548 U.S. at 427-28 (explaining general
election history in the congressional district at issue); United
States v. City of Euclid, 580 F. Supp. 2d 584, 604-12 (N.D. Ohio
2008) (describing non-applicable elections in the context of a
detailed review of city council general elections at issue in
the lawsuit); Harper v. City of Chicago Heights, 824 F. Supp.
786, 790, 799-800 (N.D. Ill. 1993) (examining the general
election history of specific city commissioner offices at
issue); see also Bone Shirt v. Hazeltine, 336 F. Supp. 2d 976,
996 (D.S.D. 2004) (explaining a common hierarchy of election
history value, when such history is available, noting that
"[e]ndogenous elections, contests within the jurisdiction and
for the particular office that is at issue, are more probative
than exogenous elections"). Without a full and complete
accounting of district-specific election results, and the extent
to which candidates supported by the relevant black communities
are elected to the state senate and assembly in the districts at
issue, we cannot conclude that without the use of race, black
voters in those districts would lack the same
"opportunity . . . to participate in the political process and
29
No. 2021AP1450-OA
to elect representatives of their choice" as would other voters.
52 U.S.C. § 10301(b). The court must examine the "totality of
the circumstances," not just election data supporting a race-
based remedy. Id.¶42 BLOC's evidence fails because it is not district
specific. Even if we were to look beyond that, at best, BLOC's
incomplete analysis shows that the black candidate of choice was
elected in four out of the eight races.6 A 50% success rate is
hardly strong evidence of extensive racial bloc voting such that
the black-preferred candidate is "usually" blocked from office.
LULAC, 548 U.S. at 425; see, e.g., Clarke v. City of Cincinnati,
40 F.3d 807, 812-13 (6th Cir. 1994) (noting that the electoral
6 As noted above, BLOC excluded the 2018 Democratic Party
primary for the 12th assembly district from its bloc-voting
analysis, reasoning that the election was too localized. In
that election, the black-preferred candidate was not blocked by
a white coalition. Thus, by excluding that election, BLOC
contended that the black candidate of choice was blocked in four
out of seven races, or 57% of the time. Upon further review of
BLOC's analysis, it is apparent that a proper VRA record cannot
selectively exclude elections that weigh against a race-based
remedy. See 52 U.S.C. § 10301(b) (requiring courts to examine
the "totality of the circumstances"); see, e.g., Cooper, 137
S. Ct. at 1471-72 (examining general election history of a
congressional district at issue in the challenge); LULAC, 548
U.S. at 427-28 (explaining general election history in the
congressional district at issue). In fact, BLOC's reasoning
runs counter to Supreme Court precedent, which mandates
district-specific evidence of the Gingles preconditions. Wis.
Legislature v. Wis. Elections Comm'n, 142 S. Ct. at 1249-51;
LULAC, 548 U.S. at 432, 437; Cooper, 137 S. Ct. at 1471-72, 1471
n.5. Even if we were to look past the fatal deficiencies of
BLOC's analysis as a whole, we do not accept BLOC's premise that
the 2018 primary for the 12th assembly district can be excluded
from its analysis.
30
No. 2021AP1450-OA
history for the public offices at issue demonstrated that "47
percent of blacks' preferred black candidates were elected" and
thus there was "no reason to find that blacks' preferred black
candidates have 'usually' been defeated" under Gingles).
¶43 The Legislature noted that, despite BLOC focusing on
county-wide races and including the 2018 Democratic
Gubernatorial primary in its analysis, BLOC conspicuously
omitted any consideration of the 2018 Democratic Lieutenant
Gubernatorial primary in Milwaukee County. BLOC's only response
was circular: "This election is less probative of the
performance of districts, because it does not simulate an
election in which white bloc voting might defeat the choice of
Black voters." With the addition of the 2018 Lieutenant
Gubernatorial primary in Milwaukee County, the Legislature
correctly notes that only four of nine races, using BLOC's own
analysis, involve the black-preferred candidate being blocked
from office. This does not satisfy the Gingles preconditions
for the local black communities at issue.
¶44 The Supreme Court stated explicitly that reliance in
the March 3 decision on BLOC's analysis of "eight previous
races . . . in the Milwaukee area" was flawed because there was
no demonstration that the Gingles preconditions were satisfied
at the district level. Wis. Legislature v. Wis. Elections
Comm'n, 142 S. Ct. at 1250 (reasoning that the March 3 analysis
on the Gingles preconditions was improper, citing BLOC's
electoral evidence, and stating the court "made virtually no
effort to parse that data at the district level"). The court's
31
No. 2021AP1450-OA
March 3 decision itself acknowledged that "we cannot say for
certain on this record that seven majority-Black assembly
districts," as proposed by the Governor and BLOC, "are required
by the VRA." Johnson, 400 Wis. 2d 626, ¶47. The Supreme Court
has made clear that amount of evidence is inadequate to justify
a race-based remedy. Wis. Legislature v. Wis. Elections Comm'n,
142 S. Ct. at 1249-50 (evidence showing the VRA "might" require
a race-based remedy does not satisfy strict scrutiny). Upon
further review of BLOC's analysis, we conclude that BLOC has not
presented sufficient evidentiary support to justify the use of
race to draw the legislative districts it proposes. Id.;
Miller, 515 U.S. at 922. Therefore, BLOC's maps must be
rejected.
¶45 CMS's maps, while performing well on several race-
neutral criteria, upon further review also fail for being race-
based.7 "[S]trict scrutiny applies when race is the
'predominant' consideration in drawing the district lines such
that 'the legislature subordinates traditional race-neutral
districting principles to racial considerations.'" Shaw v.
Hunt, 517 U.S. at 907 (quoting Miller, 515 U.S. at 916). CMS
applied an algorithm that considered thousands of possible
alternative maps, and it tasked the algorithm to produce a map
that performed best on various metrics of least change,
CMS scored well on several race-neutral factors.
7 For
example, CMS's maps had less than half the population deviation
of the Governor, Senator Bewley, and BLOC. In addition, CMS had
hundreds fewer local government splits than the Governor,
Senator Bewley, and BLOC.
32
No. 2021AP1450-OA
population deviation, and local boundary splits. In addition,
it tasked the algorithm to produce seven assembly districts that
had "a substantial concentration of black [voters]" and that
elected black candidates of choice. CMS did not concern itself
with creating districts with exact BVAP amounts, as did the
Governor and BLOC. The BVAP in CMS's relevant assembly
districts varied widely from 35% to 83.2%.
¶46 Nonetheless, it is clear that under CMS's algorithm,
maps would not be selected if they did not create seven
districts with substantial black populations that also elected
black-preferred candidates, according to its inputs of election
data. Although, by using cutting edge technology CMS selected a
map that performed well in other race-neutral criteria,
alternative maps run through the algorithm that could have
performed better on those race-neutral criteria were not
considered by CMS because they did not contain seven districts
with specific racial characteristics. See Shaw v. Hunt, 517
U.S. at 907 (explaining that a redistricting map was racially
motivated, even though race-neutral criteria were considered in
the selection of districts, because the race-neutral criteria
"came into play only after the race-based decision had been
made"). Therefore, we conclude that CMS's maps "subordinated
traditional race-neutral districting principles . . . to racial
considerations." Miller, 515 U.S. at 916.
¶47 Like other parties, CMS did not present district-
specific evidence that the communities being placed in race-
based boundaries would be denied equal opportunities in
33
No. 2021AP1450-OA
elections and would have their choice of candidates blocked by a
white majority coalition if CMS's racially motivated districts
were not adopted. 52 U.S.C. § 10301(b). In fact, CMS argued
that the Legislature's maps——which, as explained below, are race
neutral——would produce six effective districts for black-
preferred candidates. In lieu of the local appraisal required
under law, CMS cited state-wide election data to show that, on
average, black voters in the State of Wisconsin support
different candidates than white voters. That is not the
relevant local inquiry to determine the existence of the Gingles
preconditions, sufficient to trigger a race-based remedy. Wis.
Legislature v. Wis. Elections Comm'n, 142 S. Ct. 1245, at 1249-
51; LULAC, 548 U.S. at 432, 437; Cooper, 137 S. Ct. at 1471-72,
1471 n.5. Creating race-based districts, as CMS does, without
first demonstrating a VRA violation, is fundamentally and
constitutionally flawed. Wis. Legislature v. Wis. Elections
Comm'n, 142 S. Ct. at 1249-50 (citing Shaw v. Hunt, 517 U.S. at
910).
¶48 In contrast to the maps proposed by the Governor,
Senator Bewley, BLOC, and CMS, the Legislature's proposed maps
are indisputably race neutral. No party argued and no evidence
was provided demonstrating that the Legislature's maps were, in
fact, not race neutral. The Legislature affirmed multiple times
that the maps proposed by the Governor and BLOC to create
exactly 51% BVAP districts were a "racial gerrymander," and by
contrast, the Legislature utilized "race-neutral criteria" to
draw districts in the Milwaukee area, as it did for all other
34
No. 2021AP1450-OA
citizens regardless of race in the remainder of the state.
Unlike the other parties, the Legislature never asserted that
the Gingles preconditions required the drawing of majority-black
districts. To the contrary, the Legislature's expert stated
correctly that "the electoral patterns detailed by [BLOC] raise
serious doubts about whether the Gingles threshold standard is
currently met."8
¶49 The Equal Protection Clause "guarantees equal laws,
not equal results." Personal Adm'r of Mass. v. Feeney, 442 U.S.
256, 273 (1979). Only those maps that purposefully discriminate
between individuals are subject to strict scrutiny. Shaw v.
Reno, 509 U.S. at 642. Maps come under strict scrutiny "not
just when they contain express racial classifications, but also
when, though race neutral on their face, they are motivated by a
racial purpose or object." Miller, 515 U.S. at 913. The
standard to demonstrate racial motivations through
circumstantial evidence alone is high and rarely met. The map
must be "so highly irregular that, on its face, it rationally
cannot be understood as anything other than an effort to
8 The Legislature stated that their maps complied with the
VRA. A race-neutral map can comply with the VRA. Specifically,
a map does not violate the VRA when the Gingles preconditions
have not been satisfied. LULAC, 548 U.S. at 425. Indeed, a
race-neutral map is the preferred outcome, and an outcome
explicitly contemplated by the Supreme Court. Wis. Legislature
v. Wis. Elections Comm'n, 142 S. Ct. at 1250-51 ("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.").
35
No. 2021AP1450-OA
segregate[e] . . . voters on the basis of race." Id. at 914
(quotations omitted); Shaw v. Reno, 509 U.S. at 643 (explaining
that there are "rare [maps] that . . . are, on their face,
unexplainable on grounds other than race" (quotations omitted));
Feeney, 442 U.S. at 272 ("This rule applies as well to a
classification that is ostensibly neutral but is an obvious
pretext for racial discrimination." (Emphasis added.)). Courts
recognize that redistricting is a "sensitive" process which
involves a "complex interplay of forces"; mapmakers are
"presumed" to be acting in a good faith, race-neutral manner.
Miller, 515 U.S. at 915-16.
¶50 No such evidence of discriminatory intent has been
provided, and, with the presumption of good faith in mind, we
cannot conclude that the Legislature's maps are so highly
irregular that they are "unexplainable on grounds other than
race." Miller, 515 U.S. at 913; Shaw v. Reno, 509 U.S. at 643.
Unlike the Governor and BLOC, who carefully calibrated BVAP in
their districts, the BVAP in the Legislature's districts varies
depending on the unique geography and community characteristics
of those districts. BVAP in the Legislature's districts varies
from 45.8% to 71.5%. In so doing, the Legislature's maps
perform very well in race-neutral criteria. Out of the plans
proposed, the Legislature's maps have low population deviation
and have a low number of local government splits, including in
the Milwaukee-area districts. In addition, the Legislature's
maps include few incumbency pairings, and they move few voters
36
No. 2021AP1450-OA
into new senate districts with different election cycles.9 Those
characteristics are seen in the Milwaukee-area districts, as
they are throughout the state. Further, the districts with high
BVAP are compact and do not have "highly irregular" features
common to racial gerrymanders. Miller, 515 U.S. at 917(reasoning that, although a district did not "seem bizarre on
its face," the shape in conjunction with its exacting
demographic characteristics painted a "story of racial
gerrymandering"); Shaw v. Hunt, 517 U.S. at 905-06 (stating a
district was "serpentine" and "geographically non-compact by any
objective standard"); Bush v. Vera, 517 U.S. at 959-60(explaining that, based on the shape of a district, there was
"no integrity in terms of traditional, neutral redistricting
criteria"). When drawing districts, race-neutral considerations
drove the Legislature's decisions; racial targets did not. See
Miller, 515 U.S. at 916 (examining, to determine if a map was
race neutral, whether the map included exact percentages of
black voters in a district and whether the map performed poorly
on race-neutral considerations such as compactness, contiguity,
and preservation of communities of interest); Alabama
Legislative Black Caucus v. Alabama, 575 U.S. 254, 273-74 (2015)
(listing evidence that could show a map was not race neutral,
Under the Wisconsin Constitution, senators are "chosen
9
alternately from the odd and even-numbered districts for the
term of 4 years.” Wis. Const. art. IV, § 5. Thus, if voters are
moved between odd and even senatorial districts, their ability
to participate in senatorial elections could be delayed for
several years, as compared to their original districts.
37
No. 2021AP1450-OA
including exact racial demographics and splitting high numbers
of local government boundaries); Cooper, 137 S. Ct. at 1468(explaining that "[u]nconteested evidence in the record show[ed]
that the State's mapmakers . . . purposefully established a
racial target . . . .").
¶51 "[I]ndividual districts [are] subject to . . . racial
gerrymandering challenges." Alabama Legislative Black Caucus,
575 U.S. at 263-64. Logically, if such challenges are brought,
the individual district at issue must be examined. Id. Here,
no such challenge has been made to the Legislature's maps. No
party challenged or presented evidence which would support a
claim that any of the districts in the Legislature's maps were
racially motivated. In addition, no evidence was presented in
the record that could overcome the presumption of good faith or
show that any district lines in the Legislature's map, including
those districts with high BVAP, were "unexplainable on grounds
38
No. 2021AP1450-OA
other than race."10 Miller, 515 U.S. at 913. On this record, no
available evidence exists showing that race was "the
10 The dissent indicates that the Legislature could have
moved more black voters into Milwaukee-area districts to boost
BVAP. It also states that the Legislature performed well on
core retention in the Milwaukee area and it split a village that
contains a higher percentage of black voters. Dissent, ¶¶189-
191. Simply because the Legislature could have drawn maps
differently does not prove, given the "complex interplay of
forces" in redistricting, that the Milwaukee-area districts are
"unexplainable on grounds other than race." Miller v. Johnson,
515 U.S. 900, 913 (1995). The dissent fails to examine in a
district-specific manner how the Milwaukee-area districts could
be rationally drawn using race-neutral criteria, such as respect
for local boundaries and communities of interest or least
change. Citation to a single municipality split, in a state
with thousands of local governments, as well as strong
performance on race-neutral criteria such as core retention, is
a far cry from an "obvious pretext for racial discrimination."
Personal Adm'r of Mass. v. Feeney, 442 U.S. 256, 272 (1979).
High core retention, for instance, can be readily explained by
the fact that the Milwaukee-area districts were underpopulated
and, of course, a larger portion of the core would be retained.
The Legislature may have reasonably believed municipal splits
were needed to avoid ward splits, achieve least change, and
minimize population deviation. The dissent essentially admits
that proof of a racial gerrymander is lacking. It states that
it has "no . . . submitted evidence" on whether the
Legislature's choices in Milwaukee were driven by respect for
communities of interest, and it contends that the maps could be
politically motivated. Dissent, ¶191; see Rucho v. Common
Cause, 588 U.S. ___, 139 S. Ct. 2484 (2019) (holding that claims
of partisan motivation in map drawing is not cognizable under
the United States Constitution); Johnson, 399 Wis. 2d 623, ¶39
(reasoning that "partisan fairness presents a purely political
question" and is not derived from an identifiable legal right).
The dissent cites to Cooper, but that case actually supports the
conclusion that the Legislature's maps are race neutral.
Dissent, ¶190; see Cooper, 137 S. Ct. at 1466, 1468-69, 1472-78,
1482-84 (holding that racial considerations predominated where
mapmakers expressly stated they were moving black voters to
comply with the VRA, altering two congressional districts to
have almost exactly 51% BVAP, creating districts with a "finger-
like extension" and a "snakelike body," having one district with
"stark racial borders" within the same local government, and
39
No. 2021AP1450-OA
'predominant' consideration in drawing the [Legislature's]
district lines such that '[it] subordinate[d] traditional race-
neutral districting principles to racial considerations.'" Shaw
v. Hunt, 517 U.S. at 907 (quoting Miller, 515 U.S. at 916). To
determine otherwise would be wholesale speculation.
¶52 The Governor and BLOC argue that the Legislature's
maps violate the VRA by having one assembly district at 45.8%
BVAP and another at 71.5% BVAP. However, neither the Governor
nor BLOC cite authority standing for the position that, using
race-neutral redistricting criteria, having low or high
percentages of black voters in a given district on its own
violates the VRA. It is well established that the VRA mandates
the use of race in redistricting only upon proof that the
Gingles preconditions are satisfied in a potential or existing
district. LULAC, 548 U.S. at 425; Cooper, 137 S. Ct. at 1471-
72; Wis. Legislature v. Wis. Elections Comm'n, 142 S. Ct. 1245,
at 1249-50. It is true that maps can violate the VRA where
black voters are "fragment[ed] . . . among several districts
where a bloc-voting majority can routinely outvote them" as well
as where black voters are "pack[ed] . . . into one or a small
number of districts to minimize their influence in the districts
next door." De Grandy, 512 U.S. at 1007. But where there
exists no strong evidence that an identifiable community of
black voters is being denied equal opportunity to participate
having another district whose racial composition materially
changed despite having "no need for significant total-population
changes" under one person, one vote).
40
No. 2021AP1450-OA
due to the existence of the Gingles preconditions, race cannot
be used to distribute black voters from one district to another.
Id. at 1015 (explaining that the existence of one district with
a high percentage of minorities and another district with a low
percentage of minorities, by itself, shows "only that lines
could have been drawn elsewhere, nothing more"); Gonzalez v.
City of Aurora, 535 F.3d 594, 598 (7th Cir. 2008) ("But neither
§ 2 nor Gingles nor any later decision of the Supreme Court
speaks of maximizing the influence of any racial or ethnic
group."); Bartlett v. Strickland, 556 U.S. 1, 15 (2009)
(plurality) ("Nothing in § 2 grants special protection to a
minority group's right to form political coalitions."). No
party presents strong evidence showing the existence of the
Gingles preconditions in individual districts, as they currently
exist, in race-based proposals, or in the Legislature's race-
neutral maps. Without that evidence of a VRA violation, a race-
based remedy is not justified, whether to boost BVAP in one
district to above 50% or to lower BVAP in another district to
below 71.5%. Wis. Legislature v. Wis. Elections Comm'n, 142 S.
Ct. at 1249-51; LULAC, 548 U.S. at 432, 437; Cooper, 137 S. Ct.
at 1471-72, 1471 n.5.
¶53 The Governor and BLOC also argue that the
Legislature's 10th assembly district, which has 45.8% BVAP, does
not provide effective democratic opportunity for black voters.
Thus, the Governor and BLOC aver that the Legislature's maps
include only five effective black assembly districts. However,
assembly district 10 does not create a VRA violation because the
41
No. 2021AP1450-OA
Gingles preconditions are not satisfied——namely, the record does
not demonstrate that black voters are usually denied their
preferred candidate. In fact, the evidence demonstrates
otherwise.
¶54 The Governor and BLOC point to BLOC's analysis on a
single election result, the 2018 Democratic Gubernatorial
Primary, to demonstrate that the 10th assembly district violates
the VRA. We are unaware of a single case that has found the
existence of a strong evidentiary record, applied the VRA, and
satisfied strict scrutiny through consideration of a single
result from an exogenous election in a party primary. Compare
LULAC, 548 U.S. at 427-28 (examining partisan general election
results for the congressional district at issue); Cooper, 137
S. Ct. at 1470-71 (reviewing partisan general election results
for the congressional district at issue); City of Euclid, 580
F. Supp. 2d at 598-99 (explaining electoral history for non-
partisan general election results for the offices at issue);
Harper, 824 F. Supp. at 790 (reviewing non-partisan general
election results for the offices at issue). That is a far cry
from "strong basis in evidence" demanded by the Equal Protection
clause. Wis. Legislature v. Wis. Elections Comm'n, 142 S. Ct.
at 1249; Miller, 515 U.S. at 922.
¶55 Even so, under BLOC's own statistics, the black
preferred candidate won in the Legislature's 10th assembly
district by a comfortable margin. According to BLOC, the black
preferred candidate, Mahlon Mitchell, won a plurality of the
vote and beat the next strongest candidate, the Governor, 39% to
42
No. 2021AP1450-OA
29%. This indicates that the Legislature's 10th assembly
district supports black preferred candidates, not that white
coalitions stymie black electoral opportunity in violation of
the VRA.
¶56 Nonetheless, BLOC theorizes that, because there were
many candidates on the ballot other than Mitchell and the
Governor, it is possible white voters may have voted for the
Governor and blocked the selection of Mitchell if those other
candidates were not on the ballot. This amounts to nothing more
than speculation. Whether and to what extent voters would have
selected other candidates if their preferred candidates were not
on the ballot is unknowable, lying firmly within in the realm of
guesswork. The Supreme Court, in this case and in several prior
cases, has made it clear that governments cannot rely on
presumptions, speculation, and belief to utilize race in
redistricting and satisfy a VRA need. See Wis. Legislature v.
Wis. Elections Comm'n, 142 S. Ct. at 1249-51; Cooper, 137 S. Ct.
at 1470-71; Miller, 515 U.S. at 920-27; Shaw v. Hunt, 517 U.S.
at 916. Instead, we must have a "strong basis in evidence" to
believe the VRA would be violated if race were not used. Wis.
Legislature v. Wis. Elections Comm'n, 142 S. Ct. at 1249;
Miller, 515 U.S. at 922. BLOC's evidence on the Legislature's
10th assembly district does not meet that threshold.
¶57 Even if we were to credit BLOC's reasoning, the
Legislature provides its own analysis on the 10th assembly
district that contradicts BLOC's conclusions. The Legislature
did not rely on one election, but instead considered the 2018
43
No. 2021AP1450-OA
Democratic Lieutenant Gubernatorial Primary in addition to the
2018 Democratic Gubernatorial Primary. Not only did the
Legislature find that the 10th assembly district selected the
black-preferred candidate in the gubernatorial primary (as did
BLOC), the Legislature also found that the 10th assembly
district supported the black-preferred candidate in the
lieutenant gubernatorial primary by a wide margin. Given this
evidence, the Legislature concluded that this district would not
usually exhibit white coalition voting blocking black-preferred
candidates. In addition, CMS analyzed the Legislature's 10th
assembly district by considering whether "the outcome in most
general elections favors the Black candidate of choice" and
whether "Mandela Barnes and Mahlon Mitchell [the black
candidates of choice in the 2018 Democratic lieutenant
gubernatorial and gubernatorial races] perform strongly in their
respective 2018 Democratic primary elections." CMS concluded
that the Legislature's 10th assembly district was "perfectly
effective" for black voters. On this record, we cannot agree
with the Governor and BLOC that the Legislature's race-neutral
proposal would violate the VRA.
¶58 Finally, the Governor and BLOC argue that the VRA
requires the creation of a seventh majority-black assembly
district. However, as stated above, we cannot use race in
redistricting unless there is strong evidence that the Gingles
preconditions are satisfied in the districts being considered.
Here, there is no strong evidentiary basis. Furthermore, the
court recognized in its March 3 decision that "on this record,"
44
No. 2021AP1450-OA
"we cannot say for certain . . . that seven majority-black
assembly districts are required by the VRA." Johnson, 400 Wis.
2d 626, ¶47. The Supreme Court noted that contention and held
that level of proof was inadequate to justify a race-based
remedy. Wis. Legislature v. Wis. Elections Comm'n, 142 S. Ct.
at 1250 (explaining that a record showing the VRA "might" be
violated "does not allow a State to adopt a racial
gerrymander"). Consequently, we conclude that the Legislature's
race-neutral maps do not violate the VRA simply because they do
not include seven majority-black districts.11
The Governor and BLOC cite proportionality of black
11
voters to support the creation of seven majority-black
districts. First, a VRA violation is not established solely by
a determination that effective black districts are not in
proportion to the statewide black voting population. See
De Grandy, 512 U.S. at 1020 (rejecting the argument that
proportionality is determinative of VRA compliance and noting
that "[n]o single statistic provides courts with a shortcut");
Wis. Legislature v. Wis. Elections Comm'n, 142 S. Ct. at 1250
("[P]roportionality is never dispositive" (citation omitted).).
Second, proportionality is considered in a totality of the
circumstances analysis, but the totality of the circumstances is
considered only after the Gingles preconditions have been
established. LULAC, 548 U.S. at 425; Wis. Legislature v. Wis.
Elec. Comm'n, 142 S. Ct. at 1248-50. Under the record as it
currently exists, we cannot conclude the Gingles preconditions
are satisfied. Third, even if proportionality were considered,
"the Black voting age population statewide is between 6.1% and
6.5%." Johnson v. Wis. Elections Comm'n, 2022 WI 14, ¶48, 400
Wis. 2d 626, ___ N.W.2d ___. Taking the highest possible
figure, given that there are 99 assembly districts, 6.4
majority-black assembly districts would be proportional to the
statewide black voting population. A proportionality analysis
does not support the contention that six majority-black assembly
districts would violate the VRA.
45
No. 2021AP1450-OA
¶59 The Legislature's maps are race neutral and legally
compliant. None of the parties have established that the
Legislature's race-neutral maps violate the VRA. At most, the
parties in opposition to those maps raise arguments without
evidence. In fact, the Legislature would be without any
constitutional basis for maneuvering districts to hover closer
to 50% as was done by the Governor. Such action would also be
contrary to Cooper v. Harris, 137 S. Ct. 1455, and Johnson v.
De Grandy, 512 U.S. 997. In short, the Legislator's maps are
indisputably race-neutral, supported by the expert testimony and
evidence, and there is no detailed, local evidence in the record
to demonstrate they violate the VRA. The Governor, Senator
Bewley, BLOC, and CMS all drew districts on the basis of race
without the necessary proof that the Gingles preconditions were
satisfied and that the VRA required a race-based remedy.12 Thus,
12 The dissenting justices conceded that there is
insufficient proof of the Gingles preconditions to warrant a
race-based remedy. Johnson v. Wis. Elections Comm'n, 400 Wis.
2d 626, ¶47 (reasoning that the court "cannot say for certain on
this record" that the VRA required the drawing of seven
majority-black districts on the basis of race); see also Wis.
Legislature v. Wis. Elections Comm'n, 142 S. Ct. 1245, at *3
(citing that exact quote from the court's March 3 decision and
explaining that it was inadequate to support a race-based
remedy). They bemoan the lack of evidence in support of a race-
based remedy, noting that, to prove a VRA violation, parties
must rely on extensive "discovery, sworn affidavits, and
examination and cross-examination of witnesses and experts,"
which no party chose to provide. Dissent, ¶¶184, 198 n.28.
They explain that the evidence in support of the Gingles
preconditions "has not been sufficiently tested through a proper
adversarial fact-finding process," and they conclude that we
"cannot definitively say the Gingles preconditions are
satisfied" in this case. Id., ¶196. When the Gingles
preconditions have not been met, we cannot hold that "the VRA
46
No. 2021AP1450-OA
no maps other than the Legislature's maps satisfy the requisite
constitutional and legal requirements for adoption.
2. The Equal Protection Clause and Population Equality
¶60 As the court explained in our November 30 decision,
the Equal Protection Clause requires states to "make an honest
and good faith effort to construct districts, in both houses of
its legislature, as nearly of equal population as practicable."
Johnson, 399 Wis. 2d 623, ¶24 (quoting Reynolds, 377 U.S. at
577). "Consistent with principles of federalism, states have
limited flexibility to pursue other legitimate policy
objectives, such as 'maintain[ing] the integrity of various
political subdivisions' and 'provid[ing] for compact districts
of contiguous territory.'" Id., ¶26 (quoting Brown v. Thomson,
462 U.S. at 842). Population equality among districts is
measured by maximum population deviation, which is the "sum of
the percentage deviations from perfect population equality of
the most- and least-populated districts. For example, if the
require[s] [us] to move voters based on race." Wis. Legislature
v. Wis. Elections Comm'n, 142 S. Ct. at 1249-50; De Grandy, 512
U.S. at 1007 (stating that the Gingles preconditions are
"necessary"). While the dissent goes to great lengths to make
known its position on the "totality of the circumstances" and
the state of race relations in Wisconsin, we will not engage in
a debate on those issues that are not relevant to the inquiry
here under the law. Only when all three Gingles preconditions
are established are we "direct[ed] to consider the totality of
the circumstances." LULAC, 548 U.S. at 425. Evidence of the
Gingles preconditions is insufficient on this record to warrant
a race-based remedy under the VRA. Therefore, the totality of
the circumstances discussion of the dissent is legally
insufficient to support the dissent's conclusion.
47
No. 2021AP1450-OA
largest district is 4.5% overpopulated, and the smallest
district is 2.3% underpopulated, the map's maximum population
deviation is 6.8%." Evenwel v. Abbott, 578 U.S. 54, 60 n.2
(2016) (citation omitted).
¶61 Because the maps submitted by Governor, Senator
Bewley, BLOC, and CMS are eliminated for being racially
motivated, we concentrate our review on the Legislature's maps.
In maximum population deviation, the Legislature's maps perform
exceptionally well. The Legislature's maps recognize the
sizable population shifts, keep Wisconsin citizens in their
existing districts and also achieve population equality across
districts. The Legislature's maximum population deviation is
.57% for the Senate and .76% for the Assembly. This is in line
with deviations accepted by federal courts. Wis. State AFL-CIO
v. Elections Bd., 543 F. Supp. 630, 639-42 (E.D. Wis. 1982)
(adopting maps with 1.2% deviation for the Senate and 1.74% for
the assembly); Prosser v. Elections Bd., 793 F. Supp. 859, 870-
71 (W.D. Wis. 1992) (labeling deviations below 1% as "margin[s]
of error" and adopting a map with a maximum population deviation
of .52%); Baumgart v. Wendelberger, Nos. 01-C-0121 & 02-C-0366,
unpublished slip op., 2002 WL 34127471 (E.D. Wis. May 30, 2002)
(adopting a map with a maximum population deviation of 1.48%).
These population shifts are also consistent with or better than
prior redistricting plans. Baldus v. Members of Wis. Gov't
Accountability Bd., 849 F. Supp. 2d 840, 851 (E.D. Wis. 2012)
(2011 assembly districts were .76% and senate were .62%).
48
No. 2021AP1450-OA
¶62 Therefore, we conclude that the Legislature's maps
comply with the Equal Protection Clause's one person, one vote
requirement.
3. The Wisconsin Constitution
¶63 "[T]he Wisconsin Constitution requires that districts
be compact, contiguous, and proportionally populated; they must
respect certain local political boundaries; and the districts
must 'nest' three assembly districts within each senate
district." Johnson, 400 Wis. 2d 626, ¶34 (citing Wis. Const.
art. IV, §§ 3-5). As explained above, we consider whether the
Legislature's maps comply with the Wisconsin Constitution
because the maps proposed by the other parties are
unconstitutionally race based.
¶64 Population equality and respect for local government
boundaries are closely interlinked in Wisconsin law. Under
Article IV, Section 3 of the Wisconsin Constitution, legislative
districts must be apportioned "according to the number of
inhabitants." Apportionment among districts must be "as close
an approximation to [exact population equality] as possible."
Johnson, 399 Wis. 2d 623, ¶28 (quoting Cunningham, 81 Wis. at
484). The court has long recognized that perfect population
equality is not required, in large part due to requirements in
the Wisconsin Constitution that mapmakers preserve local
government boundaries. Legislative districts must be of equal
population "subject only to (1) practical limitations in
execution of this principle, and (2) precise constitutional
restrictions about observance of governmental boundaries in
49
No. 2021AP1450-OA
drawing district lines." State ex rel. Reynolds v. Zimmerman,
22 Wis. 2d 544, 566, 126 N.W.2d 551 (1964); see also Cunningham,
81 Wis. at 485 (stating that population equality must be as
exact as possible, but also noting that respect for local
government boundaries "is a most important restriction on the
power of the legislature to make an apportionment").
Nonetheless, mapmakers do have a level of discretion in ensuring
population equality. Johnson, 400 Wis. 2d 626, ¶36 n.20.
¶65 Under Article IV, Section 4 of the Wisconsin
Constitution, assembly districts must "be bounded by county,
precinct, town or ward lines." Given federal one person, one
vote requirements, bounding every assembly district by county,
precinct,13 town, and ward lines may not be possible. Johnson,
399 Wis. 2d 623, ¶35 (citing Wis. State AFL-CIO, 543 F. Supp. at
635); see also 58 Wis. Att'y Gen. Op. 88, 91 (1969) ("In my
opinion the Wisconsin Constitution no longer may be considered
as prohibiting assembly districts from crossing county lines, in
view of the emphasis the United States Supreme Court has placed
upon population equality among electoral districts.").
13 "In one of this court's seminal cases on redistricting,
Chief Justice Lyon explained a precinct was a form of local
government that ceased to exist when a part of Article IV of the
Wisconsin Constitution became fully operative." Johnson v. Wis.
Elections Comm'n, 400 Wis. 2d 626, ¶219 n.16 (Bradley, J.,
dissenting) (citing State ex rel. Attorney General v.
Cunningham, 81 Wis. 440, 520, 51 N.W. 724 (1892) (Lyon, C.J.,
concurring)). "Under Article IV, 'precinct' does not mean
election precinct." Id.50
No. 2021AP1450-OA
¶66 However, Article IV, Section 4 must be given "full
effect" to the extent it does not conflict with federal law.
See H. Rupert Theobald, Equal Representation: A Study of
Legislative and Congressional Apportionment in Wisconsin,
Wisconsin Blue Book 71, 72 (1970). We are particularly
skeptical of town and ward splits because "the smaller the
political subdivision, the easier it may be to preserve its
boundaries." Johnson, 399 Wis. 2d 623, ¶35; see also 60
Wis. Att'y Gen. Op. 101, 106 (1971) (explaining town and ward
lines must be followed "insofar as may be consistent with
population equality[.]"). In particular, "gratuitously
break[ing] up wards," the smallest political unit in the state,
makes little sense because they are "the basic unit of Wisconsin
state government for voting purposes. You vote by ward."
Prosser, 793 F. Supp. at 866. For voters in the same ward to
have different ballots is an "inconvenience" to the
administration of elections and provides, at most, nominal
"gain[s] in population equality[.]" Id.¶67 The Legislature drew maps that comply with the federal
one person, one vote requirements. The Legislature's deviation
was .57% for the Senate and .76% for the Assembly. Given how
low these deviations are, and how few local government splits
were included in the Legislature's maps, the Legislature's maps
are compliant with Wisconsin's equal apportionment requirements.
Wis. Const. art. IV, § 3.
¶68 On March 3, the court opined that the Governor's maps
complied with Wisconsin's equal apportionment requirements, and
51
No. 2021AP1450-OA
his deviations were almost double that of the Legislature.
Johnson, 400 Wis. 2d 626, ¶36 ("[T]he Governor's population
deviations——1.20% for the senate and 1.88% for the assembly——are
well under the deviations previously adopted by the legislature
and those prescribed by this court."). Deviations of .57% and
.76% are well within constitutional bounds. Furthermore, in
adopting its deviations, the Legislature kept the number of
local government divisions low. The Legislature split 53
counties in the assembly, and it split 52 municipalities,
including 16 towns. In addition, the Legislature maintained 100
percent of all ward lines.
¶69 The Legislature's resulting number of splits fits well
within accepted historical practice. When federal courts drew
maps for the 1980, 1990, and 2000 censuses, they included a
similar number of local government splits as the Legislature's
maps. Wis. State AFL-CIO v. Elections Bd., 543 F. Supp. at 636(explaining that "municipal splits [were] used sparingly," and
adopting a map with no ward splits); Prosser, 793 F. Supp. at
871 (selecting a map with 115 municipality splits and no ward
splits); Baumgart, unpublished slip op., 2002 WL 34127471, at *7
(adopting a map with 50 municipality splits and no ward splits).
Further, when the 2011 maps were enacted, they had 58 county
splits and 78 municipality splits, including 30 town splits, in
the assembly. Therefore, the record affirmatively demonstrates
that the Legislature retained low population deviations while
also limiting divisions of local governments. The Legislature's
52
No. 2021AP1450-OA
maps sufficiently respect local government boundaries under the
Wisconsin Constitution. Wis. Const. art. IV, § 4.
¶70 The Legislature has satisfied the remainder of
Wisconsin's constitutional requirements. The assembly districts
are contiguous and sufficiently compact.14 Wis. Const. art. IV,
§ 4. Both senate and assembly maps include single member
districts, and assembly districts are not divided in the
formation of senate districts. Wis. Const. art. IV, §§ 4, 5.
In all, the Legislature's senate and assembly maps comply with
the Wisconsin Constitution.
B. Least Change
¶71 In its November 30 decision, the court stated that it
would not tread "further than necessary to
remedy . . . deficiencies" of the current maps. Johnson, 399
Wis. 2d 623, ¶64. The court's selection would be driven by a
decision on which map "comport[s] with relevant legal
requirements" while still "reflect[ing] the least change
necessary." Id., ¶72.
¶72 The Legislature adopted minimal changes to the
existing maps while still complying with federal and state law.
While other parties also limited changes to the existing maps,
they failed to comply with federal Equal Protection
requirements. No other maps comply with all legal requirements.
The Legislature's maps address malapportionment in a least
"We
14 have never adopted a particular measure of
compactness, but the constitutional text furnishes some latitude
in meeting this requirement." Johnson, 399 Wis. 2d 623, ¶37.
53
No. 2021AP1450-OA
changes way. Therefore, the Legislature's maps are our least
change selection.
III. CONCLUSION
¶73 Upon review of the record, we conclude that
insufficient evidence is presented to justify drawing state
legislative districts on the basis of race. The maps proposed
by the Governor, Senator Bewley, BLOC, and CMS are racially
motivated and, under the Equal Protection Clause, do not survive
strict scrutiny. By contrast, the maps proposed by the
Wisconsin Legislature are race neutral. The Legislature's maps
comply with the Equal Protection Clause, along with all other
applicable federal and state legal requirements. Further, the
Legislature's maps exhibit minimal changes to the existing maps.
Therefore, we adopt the state senate and assembly maps of the
Legislature for the State of Wisconsin.
By the Court.—Relief granted.
54
No. 2021AP1450-OA.rgb
¶74 REBECCA GRASSL BRADLEY, J. (concurring).
"Justice is pictured blind and her daughter, the Law,
ought at least to be color-blind."
Brief for Plaintiff in Error, Plessy v. Ferguson, 163 U.S. 537(1896) (No. 210), 1893 WL 10660, at *19. This redistricting
cycle proceeded in a manner heavily focused on color, supposedly
for remedial purposes, but accomplishing nothing but racial
animosity as showcased by the dissent's race-baiting rhetoric
and condescension toward people of color.
¶75 I join the majority opinion in full and write
separately to expound on the primacy of color-blindness in Equal
Protection jurisprudence. Based on the record in this case, the
Constitution mandates a color-blind remedy for the protection of
all citizens, irrespective of color. I also write to provide a
thorough examination of this redistricting cycle, which
demonstrates why the United States Supreme Court summarily
rejected the maps selected by a majority of this court: those
race-based maps, which were drawn by Governor Tony Evers,
violate the Constitution by insidiously sorting people into
districts based on the color of their skin. The Wisconsin
Legislature drew its maps without regard to race——the only party
to do so——therefore, I respectfully concur with the majority's
decision to select them.
I. OUR COLOR-BLIND CONSTITUTION
¶76 The United States Supreme Court rejected Homer
Plessy's argument that racial segregation violates the
Fourteenth Amendment, to its everlasting shame. Plessy exists
in our nation's history as a stain, dishonoring America's quest
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for equality under the law for all, which began with the
founding. See The Declaration of Independence para. 2
(U.S. 1776) ("We hold these truths to be self-evident, that all
men are created equal[.]"); see also Wis. Const. art. I, § 1
("All people are born equally free and independent, and have
certain inherent rights; among these are life, liberty and the
pursuit of happiness; to secure these rights, governments are
instituted, deriving their just powers from the consent of the
governed."). At times, the United States has strayed from this
sacred principle, often on the basis of sham social science of
the day promoting the repugnant notion that people of different
races would be better off if the law distinguished between them.
See State v. Roberson, 2019 WI 102, ¶43, 389 Wis. 2d 190, 935
N.W.2d 813 ("Social science often embodies the subjective
beliefs of the time. When these beliefs become enshrined as
constitutional law, they have a long-lasting impact even if
proved incorrect at a later date. . . . Plessy embodied
abhorrent social beliefs regarding the superiority and
inferiority of people based on race. This belief then became
law through United States Supreme Court decision-making that was
purporting to interpret the United States Constitution. It took
more than half a century to correct course because it is
difficult to overturn constitutional precedent."). Allowing
social science to infect constitutional analysis inevitably
"result[s] in grave abuses of individual rights and liberty."
State v. Brown, 2020 WI 63, ¶46, 392 Wis. 2d 454, 945 N.W.2d 584(Rebecca Grassl Bradley, J., concurring), cert. denied, 141
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S. Ct. 881. "Deplorable decisions such as Plessy v. Ferguson
and Buck v. Bell were rooted in evil concepts supported by social
science and elitist mores antithetical to the Constitution.
Ascertaining and faithfully applying the original meaning of the
Constitution's words precludes appalling social science-based
notions of the day from infecting constitutional analysis. Only
the Constitution can serve as reliable bulwark of the rights and
liberty of the people." Roberson, 389 Wis. 2d 190, ¶86 (Rebecca
Grassl Bradley, J., concurring).
¶77 Despite the United States Supreme Court's approval of
racial segregation in Plessy, the words of Justice Harlan, the
lone dissenter, ultimately prevailed:
[I]n view of the constitution, in the eye of the law,
there is in this country no superior, dominant, ruling
class of citizens. There is no caste here. Our
constitution is color-blind, and neither knows nor
tolerates classes among citizens. In respect of civil
rights, all citizens are equal before the law. The
humblest is the peer of the most powerful. The law
regards man as man, and takes no account of his
surroundings or of his color when his civil rights as
guaranteed by the supreme law of the land are
involved. It is therefore to be regretted that this
high tribunal, the final expositor of the fundamental
law of the land, has reached the conclusion that it is
competent for a state to regulate the enjoyment by
citizens of their civil rights solely upon the basis
of race.
163 U.S. at 559 (Harlan, J., dissenting) (emphasis added). As
Justice Harlan understood, "[t]he moral imperative of race
neutrality is the driving force of the Equal Protection Clause."
Johnson v. De Grandy, 512 U.S. 997, 1029 (1994) (Kennedy, J.,
concurring in part and concurring in the judgment) (quoting City
of Richmond v. J.A. Croson Co., 488 U.S. 469, 518 (1989)
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(Kennedy, J., concurring in part and concurring in the
judgment)). "As a general matter, the sorting of persons with
an intent to divide by reason of race raises the most serious
constitutional questions." Id. "Therefore, as a general rule,
all race-based government decisionmaking——regardless of context—
—is unconstitutional." Parents Involved in Cmty. Schs. v.
Seattle Sch. Dist. No. 1, 551 U.S. 701, 752 (2007) (Thomas, J.,
concurring).
¶78 As a legal concept, color-blindness is often
misunderstood. See generally Peter C. Myers, The Case for
Color-Blindness, First Principles, Sept. 2019, at 1. Judges can
certainly consider whether a particular government action has
had a disparate impact on minorities——our color-blind
Constitution does not countenance ignoring incidents of
discrimination. See Parents Involved in Cmty. Schs., 551
U.S. at 772 n.19. Under a color-blind approach, however, this
court may not order a remedy that purports to address racial
discrimination by discriminating on the basis of race. The
Constitution prohibits this court from sorting people on the
basis of their race. See Holder v. Hall, 512 U.S. 874, 894–96
(1994) (Thomas, J., concurring in the judgment) (explaining the
"first generation" of Voting Rights Act (VRA) litigation focused
on laws inhibiting ballot access, such as "literacy tests," but
over time, the scope of the act was reinterpreted to permit
"vote dilution" claims, which present tougher remedial
problems).
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¶79 The idea that a minority group's voting power has been
diluted necessarily requires a subjective inquiry into the share
of the vote to which that group is entitled. See id. at 892.
Such an inquiry represents a significant departure from the idea
of "one person, one vote," a concept premised on the
uncontroversial axiom that each person, as an individual, is
entitled to "political equality[.]" Gray v. Sanders, 372
U.S. 368, 381 (1963) ("The conception of political equality from
the Declaration of Independence, to Lincoln's Gettysburg
Address, to the Fifteenth, Seventeenth, and Nineteenth
Amendments can mean only one thing——one person, one vote.").
¶80 The strong evidence necessary to establish the Gingles
preconditions ensures a collection of individuals can be fairly
deemed, in fact, a community. Communities of interest are
sometimes protected as a traditional redistricting criteria.
See Johnson v. Wis. Elections Comm'n (Johnson I), 2021 WI 87,
¶83, 399 Wis. 2d 623, 967 N.W.2d 469 (Hagedorn, J., concurring).
When the Gingles preconditions are clearly established, a race-
based redistricting plan provides a shield protecting
communities of interest as opposed to remedy devised solely on
the basis of race. Unlike race-based plans, acknowledging
people's voluntary association with one another does not offend
individual dignity. So long as communities of interest (or
their individual members) are not treated differently on the
basis of race, the Fourteenth Amendment is not offended.
¶81 Imposing a race-based redistricting plan, without
strong evidence of necessity, endorses the stereotype that
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people of the same race must think alike and must think
differently than people of other races. See Holder, 512 U.S. at
903. Governor Evers' plan, adopted by this court on March 3,
imposed "distinctions . . . based upon race and color alone,"
which is "the epitome of that arbitrariness and capriciousness
constitutionally impermissive under our system of government."
Brief for Appellants, Brown v. Bd. of Educ., 347 U.S. 483 (1954)
(No. 1), 1952 WL 82041, at *6–7 (authored in part by Thurgood
Marshall) (citation omitted).
¶82 In addition to harming individual dignity, this
redistricting cycle is replete with examples of the harm
inflicted on all people when courts assume, without a strong
evidentiary basis, that the Equal Protection Clause of the
Fourteenth Amendment tolerates a particular method of
affirmative action. See Wis. Legislature v. Wis. Elections
Comm'n, 595 U.S. __, No. 21A471, slip op., at 5 (Mar. 23, 2022)
(per curiam) (explaining "the institution that makes the racial
distinction must have had a 'strong basis in evidence' to
conclude that remedial action was necessary, 'before it embarks
on an affirmative action program." (quoting Shaw v. Hunt, 517
U.S. 899, 910 (1996)). Drawing people into districts based on
race for the purpose of competing as members of a racial group
for political power is antithetical to achieving a more
pluralistic society. "The way to stop discrimination on the
basis of race is to stop discriminating on the basis of race."
Parents Involved in Cmty. Schs., 551 U.S. at 748 (plurality).
"[S]tate entities may not experiment with race-based means to
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achieve ends they deem socially desirable." Id. (Thomas, J.,
concurring).
¶83 The inconclusive pseudo-science presented to this
court fell far short of justifying race-based redistricting, as
the majority opinion thoroughly explains. It amounted to little
more than selectively-cited election data, which appears to have
been researched only after-the-fact. That is to say, mapmakers
seem to have used racial stereotypes, not legitimate social
science, to heuristically draw maps that segregated people based
on race. No such "shortcuts"1 are allowed for proponents of
race-based redistricting as a remedy for past discrimination.
See United Jewish Orgs. of Williamsburgh, Inc. v. Carey, 430
U.S. 144, 184 (1977) (Burger, C.J., dissenting) ("The record is
devoid of any evidence that the 65% figure was a reasoned
response to the problem of past discrimination. It is, rather,
clear that under the time pressure of upcoming elections, and
'in an atmosphere of hasty dickering,' the New York Legislature
simply accepted the standard formula from the Department of
Justice and treated it as mandatory." (internal citation
omitted)).
¶84 The dissent's ambitious attempt to paint Milwaukee
County as the Jim Crow-era South reflects "an effort to cast out
Satan by Beelzebub." Frederick Douglass, Speech, The Blessings
of Liberty and Education (Sept. 3, 1894). The dissent would
remedy what it perceives as racial disparities by literally
"draw[ing] lines between the white and the black" with no
1 Dissent, ¶161.
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apparent recognition that doing so replaces one devil with
another. See id. A closer examination of this redistricting
cycle and how the VRA can be misused illustrates the problem.
II. BACKGROUND:
Governor Evers' People's Maps Commission, How It Might Have
Harmed Minority Communities in Milwaukee, and His "New" Plan
¶85 [A]t least the Republican map goal was not to
decimate the voices of the Black and Brown communities
of Wisconsin. . . . I can see the agenda, Mr.
Speaker. And the agenda is to dilute and crack and
cancel out the voice of minority communities. It's
regressive. Just to create more Democratic seats.
There is the intent, Mr. Speaker.
Wisconsin Assembly Floor Session, at 2:15:09 (Nov. 11, 2021)
(statement of Rep. Sylvia Ortiz-Velez (Assemb. District 8)),
https://wiseye.org/2021/11/11/wisconsin-state-assemblyfloor-
session-42.
¶86 The people have a "right to know" what happened this
redistricting cycle. See Hawkins v. WEC, 2020 WI 75, ¶14, 393
Wis. 2d 629, 948 N.W.2d 877 (Roggensack, C.J., dissenting).
Unfortunately, media coverage on this case, like on so many
others, has been skewed by partisan pundits disappointed in the
"results." See Johnson I, 399 Wis. 2d 623, ¶78 (majority op.)
(quoting Patience Drake Roggensack, Tough Talk and the
Institutional Legitimacy of Our Courts, Hallows Lecture (Mar. 7,
2017), in Marq. Law., Fall 2017, at 45, 46). See generally Tah
v. Global Witness Publishing, Inc., 991 F.3d 231, 255 (D.C. Cir.
2021) (Silberman, J., dissenting in part) ("There can be little
question that the overwhelming uniformity of news bias in the
United States has an enormous political impact. . . . [T]he
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press and media do not even pretend to be neutral news
services.").
¶87 One media outlet went so far as to run a subheadline
attacking the motives of the nation's highest court: "The
justices [of the United States Supreme Court] are concerned that
Wisconsin's legislative maps may give too much political power
to Black people." Ian Millhiser, Black Voters Suffer Another
Significant Loss in the Supreme Court, Vox (Mar. 23, 2022),
https://www.vox.com/2022/3/23/22993107/supreme-court-wisconsin-
race-gerrymander-voting-rights-act-legislature-elections-
commission. Worse still, while accusing the justices of
indulging an "inflammatory assumption," specifically, "[t]hat
legislative maps with fewer Black-majority districts are often
preferred to those that give more power to Black voters," the
author made an inflammatory assumption of his own, seemingly
designed to foster racial tension. See id.; see also Mark
Joseph Stern, The Supreme Court's Astonishing, Inexplicable Blow
to the Voting Rights Act in Wisconsin, Slate (Mar. 23, 2022),
https://slate.com/news-and-politics/2022/03/supreme-court-
voting-rights-shredder-wisconsin.html.
¶88 For context, in the early 2000s, Wisconsin had divided
government. Republicans controlled the assembly, Democrats
controlled the senate, and Governor James Scott McCallum, a
Republican, controlled the executive branch.2 The Legislature
2 Legis. Reference Bureau, Profile of the 2001 Wisconsin
Legislature, Wis. Br. 01-3, at 1–2 (Jan. 3, 2001),
http://lrbdigital.legis.wisconsin.gov/digital/collection/p16831c
oll2/id/1073.
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did not adopt a redistricting plan; a federal court redrew
Wisconsin's state legislative maps. Baumgart v. Wendelberger,
No. 01-C-0121, 2002 WL 34127471, at *1, 8 (E.D. Wis. May 30,
2002) (per curiam). Jim Doyle, a Democrat, became governor in
2003. In 2009, Republicans lost control of the assembly. At
this time, Democrats gained what is known in political parlance
as a "trifecta": they had control of both houses of the state
legislature, as well as the executive branch.
¶89 In 2007 and again in 2009, a few Democrats introduced
a joint resolution, which would have begun the process of
amending the Wisconsin Constitution to significantly alter how
district lines are drawn. They did not succeed, leaving Article
IV, Section 3 of the Wisconsin Constitution unchanged:
The members of the assembly shall be chosen
biennially, by single districts, on the Tuesday
succeeding the first Monday of November in even-
numbered years, by the qualified electors of the
several districts, such districts to be bounded by
county, precinct, town or ward lines, to consist of
contiguous territory and be in as compact form as
practicable.
The 2007 proposal would have created a "state redistricting
board," composed of the attorney general, the secretary of
state, the state treasurer, the state superintendent of public
instruction, and one member appointed by this court. Analysis
Legis. Reference Bureau, 2007 Assemb. J.R. 63. It also would
have "define[d] demographic and political standards for the
drawing of legislative districts and establishe[d] a procedure
for the drawing of legislative districting." Id. The 2009
proposal would not have created a board, but it would have
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circumscribed the "criteria" the Legislature could consider when
drawing districts. Analysis Legis. Reference Bureau, 2009
Assemb. J.R. 29.
¶90 Neither resolution received a floor vote even though
Democrats controlled the senate in 2007 and 2008 (but, by a
small margin, not the assembly) and controlled both chambers in
2009. When Democrats had a trifecta, they maintained the status
quo, i.e., allowing the Legislature substantial discretion to
draw lines subject to gubernatorial veto.3
¶91 Under the 2002 court-drawn map, Republicans gained
control of the Legislature in 2011. That same year, Wisconsin
elected Republican Scott Walker governor. The Republican-
controlled Legislature drew state legislative districts in the
manner prescribed by Article IV, Section 3, which the governor
signed. 2011 Wis. Act 43.
¶92 In 2018, Republicans lost their trifecta. Wisconsin
elected a Democrat, Tony Evers, to serve as governor. On the
eve of the 2020 redistricting cycle, Governor Evers signed
Executive Order No. 66 creating the "People's Maps Commission"
(PMC), tasked with drawing redistricting maps.4 Wis. Exec. Order
3This court's precedent, prohibiting the Legislature from
enacting state legislative redistricting plans by joint
resolution, does not comport with the Wisconsin Constitution and
should be revisited. See Johnson v. Wis. Elections Comm'n, 2022
WI 14, ¶¶253–59, 400 Wis. 2d 626, __ N.W.2d __ (Rebecca Grassl
Bradley, J., dissenting), summarily rev'd sub. nom. Wis.
Legislature v. Wis. Elections Comm'n, 595 U.S. __, No. 21A471,
slip op. (Mar. 23, 2022) (per curiam).
4Governor Evers referred this court to both Executive Order
No. 66 and the PMC's public website, specifically the "Hearings
& Meetings" page.
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No. 66 (2020). Never mind the Wisconsin Constitution's
"textually demonstrable . . . commitment" of the duty and power
to redistrict the state to the Legislature——without any mention
of the executive. Johnson I, 399 Wis. 2d 623, ¶51 (quoting
Baker v. Carr, 369 U.S. 186, 217 (1962)).
¶93 This commission was "the People's" in name alone.
Regardless of its title, Governor Evers, pursuant to the statute
he used to create the PMC, retained plenary control over it.
Wisconsin Stat. § 14.019(1) (2019–20)5 states, "[u]nder the
general powers of the office of the governor the governor may,
by executive order, create nonstatutory committees in such
number and with such membership as desired, to conduct such
studies and to advise the governor in such matters as directed."
Section 14.019(1)(a) continues, "[p]ersons appointed to a
nonstatutory committee may be removed or replaced, or the
committee may be abolished, by the governor at pleasure." As
the plain text of the authorizing statute indicates, the PMC was
in no way an independent or non-partisan commission.6
All subsequent references to the Wisconsin Statutes are to
5
the 2019–20 version.
So-called "independent" or "non-partisan" redistricting
6
commissions have been subject to substantial criticism, even by
commentators who decry partisan gerrymandering. Kevin Reyes,
Note, Redistricting or Rethinking? Why Proportional
Representation May Be a Better Solution than California's
Independent Commission, S. Cal. Interdisciplinary L.J. 655, 659–
61 (2011). The California Citizens Redistricting Commission is
an oft-cited example. Under its handiwork, in 2014, Democratic
congressional candidates received 57% of the vote statewide, but
won 73.6% of the seats (39 of 53). Andrew Spencer, Christopher
Hughes & Rob Richie, Escaping the Thicket: The Ranked Choice
Voting Solution to America's Districting Crisis, 46 Cumb. L.
Rev. 377, 388 (2016).
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¶94 Governor Evers ordered the PMC to "prepare proposed
maps for the Legislature to consider" which "shall, whenever
possible":
a. Be free from partisan bias and partisan advantage;
b. Avoid diluting or diminishing minority votes,
including through the practice of "packing" or
"cracking";
c. Be compact and contiguous;
d. Avoid splitting wards and municipalities;
e. Retain the core populations in each district;
f. Maintain traditional communities of interest;
g. Prevent voter disenfranchisement.
Exec. Order No. 66, at 2 (emphasis added). His instruction to
"[r]etain the core populations in each district" is particularly
striking given the governor's attacks on the legitimacy of the
least-change approach. In a press release following this
court's November 30, 2021 decision adopting the least-change
approach, he stated, "I urged the Wisconsin Supreme Court to
consider the maps prepared by a nonpartisan redistricting
commission, and it's unfortunate the Wisconsin Supreme Court
rejected those maps and decided they will only consider maps
that make minimal changes from the gerrymandered maps we have
now[.]"7
7 Press Release, Gov. Evers Submits New Redistricting Maps
Using "Least Change" Approach Pursuant to Court Order, Office of
the Governor, State of Wis. (Dec. 15, 2021),
https://content.govdelivery.com/accounts/WIGOV/bulletins/3010fc.
Notwithstanding Governor Evers' goal for the PMC to "[r]etain
the core populations in each district," Attorney General Josh
Kaul, a Democrat, declared, "[f]or a court to rule that a court-
drawn map must be based on an extreme partisan gerrymander
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¶95 The PMC created a memorandum explaining how it
understood Governor Evers' order. Among other considerations,
it promised to comply with relevant laws, including the VRA.8
The PMC produced final recommendations at the eleventh hour, too
late for thorough analysis before the Legislature was scheduled
to consider the maps it created.9 See Written Testimony of
Speaker Robin J. Vos, Joint Public Hearing of the Senate
Committee on Government Operations, Legal Review, and Consumer
Protection and the Assembly Committee on State Affairs, at 4
(Oct. 28, 2021),
https://docs.legis.wisconsin.gov/misc/lc/hearing_testimony_and_m
aterials/2021/sb621/sb0621_2021_10_28.pdf ("[T]he draft maps
released by the commission contained inconsistent district
numbering making our analysis difficult."). The PMC's maps were
of such questionable fairness and legality, many members of
Governor Evers' party disavowed them.
[i.e., the 2011 maps] is simply stunning." Press Release, AG
Kaul Issues Statement on Wisconsin Supreme Court Redistricting
Decision (Nov. 30, 2021),
https://www.doj.state.wi.us/sites/default/files/news-
media/11.30.21_Redistricting.pdf.
8Memorandum from the People's Maps Commission, Criteria for
Drawing Districts, at 2 (last visited Apr. 4, 2022),
https://evers.wi.gov/Documents/PMCCriteriaMemoFINAL.pdf.
9Governor Evers held a press conference on November 2, 2021
releasing the final recommendations of the PMC. News
Conference, Gov. Evers on People's Maps Commission Final Maps
Submissions (Nov. 2, 2021), https://wiseye.org/2021/11/02/news-
conference-gov-evers-on-peoples-maps-commission-final-map-
submissions/. At this point, the legislative process was far
along, so many legislators had already begun to evaluate the
PMC's drafts——not their final work product.
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¶96 Notwithstanding Governor Evers' arguments before this
court for maximizing the number of majority-minority districts,
the PMC proposed maps with only three Black majority districts:
two in the assembly and one in the senate.10 Governor Evers' own
commission proposed eliminating four Black majority districts in
the assembly and one in the senate; nevertheless, Governor Evers
told this court and the United States Supreme Court that the
failure to add a Black majority district in the assembly would
violate the VRA.11 Governor Evers' commission also significantly
10 People's Maps Commission Final Map Submissions (PMC's
Final Maps), The People's Maps Commission (updated Nov. 3,
2021), https://govstatus.egov.com/peoplesmaps/work-records
(click "District Link Here" for either the "Assembly Map" or the
"Senate Map"; then click "Evaluation"; then click "Population by
Race").
11During an executive session of the Senate Committee on
Government Operations, Legal Review, and Consumer Protection,
the chairman, Senator Duey Stroebel, noted the PMC's assembly
map had significantly fewer majority-minority districts than the
Legislature's proposal; Democratic committee members had no
response. Executive Session of the Wisconsin Senate Committee
on Government Operations, Legal Review, and Consumer Protection,
at 12:37 (Nov. 4, 2021) (statement of Senator Duey Stroebel
(Sen. District 20)), https://wiseye.org/2021/11/04/senate-
committee-on-government-operations-legal-review-and-consumer-
protection-9/ ("[T]he last item would be majority-minority
districts. SB [621], six Black . . . assembly and two Black
senate. . . . People's Maps Commission, two
Black . . . assembly, one Black senate[.]").
Senator Stroebel also noted the similarity between the
criteria established by Executive Order No. 66 and 2021 Senate
Joint Resolution 63, which established the criteria the
Legislature used. Both sets of criteria included, among other
things, core retention. Compare Wis. Exec. Order No. 66, at 2
(2020) ("whenever possible . . . [r]etain the core populations
in each district"), with 2021 S. J.R. 63 ("Retain as much as
possible the core of existing districts"). Democrats had no
response.
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reduced the Hispanic population in the one of the two Hispanic
majority districts that a federal court held were necessary for
VRA compliance——although it did keep the Hispanic population
above a majority. Specifically, the PMC drew the district with
a Hispanic population of approximately 63.3%.12 The Hispanic
voting-age population (HVAP) in that district is currently
67.2%.13
¶97 The PMC expressed little concern about the VRA.14 A
substantial portion of the public hearing discussed the
purported harms of partisan gerrymandering, not racial
gerrymandering——in fact, it permeated the entire commentary of
one of the speakers.15
PMC's Final Maps.
12 I assume the PMC used voting-age
population, although whether it did so is unclear from its
public website.
The PMC would have slightly increased the Hispanic
13
population in the other Hispanic majority district; however,
that district would have had less than a 60% Hispanic population
nonetheless.
People's Maps Commission Online Public Hearing | 4th
14
Congressional District (PMC's VRA Hearing), YouTube (Jan. 14,
2021), https://www.youtube.com/watch?v=qdagL0feabA&t=2s. Based
on the PMC's final report, other public hearings may have
discussed the VRA, but this particular hearing was the only one
designated for discussion of the VRA. The People's Maps
Commission, Final Report and Maps of the People's Maps
Commission, at A6 (2021),
https://evers.wi.gov/Documents/PMC/PMC_Report_Final_Full-
compressed%20(2).pdf.
The speaker discussed, among other things, Gill v.
15
Whitford, 585 U.S. __, 138 S. Ct. 1916 (2018), and the
"efficiency gap," which is a purported way to measure the
partisan fairness of a redistricting plan that was at the heart
of Gill.
16
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¶98 The commissioners admitted their inexperience in this
area of law. Although the PMC invited two attorneys, both
acknowledged they lacked competence to give legal advice about
the VRA. These speakers described the VRA as a "passion" but
admitted primarily practicing other areas, such as employment
law.16 Notably, one of the commissioners asked the speakers if
the PMC's plans could be "misconstrued" as a "racial
gerrymander," to which the answer was, "I guess it could be."17
¶99 No Democrat in the assembly was willing to introduce
the PMC's maps. See Wisconsin Assembly Floor Session, at
1:35:30 (statement of Speaker Robin J. Vos). Speaker Robin J.
Vos, a Republican, did so. On the assembly floor, Democrats
castigated Governor Evers for placing the Democratic Party's
goals above minority communities' needs.
¶100 Representative Sylvia Ortiz-Velez, a Latina Democrat
from Milwaukee County, rose for the first time in her tenure to
voice her concerns. "[A]t least the Republican map goal was not
to decimate the voices of the Black and Brown communities of
Wisconsin," she stated. Id. at 2:15:09 (statement of Rep.
Sylvia Ortiz-Velez). Among her concerns, she identified the
PMC's proposed reduction of the HVAP in at least one Hispanic
16 PMC's VRA Hearing, at 1:39:14.
Id. at 1:25:01.
17 From the commissioner's question, it
appears the PMC (or at least some of its members) thought it
could simply relabel the consideration of "race" as the
consideration of a "community of interest." Labelling does not
fix the problem. Only if the Gingles preconditions are
satisfied may the treatment of a racial group as a community of
interest be lawful.
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majority district. She explained the Hispanic population
typically has low voter turnout and some members of the
community are counted for census purposes even though they
cannot vote.18 Id. at 2:11:35.
¶101 Representative Ortiz-Velez also said the PMC's maps
"promote[] a white supremacy agenda that says it's okay for
other folks . . . who we don't choose to rule over us and make
decisions for us." Id. at 2:16:01. She noted the PMC's maps
were "unconstitutional for several reasons," and "[w]e can
litigate that in the courts. We know there's a third branch.
And we'll get our justice there because the law is on our
side[.]" Id. at 2:15:30. According to Rep. Ortiz-Velez, the
PMC had "dilute[d] and crack[ed] and cancel[ed] out the voice of
minority communities. . . . Just to create more Democratic
seats." Id. at 2:16:44. She said similar Democratic Party
18Standing alone, low turnout is an unlawful basis for
drawing a majority-minority district. The VRA guarantees equal
opportunity, not equal success. United States v. Euclid Sch.
Bd., 632 F. Supp. 2d 740, 763 (N.D. Ohio 2009) ("That being
said, there is no right under the Voting Rights Act to win;
there is, rather, a right to meaningfully compete. While the
effects of long-standing electoral discrimination on voter
turnout are undeniable, there is assuredly some point at which
potential voters must themselves come to the polls. This is
likely the reason that four of the five courts previously to
consider the threshold of exclusion employ VAP in their
treatment of the concept, as opposed to a consideration of
historical turnout." (internal citation and citations
omitted)). Increasing the minority population in a district
solely in response to low turnout actually has the troubling
consequence of "artificially cap[ping]" minority voting power.
Id. at 765. The remedy for low turnout——packing minority voters
into fewer districts——necessarily reduces the power the minority
group could have if its members turned out at a higher rate.
18
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plans were being proposed and adopted nationwide. Id. at
2:18:00.
¶102 Of particular frustration to Rep. Ortiz-Velez was the
manner in which she and other members of minority communities
had been treated by the executive branch:
We were shut out of the process by the executive
branch. We tried, Mr. Speaker. There was a concerted
effort by the executive branch to lock us out of the
process so we couldn't act as a check. I want the
record to reflect that many members of this body, and
at least one member of the Senate, Senator Lena
Taylor, have repeatedly tried to stop this injustice
before it happened. Including myself, Mr. Speaker.
We tried many times speaking with the Governor's
Office and the People's Maps Commission to address our
concerns, and we were basically dismissed, gaslighted,
and ignored.
Id. at 2:19:46. On this point, she concluded, "Mr. Speaker
there was a significant lack of responsiveness on [the] part of
the elected officials to the particular needs of the members of
a minority group." Id. at 2:20:23.
¶103 Representative LaKeshia Myers, a Black Democrat from
Milwaukee County, spoke next. She said, "[t]his body is based
off population. So I know I didn't teach math, but if you got
almost 100 and you got 6.4 that sounds like it should be six
seats." Id. at 2:38:06 (Rep. LaKeshia Myers (Assemb. District
12)). Because the PMC's proposed assembly map proposed only
two, she strongly encouraged her colleagues to vote against it.
¶104 Representative Marisabel Carbrera, a Latina Democrat
from Milwaukee County, voiced similar concerns:
Mr. Speaker, you said a few moments ago the following
about the People's Maps Commission's Maps. Its
process might have violated Wisconsin's open meetings
19
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laws, it violates the Voting Rights Act, more
elections are paired, more Wisconsinites will not be
able to vote for senators, and more counties are
split. I have to say Mr. Speaker, this time I happen
to agree with you.
Id. at 2:53:11 (statement of Rep. Marisabel Carbrera (Assemb.
District 9)). She concluded, "I believe the PMC did not
accomplish its stated mission. . . . Fair maps would not
sacrifice the voting rights of Black and Latino voters." Id. at
2:53:37 (emphasis added).
¶105 Following these speeches, the assembly voted down the
PMC's maps by a vote of 77-21.19 For context, according to the
official assembly profile, the assembly had 60 Republicans, 38
Democrats, and one vacant seat.20 A substantial portion of
Governor Evers' fellow Democrats voted against his maps.
Executive Order 66's time had not come. It would not be done.21
¶106 The concerns of Democratic representatives had been
voiced by Democratic senators just three days earlier. Senator
Lena C. Taylor, a Black Democrat from Milwaukee County, declared
the PMC's maps were the worst of all options because of their
19 The senate also voted down the PMC's maps on a bipartisan
vote of 22-11.
20 Louisa Kamps, Profile of the 2021 Wisconsin Legislature 2
(2021),
https://docs.legis.wisconsin.gov/misc/lrb/lrb_reports/2021_wisco
nsin_legislature_profile_5_3.pdf.
21 DARTH SIDIOUS: The time has come. Execute
Order Sixty-Six.
CLONE COMMANDER BACARA: It will be done, My Lord.
Star Wars: Episode III – Revenge of the Sith (Lucasfilm Ltd.
2005).
20
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utter disregard for minority communities, which she noted likely
violated the VRA. Wisconsin Senate Floor Session, at 1:12:04
(Nov. 8, 2021) (statement of Sen. Lena Taylor (Sen. District
4)), https://wiseye.org/2021/11/08/wisconsin-state-senate-floor-
session-34/. Similar to Rep. Ortiz-Velez's comments a few days
later, Senator Taylor explained the voters in Black majority
districts cannot be reasonably expected to elect Black-preferred
candidates unless the Black voting-age population (BVAP) is well
above 50%. Id. at 1:04:30, 1:14:00.
¶107 Despite the turbulent history of the PMC, Governor
Evers told this court his creation of the PMC supported his
intervention in this case:
[T]he Governor has ongoing involvement with the
redistricting process. That is embodied in the
Governor's Executive Order #66 that creates the
nonpartisan People's Maps Commission, which is tasked
with seeking input and drawing impartial maps for the
Legislature and Governor to consider. The Commission,
and the relevance its plan would have to the remedy
stage of a redistricting lawsuit, provides
a . . . reason for the Governor's intervention.
He concluded, "[t]he Commission's maps would be highly relevant
to a court's task in a reapportionment action. The legal and
factual considerations used by the Commission when drawing its
maps will parallel the considerations before the court when
addressing redistricting."
¶108 At some point after this court granted Governor Evers'
intervention motion, he changed his mind about the PMC. If his
commission had followed his direction to "whenever
possible . . . [r]etain the core populations in each district"
it might have produced maps that could plausibly be labelled
21
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least-change. Exec. Order No. 66, at 2. Although the PMC's
maps did not do so, much of Governor Evers' "new" plan consisted
of materials recycled from the PMC's plan. Governor Evers,
however, abandoned the PMC's proposal for only two Black
majority assembly districts and only one Black majority senate
district. In contrast, Black Leaders Organizing for Communities
(BLOC) proposed seven Black assembly districts and two Black
senate districts. As the United States Supreme Court noted in
its decision summarily reversing this court's selection of
Governor Evers' state legislative districts, BLOC argued, based
on its expert's analysis, Governor Evers' proposal violated the
VRA. See Wis. Legislature, slip op., at 6 n.2 (citations
omitted); see also Johnson v. Wis. Elections Comm'n (Johnson
II), 2022 WI 14, ¶¶91, 112, 400 Wis. 2d 626, __ N.W.2d __
(Ziegler, C.J., dissenting), summarily rev'd sub. nom. Wis.
Legislature, slip. op. ("The only support presented in an
attempt to justify race-based districts was submitted by a party
who contends the Governor's maps violate the VRA:
BLOC. . . . No party except BLOC presented any details on the
state and condition of minority communities in the districts at
issue, and even that evidence is deeply
flawed. . . . Strikingly, under BLOC's analysis, the Governor's
maps do not satisfy the VRA, and are thus unconstitutional. The
majority not only lacks evidence to support the maps it adopts,
but the only party who even attempted to prove a VRA need
determined those maps were illegal.").
22
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¶109 Governor Evers' "new" approach to the VRA was similar
to BLOC's: both maximized the number of majority-minority
districts by drawing them at just above 50% BVAP primarily by
arbitrarily adding White people as "filler[.]"22 Johnson II, 400
Wis. 2d 626, ¶72.
Wisconsin State Legislative BVAP in Governor Evers'
Districts Proposed Maps
Senate District 4 50.62%
Senate District 6 50.33%
Assembly District 10 51.39%
Assembly District 11 50.21%
Assembly District 12 50.24%
Assembly District 14 50.85%
Assembly District 16 50.09%
Assembly District 17 50.29%
Assembly District 18 50.63%
As Chief Justice Ziegler wrote in her March 3 dissent:
[I]t is striking how explicitly the Governor——and the
majority——divided up Wisconsin districts solely by
race. While in 2011 the Legislature drew six assembly
districts that have a majority of black voting-age
populations ("BVAP"), ranging from 51% to 62%, the
Governor carves seven districts by race with the
exactness of only the most gifted social scientists.
According to the Governor himself, he drew seven
districts with BVAP ranging from 50.1% to 51.4%. At
Counsel for the Citizen Mathematicians & Scientists
22
warned this court at oral argument that in his many years of
redistricting experience, he had seldom seen such a heavy focus
on race in a judicial proceeding. He used the phrase "White
filler" to describe a redistricting practice of certain other
parties, and candidly acknowledged the Legislature's Black
opportunity districts would perform.
23
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oral argument and in briefing, it was clear that race
imbued the decisions of the Governor in drawing
districts. Explaining his district boundaries, he
stated the intent was "to produce seven majority Black
districts in the Assembly."
Id., ¶87. Governor Evers' approach stands in sharp contrast to
the Legislature's, which used race neutral criteria, as the
majority opinion explains.
¶110 To achieve what Governor Evers deemed the right racial
balance in each district, he disregarded redistricting
principles enshrined in the Wisconsin Constitution. Even
assuming the Gingles preconditions are satisfied (they are not),
he cannot subordinate these principles unless it is "reasonably
necessary"——which it is not. See Bush v. Vera, 517 U.S. 952,
979 (1996) (lead op.) ("[T]he district drawn in order to satisfy
§ 2 must not subordinate traditional districting principles to
race substantially more than is 'reasonably necessary' to avoid
§ 2 liability.").
¶111 Governor Evers' oddly shaped districts are numerous——
and many of the odd shapes in his plan are analogous to the
PMC's. For example, Governor Evers redrew Senate District 4,
currently represented by Sen. Taylor, to extend into Waukesha
and Ozaukee Counties.23 The result was a substantial decrease in
BVAP. Under his plan, Assembly District 11 would extend to
Mequon. In critiquing a similar feature of the PMC's map, Rep.
Myers rhetorically asked, "[w]hy? That's going to cross the
"By comparison, the Legislature's Senate District 4 ends
23
at the Milwaukee County line and does not move a single
individual to a new senate district." Legislature's Resp. Br.
at 11.
24
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county line. Doesn't make sense. Doesn't make sense at
all. . . . That's not going to stick when it comes to people's
interest. That's not going to stick when it comes to thinking
you're going to elect people that look like me." Wisconsin
Assembly Floor Session, at 2:47:55 (statement of Rep. LaKeshia
Myers). Without any VRA-grounded justification, Governor Evers
violated Article IV, Section 4 the Wisconsin Construction, which
requires assembly districts "to be bounded by
county, . . . town, or ward lines[.]"
¶112 Governor Evers' plan also would have harmed the Black
community by forcing it to bear the brunt of disruption stemming
from redistricting. While demonstrating high overall core
retention, Governor Evers concentrated major changes in
Milwaukee County, proposing what the Legislature fairly labelled
a "most-change Milwaukee" map. According to the Legislature,
Governor Evers' plan would have retained merely 72.6% of
Milwaukee-area voters in their current district. In accordance
with the principles expounded in our November 30 opinion, this
court rightly rejects a "most-change Milwaukee," as the
Legislature did with a bipartisan vote months ago. "State
authorities" should not "localize the burdens of race
reassignment" on a particular community. United Jewish Orgs.,
430 U.S. at 174–75 (Brennan, J., concurring in part). It leaves
"the impression of unfairness" when a discrete and insular
minority "disproportionately bears the adverse consequences of a
race-assignment policy." Id. at 175.
25
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¶113 In contrast to Governor Evers' plan, the Legislature's
plan does not engage in the systematic and discriminatory
dismantling of districts in Milwaukee. Governor Evers would
sever Black voters' existing constituent-representative
relationships and undermine existing voter coalitions, while
largely preserving them for White voters. Whether maximizing
majority Black voting districts would actually benefit the Black
community remains highly suspect. Had it survived the scrutiny
of the United States Supreme Court, Governor Evers' plan
arguably would have limited Black communities' political power.
Senator Taylor wrote an amicus brief to the United States
Supreme Court explaining how Governor Evers' maps "dilute[] the
voting strength of Black voters in Wisconsin." Motion for Leave
to File and Brief for Senator Lena C. Taylor as Amicus Curiae
in Support of Neither Party, at 2, Wis. Legislature v. Wis.
Elections Comm'n, 595 U.S. __ (2022) (No. 21A471). She
continued, "the [Wisconsin] supreme court's conclusion——with no
analysis whatsoever——that the Governor's map complies with the
Voting Rights Act is clearly erroneous. . . . It made no
determination of whether the Governor's map——or any other——
contains seven Assembly districts with an effective Black
majority." Id. at 2, 11–12.
¶114 Senator Taylor expressed concern that Governor Evers
had drawn "bare-majority-minority-Black districts," which, as a
practical matter, "would not be able to nominate their preferred
candidates[.]" Id. at 2. She noted, "this Court has repeatedly
explained that even majority-minority districts can violate the
26
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Voting Rights Act if they do not contain a sufficiently large
majority to provide minority voters with a realistic opportunity
to elect candidates of their choice." Id. at 12 (citations
omitted). She cited, among other decisions, Baldus v. Members
of the Wisconsin Government Accountability Board, in which a
three-judge panel in the Eastern District of Wisconsin concluded
60.52% HVAP did not create "a functioning majority-minority
district for Milwaukee's Latino community." 849
F. Supp. 2d 840, 858 (E.D. Wis. 2012) (per curiam).
¶115 While the dissent decries denying the parties another
opportunity to develop new evidence to support a different
outcome, the dissent cannot plausibly contend the parties were
not fully afforded the opportunity to conduct discovery when the
case commenced. Senator Taylor criticized Governor Evers'
evidence, noting the governor's expert "did not perform a racial
bloc voting analysis or a performance analysis of the Governor's
map or any other." Motion for Leave to File and Brief for
Senator Lena C. Taylor as Amicus Curiae in Support of Neither
Party, at 5. Absent such analysis, "there is no evidence
whatsoever that the Governor's map contains seven opportunity
districts." Id. at 12.
¶116 Ultimately, Senator Taylor maintained the result, if
not the goal, of Governor Evers' maps was something other than
ensuring opportunity for Black voters. Similar to the comments
of Rep. Ortiz-Velez on the assembly floor regarding the PMC,
Senator Taylor noted Governor Evers' plan would create seven
"reliable Democratic district[s], but it would not provide Black
27
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voters with the opportunity that the Voting Rights Act
requires." Id. at 2. That is to say, Governor Evers' concept
of what made a Black vote effective was whatever advantaged his
political party.
¶117 Governor Evers' color-emphasizing approach is
remarkably different than the Legislature's color-blind
approach. The Legislature did not consider race as a criterion
in drawing its maps. In Speaker Robin J. Vos's written
testimony on the Legislature's redistricting bill (which
contained the maps the Legislature ultimately submitted to this
court), he explained:
Republican Legislative employees crafted these maps
within the confines of the state capitol and completed
this work on their own without the involvement of
outside counsel or redistricting experts. These
employees were instructed not to consider race when
drafting the legislative maps, instead, relying on
classic redistricting principles, adjusting for
population changes.24
During his oral testimony, Speaker Vos reaffirmed the maps' race
neutrality in response to questions from committee members.25
Senator Devin LeMahieu, the senate majority leader, also
24Written Testimony of Speaker Robin J. Vos, Joint Public
Hearing of the Senate Committee on Government Operations, Legal
Review, and Consumer Protection and the Assembly Committee on
State Affairs, at 4 (Oct. 28, 2021),
https://docs.legis.wisconsin.gov/misc/lc/hearing_testimony_and_m
aterials/2021/sb621/sb0621_2021_10_28.pdf (emphasis added).
25 Joint Public Hearing of the Senate Committee on
Government Operations, Legal Review, and Consumer Protection and
the Assembly Committee on State Affairs, at 1:44:35 (Oct. 28,
2021) (testimony of Speaker Robin J. Vos),
https://wiseye.org/2021/10/28/joint-committee-on-government-
operations-and-state-affairs/.
28
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testified the maps are race neutral: "[W]e reached out to
minority groups seeking feedback on Wisconsin's current
majority-minority districts to ensure maps that fully comply
with state and federal law. The Fourteenth Amendment prohibits
us from passing a law that discriminates on the basis of race.
Therefore, the new maps were drafted without the use of race
data at any point in the process to ensure compliance with the
Fourteenth Amendment." (emphasis added).26
¶118 The Legislature has repeatedly told this court its
maps are race neutral. No party presented any evidence to this
court calling into question the Legislature's attorneys'
compliance with their duty of candor, but the dissent
nevertheless lodges the accusation. See SCR 20:3.3 (a)(1) ("A
lawyer shall not knowingly: (1) make a false statement of fact
or law to a tribunal or fail to correct a false statement of
material fact or law previously made to the tribunal by the
lawyer[.]").
¶119 The dissent again betrays its misunderstanding of the
Equal Protection Clause by proclaiming a violation based on "the
Legislature boast[ing] that its Milwaukee-area core retention
numbers exceeded their statewide core retention numbers."27 As
the majority opinion makes clear, "[h]igh core retention, for
instance, can be readily explained by the fact that the
Milwaukee-area districts were underpopulated and, of course, a
larger portion of the core would be retained."28 Therefore, the
26 Id. at 8:50 (testimony of Senator Devin LeMahieu (SD 9)).
27 Dissent, ¶190.
28 Majority op., ¶51 n.10.
29
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districts are not "unexplainable on grounds other than race."29
Under a least-change approach, as a general rule, people should
be moved from overpopulated districts to underpopulated
districts. Moving people out of an underpopulated district
(thereby reducing core retention) rarely achieves any legitimate
redistricting goal under a least-change paradigm.
¶120 The dissent continues
to misunderstand Cooper v.
Harris, 581 U.S. __, 137
S. Ct. 1455 (2017), despite
invoking that case in misplaced
support for the dissent's
conclusion that the
Legislature's maps violate the
Equal Protection Clause. Two
pictures illustrate the issue in
Cooper better than two thousand
words could.30
29Id. (quoting Miller v. Johnson, 515 U.S. 900, 913
(1995)).
30 These images are taken from the opinion in Cooper.
30
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¶121 The United States Supreme Court described
Congressional District 1 as "anchored in the northeastern part
of the State, with appendages stretching both south and west[.]"
Id. at 1456. It described District 12 as "zig-zagging much of
the way to the State's northern border." Id. District 1 had a
BVAP of 52.7% and District 12 a BVAP of 50.7%. Id. at 1466.
Based on direct statements from a North Carolina Senate debate,
the Court noted the map drawers had purposefully designed
District 1 to hit "the 50%-plus target," which "had a direct and
significant impact" on the district's configuration. Id. at
1469 (citation omitted). This change was not necessary because,
notwithstanding a lower BVAP, for twenty years District 1 had
31
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been "an extraordinarily safe district for African-American
preferred candidates." Id. at 1470 (citation omitted).
¶122 District 12 (in its fifth appearance before the United
States Supreme Court) was highly suspect. Id. at 1472. The
defense of the district was based on it being drawn for partisan
advantage rather than in consideration of race. Id. at 1472–73.
The United States Supreme Court upheld the district court's
finding that race predominated. Notably, the finding was based
in part on public statements from relevant officials "that
racial considerations lay behind District 12's augmented BVAP."
Id. at 1475. Discovery disclosed the VRA was largely used as a
shield to justify a racial gerrymander. Id. One congressman
testified he had been told by leaders that they "ramp[ed] the
minority percentage in [District 12] up to over 50 percent to
comply with the Voting Rights Act." Id. at 1476 (second
modification in the original). Needless to say, in light of the
district court's findings, the United States Supreme Court
disdained such attempts to use racial gerrymanders for partisan
advantage.
III. USING THE VRA AS A GUISE FOR PARTISAN GERRYMANDERING
¶123 Governor Evers' maps reflect a longstanding practice
of using the VRA as a shield to justify partisan gerrymandering.
As a proper reading of Cooper confirms, the Constitution
prohibits this. Contrary to the dissent's misreading of Cooper,
the case establishes why Governor Evers' maps raise serious
equal protection problems while the Legislature's maps do not.
Although this court does not consider partisan fairness in
32
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redistricting, it should be skeptical of VRA claims presented by
partisan actors who do not even try to provide evidence
sufficient to survive strict scrutiny. See Johnson I, 399
Wis. 2d 623, ¶8 ("[T]he partisan makeup of districts does not
implicate any justiciable or cognizable right."). Because
Governor Evers "intentionally creates . . . majority-minority
district[s], race is necessarily [his] predominant motivation
and strict scrutiny is therefore triggered." League of United
Latin American Citizens v. Perry, 548 U.S. 399, 517 (2006)
(Scalia, J., concurring in judgment and dissenting in part); see
Wis. Legislature, slip op., at 3 ("[W]e have held that if race
is the predominant factor motivating the placement of voters in
or out of a particular district, the State bears the burden of
showing that the design of that district withstands strict
scrutiny." (citing Cooper, 137 S. Ct. at 1463–64)).
¶124 The Equal Protection Clause may tolerate affirmative
action to the extent it can be proven necessary to provide equal
opportunity to a racial minority; however, our color-blind
Constitution will permit a race-based remedy only if the state
actor has strong evidence of this necessity. "In the absence of
strong evidence demonstrating a VRA violation will
result . . . [without the consideration of race], this court
should 'unerringly and unapologetically . . . exalt[] the ideal
of individual equality without regard to race.'" Johnson II,
400 Wis. 2d 626, ¶240 (Rebecca Grassl Bradley, J., dissenting)
(quoting Robert Redwine, Comment, Constitutional Law: Racial
33
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and Political Gerrymandering——Different Problems Require
Different Solutions, 51 Okla. L. Rev. 373, 399 (1996)).
¶125 The United States Supreme Court requires strong
evidence of voting rights violations before race-conscious
remedies may be imposed because "[c]lassifications of citizens
solely on the basis of race 'are by their very nature odious to
a free people whose institutions are founded upon the doctrine
of equality.'" Shaw v. Reno, 509 U.S. 630, 643 (1993) (quoting
Hirabayashi v. United States, 320 U.S. 81, 100 (1943)). "They
threaten to stigmatize individuals by reason of their membership
in the racial group and to incite racial hostility." Id.(citing J.A. Croson Co., 488 U.S. at 493 (plurality)). Race-
based redistricting "reinforces the perception that members of
the same racial group——regardless of their age, education,
economic status, or the community in which they live——think
alike, share the same political interests, and will prefer the
same candidates at the polls." Id. at 647. For this reason,
race-based redistricting is antithetical to individual dignity,
treating people as nothing more than members of a homogenous
group by birth rather than by choice. "[E]ven in the pursuit of
remedial objectives, an explicit policy of assignment by race
may serve to stimulate our society's latent race consciousness,
suggesting the utility and propriety of basing decisions on a
factor that ideally bears no relationship to an individual's
worth or needs." Id. at 643 (quoting United Jewish Orgs., 430
U.S. at 173). Our national ethos rejects such a practice.
34
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¶126 On March 3, when a majority of this court adopted a
racial gerrymander based solely on a misapplication of the
concept of proportional representation,31 it endorsed "[t]he use
of a mathematical formula" that "tends to sustain the existence
of ghettos by promoting the notion that political clout is to be
gained or maintained by marshaling particular racial, ethnic, or
religious groups in enclaves." See United Jewish Orgs., 430
U.S. at 186 (Burger, C.J., dissenting). "It suggest[ed] to the
voter that only a candidate of the same race, religion, or
ethnic origin can properly represent that voter's interests, and
that such candidate can be elected only from a district with a
sufficient minority concentration." Id. That premise reflects
a foundational error; equal protection rejects racially
proportional representation, which is based on nothing more than
stereotypes about how people of a particular race vote.
¶127 Another harm, acknowledged in precedent, is "[t]he
message that such districting sends to elected
representatives[.]" Shaw, 509 U.S. at 648. "When a district
obviously is created solely to effectuate the perceived common
interests of one racial group, elected officials are more likely
31Governor Evers sought to maximize the number of majority-
minority districts, not to achieve proportional representation.
Nevertheless, the March 3 order ignored basic mathematics and
pretended proportionality had been achieved. Johnson II, 400
Wis. 2d 626, ¶238 (Rebecca Grassl Bradley, J., dissenting) ("The
Black voting-age population is between 6.1% and 6.5%, as Chief
Justice Ziegler explains in her dissent. Wisconsin has 99
assembly seats——not 100——so, even taking the high estimate of
6.5%, the proportional share of Black assembly districts,
rounded to the nearest whole number, would be six, not seven (99
× 0.065 = 6.4).").
35
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to believe that their primary obligation is to represent only
the members of that group, rather than their constituency as a
whole. This is altogether antithetical to our system of
representative democracy." Id.; see also Holder, 512 U.S. at
908 (noting the solicitor general had reasoned (improperly),
"the Hispanic legislators elected from Hispanic districts in
Dade County would represent, not just the interests of the Dade
County Hispanics, but the interests of all the Hispanics in the
State" (citation omitted)). "The 'black representative's'
function" is not "to represent the 'black interest'" but to
represent her entire constituency. Holder, 512 U.S. at 907
(citing Shaw, 509 U.S. at 650).
¶128 Race-based redistricting places people in a political
echo chamber of sorts, encouraging them to see themselves and
their circumstances as little more than the product of race and
inhibiting their interaction with other races. "Racial
gerrymandering strikes at the heart of our democratic process,
undermining the electorate's confidence in its government as
representative of a cohesive body politic in which all citizens
are equal before the law." Ala. Legis. Black Caucus v. Alabama,
575 U.S. 254, 283 (2015) (Scalia, J., dissenting). As Justice
Douglas wrote in a famous dissent:
When racial or religious lines are drawn by the State,
the multiracial, multireligious communities that our
Constitution seeks to weld together as one become
separatist; antagonisms that relate to race or to
religion rather than to political issues are
generated; communities seek not the best
representative but the best racial or religious
partisan. Since that system is at war with the
democratic ideal, it should find no footing here.
36
No. 2021AP1450-OA.rgb
Wright v. Rockefeller, 376 U.S. 52, 67 (1964) (Douglas, J.,
dissenting). "[S]eparate but better off" is as legally and
morally flawed as "[s]eparate but equal." Id.¶129 Another problem underlying race-based redistricting
sometimes draws little attention: "[A] purportedly preferential
race assignment may in fact disguise a policy that perpetuates
disadvantageous treatment of the plan's supposed beneficiaries."
Shaw, 509 U.S. at 643 (quoting United Jewish Orgs., 430 U.S. at
172 (Brennan, J., concurring in part)). In this case, prominent
members of minority communities warned that Governor Evers'
maps, regardless of intent, would harm their communities. "At a
minimum," this court must give "careful consideration" to the
"operation of any racial device, even one cloaked in
preferential garb." United Jewish Orgs., 430 U.S. at 173.
"[I]f any judicial detection of truly benign policies proves
impossible or excessively crude, that alone might warrant
invalidating any race-drawn lines." Id.¶130 Had Governor Evers' assembly map stood, Black voter
influence likely would have suffered. Spreading Black voters
across seven districts each with almost exactly 50% BVAP would
have reduced "black influence" in numerous other districts.
Johnson II, 400 Wis. 2d 626, ¶237 n.44 ("[I]f the number of
minority-majority districts is maximized, then it necessarily
follows that black influence is elsewhere minimized, which
reduces the number of districts in which blacks, fully
participating in an integrated process, can hold the balance of
power." (quoting In re Apportionment of the State Legislature——
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1992, 486 N.W.2d 639, 654 n.66 (1992)). For example, if two
districts both have 100 people of voting age, including 40 Black
people, and are able to elect Black-preferred candidates, taking
half the BVAP from one (20 Black people) and swapping them for
an equal number of White people of voting age in the other (20
White people) would create a 60% BVAP in one district and a 20%
BVAP in the other. Because the two districts were already
electing Black-preferred candidates, the swap just diminishes
Black influence in one district, thereby obstructing the Black
community in that district from electing candidates of its
choice going forward. The change produces a net loss for the
Black community.
¶131 Even if the VRA would actually require drawing seven
Black majority districts with almost exactly 50% BVAP each,
Governor Evers' maps were not a proper remedy. The entire
premise of the VRA is that past and present racism suppresses
minority voting, producing low voter turnout. For this reason,
federal courts always draw remedial majority-minority districts
well above 50%——often in excess of 60%. See, e.g., Comm. for a
Fair & Balanced Map v. Ill. State Bd. of Elections, 835
F. Supp. 2d 563, 582 (N.D. Ill. 2011) ("60 percent of voting-age
population is reasonably required to ensure minorities a fair
opportunity to elect a candidate of their choice."); Hastert v.
State Bd. of Elections, 777 F. Supp. 634, 647 (N.D. Ill. 1991)
(noting that a "65% minority population [or 60% minority voting-
age population] concentration [is] generally regarded as
necessary to ensure minorities a reasonable opportunity to
38
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control a district"); Baumgart, 2002 WL 34127471, at *5
(recognizing expert testimony that "a minority district requires
an African–American voting age population of at least 60% to
guarantee the election of candidates of choice"). With BVAP
hovering just above 50% in each district, if the districts were
not already performing, Governor Evers' maps would not have
resulted in Black people electing candidates of their choice.
¶132 Governor Evers' "maps actually reduce the percentage
of African-American voters in the relevant districts from their
existing levels." Johnson II, 400 Wis. 2d 626, ¶107 (Ziegler,
C.J., dissenting). That is an odd way of counteracting an
"allegedly overpowered . . . white majority[.]" Id. "The
remedy is to cure the suppressed voter effect by giving minority
voters greater voice, not reducing their voice." Id. In other
words, if the districts were not performing, reducing their BVAP
would exacerbate the disparity.
¶133 The VRA has a long history of being misused in the
exact way Governor Evers would apply it. In 2011, Republicans
in North Carolina, purportedly under the guise of VRA
compliance, drew maps in much the same manner Governor Evers
did. Michael Kent Curtis, Using the Voting Rights Act to
Discriminate: North Carolina's Use of Racial Gerrymanders, Two
Racial Quotas, Safe Harbors, Shields, and Inoculations to
Undermine Multiracial Coalitions and Black Political Power, 51
Wake Forest L. Rev. 421, 421 (2016). First, they determined the
BVAP on a statewide basis. Id. Then, they drew majority-
minority districts with just enough Black people to ensure
39
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proportional representation. Id. As one example, one
congressional district had a mere 50.7% BVAP. Id. at 423.
Critics accused the Republicans of "creatively reading the
statutory command of the VRA to require more needless and
wasteful (for black voters) majority-black districts and more
blacks packed into black district[s.]" Id. at 425. Because
"the candidate[s] preferred by black voters [were] already
winning by whopping majorities," the creation of majority-
minority districts became a tool for partisan gerrymandering
instead of VRA compliance. Id. Cooper demonstrates the
illegitimacy of this tactic.
¶134 Because political parties may chip away at minority
voting power by the packing and cracking of minority
communities, all in the name of the VRA, courts must be
vigilant. Both packing and cracking demonstrate "how the
creation of majority-minority districts might dilute minority
influence in surrounding areas and can lead to an overall
decrease in support for minority-sponsored legislation[.]" See
Damion Waymer & Robert L. Heath, Black Voter Dilution, American
Exceptionalism, and Racial Gerrymandering: The Paradox of the
Positive in Political Public Relations, 47 J. Black Studs. 635,
644 (2016).
¶135 Before this court endorses a particular form of
affirmative action, it should have an idea of whether that
remedy will help or harm the intended beneficiary community.
The dissent errs by making assumptions unsupported by the
record. For all we know, adopting any particular number of
40
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majority-minority districts could dilute the Black vote. In
fact, we have good reason to believe Governor Evers' maps would
do exactly that because a plethora of data suggests White voters
are not inhibiting the success of Black-preferred candidates.
Johnson II, 400 Wis. 2d 626, ¶186 (Roggensack, J., dissenting)
("Milwaukee's history for at least the last ten years is that of
crossover voting where white voters help black voters elect
candidates of their choice.").32 If we were to draw additional
Black majority districts, what BVAP should we set? What BVAP
will assure Black voters sufficient success without wasting
their votes? The dissent does not say because it cannot say.
IV. THE DISSENT'S NEWFOUND DESIRE TO TAKE ADDITIONAL EVIDENCE
¶136 To hear their harangues on the eve of the
election, one would suppose that the fable of Chicken
Little was about to become a truth, and that the sky
was actually falling[.]
Peleg W. Chandler, The Morals of Freedom 29 (1844).
¶137 The United States Supreme Court summarily reversed
this court's March 3 decision adopting Governor Evers' state
legislative maps. Wis. Legislature, slip op. Our duty on
The dissent acknowledges "Cavalier Johnson just became
32
the first Black person elected to be Mayor of Milwaukee . . . .
In 2020, David Crowley became the first Black person elected to
be Milwaukee County Executive." Dissent, ¶207. The dissent
dismisses these elections——like others discarded by the dissent—
—as somehow "different." Although inconveniently undercutting
the dissent's theory, this evidence is highly probative. Mayor
Johnson won by an overwhelming margin, obviously attracting
numerous White voters. Latest Election Results, Elections
Comm'n (Apr. 5, 2022),
https://city.milwaukee.gov/election/ElectionInformation/Election
Results (reporting unofficially Johnson won with 71.51% of the
vote)
41
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remand is to apply the Court's per curiam opinion. Although we
should give the opinion of the United States Supreme Court the
same respect we expect lower courts in Wisconsin to give our own
opinions, the dissent instead launches an indignant attack on
this nation's highest court.33
¶138 The summary reversal occurred for a particular reason.
As the United States Supreme Court explained, "[s]ummarily
correcting the error gives the [Wisconsin Supreme Court]
sufficient time to adopt maps consistent with the timetable for
Wisconsin's August 9th primary election." Id. at 2. Wisconsin
law authorizes candidates to begin circulating nomination papers
for that primary on April 15. Wis. Stat. § 8.15(1). The per
curiam opinion, undoubtedly by design, facilitates an
33Rather than admitting its error, the dissent complains
the United States Supreme Court created a new legal standard
despite the Court's straightforward explanation of longstanding
law. Dissent, ¶181 ("Could this court simply explain ourselves
further to satisfy the Court's newly voiced standard?"
(emphasis added)); id., ¶201 ("The U.S. Supreme Court's decision
appeared to set out a new standard for courts to follow in
implementing remedial maps, but neither this court nor the
parties knew that standard at the time of briefing." (emphasis
added)). Of course, the United States Supreme Court does not
summarily reverse a state supreme court on the basis of anything
other than well-established law, which has been applied
correctly by many other courts. The dissent also accuses the
United States Supreme Court of creating "further fog[]" in an
area of the law the dissent finds "hazy," citing Justice
Sotomayor's dissent from the per curiam opinion as support.
Id., ¶177 (quoting Wis. Legislature, slip op., at 1 (Sotomayor,
J., dissenting)). The dissent rephrases other arguments from
Justice Sotomayor's dissent, illustrating its own analysis is
not based on the per curiam opinion or the law on which it is
grounded.
42
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expeditious resolution of this case so as not to cause
unnecessary election chaos or confusion.
¶139 Contrary to the dissent's suggestion, this court
cannot take more evidence at this point: maps are needed
immediately. Also contrary to the dissent's ad hominem
criticisms of the majority, this court has not taken any
"shortcuts"34 nor has the majority "willfully shut[] its eyes and
ears to critical information."35 As the majority opinion
explains, this court has spent an extraordinary amount of
resources on this case. The dissent's suggestion to reopen the
record to let Governor Evers present new evidence, followed by
each party submitting its own (and perhaps competing) evidence,
followed by even more briefing, would send this court on an
"odyssey" even more lamentable than the one the dissent
decries.36 Unlike Odysseus, however, this court simply cannot
Id., ¶161 ("Throughout that first stage in this epic
34
journey, we took what some thought to be a shortcut by foregoing
a full-blown adversarial fact-finding trial to test whether
race-based bloc voting would trigger the Voting Rights Act of
1965 (VRA)."). The dissent does not disclose the identity of
"some who thought" this. As the majority opinion notes, the
parties stipulated that no discovery "beyond the exchange of
maps, expert disclosures, and any documents or data that a party
intends to rely upon or an expert has relied on" was
anticipated. Majority op., ¶9. The parties undertook no
further discovery. Id. Nor did any party at any point prior to
oral argument formally request or move to permit additional
discovery. Id., ¶10.
35 Dissent, ¶182.
36 Id., ¶157.
43
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take 10 years to complete its journey. To quote a more modern
source, "[t]he clock's run out, time's up, over, blaow."37
¶140 The dissent's suggestion that after receiving the
United States Supreme Court's decision on March 23, this court
could receive a substantial amount of new evidence, correctly
analyze it (after failing to understand the evidence on March
3), and then correctly apply the law to the facts (after failing
to understand the law on March 3), all by April 15 is, well,
incredible. It took the better part of a year to get to this
point, and any rushed attempt to create a race-based remedy
would be inappropriate.
¶141 The dissent's desired path is not only inconsistent
with the United States Supreme Court's per curiam opinion but
with the dissenters' prior positions in this litigation. The
three members of the dissent have maintained the view during
this case (over the objection of their colleagues) that each
party "has one shot or one opportunity[.]"38 Each party had one
shot to engage in discovery.39 Each party was instructed it had
only one opportunity to submit a map. Simultaneously with the
release of this decision, the dissenters vote to deny all
parties an opportunity to submit new congressional maps
maximizing core retention——as they did in January. (The present
dissenters did allow Governor Evers, however, to submit new maps
with substantive changes.) Johnson, 400 Wis. 2d 626, ¶218
37 Eminem, Lose Yourself (2002).
38 Id.39 Majority op., ¶9.
44
No. 2021AP1450-OA.rgb
(Rebecca Grassl Bradley, J., dissenting) ("The Congressmen asked
to submit a modified map, but the same majority that now adopts
the Governor's modified maps denied the Congressmen this
opportunity.").
¶142 The dissenters now seem to project their own actions
onto the majority, claiming "the majority of this court
continues to bar the submission of any additional evidence from
the parties."40 Respectfully, it was not this majority that
established the one shot rule but a majority that included all
three dissenters——over the objection of three members of this
majority. We "continue[]" to bar nothing.
¶143 As a matter of due process, "[t]he Governor's request
for special dispensation should fare no better than that of the
other parties who have tried to evade the Court's scheduling
order with out-of-time submissions."41 "Permitting the Governor
to submit new evidence is prejudicial to other parties and the
Wisconsin voters. It imposes costs on those other parties and
unnecessarily prolongs these proceedings."42
¶144 The chance that Governor Evers could even present new
evidence sufficient to justify his racial gerrymander is
questionable——despite summary reversal, lessons do not appear to
have been learned. In his unsolicited motion to supplement the
record, Governor Evers indicated his new expert relied on
truncated data, just like other experts in this case.
40 Dissent, ¶189 n.23 (emphasis added).
41 Legislature's Response Letter Br. at 5.
42 Id. at 6.
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Specifically, he said his expert excluded races that were
"either not competitive or were uncontested or did not feature
white candidates running against Black candidates."43 Such
selectivity is problematic because a performing majority-
minority district will have an incumbent who inevitably runs in
reelections that are not competitive or are uncontested or do
not feature White candidates. To a degree, that is exactly what
a VRA remedy is designed to achieve.44 See Johnson, 400
Wis. 2d 626, ¶¶189–93 (Roggensack, J., dissenting) (summarizing
many elections arbitrarily excluded in expert reports).
¶145 In other cases involving elections, the dissenters
demurred to taking any action that had the potential to disrupt
an election. Any procedural off-ramp is the winning argument.
It happened just a few weeks ago. See Teigen v. Wis. Elections
Comm'n, No. 2022AP91, unpublished order (Wis. Jan. 28, 2022).
And it happened many times before then. Trump v. Biden, 2020 WI
43 Governor Tony Evers' Motion to Supplement the Record at
5.
Governor Evers also told this court in his motion not to
44
consider the election of Earnell Lucas, a Black man, as
Milwaukee County Sheriff. Id. at 7. He cites an earlier brief
by BLOC as justification, which stated, "this contest was unique
because of the abnormal level of white crossover voting due to
the association of the white candidate, Schmidt, with
controversial former sheriff David Clarke." BLOC's Br. at 29.
Sheriff Clarke, also a Black man, was elected four times before
retiring from the position. There is no logical explanation for
why this court would disregard a data point related to White
crossover voting on the theory that the level of White crossover
voting was abnormally high. Again, this selectivity serves only
to skew the evidence. Of course when numerous counterexamples
are discarded, Milwaukee appears to have racial bloc voting, but
pseudo-scientific data manipulation cannot survive strict
scrutiny.
46
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91, ¶3, 394 Wis. 2d 629, 951 N.W.2d 568 (applying laches to
dispose of 3 of 4 election challenges); id., ¶140 (Rebecca
Grassl Bradley, J., dissenting) ("Once again, the majority of
the Wisconsin Supreme Court wields the discretionary doctrine of
laches as a mechanism to avoid answering questions of law the
people of Wisconsin elected us to decide. Although nothing in
the law compels its application, this majority routinely hides
behind laches in election law cases no matter when a party
asserts its claims."); Hawkins v. Wis. Elections Comm'n, 2020 WI
75, ¶10, 393 Wis. 2d 629, 948 N.W.2d 877 (per curiam) ("Even if
we would ultimately determine that the petitioners' claims are
meritorious, given their delay in asserting their rights, we
would be unable to provide meaningful relief without completely
upsetting the election."); id., ¶85 (Rebecca Grassl Bradley, J.,
dissenting) ("Ironically, the majority in this case adopts the
mantra of the Wisconsin Elections Commission, caving to its
fearmongering invocation of 'chaos' should the court dare to
right this wrong."). This time, the dissenters would readily
invite chaos and disrupt an election, the per curiam opinion of
the United States Supreme Court notwithstanding. One wonders
why.
V. CONCLUSION
¶146 [T]here is good reason for state and federal
officials with responsibilities related to
redistricting, as well as reviewing courts, to
recognize that explicit race-based districting embarks
us on a most dangerous course. It is necessary to
bear in mind that redistricting must comply with the
overriding demands of the Equal Protection Clause.
De Grandy, 512 U.S. at 1031.
47
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¶147 The dissent fails to understand the dangerous voyage
on which it would embark. As a California judge recently wrote,
"[w]hen faced with a problem, the immediate temptation is to
employ the most obvious and direct solution. In most cases, it
isn't even fair to call this impulse a 'temptation.' It's just
a normal and sound approach to life." Crest v. Padilla, No. 20
STCV 37513, unpublished slip op., at 1 (L.A. Cnty. Superior
Ct. Apr. 1, 2022). Although the dissent acknowledges a lack of
evidence sufficient to justify affirmative action,45 it still
senses the problem exists, and it deeply wants to address this
uneasy feeling head-on. In many other contexts, a head-on
approach would be ideal, "[b]ut sometimes there are constraints
which call for additional care. This is one of those times."
Id.; see also id. at 2 ("The difficulty is that the Legislature
is thinking in group terms. But the California Constitution
protects the right of individuals to equal treatment. Before
the Legislature may require that members of one group be given
certain board seats, it must first try to create neutral
conditions under which qualified individuals from any group may
succeed.").
¶148 "There's always a siren, singing you to shipwreck."
Caitlin R. Kieran, The Drowning Girl 101 (2012). In this case,
the dissent responds to the smooth-sounding siren of racial
classifications, a siren whose danger often becomes apparent
only upon close examination. "[I]f we're lucky we're Odysseus
Dissent, ¶196 ("[W]e cannot definitively say the Gingles
45
preconditions are satisfied.").
48
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tied up to the ship's mast, hearing the song with perfect
clarity, but ferried to safety by a crew whose ears have been
plugged with beeswax. If we're not at all lucky, we're another
sort of sailor stepping off the deck to drown in the sea." Id.
At least for now, this court safely tethers its opinion to the
constitutional command of color-blindness.
¶149 Based on the record before this court, we have an
obligation to proceed in a color-blind manner. The Constitution
compels it. See generally Michael B. Rappaport, Originalism and
the Colorblind Constitution, 89 Notre Dame L. Rev. 71 (2013);
see also Appendix to the Pennsylvania Legislative Record XCIX
(1867) (statement of Rep. John Mann), as quoted in Randy E.
Barnett & Evan D. Bernick, The Original Meaning of the
Fourteenth Amendment 333 (2021) ("I do not see how it is
possible for human wisdom to frame a more perfect amendment to
the Constitution of the United States than this
section. . . . [I]t aims to make every court in the United
States what justice is represented to be, blind to the personal
standing of those who come before it. Its adoption will
prohibit any judge in any State from looking at . . . the color
of the skin, of any person coming before him." (emphasis
added)). The only race neutral maps are the Legislature's. I
therefore join the majority opinion in adopting them.
¶150 I am authorized to state that Chief Justice ANNETTE
KINGSLAND ZIEGLER and Justice PATIENCE DRAKE ROGGENSACK join
this concurrence.
49
No. 2021AP1450-OA.bh
¶151 BRIAN HAGEDORN, J. (concurring). The United States
Supreme Court has determined that in adopting remedial maps,
this court needed to conduct a detailed, fact-specific Voting
Rights Act (VRA) analysis——in effect, requiring a full
adjudication of a VRA claim. We are obligated, the Court said,
to examine the record and determine "whether a race-neutral
alternative that did not add a seventh majority-black district
would deny black voters equal political opportunity." Wis.
Legislature v. Wis. Elections Comm'n, 142 S. Ct 1245, , 2022
WL 851720, at *4 (2022) (per curiam). Absent such evidence, the
Court held, a race-conscious remedy may not be employed.1 Id.¶152 As our previous opinion expressed, a majority of this
court did not understand itself to be adjudicating a VRA claim.
Johnson v. Wis. Elections Comm'n, 2022 WI 14, ¶41 n.24, 400
1Members of the United States Supreme Court have commented
that understanding and applying the requirements of the VRA to
redistricting is a challenging and confusing enterprise.
Merrill v. Milligan, 142 S. Ct. 879, 882 (2022) (Kavanaugh, J.,
concurring) (order granting stay) (stating "the Court's case law
in this area is notoriously unclear and confusing"); id. at 883
(Roberts, C.J., dissenting) (noting "considerable disagreement
and uncertainty regarding the nature and contours of a vote
dilution claim"). This is made doubly difficult because dangers
abound no matter which direction one turns. The Fourteenth
Amendment's Equal Protection Clause prohibits race-motivated
actions in most circumstances. Maps where voters are sorted on
the basis of race "are by their very nature odious." Shaw v.
Reno, 509 U.S. 630, 643 (1993) (quoting another source). Yet
the VRA——justified under § 2 of the Fifteenth Amendment——has
been held to require race-motivated district drawing under
certain circumstances. South Carolina v. Katzenbach, 383
U.S. 301, 308 (1966); Cooper v. Harris, 137 S. Ct. 1455, 1470
(2017). Applying these standards is made more problematic when,
following the failure of the political process, a court is the
map-drawer in the first instance (as is the case here). The
briefing in this case reflected this considerable confusion.
1
No. 2021AP1450-OA.bh
Wis. 2d 626, 971 N.W.2d 402. Had we understood our task this
way, this court likely would have taken a different approach to
this litigation. Our process of choosing from among a discrete
group of proposals——a method recommended by several parties——was
a poor vehicle for conducting the kind of VRA analysis the
Supreme Court indicates we should have done. We did not
approach record-development with an eye toward resolving factual
disputes, making intensely localized factual findings, or
receiving an adversarial, district-by-district analysis of every
proposal. In other words, we did not conduct the sort of fact-
specific inquiry and analysis that one sees in federal VRA cases
because we did not view our role as adjudicating a full-blown
VRA claim. To be sure, we attempted to comply with all relevant
laws——much as a legislature drawing maps in the first instance
would——and therefore sought input and briefing. But we
anticipated further litigation involving a fully developed Equal
Protection or VRA claim could, and likely would, follow.2
2 Our opinion explained:
To be clear, this case does not involve a claim under
the Equal Protection Clause or VRA. Rather, as
remedial map-drawers, we strive to act in compliance
with the Constitution and applicable federal laws
necessarily relying on the more limited record before
us. A standard VRA claim is brought after the
adoption of new districts. Such a claim would proceed
much differently, requiring a fully developed factual
record and detailed findings regarding the performance
of specific districts.
Johnson v. Wis. Elections Comm'n, 2022 WI 14, ¶41 n.24, 400
Wis. 2d 626, 971 N.W.2d 402.
2
No. 2021AP1450-OA.bh
¶153 With this in view, complying with the directive of the
United States Supreme Court at this stage of the proceedings
raises some difficult challenges. Most notably, our record is,
at best, incomplete. One solution could be to develop a fuller
record, make factual findings, and adjudicate a VRA claim with a
firmer factual foundation. But the timing does not work. It
would undoubtedly require delaying statutory deadlines and
otherwise disrupting the administration of the fall elections.
The window of opportunity to conduct a fresh trial with new
evidence, new briefing, and potentially new arguments is well
past. Supplementing the record would pose the same logistical
challenges. For better or worse, the only reasonable course I
see is selecting a map based on the record we have.
¶154 An additional difficulty with the path the Supreme
Court tells us to pursue is determining what "race-neutral
alternative" should serve as the baseline from which to evaluate
whether the VRA requires a race-conscious remedial alteration.
We cannot use the 2011 maps enacted into law. Those are now
unconstitutionally malapportioned and contained at least some
race-conscious districts. See Baldus v. Members of Wis. Gov.
Accountability Bd., 849 F. Supp. 2d 840, 854-58 (E.D. Wis.
2012). We could construct one ourselves or with the assistance
of an expert, but time and our institutional limitations make
that unrealistic at this juncture. The remaining option is to
choose one of the proposed maps we received as the baseline.
Only one proposal was represented as race-neutral in its
construction: the maps submitted by the Legislature.
3
No. 2021AP1450-OA.bh
¶155 Therefore, as I understand our charge, the United
States Supreme Court asks us to start with a baseline race-
neutral map——the Legislature's proposal constituting our only
feasible option. Then we must determine whether that map
contains a VRA violation. If a violation exists, a race-
conscious remedy may be crafted. If no violation is
established, race-conscious alterations to district lines are
impermissible. As the majority explains, the record, such as it
is, does not sufficiently support the conclusion that the
Legislature's maps violate the VRA. Perhaps a court deciding a
VRA challenge on a more complete record would reach a different
result. But I cannot conclude a violation is established based
on the record we have before us. That means that in light of
the Supreme Court's clarified instructions, the Legislature's
state senate and state assembly maps are the only legally
compliant maps we received.
¶156 For these reasons, I join the majority opinion.
4
No. 2021AP1450-OA.jjk
¶157 JILL J. KAROFSKY, J. (dissenting). This case has
been nothing short of an odyssey——a long wandering marked by
many changes in fortune. Like all odysseys, the travelers (this
court) have had to make several navigational decisions along the
way; unfortunately, we have taken numerous wrong turns. The sum
total of all that misdirection now leads us to the legally
unacceptable maps submitted by the Legislature.
¶158 Our initial miscalculation was embarking on this
journey in the first place, when a majority of this court
granted the petitioners' original action petition. I joined the
dissent from that grant because of the numerous "reasons for
preferring a federal forum," not least of which was that this
court had "no experience in drawing district maps." Johnson v.
Wis. Elections Comm'n, No. 2021AP1450-OA, unpublished order
at 16, 18 (Wis. Sept. 22, 2021, amended Sept. 24, 2021) (Dallet,
J., dissenting).
¶159 Once the political process reached an impasse——the
legislature failing to override the governor's veto of its
proposed maps——the court wandered astray following the sirens'
call of "least change." Although rhetorically appealing, this
"least change" approach served only to entrench the prior——and
blatantly partisan——district maps. I once again joined the
dissent as "least change" had "potentially devastating
consequences for representative government in Wisconsin."
Johnson v. Wis. Elections Comm'n, 2021 WI 87, ¶88, 399
Wis. 2d 623, 967 N.W.2d 469 (Dallet, J., dissenting).
1
No. 2021AP1450-OA.jjk
¶160 The anticipated pitfalls of "least change" came to
fruition throughout this long trip as it became apparent that it
was "unmoored from any legal requirement for redistricting" and
"could not offer an explanation for the tradeoffs and
discretionary decisions that are intrinsic to map-drawing."
Johnson v. Wis. Elections Comm'n, 2022 WI 14, ¶58-59,
400 Wis. 2d 626, ___ N.W.2d ___ (Ann Walsh Bradley, J.,
concurring). Although "least change" set our sails in the wrong
direction, in our sojourn to adopt maps acceptable for a non-
political court, we eventually made landfall on the Governor's
maps, which adhered best to that metric.
¶161 Throughout that first stage in this epic journey, we
took what some thought to be a shortcut by foregoing a full-
blown adversarial fact-finding trial to test whether race-based
bloc voting would trigger the Voting Rights Act of 1965 (VRA).1
But rather than take us to the oasis and end our odyssey, the
supposed shortcut only led us to more peril: a collision at the
shores of the U.S. Supreme Court's emergency docket. Following
an unprecedented summary reversal we find ourselves again
adrift.
¶162 In the wake of the Court's reversal, we face another
choice of diverging courses forward: (1) invite further
briefing and fact finding on the unsettled VRA questions;
(2) invite an expert or the parties to submit redrawn, race-
neutral maps for the Milwaukee area as Milwaukee includes the
only race-based districts; (3) invite an expert or the parties
1 52 U.S.C. § 10101(a).
2
No. 2021AP1450-OA.jjk
to submit a whole new, reliably-race-neutral map; or (4) choose
another map created by the same flawed process as the Governor's
maps. A majority of this court sets sail along option 4——the
Legislature's maps——sending us careening over the waterfall.
¶163 We are careening over the waterfall because the
Legislature's maps fare no better than the Governor's under the
U.S. Supreme Court's rationale. If, according to the U.S.
Supreme Court, the Governor's addition of a Milwaukee-area
majority-minority district evinces a disqualifying consideration
of race, then the Legislature's removal of a Milwaukee-area
majority-minority district reveals an equally suspect, if not
more egregious, sign of race-based line drawing. In addition,
if a further-developed record is required to definitively
determine whether the Governor's seventh majority Black district
is required then a further-developed record is also required to
definitively determine that the Legislature's removal of a
majority-minority district does not violate federal law. The
Court indicated that in a case like this where the court sits as
the map-drawer in the first instance, the court, rather than the
parties, are responsible for showing that the number of
majority-minority districts required by the VRA constitutes the
narrowly tailored remedy allowed under the Fourteenth
Amendment's Equal Protection Clause.2 In choosing the
Legislature's maps the majority repeats this court's reversible
mistake by again failing to implement fact-finding procedures
U.S. Const. art. XIV, § 1 ("No State shall . . . deny to
2
any person within its jurisdiction the equal protection of the
laws.").
3
No. 2021AP1450-OA.jjk
conducive to addressing the relevant issues under both the VRA
and the Equal Protection Clause.
¶164 The majority's reversible error begins with its
willful silence on Milwaukee's history of segregation and racial
disparity. I start with that history because it is vital to
appreciating why both the Equal Protection Clause and the VRA
drive this controversy. I then turn from how that history of
segregation and racial disparity interacts with federal anti-
discrimination law to how that interaction should inform our
response to the U.S. Supreme Court's decision. Namely, that
response must include a process to develop the record so we can
say with certainty how many majority-minority districts the VRA
requires. Yet that is not the majority's response at all, and
so I conclude by explaining how, without that process, the
Legislature's maps must also fail.
I. MILWAUKEE'S HISTORY OF RACIAL SEGREGATION AND DISPARITY AND
FEDERAL ANTI-DISCRIMINATION LAW
A. A History of Racial Segregation and Disparities
¶165 From the outset, the crux of this redistricting
controversy has been the long history of racial discrimination
in and around Milwaukee that perpetuates the current racial
disparities affecting Milwaukee's minority communities——
particularly its Black communities.3 The 2020 census data shows
The statistics and claims set out in this discussion were
3
presented in University of Wisconsin (and former Duke
University) Professor David Canon's expert report. See App. to
Merits Br. of Intervenor-Pet'rs Black Leaders Organizing for
Communities et al. (BLOC) (Dec. 15, 2021).
4
No. 2021AP1450-OA.jjk
that people who identify as Black or African American, either
alone or in combination with other races or ethnicities, make up
7.7 percent of Wisconsin's population. See U.S. Census Bureau,
Wisconsin State Profile, https://www.census.gov/library/stories/
state-by-state/wisconsin-population-change-between-census-
decade.html. Milwaukee County contains by far the highest
concentration of Black residents at 28.7 percent. Id.
Shamefully, Wisconsin routinely ranks as one of the most
racially disparate states in terms of housing, incarceration,
education, income, and even infant mortality rates between Black
and White residents.
¶166 Those disparities result, in part, from Milwaukee's
egregious history of race-based housing discrimination. Dating
back to at least the 1930s, the Home Owners' Loan Corporation
(HOLC) created color-coded "residential security" maps that
identified neighborhoods by their investment risk level.4 A
neighborhood coded "red" denoted the highest risk category,
meaning residents in red neighborhoods could almost never obtain
mortgages. This practice, referred to as "redlining," was
explicitly tied to race. The HOLC would give higher rankings to
neighborhoods that excluded racial minorities through
restrictive covenants——private contractual agreements that ran
with the land and prohibited future property owners from selling
4 See Leah Foltman & Malia Jones, Univ. of Wis. Applied
Population Lab, How Redlining Continues to Shape Racial
Segregation in Milwaukee, WisContext (Feb. 28, 2019),
https://www.wiscontext.org/how-redlining-continues-shape-racial-
segregation-milwaukee.
5
No. 2021AP1450-OA.jjk
or leasing property to non-Caucasian people. HOLC coded
neighborhoods with racial minorities "red" and therefore members
of those neighborhoods were blocked from financing necessary for
homeownership. By the 1940s, 16 of the 18 Milwaukee County
suburbs used racially restrictive covenants to exclude Black
residents which segregated Milwaukee's Black population in
concentrated geographic areas.5 Though in 1948 Shelley v.
Kraemer6 declared racially restrictive covenants
unconstitutional, they continued to be used and recorded until
further banned by the 1968 Fair Housing Act.7
¶167 The effects of this abhorrent history persist;
Milwaukee remains the most racially segregated city in the
nation and has the seventh-lowest rate of Black homeownership.8
As recently as 2015, the U.S. Department of Housing and Urban
Development settled a case of racial redlining in Milwaukee
against Associated Bank (the largest such settlement to that
date).
5 See Lois M. Quinn, Racially Restrictive Covenants: The
Making of All-White Suburbs in Milwaukee County (1979).
6 334 U.S. 1 (1948).
7 Although banned, many restrictive covenants remained on
the books as an obvious signal to minority populations that they
were not welcome in White neighborhoods, thus perpetuating the
history of segregation. See Quinn, supra note 5. Some racially
restrictive covenants remain on the books today. Debbi Conrad,
Do You Have a Racist Deed?, Wis. Real Est. Mag., Mar. 2021,
at 7, https://www.wra.org/WREM/Mar21/RacistDeed/.
8 Elissa Suh, Black Homeownership in the U.S., Policygenius
(Dec. 1, 2020), https://www.policygenius.com/mortgages/black-
homeownership-rates/#black-homeownership-stats-by-metro-area.
6
No. 2021AP1450-OA.jjk
¶168 Racial disparities in education also persist. Many of
Milwaukee's schools are "hypersegregated," meaning students of
color make up at least 90 percent of enrollment. In fact, the
number of Black students in Milwaukee County that attend a
hypersegregated school has been increasing in recent years,
culminating in an almost identical percentage currently
attending hypersegregated schools as did in 1965.9 This
contributes to Wisconsin's high racial disparities in education.
We have the largest gap between high school graduation rates for
Black students (71.4 percent) and White students (93.8 percent)
of any state.10
¶169 As can be expected, such disparities in education lead
to disparities in employment. The unemployment rate for Black
Wisconsinites in 2020 was almost three times that of White
Wisconsinites.11 Wisconsin has the largest gap in median
household income and the highest disparity in the poverty rate
between Black and White residents in the entire country. Black
9 Marc V. Levine, Univ. of Wis.-Milwaukee Ctr. for Econ.
Dev., The State of Black Milwaukee in National Perspective:
Racial Inequality in the Nation's 50 Largest Metropolitan Areas.
In 65 Charts and Tables 72 (2020). Milwaukee has the highest
percentage of Black students attending hypersegregated schools
of any major metropolitan area at over 70 percent.
10National Center for Education Statistics, Common Core of
Data, Table 1: Public High School 4-Year Adjusted Cohort
Graduation Rate (ACGR), by Race/Ethnicity and Selected
Demographic Characteristics: School Year 2018-19, https://nces.e
d.gov/ccd/tables/ACGR_RE_and_characteristics_2018-19.asp.
11U.S. Bureau of Labor Statistics: Employment status of
the civilian noninstitutional population by sex, race, Hispanic
or Latino ethnicity, and intermediate age, 2020 annual averages,
https://www.bls.gov/lau/ex14tables.htm.
7
No. 2021AP1450-OA.jjk
residents see disproportionately high eviction rates which are
tied to a higher homeless population.
¶170 Relatedly, Milwaukee's Black residents also experience
discrepancies in healthcare and life expectancy. Wisconsin has
the highest infant mortality rate in the country for Black
infants while the White infant mortality rate hovers just below
the national average.12 Milwaukee County also showed racial
disparities in the impact of COVID-19 with minorities seeing
higher rates of infection, hospitalization and death.13
¶171 Racial disparities in our criminal justice system are
similarly abominable. Wisconsin incarcerates Black residents at
the highest rate in the nation——2,742 per 100,000 Black
residents are in prison versus the national average of 1,240 per
100,000 Black residents. Our incarceration rate of Black
residents is 11.9 times that of White residents. And while 7.7
percent of Wisconsin's population identifies as Black, Black
residents make up an egregiously disproportionate 42 percent of
our prison population. 14
12Colin Gordon, Univ. of Iowa & Iowa Pol'y Project, Race in
the Heartland: Equity, Opportunity, and Public Policy in the
Midwest 14 (2019) https://files.epi.org/uploads/Race-in-the-
Midwest-FINAL-Interactive-1.pdf.
Wis. Dep't of Health Servs., COVID-19: Racial and Ethnic
13
Disparities, https://www.dhs.wisconsin.gov/covid-19/disparities.
htm (last updated Jan. 20, 2022).
See Ashley Nellis, The Sent'g Project, The Color of
14
Justice: Racial and Ethnic Disparity in State Prisons 6-7, 10,
20 (Oct. 13, 2021), https://www.sentencingproject.org/publicatio
ns/the-color-of-justice-2016-report/.
8
No. 2021AP1450-OA.jjk
¶172 This history of segregation and racial disparity in
Milwaukee restricts Black communities from the opportunity to
fully participate in the political process. In the
redistricting context, racial gerrymandering is discussed in
terms of packing and cracking voters. Packing occurs when the
map lines place large numbers of one racial minority into few
districts so that they might have as few representatives as
possible. Cracking occurs when the map lines spread small
numbers of the remaining minority population across many
districts so that their influence within those districts is
minimal. This is often achieved by drawing districts in funny
shapes that wind between neighborhoods to pick up the high
number of minority people required to pack districts. In
Milwaukee, however, such obvious racial gerrymandering is not
needed; historical racial segregation already packs Black
communities into concentrated neighborhoods that require little
in the way of creative lines to dilute their influence at the
voting booth. I will refer to this as a "historical racial
gerrymander."
B. Federal Anti-Discrimination Law
¶173 The VRA's application in redistricting is designed to
remedy precisely these kinds of historical wrongs——those that
create current barriers to democratic participation. Instead of
allowing the past unconstitutional practices of redlining and
racially restrictive covenanting to continue limiting Black
people's opportunity to participate in our democracy, the VRA
establishes that it is a sufficiently compelling government
9
No. 2021AP1450-OA.jjk
interest to draw districts that counteract the historical racial
gerrymander. Wis. Legislature v. Wis. Elections Comm'n, 595
U.S. ___, 142 S. Ct 1245, 1248 (2022) (per curiam).
¶174 We must, of course, also consider the Fourteenth
Amendment's Equal Protection Clause. And in doing so, it is
impossible to ignore the 180-degree turn from that clause's
purpose to how it has been wielded in this case. Ratified
in 1868 after the Civil War, the Fourteenth Amendment demands
that no state shall "deny to any person within its jurisdiction
the equal protection of the laws." Since Brown v. Board of
Education,15 the Equal Protection Clause has been invoked to
desegregate this country, protect the voting rights of its
citizens, and fight discrimination in its many forms.
¶175 More recently, the Equal Protection Clause has been
turned on its head and used, not to fight against the constant
pull of our collective historical failing toward the promise of
a better future, but to bar our government's ability to remedy
past mistakes. See, e.g., Parents Involved in Cmty. Sch. v.
Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007). The majority
opinion perfectly captures this reversal by relying on cases
pontificating that "[r]acial gerrymandering, even for remedial
purposes, may balkanize us into competing racial factions," and
that "[r]ace-based assignments . . . embody stereotypes that
treat individuals as the product of their race[.]" Majority
op., ¶24 (quoting Shaw v. Reno, 509 U.S. 630, 657 (1993), and
Miller v. Johnson, 515 U.S. 900, 911-12 (1995)). This argument
15 347 U.S. 483 (1954).
10
No. 2021AP1450-OA.jjk
is nothing short of gaslighting, seemingly denying Milwaukee's
history of purposeful racial segregation. It was unrelenting
overt racial discrimination that balkanized Milwaukee into
"competing racial factions" and reduced Black individuals to a
"product of their race." The fault and responsibility to remedy
this systemic segregation lies not with Milwaukee's residents
but instead with the government and the society that perpetuated
racial redlining and restrictive covenants. Those practices
shaped Milwaukee and that history of discrimination cannot be
undone by force of will alone.
¶176 The Milwaukee area perfectly demonstrates why the
VRA's race-conscious remedy is often needed. Segregation of
minority communities does not happen accidentally. If this
country were anywhere close to living up to the "goal of a
political system in which race no longer matters," then maybe we
could apply the promise of Equal Protection in a race-blind
manner. See Shaw, 509 U.S. at 657. But the overwhelming
evidence shows that we have not lived up to that goal. As such,
a race-blind and effects-blind application of the Equal
Protection Clause has become a sword against progress wielded by
majority groups who fear giving away too much of their
accumulated power. I fervently hope it will regain its place as
a shield against harmful discriminatory action.
II. THE CORRECT RESPONSE: DEVELOP THE RECORD
¶177 According to the U.S. Supreme Court, we erred in our
prior decision by misapplying the test in Cooper v. Harris that
calls for a "strong basis in evidence" in order to determine
11
No. 2021AP1450-OA.jjk
whether "good reason" existed to believe the VRA required seven
Black majority districts. Wis. Legislature v. Wis. Elections
Comm'n, 142 S Ct at 1249–50 (citing Cooper v. Harris, 581
U.S. ___, 136 S. Ct. 2512 (2017)). The Court directs that we
are to ask "whether a race-neutral alternative that did not add
a seventh majority-black district would deny black voters equal
political opportunity." Id. at 1250-51. Yet in attempting to
correct our course through a "hazy at best" sea of federal law,
id. at 1251 (Sotomayor, J., dissenting), the Court has only
further fogged how a court in this posture (drawing the map in
the first instance) should balance the VRA and the Equal
Protection Clause.
¶178 Prior to the Court's decision, an Equal Protection
analysis began with whether "race was the predominant factor
motivating the [map-drawer]'s decision to place a significant
number of voters within or without a particular district. That
entails demonstrating that the [map-drawer] 'subordinated' other
factors——compactness, respect for political subdivisions,
partisan advantage, what have you——to 'racial considerations.'"
Cooper, 137 S. Ct. at 1463-64. Yet, the Court's opinion did not
first analyze whether race was the "predominant factor"
motivating this court's districting decisions. Instead, it
appeared that the Court took this court's limited analysis
regarding the VRA, meant only to ensure the least-change map did
not violate that law, as evidence that race——not least change——
predominated our choice of maps. Our March 3 opinion never
professed as much.
12
No. 2021AP1450-OA.jjk
¶179 While the U.S. Supreme Court's opinion said it was
unclear whether this court viewed itself or the Governor as the
map-drawer, we plainly stated that the court itself was the map-
drawer. See Johnson, 400 Wis. 2d 626, ¶10 ("As a map-drawer, we
understand our duty is to determine whether there are 'good
reasons' to believe the VRA requires a seven-district
configuration.").16 The lack of clarity the Court points to
actually relates to an unsettled point of Equal Protection
jurisprudence: when a court adopts a party-submitted map, whose
motivation is being analyzed under the Equal Protection Clause,
the court's or the party's?
¶180 Despite our clear declaration that "least change"
predominated our choice of maps, and despite the purported
purpose of "least change" as a neutral criterion to shed
ourselves of the political baggage that would be inherent in
party-drawn maps, the Court nonetheless transposed the
Governor's motivations onto this court. We are left to conclude
that the motivations of the party submitting the map are the
relevant motivations we must analyze going forward. This court
can no longer hide behind a "least change" gloss to ignore a
party's ulterior motives.
16Additionally, as the map-drawer we considered all
information and analysis from the record collectively and were
not limited to the Governor's admittedly scant VRA analysis.
Thus, when analyzing the Gingles preconditions and Senate
factors, we relied largely on the BLOC interveners' more
thorough expert analyses——analyses the Governor explicitly
adopted in most respects.
13
No. 2021AP1450-OA.jjk
¶181 The U.S. Supreme Court left us with other unanswered
questions:
 Is the court required to fully address a VRA challenge when
selecting a purportedly race-neutral map or have we been
given carte blanche to ignore federal law?
 Which race-neutral configuration was the court to use when
analyzing the Governor’s maps given the myriad potential
"race-neutral" district configurations in Milwaukee?
 How do we proceed if the process we adopted prevented the
parties from sufficiently testing the evidence necessary
for a VRA determination?
 Could this court simply explain ourselves further to
satisfy the Court's newly voiced standard?
In light of these uncertainties, and in order to avoid further
reversible error, I believe we must implement one of the first
three options set out above: (1) invite further briefing and
fact finding on the unsettled VRA questions; (2) invite an
expert or the parties to submit redrawn, race-neutral maps for
the Milwaukee area; or (3) invite an expert or the parties to
submit a whole new, reliably-race-neutral map.
¶182 The second and third options appear to be non-starters
at this stage as this court has not commissioned a neutral map-
drawer or allowed the parties to submit new maps in accordance
with the U.S. Supreme Court's decision. As for the first
option, which the U.S. Supreme Court explicitly invited, a
majority of this court continues to refuse procedures to develop
the record, willfully shutting its eyes and ears to critical
14
No. 2021AP1450-OA.jjk
information. See Wis. Legislature v. Wis. Elections Comm'n, 142
S. Ct at 1251 ("On remand, the court is free to take additional
evidence if it prefers to reconsider the Governor's maps rather
than choose from among the other submissions."). Conveniently,
that same majority now points to the very insufficiency of
information it perpetuates as a party's failure to carry its
burden of proof.17 However, it is not the parties'
responsibility to implement fair, legal remedial maps——it's
ours.
¶183 The majority opinion attempts to shift the blame by
noting that the parties stipulated through their joint discovery
plan that they did not anticipate discovery "beyond the exchange
of maps, expert disclosures, and any documents or data that a
party intends to rely upon or an expert has relied upon." But
we had the authority, indeed the responsibility, to direct
further discovery or examination of expert witnesses. This
court's initial reliance on the joint discovery plan was guided
by the court's "least change" directive, which failed to account
for the full and definitive Equal Protection or VRA inquiry the
U.S. Supreme Court now demands. This persistent imprudence in
See majority op., ¶32 ("[T]he Governor failed to present
17
evidence that a race-based remedy was necessary under the
VRA."); id., ¶57 ("On this record, we cannot agree with the
Governor and BLOC that the Legislature's race-neutral proposal
would violate the VRA."); id., ¶58 n.11 ("Under the record as it
currently exists, we cannot conclude the Gingles prerequisites
are satisfied."); id., ¶48 ("No party argued and no evidence was
provided demonstrating that the Legislature's maps were, in
fact, not race neutral."); id., ¶73 ("[W]e conclude that
insufficient evidence is presented to justify drawing state
legislative districts on the basis of race.").
15
No. 2021AP1450-OA.jjk
developing a record has now led us to a legally untenable
outcome at odds with the Court's directive. The Equal
Protection and VRA claims usually litigated after the
implementation of a remedial map must now be fully adjudicated
as part of this decision——an impossible task on this record.
¶184 Building that record requires work because remedial
redistricting is complicated. It requires a wealth of facts
collected through discovery, sworn affidavits, and examination
and cross-examination of witnesses and experts. Fairness
requires that we test every major change made in a districting
map to verify that its motivations comport with those
appropriate for a non-partisan court to adopt.18 This is why
most remedial redistricting courts hold multi-day trials and
implement court-drawn maps rather than maps selected from party
submissions. See, e.g., Baldus v. Members of Wis. Gov't
Accountability Bd., 849 F. Supp. 2d 840 (E.D. Wis. 2012);
Baumgart v. Wendelberger, No. 01-C-0121, 2002 WL 34127471 (E.D.
Wis. May 30, 2002) (per curiam). This court, in its hubris and
desire to short-circuit a complicated process, thought it knew
Although this court has disclaimed a "fair maps"
18
requirement as it relates to partisan gerrymandering by the
legislature, it should be beyond dispute that we, as a non-
partisan court, cannot implement a map with blatantly partisan
motivations. See Johnson v. Wis. Elections Comm'n, 2022 WI 14,
¶93, 400 Wis. 2d 626, ___ N.W.2d ___ (Dallet, J., dissenting).
A non-partisan judiciary goes to the very core of democracy and
to established principles of separation of powers. Now that the
U.S. Supreme Court has declared that the motivations of the
party whose map we adopt——partisan or otherwise——are
superimposed onto this court, maintaining impartiality in
selecting a party-drawn maps requires heightened attention to
the reason behind every change in a district's boundaries.
16
No. 2021AP1450-OA.jjk
better. By both adopting a process that aimed to adopt a party-
submitted map despite glaring partisan motivations and limiting
the arguments to appellate-style briefs, written expert reports,
and oral presentation to this court, we received too thin a
record on which to make determinations with absolute certainty.
¶185 But we did not have to do it this way, as dissenters
made clear at every point in our voyage. This court could have
arranged for proper fact finding and examination of expert
witnesses, either in front of all of the Justices or through a
referee (sometimes referred to as a Special Master) under Wis.
Stat. § 751.09. Now, following the U.S Supreme Court's
reasoning in reversing our prior decision, one would think that
we have no choice but to actually correct course and develop an
appropriate record. Yet the majority is content to make the
same two procedural mistakes. It bars proper fact finding and
limits itself to our current pool of party-submitted, partisan-
motivated maps rather than adopting a process by which we could
create a judicially appropriate map.19 The result, as the next
19 Without "least change" to shield the court from party
motives, all party maps——with the possible exception of the
Citizen Mathematicians and Scientists' maps——fail to meet a
standard that requires both race-neutrality (as is required
under the majority's reasoning) and partisan-neutrality (as is
required by the non-partisan nature of this court). But the
majority continues to limit itself to the parties' previously
submitted maps, concluding that "the Legislature's maps are
superior to the available alternatives." Majority op., ¶21. It
should go without saying, however, that a less illegal map is
still illegal. This posture also ignores that other
alternatives could have been made available to this court (for
example, through a new round of party submitted maps adhering to
the U.S. Supreme Court's decision) but were barred from
consideration.
17
No. 2021AP1450-OA.jjk
section explains, are maps wholly unsuited for any serious
court's approval.
III. THE LEGISLATURE'S MAPS
¶186 The Legislature's maps fail for two reasons: first,
we are not to act as a gubernatorial veto override body; and
second, the Legislature's maps show evidence of racially
motivated packing and cracking that could violate both the Equal
Protection Clause and the VRA.
A. Failed Political Process
¶187 The Legislature's maps derive from a failed political
process. In Wisconsin, the redistricting process follows the
same process as the enactment of any law. Both houses of the
legislature must pass a bill containing new maps, which is then
presented to the governor who may approve or veto the bill, the
latter of which the legislature may override with a
supermajority vote. See Wis. Const. art. IV, § 17 & art. V,
§ 10. Here, the Legislature, having failed to override the
gubernatorial veto, submitted the very same proposal to us. By
now implementing that failed bill, this court judicially
overrides the Governor's veto, thus nullifying the will of the
Wisconsin voters who elected that governor into office. But our
constitution provides only one avenue to override such a veto;
no judicial override textually exists. See Wis. Const. art. V,
§ 10. Nor, historically, has this court ever exercised such a
supreme power. By judicially enacting the very bill that failed
the political process, a bare majority of this court, rather
18
No. 2021AP1450-OA.jjk
than a supermajority of the legislature, has taken the
unprecedented step of removing the process of lawmaking from its
constitutional confines and overriding a governor's veto
ourselves.
B. Signs of an Equal Protection Violation
¶188 In addition to being derived from a failed political
process, the Legislature's maps show signs of violating the
Equal Protection Clause. If, as the U.S. Supreme Court
explained, the Governor's addition of a majority-minority
district sufficed to show that race predominated its proposal,
then equally, if not more, suspect is the Legislature's removal
of a majority-minority district. Despite the majority opinion's
assertions, the Legislature's maps do not appear to be race-
neutral and calling the claim "indisputable" does not make it
so. The Legislature's claim that it drew its maps without
considering race, quite frankly, flies in the face of its
transfiguration of Milwaukee's six current districts with a
Black voting age population (BVAP) majority.20 In Milwaukee, the
BVAP increased 5.5 percent while the White voting age population
decreased 9.5 percent over the last decade. Those demographic
changes make the Legislature's draw down of BVAP percentage in
five out of six VRA districts——one by over 12 percent——with the
The voting age population, rather than the general
20
population, is the preferred number to review when dealing with
voting districts. See, e.g., Cooper v. Harris, 581 U.S. ___,
136 S. Ct. 2512 (2017) (analyzing a VRA claim using BVAP data).
19
No. 2021AP1450-OA.jjk
remaining VRA district packed at 73.3 percent BVAP highly
suspicious.21
¶189 This suspicion is not assuaged by the Legislature's
expert report. That report sets out how none of the Milwaukee
area's Black population was removed from existing VRA districts22
(there was movement between existing VRA districts) and only
2,046 Black people were added to any VRA district from outside
existing VRA districts——1,625 Black individuals were moved from
AD24 to AD10 and AD12, and 421 Black individuals were moved from
AD13 to AD18. See Wis. Legislature's Br., Expert Report of
21The Legislature's Assembly District (AD) 10 dropped from
59.4 percent BVAP in 2011 Wis. Act 43 to 47.2 percent; AD12
dropped from 60.6 percent to 57 percent; AD16 dropped from 55.6
percent to 54.1 percent; AD17 dropped from 68.4 percent to 61.8
percent; AD18 dropped from 60.7 percent to 52.6 percent; and,
finally, AD11 increased from an already high 65.5 percent to
73.3 percent. See BLOC Resp. Br. 9.
22Evidence indicates that when drawing the 2011 district
maps the legislature considered race for the purpose of creating
six majority-Black districts that would "perform" under the
VRA's standards. For example, in briefing for Gill v. Whitford,
the State, which was defending the legislatively enacted maps in
2011 Wisconsin Act 43, affirmed that "[t]o comply with the VRA,
the staffers paid special attention to Milwaukee's Assembly
districts. After [the expert] and the lawyers had signed off on
the Milwaukee districts, the staffers 'locked these districts'
and then worked on maps of other areas of the State." (internal
citations omitted). Br. For Appellants at 14, Gill v. Whitford,
585 U.S. ___, 138 S. Ct. 1916 (2018) (No. 16-1161) (Jul. 28,
2017). Likewise, in briefing for Baldus v. Members of Wis.
Gov't Accountability Bd., 849 F. Supp. 2d 840 (E.D. Wis. 2012),
defendants represented that "Act 43 shifted the lines of
assembly district 12 to encompass additional African American
voters, thereby creating a sixth African American Assembly
District." Defs.' Br. Supp. Mot. for Summ. J. at 22, Baldus v.
Members of Wis. Gov't Accountability Bd., 849 F. Supp. 2d 840(E.D. Wis. 2012), 2012 WL 7682784 (Feb. 10, 2012).
20
No. 2021AP1450-OA.jjk
Dr. John Alford 6-7 (Dec. 15, 2021). Collectively, Milwaukee's
VRA districts needed to gain approximately 31,921 people to meet
the ideal population after the 2020 census. See App. of the
Wis. Legislature 18 (Aug. 23, 2021). This means that in adding
the required population, approximately 6.4 percent of the people
moved into the VRA districts were Black. While this number is
reasonably consistent with Wisconsin's Black population
percentage as a whole, it is low when compared to the Milwaukee
area's percentage Black population. For example, the
Legislature's AD23 is above 10 percent Black, AD19 is 7 percent
Black, and AD7 is 7.9 percent Black (not including those who
identify as more than one race). See Wis. Legislature's Resp.
Br., Resp. Expert Report of Dr. John Alford 11 (Dec. 30, 2021).
Both AD23 and AD19 were overpopulated and bordered existing VRA
districts, but not one person was moved from either of those
districts into underpopulated VRA districts. See Wis.
Legislature's Br., Expert Report of Thomas M. Bryan 57 (Dec. 15,
2021). Over 7,500 people were swapped between AD7 and other
districts (7,622 people were moved from AD7 to AD9 and 7,843
people were moved from AD 13 to AD7) but, likewise, not one
person was moved into existing VRA districts. All of this could
indicate that the Legislature targeted a certain quota of Black
people to move into current VRA districts to keep those
districts at "performing" VRA levels, just as they did with the
2011 maps.23 Importantly, this is precisely the same type of
23No direct examination of this kind of circumstantial
evidence exists in the record because the procedural posture of
this case and the court's "least change" approach did not lend
21
No. 2021AP1450-OA.jjk
racial consideration that the U.S. Supreme Court found violated
the Equal Protection Clause when done in the Governor's map.
¶190 Moreover, the Legislature boasted that its Milwaukee-
area core retention numbers exceeded their statewide core
retention numbers. See Wis. Legislature's Reply Br. 11. Rather
than bolstering its core retention claims, the fact that
Milwaukee contains the highest concentration of minority
populations24 turns this admission into circumstantial evidence
that the Legislature impermissibly considered race when deciding
who to move between districts. Indeed, upon closer inspection,
16 of the Legislature's assembly districts show a discrepancy of
over 10 percent between the district's overall core retention
number and the Black-only core retention. And three of those
districts (AD22, AD40, and AD92) exhibit a whopping discrepancy
of over 35 percent.25 See Wis. Legislature's Br., Expert Report
of Thomas M. Bryan 56-64 (Dec. 15, 2021). Circumstantial
evidence such as this can show an Equal Protection Clause
violation, despite legislative professions of race-neutrality.
itself to a full adjudication of the merits of any Equal
Protection or VRA claims. Even after the U.S. Supreme Court
reversed because of this type of missing factual development,
the majority of this court continues to bar the submission of
any additional evidence from the parties.
See
24 U.S. Census Bureau, Wisconsin State Profile,
https://www.census.gov/library/stories/state-by-state/wisconsin-
population-change-between-census-decade.html.
Expert analysis is needed to decipher what inferences, if
25
any, can be drawn from these statistics, but the discrepancies
certainly offer facially substantial reasons to analyze the
Legislature's maps and their underlying motivations more fully.
22
No. 2021AP1450-OA.jjk
See Cooper, 136 S. Ct. 2512 (affirming the district court's
findings that racial considerations predominated the drawing of
District 12 despite the State's profession that the subject
district was drawn based on political data and that racial data
was not even viewed by the map-drawer). With such evidence
contradicting the Legislature's unsupported professions of race-
neutrality, we are duty bound to investigate the actual focus
race played in its proposed lines.
¶191 Self-serving professions of race-neutrality should
also be ignored because the Legislature offered no alternative
reasons for making decisions regarding Milwaukee's districts.
The Legislature's "least change" pretext fails when it openly
admits its Milwaukee-area changes substantially differed from
its treatment of the rest of the state. Nor can the Legislature
justify its unique redrawing of Milwaukee districts on a desire
to keep municipalities whole; it split at least one relevant
village, Brown Deer, by dividing its Black population between
two districts. Respecting "communities of interest" also fails
to justify the Legislature's actions because no party submitted
evidence establishing such communities. That leaves the more
nefarious partisan advantage reasoning——a reliable pretext for
racial motivations. But a neutral judicial body cannot adopt a
map on such a justification, especially now that the party's
23
No. 2021AP1450-OA.jjk
motives are imputed onto the court.26 The Legislature also has
not, and could not, claim such a justification as this court
barred consideration of partisanship in our redistricting
process. As such, no judicially acceptable justification for
the Legislature's Milwaukee-area redistricting decisions exists.
¶192 Finally, the majority fails to address how Milwaukee's
two majority-Hispanic districts——ADs 8 and 9——play into their
"race-neutral" approach. According to the Legislature, its
"plan keeps intact 100 percent of existing Assembly District 8,
more than 90 percent of existing Assembly District 9, and adds
new Hispanic population to both Assembly District 8 and 9."
Wis. Legislature's Br. 36 (Dec. 15, 2021). No VRA analysis as
to those districts established that either would require race-
based distribution of the population. Although under this
court's original approach, all parties conceded that those
districts were appropriate, the U.S. Supreme Court's decision
made clear that relying on the parties' concessions cannot
support a finding that the VRA required race-based decisions.
Furthermore, while the 2012 Baldus decision set out the borders
of those districts based on VRA analysis, that analysis was
The majority opinion conflates a political-gerrymandering
26
claim with the uncontroversial concept that a neutral, non-
partisan court cannot act in support of purely political
interests. See majority op., ¶51 n.10. As explained before,
Rucho is not at issue in this case. Rucho v. Common Cause, 588
U.S. ___, 139 S. Ct. 2484 (2019) (holding that claims of
partisan gerrymandering stemming from legislatively enacted maps
are nonjusticiable). We, as a court of law, cannot implement
blatantly partisan maps.
24
No. 2021AP1450-OA.jjk
based on the previous decade's information and cannot be carried
over wholesale. See Baldus, 849 F. Supp. 2d 840.
C. Signs of a VRA Violation
¶193 A majority of this court has already expressed that a
plan containing only six majority-BVAP districts "could prove
problematic under the VRA." Johnson, 400 Wis. 2d 626, ¶49. The
Legislature's map contains only five majority-BVAP districts,
which should give any court pause. The Legislature's plan
leaves a significant number of Black voters dispersed into
surrounding majority-White districts where their voting power is
thus diluted. For example, as mentioned above, the
Legislature's plan unnecessarily swaps population between AD23
and AD24, cracking Brown Deer's Black voters in the process.
Additionally, the evidence above shows that only limited numbers
of Black individuals were moved into existing VRA districts to
keep them at "performing" levels while the remaining Black
individuals were spread into surrounding, non-VRA districts such
as AD7, AD19, AD23, and AD24 in insufficient numbers to be
considered influential. This may violate the VRA even if that
distribution was not intentionally race-based.
¶194 The VRA's applicability here turns, first, on the
three Gingles preconditions, and second, on whether the totality
of the circumstances shows the Legislature's lines deny minority
voters the equal opportunity to participate in our democracy.
Although members of this court have claimed that the three
Gingles preconditions are not met in Milwaukee, the bulk of the
evidence presented to this court supports the opposite
25
No. 2021AP1450-OA.jjk
conclusion. The Legislature itself argued that its proposed map
did not violate the VRA because it contained five majority-Black
districts and one Black-influence district. See Wis.
Legislature's Br. 33 (Dec. 15, 2021) ("The Milwaukee area has
always been an area of concern for the Voting Rights Act. The
Legislature's plans for the Milwaukee area comply with the
Voting Rights Act, both for Milwaukee's Black and Hispanic
populations.").
¶195 Examining the record we do have, the three Gingles
preconditions are likely met in Milwaukee. And the totality of
the circumstances in Milwaukee show that Black voters do not
have an equal opportunity to participate in the political
process. Although this court's procedural decisions have barred
the kind of tested expert testimony required to make definitive
VRA determinations, that lack of evidence cuts both ways. If we
cannot say that seven VRA districts are required, we equally
cannot say, based on the evidence before us, that six are
required, or that none are required. The majority nakedly
proclaims that "on this record" no VRA violation can be proven,
but this proclamation misunderstands our duty here. A majority
of this court failed to adopt procedures that would have allowed
the balancing of relevant facts required under the VRA and the
Equal Protection Clause. Because of this failure, the majority
opinion cannot fulfill its responsibility and determine what, as
a matter of law, is the narrowly tailored remedy required under
the VRA.
1. The Gingles Preconditions
26
No. 2021AP1450-OA.jjk
¶196 In approaching the Gingles preconditions, only one
expert provided the bulk of the past-election analyses required.
And those analyses indicate that the Gingles preconditions are
met in Milwaukee. However, members of this court, myself
included, conclude that the evidence has not been sufficiently
tested through a proper adversarial fact-finding process.
Consequently, we cannot definitively say the Gingles
preconditions are satisfied. This is an act of judicial
restraint based on the deficiency of process, not a finding that
other facts or expert analysis outweigh the facts and analysis
as set out here.
¶197 The first Gingles precondition requires that there be
a sufficiently large and compact minority population to
constitute a district. See League of United Latin Am. Citizens
v. Perry, 548 U.S. 399, 400-01 (2006). The U.S. Supreme Court
criticized this court's March 3 analysis on the first
precondition because this court deferred to the undisputed
nature of the claim. In doing so, the Court failed to
acknowledge that the Governor's maps necessarily proved that
there is a sufficiently large and compact minority population to
constitute seven districts by proposing maps that contain seven
contiguous and compact districts, each with over 50 percent
BVAP. The Governor's maps, in and of themselves, demonstrate a
sufficiently large and compact Black population to constitute
seven majority-Black districts. Satisfying the first
precondition comes as no surprise given the reality that
27
No. 2021AP1450-OA.jjk
Milwaukee is one of the most geographically segregated, and
therefore racially compact, cities in the country.
¶198 The second and third Gingles preconditions, often
discussed together as the need to show "racially polarized
voting," were evidenced through an expert analysis of relevant
elections. See id. (setting out that the second and third
threshold conditions require that "the group must be
'politically cohesive'" and "the white majority must 'vote
sufficiently as a bloc to enable it . . . usually to defeat the
minority's preferred candidate.'"). While one dissent to our
March 3 opinion took it upon itself to formulate the only
significant alternative analysis of previous elections, the
races cited lacked probative value as to the presence of
racially polarized voting. The vast majority of the alternative
elections involved incumbent candidates running entirely
unopposed or involved major party candidates who did not face a
major-party opponent in a general election.27 These types of
races are not relevant or informative regarding the question of
27 The record of candidates running for election comes from
state public records and is therefore "capable of accurate and
ready determination by resort to sources whose accuracy cannot
reasonably be questioned." Wis. Stat. § 902.01. Gwen Moore was
an established incumbent in her 2016 race and ran against only
libertarian and independent candidates; Lena Taylor was an
established incumbent in her 2012 race and ran against only an
independent candidate; Lena Taylor ran unopposed in her 2016
general election and in 2020; La Tonya Johnson ran unopposed in
2016; and Justice Roggensack's dissent acknowledges that both
Leon Young and Jason Fields ran unopposed in their respective
races.
28
No. 2021AP1450-OA.jjk
racially polarized voting.28 Similarly, the majority opinion
points to BLOC's lack of analysis of November general elections
as a fatal flaw in its analysis of racially polarized voting,
but VRA experts often exclude partisan general election data
because it is probative only of partisan motives that mask
underlying racial discrepancies. Thus, as one expert explained,
in a strongly Democratic-voting district like those in the
Milwaukee area, only non-partisan elections and Democratic
primaries have the potential to reveal the presence of racially
polarized voting. See BLOC's Br. App. 15 (Dec. 15, 2021).
¶199 That same expert relied on several methods to analyze
the raw data surrounding eight such elections. The analyses all
led to the conclusion that racially polarized voting occurred in
seven of the eight elections.29 Id. at 16. The single election
of the bunch that showed substantial White cross-over voting was
the Milwaukee County Sheriff Democratic Primary which featured a
candidate, Schmidt, who had served as the second in command to
former Sheriff Clarke, a conservative and polarizing political
figure. It is likely that attitudes toward former Sheriff
This highly technical analysis is generally performed by
28
an expert subject to cross-examination for the very reason that
it is difficult to sift through statistical noise. Careful
selection of relevant and informative past races is key to a
reliable "racially polarized voting" analysis. Again, the
majority of this court barred the process needed to ensure such
an analysis.
Dr. Collingwood states he used ecological regression,
29
ecological inference, and homogeneous precinct analysis to
analyze ward-level vote returns to infer individual-level voting
behavior. He also explains the various programs used to analyze
the data.
29
No. 2021AP1450-OA.jjk
Clarke lessened support for Schmidt, one of two White
candidates, and increased cross-over support for the Black-
preferred candidate, Lucas. These distorting features mean that
race may not be as probative of racially polarized voting as the
other seven races. Those remaining races showed BVAP to Black
preferred candidate correlation coefficients between .80 and
.95, and White voting age population to White preferred
candidate correlation coefficients between .55 and .89.30 These
numbers show reliably high correlations between a voter's race
and preferred candidate.31
¶200 The third Gingles precondition also requires that
White bloc voting usually blocks Black voters from electing
candidates of choice. This is, undoubtedly, the most difficult
part of the analysis in our posture because, under a normal VRA
challenge, it would usually require district-specific numbers.
In some circumstances, it may not make sense to analyze
majority-BVAP districts under this precondition because White
voters cannot defeat a Black-preferred candidate so long as
The race with the lowest correlation coefficient, the
30
State Superintendent primary with Jill Underly at .55, was low
in part due to a split between support for three White
candidates. The next lowest correlation coefficient is .68.
Although all of the races analyzed included Black
31
candidates as the Black-preferred candidate and White candidates
as the White-preferred candidate, this is not necessarily always
the case. A candidate's race does not need to reflect the same
race as the minority voting population that prefers them.
30
No. 2021AP1450-OA.jjk
voters come out in force.32 More specific analysis of racially
polarized voting in those districts may be relevant, but the
outcomes of races in these districts do not indicate whether
there is sufficient White-crossover voting to remove the need
for race-conscious districting. This is why Dr. Collingwood did
not analyze the AD12 Democratic primary election as part of his
bloc voting analysis. AD12 is already a majority-BVAP district
and so a minority-preferred candidate cannot be blocked by a
White majority. Dr. Collingwood did separately find the
existence of racially polarized voting in that election.
Instead, Dr. Collingwood analyzed elections that cover the
Milwaukee area and found that White bloc voting defeats the
Black-preferred candidate in four out of seven races for a block
rate of 57.14 percent. If the aberrant Milwaukee County
Sheriff's election is removed from consideration, that block
rate rises to 66.66 percent. This indicates that, in the
Milwaukee area as a whole, White bloc voting does usually defeat
the Black-preferred candidate.
¶201 The majority opinion points to the lack of "district
specific" analysis as another fatal flaw, but, because this case
was not a challenge to existing districts, there were no
districts to specifically analyze. Thus, the experts worked
with what they had and analyzed the Milwaukee area as a whole.
The U.S. Supreme Court's decision appeared to set out a new
This is not a universal rule as other factors, such as
32
high levels of non-citizen immigrant populations,
disenfranchised populations, or populations facing other hurdles
to voting could lower a district's minority voting force.
31
No. 2021AP1450-OA.jjk
standard for courts to follow in implementing remedial maps, but
neither this court nor the parties knew that standard at the
time of briefing. Yet since the Court voiced that standard, the
majority of this court has barred all parties from submitting
the necessary additional district-specific analysis of
theoretical "race-neutral" maps.33 That forced ignorance,
though, does not erase the evidence we do have, all of which
evinces each Gingles precondition.
2. Totality of the Circumstances
¶202 Professor David Canon set out a compelling totality-
of-the-circumstances analysis showing that Milwaukee's Black
voters lack an equal opportunity to participate in the political
process. Some of the relevant circumstances, called "Senate
Factors," include:
(1) the history of official voting-related discrimination
in the state or political subdivision;
(2) the extent to which voting in the elections of the
political subdivision is racially polarized;
BLOC did analyze the Legislature's proposed AD10.
33
Looking to what Dr. Collingwood described as the "most probative
election," the 2018 Democratic gubernatorial primary, the Black-
preferred candidate, Mahlon Mitchell, garnered 39.3 percent of
the vote while Governor Evers, one of multiple White candidates,
received 29.3 percent. The combined vote total of Governor
Evers and the next most popular candidate, Kelda Roys, would
have defeated Mahlon Mitchell's plurality of votes. This
evidence does not appear sufficient to say that AD10 would or
would not reliably perform for Black preferred candidates. As
explained previously, the Legislature's map is not reliably
race-neutral and thus even a full analysis of that map's
performance would not satisfy the U.S. Supreme Court's directive
to review a race-neutral option.
32
No. 2021AP1450-OA.jjk
(3) the extent to which the political subdivision has used
voting practices or procedures that tend to enhance the
opportunity for discrimination against the minority group;
(4) the exclusion of members of the minority group from
candidate slating processes;
(5) the extent to which minority group members bear the
effects of discrimination in areas such as education,
employment, and health, which hinder their ability to
participate effectively in the political process;
(6) the use of overt or subtle racial appeals in political
campaigns; and
(7) the extent to which members of the minority group have
been elected to public office in the jurisdiction.
According to Professor Canon's unrefuted analysis, all Senate
Factors except factor (4) show that Black voters have less of an
opportunity to participate in the political process than White
voters.
¶203 Wisconsin has a history of both official voting
discrimination and voting practices that enhance the opportunity
for discrimination (Senate Factors 1 and 3). While history of
these practices is no doubt long, relatively recent instances of
such practices paint a sufficient picture. First, in 2012, the
Baldus court held that the Legislature's redistricting maps
unlawfully diluted the voting strength of minority voters in the
Milwaukee area. See Baldus, 849 F. Supp. 2d 840. Second,
recent attempts to purge voter rolls of "inactive" voters would
have disproportionately affected minority communities. See
33
No. 2021AP1450-OA.jjk
Zignego v. Wis. Elections Comm'n, 2021 WI 32, ¶¶9-10, 396
Wis. 2d 391, 957 N.W.2d 208. In 2019 a circuit court ordered
the "inactive" voters removed from registration lists before the
effort was stopped on appeal. Notices were sent to individuals
informing them that they would be removed from voter rolls if
they failed to respond. Significantly, over one-third of those
notices were sent to individuals in Milwaukee County and Dane
County——those with the highest minority populations.
Additionally, minority voters were almost twice as likely to be
incorrectly flagged as having moved as White individuals.34
¶204 Third, during the April 2020 election, the early surge
of the COVID-19 pandemic caused a state-wide poll worker
shortage that necessitated polling places be consolidated.
Milwaukee, which has the largest minority population in the
state, was hit hardest by these consolidations. Only 5 out of a
usual 182 polling sites for the entire city, or 1 polling place
for every 103,000 registered voters, remained open to this large
minority population. By contrast, Washington County, Ozaukee
County, and Waukesha County each had 1 polling place for every
7,000 registered voters.35 Reports indicate that these
disproportionate measures greatly affected voter turnout. One
study found that approximately 16 percent of registered
Milwaukee voters voted in the April 2020 primary compared to 42
34Subcomm. on Elections, 117th Cong., Voting in America:
Ensuring Free and Fair Access to the Ballot 31-33 (Jul. 2021).
35Kevin Morris & Peter Miller, Voting in a Pandemic:
COVID-19 and Primary Turnout in Milwaukee, Wisconsin, 58 Urb.
Aff. Rev. 597, 598 (2021).
34
No. 2021AP1450-OA.jjk
percent of registered voters who turned out in the surrounding
Washington, Ozaukee, and Waukesha Counties. Another study
indicated that poll closures depressed voter turnout in
Milwaukee by 8.6 percentage points with a disproportionate
effect on Black voters.36 Within Milwaukee County, more polls
were closed in the areas with the highest percentage of non-
White voters.37 Fourth, Wisconsin has required IDs to vote
since 2011. While voter ID laws have been upheld under the
federal constitution as lawful, voting data shows such laws
disproportionately deter racial minorities from voting.38
¶205 Disparities in other socioeconomic categories between
Wisconsin's White population and Milwaukee's minority
populations, driven by racial discrimination, also hinder the
ability of minority populations to effectively participate in
the political process (Senate Factor 5). This dissent opened by
acknowledging Milwaukee's history of racial discrimination and
the lasting racial disparities that history engendered. To
reiterate, Milwaukee's history of forced segregation created a
historical racial gerrymander, limiting minority populations
from the opportunity to exert influence outside of a limited
geographic area. Additionally, the low rates of Black
36 Id.John A. Curiel & Jesse T. Clark, Disparities in Poll
37
Closures in the Age of COVID-19: A Case Study of Wisconsin, 20
Election L. J. 345 (2021).
Michael G. DeCrescenzo & Kenneth R. Mayer, Voter
38
Identification and Nonvoting in Wisconsin——Evidence from the
2016 Election, 18 Election L. J. 342 (2019).
35
No. 2021AP1450-OA.jjk
homeownership and high rates of evictions in Black communities
result in more transient populations that change addresses
frequently. These populations may face difficulties staying
registered under the proper address and providing necessary
proof of address under voter ID laws. Homeless people face
barriers that result in as few as 10 percent of the homeless
population showing up to the polls.39
¶206 Wisconsin's high disparity between Black and White
incarceration rates (the Black incarceration rate is 11.9 times
greater than the White incarceration rate) directly affects
opportunities to participate in the political process. Felons
are disallowed from voting until they have completed their
entire sentence, which includes release from probation, parole,
or extended supervision. See Wis. Stat. §§ 6.03(1)(b) &
304.078. In 2020, 22,371 Black Wisconsinites were
disenfranchised because they were incarcerated or on probation,
parole, or extended supervision.40 Even after an ex-felon's
Dora Kingsley Vertenten, As Few As 1 in 10 Homeless
39
People Vote in Elections——Here's Why, U.S. News (Oct. 15. 2020,
10:41 AM), https://www.usnews.com/news/cities/articles/2020-10-
15/as-few-as-1-in-10-homeless-people-vote-in-elections-heres-
why.
Chris Uggen et al., The Sent'g Project Locked Out 2020:
40
Estimates of People Denied Voting Rights Due to a Felony
Conviction 17 (Oct. 30, 2020), https://www.sentencingproject.org
/publications/locked-out-2020-estimates-of-people-denied-voting-
rights-due-to-a-felony-conviction/.
36
No. 2021AP1450-OA.jjk
voting rights are restored, evidence shows most will vote at
much lower rates than the general public.41
¶207 The myriad of other examples of racial disparity in
Wisconsin may also account, in part, for the historically
limited success minority candidates have had in city- and
county-wide elections (Senate Factor 7). Cavalier Johnson just
became the first Black person elected to be Mayor of Milwaukee
and only the second Black person elected to be mayor anywhere in
Wisconsin.42 In 2020, David Crowley became the first Black
person elected to be Milwaukee County Executive. At the time of
briefing, no Black office holder held a state representative,
alderperson, or supervisor seat in any Milwaukee-area districts
outside majority-Black districts. While we can hope that the
very recent successes of some city and county-wide candidates is
an indication of long-needed change, history and common sense
tell us that one successful minority candidate does not erase a
long history of discrimination and racial disparity.
¶208 The procedural posture of this remedial redistricting
case (specifically that no Equal Protection or VRA challenge was
before this court) coupled with the lack of rigorous expert
analysis of past elections by any party other than BLOC and the
lack of expert cross-examination, hampered this court's ability
41Jeff Manza & Christopher Uggen, Punishment and Democracy:
Disenfranchisement of Nonincarcerated Felons in the United
States, 2 Persps. on Pol. 491 (Sept. 2004).
42Marvin Pratt became the first Black mayor of Milwaukee in
2004, but only as acting mayor following Mayor Norquist's
resignation.
37
No. 2021AP1450-OA.jjk
to definitively decide the VRA issues in our March 3 decision.
That said, the evidence and expert analysis before us certainly
indicates that minorities in the Milwaukee area continue to bear
the effects of discrimination in ways that limit their
opportunity to participate in the democratic process.
IV. LESSONS TO BE LEARNED
¶209 This has been a profoundly disheartening odyssey. The
unavoidable political nature of remedial redistricting plagued
us every step of the way. Too rarely did this process present
true questions of law——this court's only area of expertise. At
every change in the tide, this court seemed to choose what it
hoped to be a short-cut to streamline our voyage, only to find
ourselves lost and unable to do our work as a non-partisan court
of law. But the redistricting process is likely to stalemate
and come before this court again in the future. And when it
does, I hope that we have learned our lesson. I hope that we
will permit a politically insulated federal court to manage the
task. Federal courts are better able to conduct extensive fact-
finding through trial-style litigation, a task for which we
proved ill equipped.
¶210 If this court does, however, cast off upon this
odyssey again in the future, we cannot shy away from the demands
of the process. We must hear and test the facts. We must
acknowledge our responsibility to implement the best, judicially
appropriate maps possible and to fully justify our decisions
rather than pawning that responsibility off to party
participants. We can and should do so much better.
38
No. 2021AP1450-OA.jjk
¶211 The majority does not rise to that challenge; instead
it locks our sails on a direct course to another set of maps we
cannot call lawful. I dissent.
¶212 I am authorized to state that Justices ANN WALSH
BRADLEY and REBECCA FRANK DALLET join this dissent.
39