The Supreme Court of the United States, in an unsigned opinion on Wednesday, rejected Wisconsin state legislative maps that were drawn by the Democratic governor and adopted by the state’s own supreme court. Legal experts caution that the ruling is likely to erode time-honored voting rights protections that have been relied upon for decades.
The per curiam ruling in the case stylized as Wisconsin Legislature v. Wisconsin Elections Commission comes a little less than five months away from currently scheduled primary elections in the Badger State.
In electing to toss out the maps, an unknown number of justices on the nation’s high court accepted legal arguments made by the GOP-controlled state legislature that efforts by Gov. Tony Evers (D) to create a new majority-Black district in Milwaukee was based on an impermissible and off-base understanding of the Voting Rights Act of 1965.
“We agree that the court committed legal error in its application of decisions of this Court regarding the relationship between the constitutional guarantee of equal protection and the VRA,” the opinion says–while allowing that Wisconsin’s highest court “can choose from” other submitted maps or “reconsider the Governor’s maps” so long as their analysis complies with “equal protection jurisprudence” touched upon by the Supreme Court on Wednesday.
Evers created a seventh majority-Black district and justified it by saying the VRA required the creation of such a district in response to a significant increase in the Black population in the area. The Wisconsin Supreme Court, in acceding to Evers’ argument, was a bit more cautious and said “a seventh Black district may be required” under the VRA because it was “possible to draw” such a district that does not run afoul of the VRA and the Equal Protection Clause.
The Supreme Court of the United States on Wednesday thoroughly rejected both of those understandings of VRA and Equal Protection Clause precedent.
In sum, the unnamed justices—certainly not named Justice Sonia Sotomayor or Justice Elena Kagan—opined that a landmark case outlining the process for constitutionally-acceptable majority-minority districts was misapplied by the Wisconsin Supreme Court.
That case, Thornburg v. Gingles, outlined the following factors for creating such districts: (1) a large and compact community of minority voters; (2) a minority community that is politically cohesive; and (3) a showing that the majority in the area has a history of voting as a bloc to defeat the minority community’s preferred candidates.
In allowing Evers’ seventh majority-Black district, the Supreme Court says the state high court judges “reduced Gingles’ totality-of-circumstances analysis to a single factor” and focused on proportional vote share compared to population as the controlling consideration.
The per curiam opinion demands the following judicial inquiry instead:
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. Answering that question requires an “‘intensely local appraisal’ of the challenged district.” When the Wisconsin Supreme Court endeavored to undertake a full strict-scrutiny analysis, it did not do so properly under our precedents, and its judgment cannot stand.
Justice Sotomayor, in a dissent joined by Justice Kagan, called the opinion “unprecedented” for “summarily” overturning Wisconsin’s maps in “an emergency posture” because such “summary reversals are generally reserved for decisions in violation of settled law.” Here, Sotomayor complains, her conservative colleagues have taken issue with “the State Supreme Court for its failure to comply with an obligation that, under existing precedent, is hazy at best.”
To hear the dissenters tell it, the state supreme court was admittedly not doing a full VRA analysis but adopting maps in the “first instance.” What the dissent means here is that the U.S. Supreme Court’s precedent only demanded, until now, that a lower court perform a full VRA analysis when a court is “adjudicating a subsequent challenge” (emphasis ours). But here, Sotomayor notes, “the Wisconsin Supreme Court was selecting a map itself.” And, in doing so, she notes, the state court said a later challenge was both likely and would have called for a full VRA analysis.
The exasperated dissent concludes:
This Court’s intervention today is not only extraordinary but also unnecessary. The Wisconsin Supreme Court rightly preserved the possibility that an appropriate plaintiff could bring an equal protection or VRA challenge in the proper forum. I would allow that process to unfold, rather than further complicating these proceedings with legal confusion through a summary reversal.
Many online legal commentators were quick to criticize the majority ruling as a convenient violation of the so-called “Purcell principle,” which is an inconsistently applied admonition created by the Roberts court in 2006. The principle was described by Justice Brett Kavanaugh as standing for the proposition that “federal district courts ordinarily should not enjoin state election laws in the period close to an election” in a recent case regarding congressional redistricting in Alabama.
In an interview with Law&Crime, one legal expert shrugged off the Purcell analysis as somewhat superficial and warned of an even more basic effort by the court’s conservatives to rollback the effectiveness of the VRA and its few remaining protections.
“In this case, Purcell is not mentioned so this is not a case where Purcell applies,” Seton Hall Visiting Law Professor Eugene D. Mazo said. He described the principle as basically a suggestion that courts shouldn’t make election decisions that change the rules of the game close to elections because it’s confusing to voters.
“We don’t really know when Purcell applies,” Mazo noted. “How close to an election or how big of a rule change is required. Scholars have criticized Purcell as bringing more confusion than clarity.”
“This [primary] election is in August so I still think we’re pretty far away,” he continued. “I think something else is happening here.”
Mazo pointed out that the per curiam opinion actually begins its analysis by quoting from a 5-4 Supreme Court ruling from 1993 that itself rolled back the VRA by saying that race cannot be the predominant factor in drawing a legislative district because that would violate the Equal Protection Clause.
“The law of racial redistricting is similar to affirmative action,” Mazo explained, “but can’t be the only reason you’re drawing that district.”
Pinning that case as the basis for the analysis, the law professor said, was a sign that the “by nature deregulatory” conservatives on the court who “think the Constitution should be colorblind” are “going to gut some of Section 2 of the Voting Rights Act.”
“The Supreme Court is getting set to significantly curtail the circumstances in which you can use race to draw legislative districts,” he said while analogizing and likening the Wisconsin decision to the recent Alabama ruling.
In both states, a lower court decided it was necessary to draw an additional majority-minority district. Each time, the Supreme Court’s conservative majority said those changes could not stand.
“I think what the court is going towards is they’re going to say, ‘No, you want to draw districts by race, you need a really good reason to do that,'” Mazo continued – citing a framework often used to undo state action. “I think they’re going to try to revisit some of these principles.”
“The rules of the game are not actually written,” he continued – noting that there is actually no right to vote in the U.S. Constitution. “The Constitution says very little about voting. They think it’s gone too far so they’re curbing and curtailing Section 2.”
University of Kentucky Law Professor Joshua A. Douglas offered a similar understanding of Wednesday’s opinion.
“I think the biggest problem here is that the Court once again seemed to offer a narrow interpretation of the Voting Rights Act Section 2 and its prior precedents through an emergency appeal without full briefing and oral argument,” he told Law&Crime in an email. “Substantive law is now being made in these shadow docket cases.”
[image via Justin Sullivan/Getty Images]
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