U.S. Supreme Court throws out Wisconsin's redistricting plan for legislative maps

Patrick Marley
Milwaukee Journal Sentinel
After the U.S. Supreme Court threw out Wisconsin's legislative maps on Wednesday, it leaves uncertain what maps will be used for the fall elections for the state Senate and Assembly.

MADISON – The U.S. Supreme Court threw out Wisconsin's legislative maps Wednesday, less than three weeks after a narrowly divided state Supreme Court put them in place

Wednesday's ruling leaves uncertain what maps will be used for the fall elections for the state Senate and Assembly. The Wisconsin high court will now have to revisit the case to decide where to put the lines.

Republicans praised the decision over the state legislative districts but faced a separate setback Wednesday when the U.S. Supreme Court declined to block the state's congressional maps.

The U.S. Supreme Court's ruling comes less than a month before candidates are to take out papers to gather signatures to get on the ballot. Candidates can't file that paperwork without knowing the contours of their districts. 

The U.S. Supreme Court tossed the maps because it concluded the state justices did not adequately determine whether Assembly districts in Milwaukee complied with the federal Voting Rights Act

More:A gerrymandered map and a new court decision make the 2010 election the gift that keeps giving for GOP

More:An initial Wisconsin Supreme Court ruling benefited Republicans. Its next one will determine by how much.

Federal law is complicated because those who draw election maps must not consider race in some instances but are required to do so in areas with large minority populations to ensure those voters can elect candidates of their choosing. 

The maps the state court adopted increased the number of majority Black districts from six to seven in Milwaukee. The U.S. Supreme Court ruled the state justices had not done enough analysis to determine whether the Voting Rights Act required the creation of the seventh district. 

The maps the state justices adopted were drawn by Democratic Gov. Tony Evers but had a strong Republican tilt to them.

Wednesday's decision left open the possibility for the state justices to try to reinstate Evers' maps. But to do so the state justices would have to provide additional evidence showing what the Voting Rights Act requires in Milwaukee.

What the U.S. Supreme Court wrote about Wisconsin's redistricting plan

In its unsigned opinion, the U.S. Supreme Court majority wrote that the state justices could not create a seventh majority Black district in the Assembly unless they first thoroughly investigated whether one was necessary under the Voting Rights Act. 

"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," the majority wrote.

In dissent, Justice Sonia Sotomayor wrote that the majority had unfairly found the state court at fault for trying to comply with precedents that are "hazy at best." She was joined by Justice Elena Kagan. 

Sotomayor called the state court's decision appropriate, noting it had left room for future litigation over the Voting Rights Act if necessary. 

"This Court's intervention today is not only extraordinary but also unnecessary," Sotomayor wrote of the U.S. Supreme Court majority.

Wednesday's ruling ensures another fast-moving round of litigation over Wisconsin's election maps.

No one offered an immediate timeline for resolving the lawsuit, but state law allows candidates to take out nomination papers to get on the ballot on April 15. Candidates must submit those papers to election officials by June 1. 

The primary is Aug. 9 and the general election is Nov. 8.

In a statement, Evers said he was disappointed by the ruling and would continue to make the case that the maps he offered are better than the ones that have been in place since 2011. 

"I will not stop fighting for better, fairer maps for the people of this state who shouldn't have to wait any longer than they already have to ensure their voices are heard," he said in his statement.

Rick Esenberg, the president of the conservative Wisconsin Institute for Law & Liberty, praised Wednesday's ruling. His group brought the lawsuit that put redistricting before the state Supreme Court.

"This is a critical victory to ensure that our government not make decisions on the basis of race," Esenberg said in a statement about Wednesday’s decision.

Sachin Chheda, the director of the Fair Elections Project, said the nation’s high court had thrown Wisconsin’s elections into "chaos" just before nomination papers are to be taken out. His group has pushed for having nonpartisan officials draw election maps.

"Never has it been clearer that the U.S. Supreme Court majority will do anything it can to advance Republican interests, rather than the law, the Constitution, and the will of the people," he said in a statement. 

Analysis:In court fight over redistricting, the decision is now between a map that's very good for GOP and one that's even better for GOP

Wisconsin's congressional maps still in place

In a short, separate order Wednesday, the U.S. Supreme Court declined to block the congressional maps that the Wisconsin Supreme Court adopted this month.

The congressional maps the state court adopted made Republican U.S. Rep. Bryan Steil's district in southeastern Wisconsin much more competitive. Steil and other Wisconsin Republicans this month asked the U.S. Supreme Court to put a hold on those maps.

States must draw new legislative and congressional districts every 10 years based on data from the U.S. Census Bureau to make sure districts have equal populations. Where the lines go can give big political advantages to one political party. 

Evers and Republicans who control the Legislature couldn't agree on maps, which left them to be decided by the state Supreme Court. 

The state justices in November issued a 4-3 decision saying they would make as few changes to the existing districts as possible. That ruling was a victory for Republicans because they drew those districts in 2011 and they heavily favor their party.

A different 4-3 majority this month selected Evers' maps, saying the plans he proposed included the fewest changes of any submitted to the court.

Justice Brian Hagedorn was the only justice in both majorities. He was elected in 2019 with the support of Republicans but has frustrated conservatives in a string of high-profile cases by siding with the court's liberals

He is sure to be the most closely watched justice in the next round of the legal fight.

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.