Supreme Court issues “unprecedented” shadow docket ruling throwing out Wisconsin redistricting maps, chipping away at voting rights

The U.S. Supreme Court issued an “astonishing” and “bizarre” shadow docket ruling yesterday throwing out Wisconsin legislative maps that were adopted by the state’s highest court.


Last year, the Republican-controlled Wisconsin legislature passed legislative maps that entrenched their majorities in the state Senate and Assembly. Analyses proved both maps were gerrymandered; Republicans would win 66% of the Senate seats and 64% of the Assembly seats despite only garnering 52% of the statewide vote. Gov. Tony Evers (D) vetoed both the legislative and congressional maps, sending the dispute to the Wisconsin Supreme Court.

The Wisconsin Supreme Court asked both parties to submit proposed maps, ultimately choosing (pdf) Gov. Evers’ map in a 4-3 ruling with conservative swing Justice Brian Hagedorn casting the deciding vote.

Taken together, the Governor’s maps score best on core retention. Although the Legislature’s senate map moves 1,958 fewer people than the Governor’s senate map, that slightly better performance is outstripped by the Governor’s vastly superior core retention in the assembly, where the Governor moves 96,178 fewer people than the Legislature. No maps from any other party perform nearly as well as the Governor’s on core retention.

Republicans filed an appeal (pdf) to the U.S. Supreme Court, asking for a reversal of the Wisconsin Supreme Court’s decision.

The ruling

The Supreme Court sided with Wisconsin Republicans in an unsigned shadow docket opinion (pdf). We do not know the exact vote breakdown for this reason.

The unknown majority’s ruling centers around the adopted map’s creation of a seventh majority-Black district. Gov. Evers’ explained that he believed that Black population growth in Milwaukee required a new district to restore their political power. In other words, the 2011 map diluted minority votes in violation of the Voting Rights Act. The Wisconsin Supreme Court did not choose his map for this reason, however. Evers’ map was determined to include the least changes while evenly reapportioning the population based on the 2020 census.

Despite the Wisconsin Supreme Court not being asked to evaluate the maps for racial considerations, the U.S. Supreme Court ruled it had erred by failing to conduct such an evaluation. The Wisconsin Supreme Court also left open the possibility for future challenges on such grounds; the U.S. Supreme Court decided it would intervene without allowing a full airing of the issue.

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.

Yurij Rudensky, of the Brennan for Justice, called the Republican request before the U.S. Supreme Court “absurd…given that it wasn’t the subject of the [Wisconsin court’s] decision making.”

It’s hard to overstate how inappropriate this is. The [Wisconsin Supreme Court] did not claim to have applied the [Voting Rights Act] or the constitutional racial gerrymandering doctrine—it simply adopted the map that best met its criteria: minimal change from 2011 districts.

And for a map to violate the constitutional racial gerrymandering doctrine, plaintiffs have to demonstrate (with actual evidence and fact finding) that race was the predominant factor in the drawing of districts. That has not been proven here.

This isn’t how the federal court system is supposed to work. If SCOTUS wants to clarify a point of law, it can only do that when the issue has been squarely presented, briefed, and argued. None of those ingredients are present here. This decision, especially considered in light of the Court’s decision in the Alabama case, degrade the federal judiciary and demonstrate SCOTUS’s rabid appetite for dismantling voting rights protections.

Justices Sonia Sotomayor and Elena Kagan dissented, calling the majority’s ruling “unprecedented.”

The [Wisconsin] court stressed, however, that no Equal Protection Clause or VRA claim was before it and that adjudicating such claims would require a fuller record and a closer assessment. It concluded that neither the Equal Protection Clause nor the VRA clearly foreclosed adopting the Governor’s map in the first instance…but left open the possibility that a “standard VRA claim” could be “brought after the adoption of new districts,”…

the Wisconsin Supreme Court was selecting a map itself, not adjudicating a subsequent challenge in the manner that Cooper and other cases have addressed. The court accepted an original action to supervise the redistricting and, with the input of the parties, designed its own process for doing so…

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. I respectfully dissent.

There is “no precedent,” Sotomayor wrote, requiring a court “to embark on an independent inquiry into matters that the parties have conceded or not contested.” No party asked the Wisconsin Supreme Court to determine whether the adopted map is a racial gerrymander.

Finally, though not addressed in the dissent, the majority of the Supreme Court violated its own reading of the Purcell principle.

Under the Purcell principle, courts should not change election rules during the period of time just prior to an election because doing so could confuse voters and create problems for officials administering the election.

In February, the conservative majority—minus Chief Justice John Roberts, who joined the liberals’ dissent—invoked Purcell to block a decision requiring Alabama to undo its racial gerrymander because the primaries were four months away. Now, with the Wisconsin primaries five months away, suddenly the conservative majority has no worry about Purcell.