Supreme Court hears oral arguments in redistricting case

By: - January 19, 2022 6:24 pm

The Wisconsin Supreme Court heard oral arguments on Wednesday in the case that will decide the state’s political maps for the next decade. (Screenshot | Wisconsin Eye)

The Wisconsin Supreme Court heard oral arguments in the case that will decide the state’s political maps for the next decade on Wednesday. 

The seven justices focused their questions on how to balance competing interests such as compliance with the Voting Rights Act (VRA) and maintaining municipal boundaries as they work out how to draw the maps after the Republican-controlled Legislature and Democratic Gov. Tony Evers were unable to reach an agreement last year. 

In the nearly day-long arguments on Wednesday eight different parties, representing a wide and competing mix of political interests, gave oral arguments — each saying that their proposed maps or proposed criteria for assessing the maps was the best for the state’s voters. 

Arguing in the case were Gov. Tony Evers, the Republican-controlled Legislature, a group of progressive nonprofit groups including Black Leaders Organizing for Communities (BLOC), the Wisconsin Senate Democratic Caucus, a group of concerned voters, a group of mathematicians and a group represented by the right-wing legal firm the Wisconsin Institute for Law & Liberty. 

In November, the court ordered that all proposed maps should follow the principle of “least change,” meaning they don’t deviate too far from the heavily gerrymandered maps that have been in place since 2011, while accounting for shifts in population. A major focus of the arguments was what metric the court should use to gauge who made the least changes, with most of the parties saying they were in favor of the court using the percentage of voters that remain in the same district or the number of newly divided municipalities. 

The court must also weigh a number of legal and constitutional mandates as it constructs the new maps. Those mandates include requirements under the VRA to allow for minority groups to achieve political representation; efforts not to divide cities or counties; making districts as compact as possible and not moving too many people from district to district. 

A large portion of the arguments focused on compliance with the VRA and how many majority minority districts must be created. 

Evers and the group of nonprofits submitted proposals that create seven majority Black Assembly districts. Other groups submitted proposals that have six majority Black districts, which is the number in the currently existing maps. 

The arguments focused on how the VRA should be applied, what threshold must be met for a district to give Black voters the best opportunity and how those pieces should fit within the context of the rest of the state. 

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The more progressive groups in the case were arguing for an additional majority Black district and even the Republican-controlled Legislature argued that the number should remain at six. But a few of the justices seemed to suggest that the VRA isn’t necessary because there are already Black lawmakers from the city.

“If you look at [Lt. Gov.] Mandela Barnes, he was elected twice and now he’s going to run for U.S. senator,” conservative Justice Patience Roggensack said. “I think clearly he’s had a lot of white support in his campaigns.” 

Mel Barnes, an attorney for the progressive legal outfit Law Forward which represented BLOC, said in a post hearing news conference that Black candidates being elected to seats in already existing Black majority districts means the VRA is working, not that it needs to be thrown out in this new round of redistricting. 

“The very fact that some Black elected officials have won in Wisconsin does not mean that voters in Black and other non-white communities in Wisconsin do not need and are not entitled to, under our laws, the protections that prevent white voters from blocking minority community voting preferences,” Barnes said. 

The Legislature’s attorney, Taylor Meehan, said the Legislature’s proposals should be chosen because they are “race neutral” and the proposals from BLOC and the governor constitute a “racial gerrymander” because they attempt to create a new majority Black district. 

“We believe they’re unconstitutional under the federal constitution because there is no justification for the racial gerrymanders,” Meehan said. “The race-based sorting of the Milwaukee districts is not required by the VRA, and therefore cannot forgive the racial discrimination in violation of the 14th Amendment.”

“It is uncontroverted that the Legislature did not consider race in drawing the districts,” she said later. “The district lines are based on race neutral criteria, and when the drafters went about drafting the maps they did not draw with race data.” 

Conservative Justice Brian Hagedorn, who has been an important swing vote in recent court decisions regarding voting rights, seemed skeptical of the Republican Legislature’s arguments from the start. 

Meehan said that the body’s maps were better because they were more equally sized than those proposed by Evers and BLOC — even though that is a different metric than the “least change” guideline previously ordered by the court. 

“I’m having a hard time with this argument,” Hagedorn said to Meehan. “Why would we now use that standard when that isn’t what we told the parties? If we told the parties we wanted you to submit maps that have perfect equality population like the congressional districts, we should have said so but we didn’t say so. We said something quite, quite different. And I don’t want to be Charlie Brown and Lucy here.”

In the news conference, Barnes said the Legislature was focusing on this argument because it realized its proposals weren’t going to win under the least change standard. 

“It makes sense to measure how many voters are moved across districts, and at the beginning of this lawsuit, the Legislature came out very hard in favor of core retention, in favor of this least changes approach,” Barnes said. “Once plans were submitted in December, and what we heard today and in their arguments is them backing off of that a little bit and focusing on other criteria because they realized that other plans perform at least as well as theirs on this least change core retention criteria.”

Later in the hearing, some of the liberal justices went back and forth with Misha Tseytlin, the attorney for the state’s incumbent Republican congressmen. Tseytlin was arguing that the congressional district maps proposed by his clients were the only proposed congressional maps that are constitutional because they are the only party that explained each of its decisions. 

“There are only eight congressional lines, only four proposed maps, three of those maps are either, obviously illegal, completely unexplained in many of their changes, or both,” Tseytlin, the former state solicitor general, said.

Liberal-leaning Justices Rebecca Dallet, Jill Karofsky and Ann Walsh Bradley seemed unconvinced by Tsyetlin’s arguments, pointing out that the congressmen’s proposal moves hundreds of thousands more people between districts than other proposals and expressing skepticism at his statement that none of the other proposed maps had explanations. 

Sam Hirsch, the attorney for the group of mathematicians that proposed maps created by a computer program, closed his argument by saying the court has inserted itself into a political fight and should choose the maps proposed by a nonpartisan actor. 

“Fairly or unfairly, if you adopt the maps passed by the Legislature but vetoed by the governor, others will say that you in effect overrode the veto for a legislative majority that did not have the supermajority necessary to do that,” Hirsch said. “Conversely, if you adopt the map proposed by the governor or the similar ones proposed by the governor’s allies up here, they’re going to say you’ve ignored the role of the Legislature, which is preeminent in redistricting.” 

“These may be totally unfair attacks, but you have a way around this,” he continued. “You have in front of you a set of maps that are the best … and that come from a nonpartisan group of professors who are not here fighting for their own political power or voting strength. I implore you to choose these maps. It’s the best thing for the state of Wisconsin and for the people of Wisconsin, and they will forever respect you for that decision.” 

The court’s decision on the new maps is expected to come quickly because the Wisconsin Elections Commission needs them by March in order to give candidates enough time to start circulating nomination papers to get on the ballot. 

Once the Supreme Court decides, a legal challenge could still be made to a federal court where a three judge panel is already set to decide a pending lawsuit if necessary.

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Henry Redman
Henry Redman

Henry Redman is a staff reporter for the Wisconsin Examiner who focuses on covering Wisconsin's towns and rural areas. He previously covered crime and courts at the Daily Jefferson County Union. A lifelong Midwesterner, he was born in Cleveland, Ohio and graduated from Loyola University Chicago with a degree in journalism in May 2019.

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