Justice Amy Coney Barrett requests responses in Wisconsin redistricting case

U.S. Supreme Court Justice Amy Coney Barrett has signaled her possible interest in hearing a challenge to last week’s Wisconsin Supreme Court decision instituting electoral maps proposed by Democratic Gov. Tony Evers. 

The Republican-held Legislature, which instituted one of the most extensive partisan gerrymanders in the country in 2011, has continued to search for ways to overturn last week’s decision, alleging it amounts to a “racial gerrymander.” 

“Wisconsin is now home to the 21st-century racial gerrymander,” the Legislature said in its brief to the Supreme Court on Monday. “Days ago, the Supreme Court of Wisconsin issued an opinion and order to resolve malapportionment claims with respect to Wisconsin’s existing state assembly and senate districts. In place of the existing districts, the court adopted the Wisconsin Governor’s proposed redistricting plan. Race dominated the drawing and adoption of this plan, the product of an untheorized and deeply wrong re-writing of the Voting Rights Act.”

Last Friday, the Legislature requested that the Wisconsin Supreme Court institute a stay of its decision pending an appeal to the nation’s high court and on Monday it asked the Supreme Court to block the state court’s ruling — which was decided 4-3 with conservative Justice Brian Hagedorn joining the court’s liberals. 

On Monday, Barrett requested responses to the Legislature’s application from other parties in the case, including Evers and the Wisconsin Elections Commission by 5 p.m. on Friday. The Wisconsin Supreme Court has requested the parties to respond to the request for a stay by 11 a.m. on Wednesday. 

The state court’s majority selected Evers’ maps because it said they most closely complied with the court’s “least change” requirement which mandated that the new maps not change too much from the gerrymandered 2011 maps. The Evers maps added a seventh majority Black district in the Milwaukee area — which is what Republicans are saying amounts to a racial gerrymander. 

Certain provisions of the Voting Rights Act require mapmakers to draw districts that give demographic minorities the voting power to elect candidates of their choosing. The previous maps included six majority Black districts and the maps proposed by the Legislature included five. 

Mel Barnes, an attorney for progressive law firm Law Forward which argued in the redistricting lawsuit on behalf of immigrant-rights group Voces de la Frontera and other nonprofit organizations, says she doesn’t believe the U.S. Supreme Court will take the case. Especially since the WEC is running up against the statutory deadline by which it needs the maps in place. Last fall, WEC Administrator Meagan Wolfe said the agency needed the new maps by March 1 to implement them ahead of March 15 so candidates in this fall’s elections can begin circulating nominating papers to earn a place on the ballot. 

“It’s extremely unlikely the U.S. Supreme Court takes this on the emergency basis that the Legislature has asked for,” Barnes says. “Elections are almost starting to be administered. We are almost a week away from the statutory deadlines for the 2022 elections. There are a whole host of things that have to happen in order for voters to cast a ballot in August.”

“Any last minute changes would throw elections into chaos, or have the potential to,” she continues. 

Barnes says that the Legislature’s argument of a racial gerrymander doesn’t have any legs to stand on, because the Black population in Wisconsin, and specifically the Black voting age population around Milwaukee, has grown over the past decade. 

“Wisconsin had six Black majority districts. They were already quite packed and, over the last ten years, the Black population in Wisconsin grew by almost 5% statewide while the white population fell,” she says. “In Milwaukee, the Black voting age population increased by 5.5% while the white voting age population decreased by 9%, so of course it’s appropriate and drawing that seventh district, as the court ordered, is designed to prevent the dilution of the votes of Black voters in the Milwaukee area.” 

Republican legislators argued that the maps need to be challenged because Evers said his goal was to maximize the voting power of Black voters around Milwaukee, which they argue is a violation of the U.S. Constitution’s equal protection clause. 

“Our objection to Governor Evers’ maps is not a question of partisan outcome but rather a question of law. The Governor, by his own legal argument, targeted minority voters to draw districts on the basis of race,” Senate Majority Leader Devin LeMahieu (R-Oostburg) said in a statement. “That is expressly prohibited under the Equal Protection Clause of the Fourteenth Amendment, and today we asked the U.S. Supreme Court to uphold the protections guaranteed by the Constitution and federal law.”

“If the U.S. Supreme Court does not resolve this issue, the Governor’s maps will constitute a fundamental erosion of the Equal Protection Clause and the Voting Right Act in Wisconsin — with the potential for nationwide impact,” he continued.

But Barnes says that this argument doesn’t make sense coming from a body that advocated for reducing the political power of Black voters in their proposed maps. 

“I don’t think it is an argument that can be made in good faith,” she says. “The Legislature’s proposed maps in this cycle of redistricting not only made the partisan gerrymander even more extreme, but their maps would have reduced the Black majority districts from six to five, taking a step backwards, even though the Black voting age population increased there. It’s important we have fair maps in our state that value the voices of all Wisconsin voters, including Black voters in the Milwaukee area. For the first time in a decade, Wisconsin has maps moving a step in the right direction.”