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Something Good Happened In Wisconsin?!
Turn around three times, knock wood, and spit!
Wisconsin is going to have halfway decent legislative maps for the first time in over a decade!
Yesterday, the Wisconsin Supreme Court surprised a lot of people, rejecting mega-gerrymandered maps drawn by the Republican legislature, in Johnson v. Wisconsin Elections Commission .
Currently, Wisconsin is one of the most gerrymandered states in the country. And don't worry, we still stay plenty gerrymandered with these new maps. But even this is still a pretty big deal — particularly coming from a state supreme court with a conservative majority that could have used this as an opportunity to create terrible case law for decades to come.
Here’s the background
States have to redraw their political maps every 10 years, after the nation's Census results are released. The last time Wisconsin’s maps were drawn, Scott Walker was governor and Republicans controlled the legislature … you can already see where this is going, right?
Wisconsin ended up with some of the most gerrymandered maps in the country. Multiple courts found them unconstitutional before John Roberts & Co. ruled in Rucho v. Common Cause that partisan gerrymandering is just fine and not something federal courts should bother themselves with, as long as it continues to benefit Republicans.
Here, have a nice infographic about how bad Wisconsin's maps are!
I’ll bet a really cool and awesome person named Jamie made that.
Anyway, yeah. The maps are bad. And it looked like they were going to get even worse.
Republicans have majorities in both houses of the Wisconsin legislature and they were intent on keeping their gerrymandered maps. Thankfully, we have a decent governor in Tony Evers, who vetoed the new and unimproved super-gerrymandered maps.
And that's when the real fight started.
It’s a miracle!
I have to admit that I was pleasantly surprised by this outcome. The Wisconsin Supreme Court handed the Republicans some major victories early on. And the fact that the state supreme court chose to get involved at all was not a great sign — in the past, when the legislature and governor couldn’t agree, our maps were drawn by the Seventh Circuit in federal court, not the elected state supreme court.
The Wisconsin Supreme Court has a 4-3 conservative majority. But in Justice Brian Hagerdorn, we have our very own John Roberts, and the other conservatives go too far even for him sometimes. So, while still certainly a conservative, and even fine with ratfucking up to a point, Justice Hagerdorn has ended up as the swing vote simply by virtue of not being a total fucking fascist. For example, Justice Hagerdorn is also the reason the state supreme court didn’t take up any of the crazy "Trump really won the 2020 election" lawsuits.
Let’s take a look at the opinion
Last fall, after Governor Evers vetoed the legislature's maps, the legislature tried to figure out what else it could do to screw the people. And in that spirit, they asked the majority-conservative state supreme court to please let them keep their pretty maps.
Unfortunately, the court went for their bullshit. Last fall, the court decided it would use the 2011 maps as a starting point and change only what was "necessary to resolve constitutional or statutory deficiencies." The court also barred Wisconsin courts from considering partisan fairness.
So, that really sucked. With that decision, the court decided that Wisconsin's maps were going to remain super gerrymandered. But the Democrats proved that they are better at math than the Republicans and created more accurate maps. Statistically, the governor's map "moves the fewest number of people into new districts. It is not a close call."
But some of the most important parts of the decision came in the court's discussion of the Voting Rights Act.
The Voting Rights Act
Between the 14th Amendment's Equal Protection Clause and the Voting Rights Act, the general rule is that you're not supposed to take race into consideration when you're drawing political maps. But, like everything in the law, there are exceptions to the basic rule.
Section 2 of the VRA prohibits any "standard, practice, or procedure" that "results in a denial or abridgment of the right ... to vote on the account of race." The Supreme Court has found that to include bans on vote dilution, where the majority dispurses the minority "group's members into districts in which they constitute an ineffective minority of voters." When this section of the Voting Rights Act is triggered, it can require the map-drawers to intentionally create majority-minority districts.
Even the 2011 maps created six majority-Black state Assembly districts in the Milwaukee area. And now, the court found that the governor had shown sufficient evidence to create a seventh majority-Black district in Milwaukee. The court found the seven proposed districts met the constitutional requirements of the minority population in question being "sufficiently large and geographically compact" to fit into seven "reasonably configured legislative districts." (The legislature's maps, meanwhile, would have reduced the number of majority-minority districts to five.)
The court also found that white voters in Milwaukee vote "sufficiently as a bloc to usually defeat the minority's preferred candidate" without the creation of majority-minority districts. Expert testimony showed "that white voters in the Milwaukee area defeat the preferred candidate of Black voters 57.14% of the time when relevant elections are analyzed."
Very late in the process, the legislature tried to claim the governor's maps were unconstitutional. The court was unimpressed, writing that the argument "was virtually unsupported by expert analysis or argument."
Have we mentioned yet that over the last decade, Wisconsin's Black population grew by 4.8% and our white population fell by 3.4%? So yeah, that seventh majority-Black district seems pretty well warranted.
Justice Ann Walsh Bradley, who voted with the majority, wrote separately to make it clear that she still didn't think the decision should have been based on faithfulness to the Scott Walker maps.
I join the majority opinion, which selects the Governor's congressional and state legislative maps, not because I approve of the "least change" approach. I do not.
Having previously voiced my dissent to the adoption of that approach, a majority of the court in a prior order nevertheless embraced "least change" as the framework that would govern the proceedings in this case. Circumscribed by that decision and the parties' reliance upon it when crafting their submissions, I join today's majority opinion because the Governor's maps adhere most closely to the court's earlier directive. Accordingly, I respectfully concur.
The other liberal justices joined the concurrence. And they're right, of course. The court decided very early on in this process that we were going to have shitty maps, and from there it was all a matter of degree. But at least we didn't end up with the worst option.
Naturally, the court's remaining conservatives felt the need to put their crazy on full display.
Justice Annette Ziegler went for the tried and true Republican complaint of any decision they don't like being "judicial activism" and any decision they do like being principled constitutionalism.
The majority opinion demonstrates a complete lack of regard for the Wisconsin Constitution and the Equal Protection Clause. Short on legal analysis and long on ipse dixit, the majority opinion amounts to nothing more than an imposition of judicial will. The majority deems the language of the Wisconsin and United States Constitutions to be mere policy. I dissent because here, the majority's decision to select Governor Tony Evers' maps is an exercise of judicial activism, untethered to evidence, precedent, the Wisconsin Constitution, and basic principles of equal protection.
There's also lots of fun, horrible stuff about how drawing majority-minority districts, as required by the Voting Rights Act, is "an unconstitutional gerrymander," because reasons. She also basically begs SCOTUS to take up the case, and gods help us all if that happens.
Chief Justice Patience Roggensack also dissents separately to write about how there shouldn't be majority-Black districts in Milwaukee. All three joined in both dissents, just to really drive home how much they hate Black people having voting power in their state.
These dissents paint a clear picture of just how poorly this case could have gone — and how close we came to that nightmare scenario. If Justice Hagerdorn were as bad as his Republican colleagues, we would have terrible precedent on the books calling it unconstitutional to create majority-minority districts — and two fewer majority-Black districts in the state Assembly.
Listen, I will be the first to say that Wisconsin's new maps are far from perfect. And our maps still heavily favor Republicans, which is why descriptions of this as a "major win for Democrats" are pretty absurd. Like a Milwaukee Journal Sentinel article analyzing the proposals back in December found, the decision was "between a map that's very good for GOP and one that's even better for GOP."
But this is the closest Wisconsin was going to come to decent maps this time around. And, especially when compared to the alternative, this is something to celebrate.
Keep an eye on Wisconsin as the year unfolds! That turd Ron Johnson is up for reelection! And so is Governor Evers, who is currently the only thing standing in the way of a
fascistRepublican trifecta that would inevitably make the Scott Walker days look downright pleasant.
Here's the opinion:
[ WI Sup. Ct. ]
Follow Jamie on Twitter! She has a lot to say about Wisconsin.