Republicans were down a touchdown with one play left and half the field to go in Wisconsin regarding redistricting for the state legislature, but thanks to a shocker of a decision from the Supreme Court, overtime has just been forced.
Previously, Wisconsin’s highest court had decided to use maps drawn by the Democrat governor after a months-long battle with Republican lawmakers. In doing so, the process hurdled past several legal issues that the Supreme Court decided were improperly ignored. Yet, the bigger story here isn’t actually about Wisconsin, and we’ll get to that in a moment.
As expected, the wailing and gnashing of teeth began immediately.
I’m not a lawyer, and this decision is in the weeds a bit, but here is a good explainer from a left-wing Supreme Court analyst. Ignore the consternation in the writing because the actual details are solid as to what occurred.
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The majority decision essentially says this: there was an impasse between the Democratic governor and the Republican legislature over drawing district lines. So the court had to draw lines in the first instance. It set forth criteria which essentially said that parties should propose maps that make the least change from the maps of the last decade. The court adopted the Governor’s maps, and those maps added another majority-minority district around Milwaukee. The governor added this district saying it was required by the Voting Rights Act because the failure to draw the district would violate Section 2 of the VRA. When the state supreme court adopted the Governor’s maps, it left open the possibility that they could be challenged later as violating the VRA or as an unconstitutional racial gerrymander (a Shaw claim), violating the Constitution’s equal protection clause. There was no full airing of either issue in this fast-track litigation to draw the district lines.
The Supreme Court’s opinion today says either the Governor or the Supreme Court misapplied the Supreme Court’s VRA and racial gerrymandering precedents, in part by elevating just one of the VRA Gingles factors (proportionality). It said that the VRA should be read in light of the racial gerrymandering cases and require the drawing of a majority-minority district only when a certain kind of strict scrutiny analysis is applied. The state supreme court should have considered under strict scrutiny “whether a race-neutral alternative that did not add a seventh majority-black district would deny black voters equal political opportunity.”
To summarize, Democrat Gov. Tony Evers drew up another majority-black district in his redistricting submission, elevating proportionality above all other factors. In adopting that map, the state’s high court failed to analyze whether the district could have been drawn in a neutral fashion without resorting to racial gerrymandering. The case will now be sent back down to be re-evaluated and properly adjudicated.
This decision is just the latest step by the Supreme Court to limit the ability of the Voting Rights Act to serve as a partisan tool for Democrats to racially gerrymander for their own political gain. For decades, Democrat officeholders have used the VRA test of proportionality to ensure they retain power in predominately urban areas while ignoring all other factors. The conservatives on the Supreme Court are not keen to let that continue and have been chipping away at such practices for several years now.
That has the left panicking because the VRA has represented a primary resource in retaining power. So, while I don’t know how this Wisconsin case will ultimately turn out, that’s actually a secondary concern here. What’s far more noteworthy in all this is that the Supreme Court is continuing to scrutinize the VRA and its application, specifically in cases where it is being used as cover for partisan redistricting.
In the end, Democrats aren’t freaking out because of the possibility of losing a single, state-level district in Wisconsin. No one, including Justices Elena Kagan and Sonia Sotomayor, actually cares about that. Rather, they are freaking out because this decision is much farther reaching and could completely nuke the left’s “cheat code” regarding redistricting in the future.