Republicans in the Wisconsin Legislature filed an emergency application with the U.S. Supreme Court on March 3, arguing that a new map of state legislative districts selected by the state’s Supreme Court violates the Voting Rights Act.
State Republicans argue that the redistricting plan constitutes a “21st century racial gerrymander.” In their filing to the U.S. Supreme Court, they argue that the map dilutes Black voting power by reducing the overall percentage of Black voters in each district.
But those percentages were reduced in order to add a seventh Black-majority district in Milwaukee.
This argument is “a little odd” coming from Republicans, said Mark Gaber, senior director of redistricting at the Campaign Legal Center, a nonprofit that represented clients in the state litigation who favored the creation of a seventh Black district. That’s because the map the Republican-controlled state legislature initially drew, and wants the Supreme Court to adopt, reduced the number of Black-majority districts from six to five.
“It’s a very aggressive move, and it’s weaved in with a bunch of cynicism,” Gaber said.
Though the Republicans’ argument that the court should reduce Black voting power on the legal basis that the alternative harmed Black voters appears to be particularly cynical, it fits with the Republican Party’s efforts to reduce Black voting power across the country.
The GOP push to block the redrawn district maps, approved by state courts, comes after a drawn-out legal battle. It began when the state legislature, whose Republican control was already bolstered by one of the most extreme cases of gerrymanding in the country, dating back to 2011, passed a new district map that would further cement the GOP advantage. Democratic Gov. Tony Evers vetoed their map.
When the Wisconsin Legislature and the governor reached a stalemate on redistricting in three of the past four redistricting periods, over the last 40 years, they sought resolution through the federal courts. But this time the Republicans demanded that the case go through Wisconsin’s state courts. The state Supreme Court currently has a 4-3 conservative advantage.
The state courts decided to resolve the stalemate by choosing a redistricting map that made the “least change” to the 2011 map, which already heavily favored the GOP. Parties to the lawsuit, including the legislature, the governor and other outside groups, were allowed to submit maps from which the court would pick.
The GOP-majority legislature simply submitted the map that it had passed and that Evers had vetoed. Evers, however, submitted a new map that moved fewer people into new districts than did the legislature’s map. And in a 4-3 decision, with conservative Brian Hagedorn joining the court’s three liberals, the court selected Evers’ map because it made the “least change” to the 2011 redistricting.
The court also found arguments that Milwaukee should have a seventh Black-majority district compelling because the 2020 census showed an increase in the Black population.
“In assessing the information presented by the parties, we conclude there are good reasons to believe a seventh majority-Black district is needed” to satisfy the Voting Rights Act, Hagedorn wrote for the majority. “Governor Evers’ assembly map accomplishes this. For these reasons, we adopt Governor Evers’ proposed remedial state senate and state assembly maps.”
After losing in their preferred venue, Wisconsin Republicans have now gone to the federal courts they evaded in 2021. And while the U.S. Supreme Court is now dominated by a 6-3 conservative majority, it is more likely than not they will reject the Republican legislature’s appeal.
On March 8, the court rejected two appeals from Republicans in North Carolina and Pennsylvania who wanted the court to toss court-drawn district maps they opposed. The court rejected these emergency applications based on the argument that such changes come too close to elections and would cause unnecessary confusion and disruption.
The same could be said for the Wisconsin challenge. The state would need to have maps selected by March 1 so that candidates could begin circulating nominating petitions, Wisconsin Elections Commission administrator Meghan Wolfe told a state court in 2021.
“What we saw with the Pennsylvania and North Carolina cases telegraphed the same message for Wisconsin: The court is not going to swoop in moments before this election really gets under way and change the districts,” said Mel Barnes, staff counsel for Law Forward, a nonprofit that represented groups opposed to the Wisconsin Legislature’s maps in state litigation.
There are other reasons why the court is unlikely to side with Republicans in the Wisconsin case.
First, the parties to the emergency application lack standing, Gaber said, because they are not at risk of being personally harmed by the Voting Rights Act violations they allege.
“A racial gerrymandering claim requires someone who lives in the district and who is personally affected by the drawing of that district,” Gaber said.
Second, there are no alternative maps for the court to put in place if it were to strike down the map selected by the state’s high court. Republicans want the Supreme Court to put in place the map they passed but that Evers vetoed and the state Supreme Court rejected. The Republican application does not even provide this map to the court.
“They’re saying that the Supreme Court should order in place the map that the legislature passed, that was vetoed by the governor ― and they haven’t even provided the map to the U.S. Supreme Court,” Gaber said. “I’ve never seen anything like that.”
The court is likely to decide on the Wisconsin Legislature’s application in the next week. There is also an emergency application before the U.S. Supreme Court from Wisconsin Republicans challenging the congressional district map selected by the state courts. It faces similar hurdles.