Application — The Wisconsin Legislature, et al., Applicants v. Wisconsin Elections Commission, et al.
Supreme Court briefMar 7, 2022
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No. _______
In the Supreme Court of the United States
____________________________________________________
THE WISCONSIN LEGISLATURE, BILLIE JOHNSON, ERIC O’KEEFE,
ED PERKINS, AND RONALD ZAHN,
v.
Applicants,
MARGE BOSTELMANN IN HER OFFICIAL CAPACITY
AS MEMBER OF THE WISCONSIN ELECTIONS COMMISSION, ET AL.
Respondents.
____________________________________________________________________________
ON APPLICATION FOR STAY AND INJUNCTIVE RELIEF
AND ALTERNATIVE PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT OF WISCONSIN
____________________________________________________________________________
APPENDIX TO EMERGENCY APPLICATION FOR STAY – VOL. I
___________________________________________________________________________
Adam K. Mortara
LAWFAIR LLC
125 South Wacker, Suite 300
Chicago, IL 60606
(773) 750-7154
mortara@lawfairllc.com
Kevin M. St. John
BELL GIFTOS ST. JOHN LLC
532 Wall Street, Suite 2200
Madison, WI 53718
(608) 216-7990
kstjohn@bellgiftos.com
Jeffrey M. Harris
Taylor A.R. Meehan
Counsel of Record
James P. McGlone
CONSOVOY MCCARTHY PLLC
1600 Wilson Blvd., Suite 700
Arlington, VA 22209
(703) 243-9423
taylor@consovoymccarthy.com
Richard M. Esenberg
Anthony F. LoCoco
Lucas T. Vebber
WISCONSIN INSTITUTE FOR LAW & LIBERTY
330 E. Kilbourn Avenue, Suite 725
Milwaukee, WI 53202
(414) 727-9455
rick@will-law.org
Counsel for Applicants
TABLE OF CONTENTS
Volume I
Opinion and Order by the Supreme Court of Wisconsin (March 3, 2022) .......... App. 1
Volume II
Opening Expert Report by Jeanne Clelland (Dec. 15, 2021) ........................... App. 168
Response Expert Report by Thomas Bryan & App’x 1 (Dec. 30, 2021) .......... App. 185
2022 WI 14
SUPREME COURT OF WISCONSIN
CASE NO.:
2021AP1450-OA
COMPLETE TITLE:
Billie Johnson, Eric O'Keefe, Ed Perkins and
Ronald Zahn,
Petitioners,
Black Leaders Organizing for Communities, Voces
de la Frontera, League of Women Voters of
Wisconsin, Cindy Fallona, Lauren Stephenson,
Rebecca Alwin, Congressman Glenn Grothman,
Congressman Mike Gallagher, Congressman Bryan
Steil, Congressman Tom Tiffany, Congressman
Scott Fitzgerald, Lisa Hunter, Jacob Zabel,
Jennifer Oh, John Persa, Geraldine Schertz,
Kathleen Qualheim, Gary Krenz, Sarah J.
Hamilton, Stephen Joseph Wright, Jean-Luc
Thiffeault, and Somesh Jha,
Intervenors-Petitioners,
v.
Wisconsin Elections Commission, Marge Bostelmann
in her official capacity as a member of the
Wisconsin Elections Commission, Julie Glancey in
her official capacity as a member of the
Wisconsin Elections Commission, Ann Jacobs
in her official capacity as a member of the
Wisconsin Elections Commission, Dean Knudson in
his official capacity as a member of the
Wisconsin Elections Commission, Robert Spindell,
Jr. in his official capacity as a member of the
Wisconsin Elections Commission and Mark Thomsen
in his official capacity as a member of the
Wisconsin Elections Commission,
Respondents,
The Wisconsin Legislature, Governor Tony Evers,
in his official capacity, and Janet Bewley
Senate Democratic Minority Leader, on behalf of
the Senate Democratic Caucus,
Intervenors-Respondents.
ORIGINAL ACTION
OPINION FILED:
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
March 1, 2022
January 19, 2022
SOURCE OF APPEAL:
COURT:
App. 1
COUNTY:
JUDGE:
JUSTICES:
NOT PARTICIPATING:
ATTORNEYS:
For the petitioners, there were briefs filed by Richard M.
Esenberg,
Anthony
F.
LoCoco,
Lucas
T.
Vebber
and
Wisconsin
Institute for Law & Liberty, Milwaukee. There was oral argument
by Richard M. Esenberg.
For
the
intervenors-petitioners
Black
Leaders
Organizing
for Communities, Voces de la Frontera, League of Women Voters of
Wisconsin, Cindy Fallona, Lauren Stephenson and Rebecca Alwin,
briefs,
including
amicus
briefs,
were
filed
by
Douglas
M.
Poland, Jeffrey A. Mandell, Rachel E. Snyder, Richard A. Manthe,
Carly Gerads and Stafford Rosenbaum LLP, Madison; Mel Barnes and
Law
Forward,
Christopher
Inc.,
Lamar
Madison;
(pro
hac
Mark
P.
vice)and
Gaber
(pro
Campaign
hac
vice),
Legal
Center,
Washington, D.C.; Annabelle Harless (pro hac vice) and Campaign
Legal Center, Chicago.
There was oral argument by Douglas M.
Poland.
For the intervenors-petitioners Congressmen Glenn Grothman,
Mike Gallagher, Bryan Steil, Tom Tiffany and Scott Fitzgerald
there
were
briefs,
including
amicus
briefs,
filed
by
Misha
Tseytlin, Kevin M. LeRoy, and Troutman Pepper Hamilton Sanders
LLP, Chicago.
There was oral argument by Misha Tseytlin.
For the intervenors-petitioners Lisa Hunter, Jacob Zabel,
Jennifer
Oh,
John
Persa,
Geraldine
Schertz
and
Kathleen
Qualheim, there were briefs, including amicus briefs filed by
Charles G. Curtis, Jr. and Perkins Coie LLP, Madison; Marc Erik
Elias (pro hac vice), Aria C. Branch (pro hac vice), Daniel C.
App. 2
Osher (pro hac vice), Jacob D. Shelly (pro hac vice), Christina
A. Ford (pro hac vice), William K. Hancock (pro hac vice) and
Elias Law Group LLP, Washington, D.C.
There was oral argument
by John Devaney (pro hac vice), Perkins Coie LLP, Washington,
D.C.
For the intervenors-petitioners Citizens Mathematicians and
Scientists Gary Krenz, Sarah J. Hamilton, Stephen Joseph Wright,
Jean-Luc Thiffeault and Somesh Jha, briefs were filed by Michael
P. May, Sarah A. Zylstra, Tanner G. Jean-Louis and Boardman &
Clark LLP, Madison, and David J. Bradford (pro hac vice) and
Jenner & Block LLP, Chicago.
There was oral argument by Sam
Hirsch (pro hac vice), Jenner & Block LLP, Washington, D.C.
For the respondents Wisconsin Elections Commission, Marge
Bostelmann,
Julie
Glancey,
Ann
Jacobs,
Dean
Knudson,
Robert
Spindell, Jr. and Mark Thomsen there were letter-briefs filed by
Steven
C.
Keckhaver,
Kilpatrick,
assistant
assistant
attorney
attorney
general,
general,
Thomas
Karla
C.
Z.
Bellavia,
assistant attorney general.
For the intervenors-respondents the Wisconsin Legislature
there were briefs, including amicus briefs, filed by Kevin M.
St.
John
and
Bell
Giftos
St.
John
LLC,
Madison;
Jeffrey
M.
Harris (pro hac vice), Taylor A.R. Meehan (pro hac vice), James
P. McGlone and Consovoy McCarthy PLLC, Arlington, Virginia and
Adam
K.
Mortara
and
Lawfair
LLC,
Chicago.
intervenor-respondent
Governor
There
was
oral
Evers
there
argument by Taylor A.R. Meehan.
For
the
Tony
were briefs filed by Joshua L. Kaul, attorney general, Anthony
D. Russomanno, assistant attorney general and Brian P. Keenan,
assistant attorney general.
There was oral argument by Anthony
D. Russomanno.
App. 3
For the intervenor-respondent Janet Bewley, State Senate
Democratic
Minority
Leader
on
behalf
of
the
State
Senate
Democratic Caucus there were briefs filed by Tamara B. Packard,
Aaron G. Dumas and Pines Bach LLP, Madison.
There was oral
argument by Tamara B. Packard.
There
was
an
amicus
brief
Whitford,
Hans
Breitenmoser,
filed
Mary
on
Lynne
behalf
of
Donohue,
William
Wendy
Sue
Johnson and Deborah Patel by Ruth M. Greenwood (pro hac vice),
The Election Law Clinic, Harvard Law School, Cambridge, MA; with
whom on the brief were law student-practitioners Mary F. Brown,
Mark R. Haidar, Meredith A. Manda, Sarah A. Sadlier, Corey M.
Stewart, Harvard Law School and Jakob Feltham and Hawks Quindel,
S.C., Madison.
There was an amicus brief filed on behalf of Concerned
Voters of Wisconsin by Joseph S. Goode, Mark M. Leitner, John W.
Halpin and Laffey, Leitner & Goode, L.L.C., Milwaukee.
There was an amicus brief filed on behalf of Non-Party
Legal
Scholars
by
Allison
Boldt,
Robert
Yablon
and
Daniel
R.
the
University of Wisconsin Law School, Madison.
There
was
an
amicus
brief
Thiensville.
App. 4
filed
by
Suhr,
2022 WI 14
NOTICE
This opinion is subject to further
editing and modification.
The final
version will appear in the bound
volume of the official reports.
No.
2021AP1450-OA
STATE OF WISCONSIN
:
IN SUPREME COURT
Billie Johnson, Eric O'Keefe, Ed Perkins and
Ronald Zahn,
Petitioners,
Black Leaders Organizing for Communities, Voces
de la Frontera, League of Women Voters of
Wisconsin, Cindy Fallona, Lauren Stephenson,
Rebecca Alwin, Congressman Glenn Grothman,
Congressman Mike Gallagher, Congressman Bryan
Steil, Congressman Tom Tiffany, Congressman
Scott Fitzgerald, Lisa Hunter, Jacob Zabel,
Jennifer Oh, John Persa, Geraldine Schertz,
Kathleen Qualheim, Gary Krenz, Sarah J.
Hamilton, Stephen Joseph Wright, Jean-Luc
Thiffeault, and Somesh Jha,
Intervenors-Petitioners,
v.
FILED
MAR 3, 2022
Sheila T. Reiff
Clerk of Supreme Court
Wisconsin Elections Commission, Marge
Bostelmann in her official capacity as a member
of the Wisconsin Elections Commission, Julie
Glancey in her official capacity as a member of
the Wisconsin Elections Commission, Ann Jacobs
in her official capacity as a member of the
Wisconsin Elections Commission, Dean Knudson in
his official capacity as a member of the
Wisconsin Elections Commission, Robert
Spindell, Jr. in his official capacity as a
member of the Wisconsin Elections Commission
and Mark Thomsen in his official capacity as a
member of the Wisconsin Elections Commission,
Respondents,
App. 5
The Wisconsin Legislature, Governor Tony Evers,
in his official capacity, and Janet Bewley
Senate Democratic Minority Leader, on behalf of
the Senate Democratic Caucus,
Intervenors-Respondents.
HAGEDORN, J., delivered the majority opinion of the Court, in
which ANN WALSH BRADLEY, DALLET, and KAROFSKY, JJ., joined. ANN
WALSH BRADLEY, J., filed a concurring opinion, in which DALLET
and KAROFSKY, JJ., joined.
ZIEGLER, C.J., filed a dissenting
opinion, in which ROGGENSACK and REBECCA GRASSL BRADLEY, JJ.,
joined.
ROGGENSACK, J., filed a dissenting opinion, in which
ZIEGLER, C.J., and REBECCA GRASSL BRADLEY, J., joined. REBECCA
GRASSL BRADLEY, J., filed a dissenting opinion, in which
ZIEGLER, C.J., and ROGGENSACK, J., joined.
ORIGINAL ACTION.
¶1
required
BRIAN
to
Relief granted.
HAGEDORN,
redraw
J.
the
Every
ten
years,
states
are
boundaries
for
congressional
and
legislative districts to account for population changes.
This
means the maps enacted into law in 2011 cannot constitutionally
serve as the basis for future elections.
The responsibility to
adopt new district boundaries is not ours in the first instance,
but that of the legislature and governor via the legislative
process.
¶2
Shortly
after
the
completion
of
the
2020
decennial
census, a group of voters petitioned this court to declare the
2011 maps unconstitutional and remedy the malapportionment.
We
granted the petition, and subsequently granted intervention to
all parties that sought it, mindful that relief from this court
App. 6
would be necessary only if the legislative process failed.1
We
have given the political branches a fair opportunity to carry
out their constitutional responsibilities.
so.
They have not done
Both this court and the United States Supreme Court have
held that this failure implicates the constitutional rights of
voters.
State ex rel. Reynolds v. Zimmermann, 22 Wis. 2d 544,
562, 126 N.W.2d 551 (1964); Reynolds v. Sims, 377 U.S. 533, 566
(1964).
We
are
therefore
left
with
the
unwelcome
court
were
not
task
of
filling the gap.
¶3
The
members
of
this
of
one
mind
regarding how——or even whether——to approach this undertaking.
But having taken this case, we sought input from the parties on
the law that governs, as well as the process by which we should
fashion a remedy.
¶4
In
an
opinion
issued
process
and
order
on
issued
November
criteria
we
on
30,
would
November
2021,
use
17,
2021,
set
out
the
guide
our
decision.
we
to
and
an
basic
Johnson v. Wis. Elections Comm'n, 2021 WI 87, 399 Wis. 2d 623,
967 N.W.2d 469.
Rather than craft our own map, we invited all
parties to this litigation to submit one proposed map for each
set of districts where new district boundaries are required:
congress, state senate, and state assembly.
We said we would
choose maps that minimize changes from current law and evaluate
maps for compliance with state and federal law.
Id., ¶¶38, 72.
For a summary of this case's prior procedural history, see
Johnson v. Wis. Elections Comm'n, 2021 WI 87, ¶¶5-6, 399
Wis. 2d 623, 967 N.W.2d 469.
1
App. 7
In so concluding, we rejected an approach that involved this
court making significant policy decisions or weighing competing
policy criteria.
We also rejected invitations to consider the
partisan makeup of proposed districts.
By focusing on legal
requirements and using the maps currently reflected in Wisconsin
law as a reference point, we sought to minimize our involvement
in the numerous policy and political decisions inherent in mapdrawing.
¶5
Following our November 30 opinion, parties submitted
proposed maps, briefs, and expert reports.
And we heard over
five hours of argument regarding which proposed maps best comply
with the parameters we established.
¶6
Although not bound by any map proposal, we approached
this task hoping to select submissions from the parties that
best satisfied the criteria we set forth.
We did so both at the
suggestion of the parties and in recognition of our limitations.
While
we
appreciate
acknowledge
that
the
each
hard
work
proposal
of
makes
the
parties,
changes
that
we
must
appear
unnecessary to account for population changes or to otherwise
comply with the law.
But rather than modify submissions we
received, we determine that the best approach is to choose the
maps that best conform with our directives, imperfect though
they may be.
¶7
Congressional
congressional
maps
maps.
from
four
App. 8
We
received
parties:
the
proposed
Citizen
Mathematicians and Scientists,2 the Congressmen,3 Governor Tony
Evers,
and
question
the
is
Hunter
which
map
intervenors-petitioners.4
most
complies
with
our
The
first
least-change
directive.
With only eight districts, core retention——a measure
of
who
voters
remain
in
their
prior
districts——is
the
best
metric of least change, and the map submitted by Governor Evers
easily scores highest.
His map moves 5.5% of the population to
new districts, leaving 94.5% in their current districts.
In raw
numbers, the Governor's proposal to move 324,415 people to new
districts is 60,041 fewer people than the next best proposal.
In
addition,
federal
Governor
Constitution
Evers'
and
all
submission
other
complies
applicable
with
laws.
the
We
therefore adopt Governor Evers' proposed congressional map.
¶8
State
legislative
map
legislative
maps.
We
proposals
from:
the
received
BLOC
six
state
intervenors-
The Citizen Mathematicians and Scientists include Gary
Krenz, Sarah J. Hamilton, Stephen Joseph Wright, Jean-Luc
Thiffeault, and Somesh Jha.
2
The Congressmen include Congressmen Glenn Grothman, Mike
Gallagher, Bryan Steil, Tom Tiffany, and Scott Fitzgerald.
3
The
Wisconsin
Legislature
endorsed
the
Congressmen's
proposed congressional map, but did not advance any arguments on
the merits of this proposed map.
The Hunter intervenors-petitioners include Lisa Hunter,
Jacob Zabel, Jennifer Oh, John Persa, Geraldine Schertz, and
Kathleen Qualheim.
4
App. 9
petitioners,5 the Citizen Mathematicians and Scientists, Governor
Evers, the Hunter intervenors-petitioners, Senator Janet Bewley,6
and the Wisconsin Legislature.
The proposed senate and assembly
maps making the least changes from current law are once again
those
of
Governor
Evers.
In
their
senate
proposals,
both
Governor Evers and the Legislature move a nearly identical 7.8%
of voters to different districts (92.2% core retention), with a
slight edge to the Legislature for moving 1,958 fewer people.
However, in their assembly map proposals, Governor Evers moves
14.2% of voters to new districts, while the Legislature moves
15.8%
(85.8%
vs.
84.2%
affects 96,178 people.
core
retention),
a
difference
that
No other proposal comes close.
And
beyond core retention, no other measure of least change alters
the picture.
The Governor's proposed senate and assembly maps
produce less overall change than other submissions.
¶9
We
also
conclude
that
Governor
Evers'
proposals
satisfy the requirements of the state and federal constitutions.
Under the Wisconsin Constitution, all districts are contiguous,
sufficiently
equal
in
population,
sufficiently
compact,
appropriately nested, and pay due respect to local boundaries.
Governor
Evers'
proposed
maps
also
comply
with
the
federal
constitution's population equality requirement.
The
BLOC
interventors-petitioners
included
the
organizations Black Leaders Organizing for Communities, Voces de
la Frontera, and League of Women Voters of Wisconsin, in
addition to Cindy Fallona, Lauren Stephenson, and Rebecca Alwin.
5
Senate Minority Leader Janet Bewley intervened
respondent on behalf of the Senate Democratic Caucus.
6
App. 10
as
a
¶10
enacted
Regarding the Voting Rights Act (VRA), the 2011 maps
into
law
include
six
majority-Black
districts in the Milwaukee area.
assembly
voting
Governor Evers, along with
several other parties, argues the VRA now requires a seventh
majority-Black assembly district in the Milwaukee area.
As a
map-drawer, we understand that our duty is to determine whether
there are "good reasons" to believe the VRA requires a sevendistrict configuration.
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 VRA.
Governor
Evers'
assembly
map
accomplishes
this.
For
these
reasons, we adopt Governor Evers' proposed remedial state senate
and state assembly maps.
I.
¶11
FRAMEWORK FOR OUR DECISION
In our prior opinion in this case, we laid out more
fully the analytical framework for our final decision.
completeness, we briefly summarize our approach here.
our
November
30
opinion,
the
parties
offered
a
For
Before
variety
of
arguments regarding which factors we could or should consider in
providing remedial maps.
See Johnson, 399 Wis. 2d 623, ¶7.
We
concluded we would minimize judicial policymaking by starting
with the 2011 maps previously enacted into law, and change only
what
is
"necessary
to
resolve
constitutional
App. 11
or
statutory
deficiencies."7
Id.,
partisan
of
makeup
decision.
Id.,
¶72.
We
districts
¶39.
We
further
concluded
would
not
play
a
were
not
unanimous
that
role
in
in
the
our
these
conclusions, but it is how we as a court decided to proceed.8
So
we invited parties to submit maps that minimize deviations from
existing district boundaries and abide by all relevant laws.
¶12
With this framework in mind, we begin our analysis by
probing which maps make the least change from current district
boundaries.
From there, we examine the relevant law to ensure
that the map producing the least change also comports with all
state and federal legal requirements.
The concurrence agreed with this approach and added that
if there were equally compelling arguments on least change, we
could look to traditional redistricting criteria to assist our
decision-making.
Johnson, 399 Wis. 2d 623, ¶83 (Hagedorn, J.,
concurring).
Our selection of remedial maps in this case is
driven solely by the relevant legal requirements and the least
change directive the majority adopted in the November 30 order——
not a balancing of traditional redistricting criteria.
7
The dissent argued that "[t]rue neutrality could be
achieved by instead adhering to the neutral factors supplied by
the state and federal constitutions, the Voting Rights Act, and
traditional redistricting criteria."
Johnson, 399 Wis. 2d 623,
¶94 (Dallet, J., dissenting).
Thus, the dissent proposed
conducting a more open balancing of various policy interests,
including population equality, compactness, and respect for
political subdivision boundaries.
Id.
It also viewed
partisanship as "one of the many factors a court must balance
when enacting remedial maps." Id., ¶110.
8
App. 12
II.
CONGRESSIONAL MAP
A.
¶13
Wisconsin
has
Least Change
eight
congressional
districts,
so
evaluating which maps changed the least is far simpler than for
legislative
maps,
where
numerous and granular.
especially helpful.
modifications
are
necessarily
more
The core retention figures are therefore
Core retention represents the percentage of
people on average that remain in the same district they were in
previously.
It is thus a spot-on indicator of least change
statewide, aggregating the many district-by-district choices a
mapmaker has to make.
Core retention is, as multiple parties
contended from the beginning of this litigation, central to a
least change review.9
¶14
The
parties'
submissions
rate
as
follows
on
core
retention:
Three parties asked us to adopt a least change approach,
and each made it abundantly clear that core retention is central
to that inquiry. In briefing advocating a least change approach
(before our November 30 opinion), the Legislature explained that
a least change approach is one that "maximizes core retention."
The Congressmen agreed, arguing that a "'least-change' approach
would simultaneously 'minimize voter confusion,' and maximize
'core retention' by limiting the number of people placed in
different congressional districts."
The Johnson petitioners
were in full accord:
"Preserving the cores of prior districts
is the foundation of 'least change' review."
While core
retention is not the only relevant metric, every party
understood that our adoption of a least change approach would
place core retention at the center of the analysis.
9
App. 13
Total People Moved Average Core Retention
Governor Evers
324,415
94.5%
Congressmen
384,456
93.5%
Hunter
411,777
93.0%
MathSci10
500,785
91.5%
¶15
As these numbers reveal, the Governor's map moves the
fewest number of people into new districts.
call.
It is not a close
The Governor's proposal moves 60,041 fewer people than
the next closest submission, that of the Congressmen.11
The
parties do not offer any other measures of least change that
counterbalance the Governor's superior core retention.
¶16
The most significant counterargument on least change
comes from the Congressmen.
proposal
what
they
unexplained.
For
example,
communities
between
changes
makes
are
They argue that the Governor's
call
"gratuitous
they
congressional
unnecessary,
the
point
to
districts
Congressmen
changes"
the
4
that
are
swapping
of
and
1.
These
maintain,
because
district 4 is already substantially underpopulated.
In other
In briefing, the Citizen Mathematicians and Scientists
helpfully employed the "MathSci" moniker to refer to their maps.
10
Before oral argument, the Congressmen sought leave to
submit a second map for consideration in addition to their
initial proposal.
We granted motions by two other parties to
modify their proposals, but we denied the Congressmen's motion
because our November 17 order limited parties to a single
congressional map. Granting the Congressmen's motion would have
allowed them to present two congressional maps, while everyone
else was permitted only one.
11
App. 14
words,
they
argue
that
the
unstated
and
unexplained
motives
behind these changes should doom the Governor's proposal.
We
see two problems with this argument.
¶17
First, nothing in our prior orders or opinion required
an explanation of changes at any level of granularity.
In fact,
the November 30 opinion did not give the parties any specific
instructions beyond our rubric for deciding the case generally.
The concurrence encouraged parties to explain "why their maps
comply with the law, and how their maps are the most consistent
with
existing
boundaries."
Johnson,
(Hagedorn, J., concurring).
399
Wis. 2d 623,
¶87
But neither that concurrence nor
any order of the court asked for an explanation for every change
or provided guidance regarding what level of specificity would
satisfy the court.12
¶18
Second, the Congressmen's argument elevates form over
substance.
In
their
submission,
the
Congressmen
propose
significant changes to congressional districts 3 and 7.
explain
these
changes
by
district
2.
But
districts
the
referencing
most
They
population
changes
in
in
change
are
need
of
district 2 in and around Dane County (which needs to shrink),
and
district
4
in
Milwaukee
County
(which
needs
to
grow).
Applying a least change approach, the more logical place to
adjust
district
boundaries
to
account
for
these
population
changes would be the districts both adjacent to and in between
Moreover, rejecting every map with unexplained changes
would require us to exclude every proposed state legislative
map. All of them contain numerous unexplained changes.
12
App. 15
congressional districts 2 and 4——not district 3 on Wisconsin's
western border and district 7 in the north and northwest.
So
while the Congressmen offer an explanation for the change, it
does not appear to be a particularly good one.
Perhaps, as the
Congressmen posited, the Governor has other motives; perhaps so
do the Congressmen.
But rather than weigh motives and pick and
choose which changes we approve of and which we don't, we look
to
which
maps
actually
produce
the
least
change,
not
which
explained their changes the most comprehensively.
¶19
The most principled way to address least change for
congressional maps is to choose the map that, in the aggregate,
moves the fewest number of people into new districts.
In this
regard, the Governor's proposed map is superior to every other
proposal.
It is the map with the least change.
B.
¶20
Compliance with the Law
Having concluded the Governor's proposal best complies
with our directive to minimize deviations from current district
boundaries,
we
relevant laws.
requirements
party
consider
whether
it
complies
with
all
The Wisconsin Constitution contains no explicit
related
develops
requires
next
an
something
to
congressional
argument
for
that
redistricting.
And
no
the
Wisconsin
Constitution
congressional
districts
not
App. 16
already
necessary under the United States Constitution.13
Further, no
one argues that any congressional submission we received runs
afoul of the VRA.
The only legal question that remains concerns
population equality under the United States Constitution.
¶21
The Governor's map comes close to perfect equality.
The mathematically ideal district contains 736,714.75 persons,
and the Governor's districts have either 736,714 people, 736,715
people, or 736,716 people.
Thus, the total deviation between
the most and least populated districts is two persons.
Several
parties argue——mostly at oral argument——that the Governor's twoperson deviation violates the United States Constitution.
This
is, at best, a strained reading of the law.
¶22
To be sure, the Supreme Court has explained that there
is "no excuse for the failure to meet the objective of equal
representation
for
equal
numbers
of
people
in
congressional
districting other than the practical impossibility of drawing
equal districts with mathematical precision."
410 U.S. 315, 322 (1973).
Mahan v. Howell,
On the other hand, the Supreme Court
has been willing to accept "small differences in the population
of congressional districts" "so long as they are consistent with
constitutional norms."
(1983).
Karcher v. Daggett, 462 U.S. 725, 740
As the Court explained, "Any number of consistently
As we noted in our prior opinion, the parties previously
disputed whether the Wisconsin Constitution imposes requirements
consistent with the Equal Protection Clause of the federal
Constitution.
But that issue would not have any substantive
impact on our decision, so we did not (and here do not) address
it. See Johnson, 399 Wis. 2d 623, ¶13 n.4.
13
App. 17
applied
legislative
policies
might
justify
some
variance,
including, for instance, making districts compact, respecting
municipal boundaries, preserving the cores of prior districts,
and avoiding contests between incumbent Representatives."
Id.
In Tennant v. Jefferson County Commission, the Supreme Court
upheld a 4,871-person deviation in West Virginia's congressional
districts, noting the deviation advanced the state's interests
in
maximizing
core
retention
and
maintaining
whole
counties.
567 U.S. 758, 762, 764-65 (2012) (per curium).
¶23
Moreover,
minor variations.
following
the
many
states
have
adopted
districts
with
According to one source cited in briefing,
2010
census,
14
states
greater than single-person deviations:
implemented
maps
with
Arkansas (428), Georgia
(2), Hawaii (691), Idaho (682), Iowa (76), Kansas (15), Kentucky
(334), Louisiana (249), Mississippi (134), New Hampshire (4),
Oregon
(2),
(4,871).14
Texas
(32),
Washington
(19),
and
West
Virginia
If the law is clear that a two-person deviation (or
more) is unacceptable, then nearly a third of states with more
than one congressional district have apparently not gotten the
message.
We know of no case in which a court has struck down a
map based on a two-person deviation.
¶24
In
justified
objective.
addition,
under
Supreme
this
minor
population
Court
precedent
by
our
deviation
least
is
change
In this very proceeding, we have determined that the
https://www.ncsl.org/research/redistricting/2010-ncslredistricting-deviation-table.aspx
14
App. 18
least change approach should guide our decision.
is
central
to
this
analysis,
and
as
our
Core retention
prior
discussion
reveals, the Governor's map does far better on this metric than
any other map.
Selecting a map from among those submitted to us
with a maximum deviation of one person would require us to adopt
a map that does substantially worse on core retention.
The
United States Supreme Court held that maximizing core retention
was an acceptable justification for a far greater deviation in
Tennant.
We see no reason why that rationale would not apply
with equal force here.
between
the
Governor's
We conclude the two-person deviation
most-
and
proposed
map
least-populated
does
not
violate
districts
the
in
United
the
States
Constitution.
¶25
In
sum,
we
adopt
Governor
Evers'
proposed
congressional map because it best follows our directive to make
the
least
changes
from
existing
congressional
district
boundaries while complying with all relevant state and federal
laws.
III.
STATE LEGISLATIVE MAPS
A.
¶26
Least Change
Our least change inquiry for state legislative maps is
a bit more complicated.
This is due in part to the sheer number
of districts involved.
In addition, the Wisconsin Constitution
requires that three assembly districts be nested within each
senate district, meaning we need to analyze assembly and senate
maps jointly.
Wis. Const. art. IV, § 5.
App. 19
Nevertheless, we again
begin
our
least
change
inquiry
by
comparing
core
retention
scores for each senate and assembly map we received.
¶27
The parties' senate map submissions rate as follows on
core retention, in order from least to most change:
Total People Moved Average Core Retention
Legislature
459,061
92.2%
Governor Evers
461,019
92.2%
Senator Bewley
576,321
90.2%
BLOC
610,568
89.6%
Hunter
1,128,878
80.8%
MathSci
1,513,824
74.3%
¶28
The parties' assembly map submissions rate as follows
on core retention, again in order from least to most change:
Total People Moved Average Core Retention
Governor Evers
837,426
85.8%
Legislature
933,604
84.2%
BLOC
939,513
84.1%
Senator Bewley
984,336
83.3%
Hunter
1,586,059
73.1%
MathSci
2,299,629
61.0%
¶29
Taken together, the Governor's maps score best on core
retention.
Although the Legislature's senate map moves 1,958
App. 20
fewer
people
than
the
Governor's
senate
better
performance
is
outstripped
by
superior
core
retention
in
the
map,
the
assembly,
that
slightly
Governor's
where
moves 96,178 fewer people than the Legislature.
the
vastly
Governor
No maps from
any other party perform nearly as well as the Governor's on core
retention.
¶30
Other metrics of least change are helpful, but only
minimally
so
in
this
case.
Both
the
Legislature
and
the
Governor do comparably well minimizing the number of voters who
would have to wait six years between senate elections.15
Legislature's
senate
map
has
this
effect
whereas
Governor's
does
so
for
the
on
138,753
139,606
The
people,
people.
On
geographic core retention, the Governor's senate map moves 5.0%
of the state's geography from one district to another, versus
the Legislature's 7.1%.
11.3%
of
the
state's
And the Governor's assembly map moves
geography
against the Legislature's 16.5%.
from
district
to
district,
Finally, both the Governor and
the Legislature pair three incumbents——one pair of senators and
two pairs of representatives for the Governor, and three pairs
of representatives for the Legislature.16
these
considerations
outweigh
the
Ultimately, none of
Governor's
superior
performance on core retention.
See Johnson, 399 Wis. 2d 623, ¶83 n.9 (Hagedorn,
concurring); id., ¶94 n.5 (Dallet, J., dissenting).
15
J.,
Some parties argue that considering incumbency is
improper. As a standalone value, that may be true. But as an
indicator of least change from existing districts, it could
constitute a helpful data point.
16
App. 21
¶31
Two
other
least-change
approaches
parties are worth further discussion.
offered
by
the
First, the Legislature
argues that the Governor's maps are not acceptable because they
change
Milwaukee-area
districts
more
than
other
submissions.
Looking to the degree of change region-by-region has merit, but
we see little benefit to its application here.
Some of the
changes to the Governor's maps in the Milwaukee area are driven
by modifications arguably required by the VRA (more on this
below).
This necessarily creates a cascading effect on nearby
districts.
But
even
if
the
Legislature's
Milwaukee-specific
complaints have merit, its conclusion does not.
Legislature's
proposed
Milwaukee-area
districts,
fewer
voters
assembly
maps
throughout
districts
may
the
the
outside
we
should
reject
the
fewer
Governor's
rest
of
Milwaukee
their prior configurations.
why
move
Although the
in
some
proposed
maps
move
state,
leaving
the
voters
entirely
unchanged
13
from
The Legislature does not explain
Governor's
map
for
its
changes
to
Milwaukee, while accepting the Legislature's proposal to change
districts even more elsewhere.
¶32
a
measure
Second, the Legislature argues that we should weigh as
of
least
change
the
total
number
municipalities split under each proposal.
this
is
a
relevant
least-change
of
counties
and
We fail to see why
metric,
however.
If
a
municipality was split under the maps adopted in 2011, reuniting
that municipality now——laudable though it may be——would produce
more
change,
not
less.
counties or municipalities
Particularized
remain
App. 22
data
about
how
many
unified or split may be a
useful indicator of least change.
provide that data.17
But no party saw fit to
What we did receive was raw counts of the
total county and municipal splits under each proposal, and that
information provides no insight into which map makes the least
change to existing district boundaries.18
¶33
Viewing various least change metrics as a whole, and
relying most heavily on the preeminent core retention metric, we
conclude
the
Governor's
legislative
maps
produce
the
least
change from current law.
B.
¶34
Compliance with the Law
Next we consider whether the Governor's legislative
maps adhere to all relevant laws, starting with the Wisconsin
Constitution.
Wisconsin
As
we
explained
in
Constitution
requires
that
our
prior
districts
opinion,
be
the
compact,
The Legislature provided an accounting of county and
municipal splits in the proposed legislative maps, but no one
submitted data documenting how many of those splits were present
in the 2011 maps, or how many previously split municipalities
were unified.
The Legislature highlighted a handful of new
municipal splits in the Governor's map, but those examples were
limited to Waukesha County and Dane County.
Without statewide
data, these geographically-limited data points do not allow for
a meaningful comparison of each proposal's overall performance
on this metric.
17
Similarly, population deviation is not an indicator of
least change.
Quite the opposite.
Given the malapportionment
here, maximizing population equality requires more change to
current districts, not less.
That is why, recognizing the
tension between these two goals, our instructions to the parties
were to redistrict according to population while minimizing
change to existing districts.
18
App. 23
contiguous,
certain
"nest"
and
local
three
proportionally
political
assembly
populated;
boundaries;
districts
and
within
they
the
each
must
respect
districts
senate
must
district.
Johnson, 399 Wis. 2d 623, ¶¶28-38; Wis. Const. art. IV, §§ 3-5.
Our cases have long recognized these requirements operate as a
floor
with
space
for
mapmaker
discretion.
Zimmerman,
22
Wis. 2d at 566 ("[T]here are choices which can validly be made
within constitutional limits.").
¶35
Therefore, in analyzing compliance with the Wisconsin
Constitution, we look to whether the maps meet constitutional
standards,
not
whether
they
perform
comparatively
worse on these metrics than other maps we received.
better
or
We do not,
for example, scrutinize proposed maps to determine which are
more
compact
or
which
contain
deviations.
Our
concern
is
sufficiently
compact
and
the
simply
sufficiently
comply with the constitution.
smallest
population
whether
districts
are
equal
population
to
in
Proposed maps are either lawful
or they are not; no constitutional map is more constitutional
than another.
For our purposes, so long as a map complies with
constitutional requirements, better performance on these metrics
becomes
commendable,
but
not
constitutionally
required.
In
other words, they become policy choices——maybe good ones, but
policy choices nonetheless.
And we have already stated our aim
to
competing
avoid
deciding
between
policies.
Johnson,
399
Wis. 2d 623, ¶3.
¶36
the
The Governor's proposed maps fall comfortably within
relevant
constitutional
requirements
App. 24
as
laid
out
in
our
cases.
The districts are contiguous and properly nested.
Wis. Const. art. IV, §§ 4-5.
See
And with respect to the other
requirements, the Governor's maps are consistent with historical
practice
and
court-sanctioned
respect
for
local
Regarding
population
requirements
for
boundaries,19
and
equality
particular,
in
compactness,
population
the
equality.
Governor's
population deviations——1.20% for the senate and 1.88% for the
assembly——are well under the deviations previously adopted by
the legislature and those prescribed by this court.20
See Wis.
Stat. § 4.001(1) (1971-72) (noting that under the 1972 maps "no
district deviates from the state-wide average for districts of
its type by more than one per cent" (for an absolute population
As explained in our prior opinion, the geographic
limitations in the Wisconsin Constitution can no longer be fully
enforced given the United States Supreme Court's directives on
population equality. Johnson, 399 Wis. 2d 623, ¶35.
19
The Legislature's expert in this case agreed, explaining
that the "conventional maximum[]" for population deviation is
"+/- 5.0%," for an absolute deviation of 10%.
The Governor's
maps are far below this.
20
If the Wisconsin Constitution requires better performance
than this on population deviation, we have never said so.
Nor
have we understood State ex rel. Attorney General v. Cunningham,
81 Wis. 440, 51 N.W. 724 (1892), and State ex rel. Lamb v.
Cunningham, 83 Wis. 90, 53 N.W. 35 (1892), to afford mapmakers
no leeway on population deviation. To the contrary, in State ex
rel. Bowman v. Dammann, we declined to strike down maps despite
our conclusion that "fairer results with respect to equality of
representation" could have been accomplished.
209 Wis. 21, 30,
243 N.W. 481 (1932).
We explained that only a "wide and bold
departure" from population equality was beyond the mapmaker's
discretion.
Id.
Were it otherwise, every map submitted would
violate the constitution, since better performance on population
deviation is certainly possible.
App. 25
deviation
of
2%));
State
ex
rel.
Reynolds
v.
Zimmerman,
23
Wis. 2d 606, 618-25, 128 N.W.2d 16 (1964) (adopting legislative
districts after legislative impasse with substantially larger
population deviations than those proposed here).
They are also
well within the population equality requirements of the Equal
Protection Clause, which are more relaxed for state legislative
districts
Indep.
than
for
congressional
Redistricting
Comm'n,
578
districts.21
Harris
v.
U.S. 253,
(2016)
("[W]e
259
Az.
have refused to require States to justify deviations of 9.9% and
8%." (citations omitted)); Wis. St. AFL-CIO v. Elections Bd.,
543
F. Supp. 630,
634
(E.D.
Wis.
1982)
("We
believe
that
a
constitutionally acceptable plan . . . should, if possible, be
kept below 2%.").
¶37
We next examine whether the Governor's proposed maps
comply with the Equal Protection Clause's limits on race-based
districting and the VRA.
¶38
Under the Equal Protection Clause, "strict scrutiny
applies when race is the predominate consideration in drawing
the
district
traditional
lines
race-neutral
considerations."
(cleaned up).
such
Shaw
that
the
legislature
districting
v.
Hunt,
517
subordinates
principles
to
racial
U.S. 899,
907
(1996)
If racial considerations predominate in a map's
configuration, the state must "prove that its race-based sorting
In the last decennial redistricting cycle, dozens of
states enacted legislative maps with population deviations
exceeding those in the Governor's maps——most by a wide margin.
https://www.ncsl.org/research/redistricting/2010-ncslredistricting-deviation-table.aspx
21
App. 26
of
voters
serves
a
'compelling
tailored' to that end."
interest'
and
is
'narrowly
Cooper v. Harris, 137 S. Ct. 1455, 1464
(2017) (quoting another source).
The Supreme Court "has long
assumed that one compelling interest is complying with operative
provisions of the Voting Rights Act."
¶39
"Section
2
[of
the
VRA]
Id.
prohibits
any
'standard,
practice, or procedure' that 'results in a denial or abridgement
of the right . . . to vote on account of race.'"
52 U.S.C. § 10301(a)).
Id. (quoting
The Supreme Court has "construed that
ban to extend to vote dilution——brought about, most relevantly
here, by the dispersal of a group's members into districts in
which they constitute an ineffective minority of voters."
(cleaned up).
Id.
This means the VRA, when triggered, may require
the race-conscious drawing of majority-minority districts.
Id.
at 1470.
¶40
posture.
Our
VRA
inquiry
comes
in
an
unusual
procedural
Often cases under the VRA present as a challenge to
particular districts in legislatively drawn maps.
But our task
is
without
to
benefit
produce
of
a
districts
trial
and
in
a
the
first
instance
fully-developed
factual
regarding the performance of specific districts.
the
record
Sitting in
this posture, we follow the instructions provided by the Supreme
Court in Cooper:
When a State invokes the VRA to justify race-based
districting, it must show (to meet the "narrow
tailoring" requirement) that it had "a strong basis in
evidence" for concluding that the statute required its
action.
Or said otherwise, the State must establish
that it had "good reasons" to think that it would
App. 27
transgress the Act if it did not draw race-based
district lines.
That "strong basis" (or "good
reasons") standard gives States "breathing room" to
adopt reasonable compliance measures that may prove,
in perfect hindsight, not to have been needed.
Id. at
1464
(citations
omitted).
Under
this
precedent,
a
mapmaker may draw districts with racial considerations in mind
provided
"a
strong
basis
in
evidence,"
or
"good
reasons,"
suggest the VRA requires the mapmaker to do so.
¶41
A typical § 2 challenge is analyzed under a two-step
framework,
beginning
first
with
the
so-called
Gingles22
preconditions, then proceeding to whether minority voting power
is
diluted
under
the
totality
of
the
circumstances.
See
Rodriguez v. Bexar County, 385 F.3d 853, 859 (5th Cir. 2004).
Here,
the
seven
majority-Black
VRA.23
Governor
argues——as
assembly
do
several
districts
other
are
parties——that
required
by
the
Applying Cooper, we analyze whether a strong basis in
evidence suggests the Gingles preconditions are satisfied, and
if so, whether there are good reasons to think minority voting
power would be diluted under the totality of the circumstances
with fewer
majority-Black districts.
We see our inquiry as
limited to determining whether the Governor's proposal is within
the "leeway" states have "to take race-based actions reasonably
22
Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986).
No one suggests the Governor's senate map violates either
the Equal Protection Clause or the VRA.
23
App. 28
judged necessary under a proper interpretation of the VRA."24
Cooper, 137 S. Ct. at 1472.
¶42
there
Beginning with step one, we first determine whether
are
"good
reasons"
to
think
the
three
Gingles
preconditions are met for the Black voting age population in the
Milwaukee
area.
In
Cooper,
the
Court
explained
the
preconditions as follows:
First, a minority group must be sufficiently large and
geographically compact to constitute a majority in
some
reasonably
configured
legislative
district.
Second, the minority group must be politically
cohesive. And third, a district's white majority must
vote sufficiently as a bloc to usually defeat the
minority's preferred candidate. . . . If a State has
good
reason
to
think
that
all
the
Gingles
preconditions are met, then so too it has good reason
to believe that § 2 requires drawing a majorityminority district. But if not, then not.
Id. at 1470 (cleaned up).
¶43
First,
population
in
it
the
is
undisputed
Milwaukee
area
that
is
the
Black
voting
age
"sufficiently
large
and
geographically compact" to form a majority in seven "reasonably
configured
legislative
district[s]."25
Id.
(quoting
another
To be clear, this case does not involve a claim under the
Equal Protection Clause or VRA.
Rather, as remedial mapdrawers, we strive to act in compliance with the Constitution
and applicable federal laws necessarily relying on the more
limited record before us. A standard VRA claim is brought after
the adoption of new districts. Such a claim would proceed much
differently, requiring a fully developed factual record and
detailed
findings
regarding
the
performance
of
specific
districts.
24
Several parties, including the Governor, calculate Black
voting age population by including "multi-race subcategories" in
addition to "non-Hispanic Black" and "non-Hispanic (Black +
25
App. 29
source).
Six such districts were created by the 2011 maps, and
the parties' submissions demonstrate that it is now possible to
draw
a
seventh
sufficiently
large
and
compact
majority-Black
district.
¶44
Second, it is also undisputed that Black voters in the
Milwaukee area are politically cohesive.
Experts from multiple
parties analyzed voting trends and concluded political cohesion
existed; no party disagreed.
¶45
Finally, turning to the third
Gingles
precondition,
the parties offered a strong evidentiary basis to believe white
voters in the Milwaukee area vote "sufficiently as a bloc to
usually
defeat
the
minority's
(quotation marks omitted).
preferred
candidate."
Id.
Experts from multiple parties argued
this requirement was satisfied by looking at various election
contests,
with
the
most
comprehensive
expert
analysis
calculating that white voters in the Milwaukee area defeat the
preferred candidate of Black voters 57.14% of the time when
relevant elections are analyzed.26
We received little in the way
White)" categories.
The Legislature excludes "multi-race
subcategories" from its calculations but raises no objection to
the inclusion of those categories. See Georgia v. Ashcroft, 539
U.S. 461, 473 n.1 (2003) ("[W]e believe it is proper to look at
all individuals who identify themselves as black."), superseded
by statute on other grounds, Ala. Legis. Black Caucus v.
Alabama, 575 U.S. 254, 276-77 (2015).
BLOC's expert "analyzed eight elections between Black and
white candidates in nonpartisan or Democratic primaries and
Spring generals in jurisdictions that cover either Milwaukee
County, Milwaukee City, or both."
In a subsequent report, the
expert explained that he omitted the 2018 lieutenant governor
primary from his analysis because "it [did] not simulate an
26
App. 30
of
alternative
data
or
analysis
to
counter
this.
To
the
contrary, throughout briefing, all parties appeared to assume
the VRA requires at least some majority-Black districts in the
Milwaukee area.
This can only be true if racially polarized
voting that usually defeats the minority's preferred candidate
exists.
It was not until oral argument that anyone meaningfully
contended the third Gingles precondition was not met.
To the
extent it was suggested in the substantial briefing we received,
it was virtually unsupported by expert analysis or argument.27
It is telling that no party saw fit to develop an argument
supported with data suggesting the VRA preconditions are not
satisfied with respect to the Black voting age population in and
around Milwaukee.
drawing
maps
in
We further observe that the federal court
1992
assumed
racially
polarized
voting
in
Milwaukee and drew majority-Black districts to comply with the
VRA.
Prosser v. Elections Bd., 793 F. Supp. 859, 868-71 (W.D.
Wis. 1992).
No court has concluded otherwise since then.
on
we
the
data
were
provided,
historical
practice,
Based
and
the
election in which white bloc voting might defeat the choice of
Black voters." The Legislature's expert critiqued the omission,
and noted that supplementing BLOC's election data with it could
alter the analysis. The Legislature's expert did not argue that
any other additional elections besides the 2018 lieutenant
governor primary should have been included in BLOC's analysis.
Before oral argument, the strongest suggestion that the
Gingles preconditions might not be satisfied was a comment in
one of the Legislature's expert reports suggesting "serious
doubts about whether the Gingles threshold standard is currently
met in Milwaukee County."
But an alternative analysis was not
conducted, nor did the Legislature's briefing advance or develop
this in any meaningful way.
27
App. 31
absence
of
any
conclude
there
sufficiently
are
good
developed
reasons
to
counterargument,
think
all
three
we
Gingles
preconditions are satisfied.
¶46
Moving to the second step, § 2 of the VRA requires
consideration of the totality of the circumstances to determine
whether members of a racial group "have less opportunity than
other members of the electorate to participate in the political
process
and
to
elect
U.S.C. § 10301(b).
representatives
of
their
choice."
52
The Supreme Court has pointed to various
factors that might be relevant to this determination, including
those listed in a Senate Report from the 1982 amendments to the
VRA, and most pertinently here, "whether the number of districts
in
which
roughly
the
minority
proportional
relevant area."28
28
to
group
forms
an
effective
its
share
of
the
majority
population
in
is
the
League of United Latin Am. Citizens v. Perry,
The Senate Report factors include:
the history of voting-related discrimination in the
State or political subdivision; the extent to which
voting in the elections of the State or political
subdivision is racially polarized; the extent to which
the State or political subdivision has used voting
practices or procedures that tend to enhance the
opportunity for discrimination against the minority
group . . .; the extent to which minority group
members bear the effects of past discrimination in
areas such as education, employment, and health, which
hinder their ability to participate effectively in the
political process; the use of overt or subtle racial
appeals in political campaigns; and the extent to
which members of the minority group have been elected
to public office in the jurisdiction.
The Report
notes also that evidence demonstrating that elected
officials are unresponsive to the particularized needs
of the members of the minority group and that the
App. 32
548 U.S. 399, 426 (2006).
In Johnson v. De Grandy, the Court
explained that proportionality is highly relevant, but not the
exclusive measure of minority voting strength.
1020-21 (1994).
The Court added that § 2 does not require a
mapmaker to maximize minority representation.
all
of
this,
512 U.S. 997,
we
keep
in
mind
that
Id. at 1017.
"States
retain
In
broad
discretion in drawing districts to comply with the mandate of
§ 2."
Shaw, 517 U.S. at 917 n.9.
¶47
Here, we cannot say for certain on this record that
seven majority-Black assembly districts are required by the VRA.
But based on our assessment of the totality of the circumstances
and given the discretion afforded states implementing the Act,
we conclude the Governor's configuration is permissible.
¶48
The 2011 maps enacted into law created six majority-
Black districts in the Milwaukee area.
Over the last decade,
policy underlying the State's or the political
subdivision's use of the contested
practice or
structure is tenuous may have probative value.
League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 426
(2006) (quoting Gingles, 478 U.S. at 44-45).
Like other courts in this posture, we find these factors
less helpful in the context of this case.
In Prosser, for
example, the federal court that provided new maps for Wisconsin
in 1992 did not even mention the Senate Report factors, focusing
instead other relevant considerations.
See Prosser, 793
F. Supp. at 869-71. Similarly, when the U.S. Supreme Court has
faced VRA challenges regarding the number of majority-minority
districts drawn, it has focused much of its attention on
considerations not mentioned in the Senate Report, such as
proportionality. See Johnson v. De Grandy, 512 U.S. 997, 101721 (1994); Perry, 548 U.S. at 436-42.
App. 33
the Black population in Wisconsin grew by 4.8% statewide, while
the white population fell by 3.4%.
Based on the current census,
the Black voting age population statewide is between 6.1% and
6.5%, although the precise number is subject to some dispute.
Proportionality
and
seven
would therefore suggest
majority-Black
assembly
somewhere between six
districts
are
appropriate.
Looking a bit deeper, a significant proportion of Wisconsin's
Black population lives in Milwaukee County where the subject
districts are principally located.
age
population
increased
5.5%,
And there, the Black voting
while
the
white
voting
age
population decreased 9.5%.
The baseline of six districts ten
years
population
ago,
combined
with
trends
since
then
and
statewide population numbers now, suggest a seventh majorityBlack district may be required.
¶49
In addition, we have some concern that a six-district
configuration
could
prove
problematic
under
the
VRA.
The
Legislature, for example, submitted a configuration with five
majority-Black districts, and a sixth just under a majority.
One of its proposed districts has a Black voting age population
of
73.28%,
a
level
some
"packing" under the VRA.
(7th Cir. 1984).
courts
have
found
to
be
unlawful
Ketchum v. Byrne, 740 F.2d 1398, 1418
Packing occurs when a mapmaker draws district
lines that pack minority voters "into one or a small number of
districts
to
minimize
their
influence
door."
De Grandy, 512 U.S. at 1007.
voters
under
a
six-district
in
the
next
The risk of packing Black
configuration
App. 34
districts
further
suggests
drawing seven majority-Black districts is appropriate to avoid
minority vote dilution.
¶50
Viewing the totality of the circumstances, we see good
reasons to conclude a seventh majority-Black assembly district
may be required.
To be clear, the VRA does not require drawing
maps to maximize the number of majority-minority districts, and
we do not seek to do so here.
17.
See De Grandy, 512 U.S. at 1016-
Rather, on this record, we conclude selecting a map with
seven
districts
is
within
the
leeway
states
have
to
take
"actions reasonably judged necessary" to prevent vote dilution
under the VRA.
¶51
Based
Cooper, 137 S. Ct. at 1472.
on
the
foregoing,
we
conclude
the
Governor's
legislative maps comply with all relevant legal requirements.
Because they are also the maps that produce the least change
from the previously enacted maps, we adopt them.
IV.
¶52
2011
CONCLUSION
To remedy the unconstitutional malapportionment of the
congressional
and
state
legislative
maps,
we
adopt
the
Governor's proposed congressional and state legislative maps.
Beginning with the August 2022 primary elections, the Wisconsin
Elections Commission is enjoined from conducting elections under
the 2011 maps and is ordered to implement the congressional and
legislative maps submitted by Governor Evers for all upcoming
elections.
This order shall remain in effect until new maps are
enacted into law or a court otherwise directs.
By the Court.——Relief granted.
App. 35
¶53
ANN
WALSH
BRADLEY,
J.
(concurring).
I
join
the
majority opinion, which selects the Governor's congressional and
state legislative maps, not because I approve of the "least
change" approach.
¶54
that
I do not.
Having previously voiced my dissent to the adoption of
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
adhere
today's
most
majority
closely
to
opinion
Governor's
maps
the
directive.
Accordingly, I respectfully concur.
because
court's
the
earlier
I
¶55
This case came to us as an original action petition
filed before the legislature and Governor had even acted on any
redistricting legislation.
I joined the dissent from the order
granting the petition due to the myriad "reasons for preferring
a federal forum" and because this court had "no experience in
drawing district maps."
2021AP1450-OA,
Johnson v. Wis. Elections Comm'n, No.
unpublished
order,
at
16,
18
(Wis.
Sept.
22,
2021, amended Sept. 24) (Dallet, J., dissenting).
¶56
The court then solicited briefing from the parties on
several topics, ranging from procedure to substance to timing.
Specifically, the court sought the parties' input on how it
should
conduct
these
proceedings,
what
criteria
consider, and when final maps should be in place.
App. 36
it
should
¶57
After
legislature
redistricting
and
vetoed
by
legislation
the
was
Governor,
passed
thus
by
the
failing
the
political process, a majority of the court advised that it would
apply
the
"least
change"
approach
to
reapportion
Wisconsin's
congressional and state legislative districts in light of the
2020
census.
That
is,
the
existing
maps
would
serve
as
a
template and this court would implement "only those remedies
necessary to resolve constitutional or statutory deficiencies."
Johnson v. Wis. Elections Comm'n, 2021 WI 87, ¶72, 399 Wis. 2d
623,
967
N.W.2d
concurring).
because
469;
see
also
id.,
¶85
(Hagedorn,
J.,
I again joined the dissent from this decision
it
had
"potentially
devastating
representative government in Wisconsin."
dissenting).
consequences
for
Id., ¶88 (Dallet, J.,
We then received initial map submissions followed
by additional rounds of briefing, culminating in over five hours
of oral argument.
II
¶58
The
shortcomings
of
throughout these proceedings.
"least
change"
were
on
display
For example, "least change," as
set forth in the court's prior order, is unmoored from any legal
requirement
for
redistricting.
The
parties
struggled
with
reconciling it with the United States Constitution, Wisconsin
Constitution, and Voting Rights Act.
¶59
metrics
Further, beyond core retention, it was unclear if some
would
carry
more
weight
than
others.
Throughout
briefing and oral argument, the "least change" approach did not
and
could
not
offer
an
explanation
App. 37
for
the
tradeoffs
and
discretionary decisions that are intrinsic to map-drawing.
If
this process has shown us anything, it is that the court should
depart
from
the
"least
change"
approach
if
and
when
redistricting arrives before it in the decades to come.
¶60
Although
some
advance
that
"least
change"
is
an
apolitical approach, this court recognized that redistricting is
"inherently political" when it previously (and wisely) refrained
from jumping into the fray.
Jensen v. Wis. Elections Bd., 2002
WI 13, ¶10, 249 Wis. 2d 706, 639 N.W.2d 537.
It dictates where
candidates can run for office and for whom voters can cast their
vote.
The
process
affords
the
chance
to
"restore
the
core
principle of republican government, namely, that voters should
choose their representatives, not the other way around."
Ariz.
State Legislature v. Ariz. Indep. Redistricting Comm'n, 576 U.S.
787, 824 (2015) (internal citation omitted).
¶61
The people of Wisconsin deserve both a fair process
and fair maps.
We have cautioned that "[j]udges should not
select a plan that seeks partisan advantage."
Jensen, 249 Wis.
2d 706, ¶12 (quoting Prosser v. Elections Bd., 793 F. Supp. 859,
867
(W.D.
Wis.
necessarily
1992)).
enshrines
the
Here,
the
partisan
"least
change"
advantage
adopted
approach
by
the
political branches ten years ago.
Its application undermines,
rather
of
than
fulfills,
the
promise
a
truly
representative
government.
¶62
That being said, I am bound by the court's earlier
determination in this case.
Although I disapprove of the "least
App. 38
change" approach, I am limited by that prior determination and
obligated to apply it here.
¶63
Indeed,
a
majority
of
the
court
previously
placed
limitations on the parties' submissions by setting forth general
criteria
to
be
employed.
The
parties
relied
on
limitations when preparing their maps and arguments.
those
Because
they were directed to use a "least change" approach, the parties
did not sufficiently argue any other standard for distinguishing
between the submitted maps.
Furthermore, the submitted maps may
have been far different had the parties known this court would
entertain
criteria
other
than
"least
change"
as
preeminent.
Thus, as the majority opinion well explains, the Governor's maps
adhere most closely to the court's prior order.
¶64
I therefore join the majority opinion in its entirety
and respectfully concur.
¶65
I am authorized to state that Justices REBECCA FRANK
DALLET and JILL J. KAROFSKY join this concurrence.
App. 39
¶66
ANNETTE KINGSLAND ZIEGLER, C.J.
(dissenting).
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.
Even those in the majority recognize that
that there exists a "struggle[]" to reconcile the least change
approach
they
adopt
with
Wisconsin
Constitution,
and
the
United
States
Constitution,
the
Voting
Rights
Act
("VRA").1
Concurrence, ¶58.
Three of the four justices in the majority would have
preferred the federal courts to have drawn the maps for
Wisconsin.
See
Johnson v. Wis. Elections
Comm'n, No.
2021AP1450-OA, unpublished order (granting petition for leave to
commence original action), at 15-18 (Wis. Sep. 22, 2021)
(Dallet, J., dissenting) (explaining the advantages of federal
court litigation and concluding that the court should not have
accepted this original action). They clearly disagree with the
least change approach, and the concurrence is far from a
wholesale endorsement of the analysis in the majority opinion,
which adopts its own version of least change. See concurrence,
¶¶53-64.
Those three justices assert there was a "struggle[]"
the parties were forced to confront when attempting to reconcile
least change with the United States Constitution, the Wisconsin
Constitution, and the VRA. Id., ¶58. Yet the majority opinion
neither recognizes nor resolves any "struggle[]" that exists
between its version of least change and the law.
This calls
into question whether the majority opinion is really a lead
opinion with only Justice Hagedorn fully adopting the reasoning
therein. Id.
1
App. 40
¶67
Lacking in substantive legal analysis, the majority is
imbued with personal preference.
The majority disrespects the
VRA and instead cabins voters for purportedly "good reasons" in
districts based solely on race, which is nothing short of a
violation of the Equal Protection Clause.
But to the majority,
the Equal Protection Clause is a mere box to check, a speedbump
on the path to dividing Wisconsin into racial categories.
one
case
cited
determination.2
unknown,
by
the
majority
supports
its
Not
race-based
Moreover, the majority implements a previously
judicial
test:
"core
retention."
Because
the
majority's adoption of the Governor's maps is unconstitutional,
and
conflicts
with
the
record
and
well-established
jurisprudence, I must dissent.
¶68
For the reasons explained below, I conclude that the
court should have adopted the maps submitted by the Wisconsin
Legislature ("the Legislature") and Congressmen Glenn Grothman,
Mike Gallagher, Bryan Steil, Tom Tiffany, and Scott Fitzgerald
("the Congressmen"), or in the alternative, the maps submitted
by the Citizen Mathematicians and Scientists ("CMS").
The court
could have also drawn its own maps or directed the parties to
submit new maps that had record support and complied with the
law.
The maps submitted by the Governor are unconstitutional
and fatally flawed.
See Cooper v. Harris, 581 U.S. ___, 137 S. Ct. 1455
(2017); Shaw v. Hunt, 517 U.S. 899 (1996); League of United
Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) ("LULAC");
Johnson v. De Grandy, 512 U.S. 997 (1994).
VRA caselaw,
including these precedents, are discussed in greater detail in
Section II.A, infra.
2
App. 41
I.
A.
SUMMARY
No Support For Drawing Districts On The Basis Of Race.
¶69
Because
the
Governor
has
not
demonstrated
a
VRA
violation, there can be no race-based remedy, let alone one
constructing a new district and changing six others in Milwaukee
to include exactly 51% black populations.
It is undisputed that
the Legislature's maps and the maps submitted by CMS are the
only race-neutral maps submitted.
Either performs better than
the
constitution
Governor's
maps
under
the
and
the
law.
Alternatively, we could design or draw our own maps, or combine
positive characteristics of several maps.
Further, we could
have requested additional briefing to direct the parties, or the
Legislature or Governor specifically, to improve their maps and
provide greater record justification for their decisions.
We
now are the map drawers, we are the government actors, and we
are the ones that must satisfy strict scrutiny by using racial
classifications.
¶70
The
It is our duty to be responsible to the law.
majority
adopts
the
Governor's
maps,
which
unambiguously divided districts in the Milwaukee area on the
basis of race alone.
The only valid justification for doing
this is if a VRA violation were shown, requiring a race-based
remedy.
Completely absent, however, is any demonstration of a
VRA violation.
because
to
Protection
take
Without a violation, there can be no remedy
race-based
Clause.
In
action
other
would
words,
violate
the
a
remedy
VRA
Equal
is
constitutionally permissible only as required to remedy a VRA
violation.
Stated
even
differently,
App. 42
specific
evidence
must
demonstrate that white voters block a minority group's vote, and
due to a variety of local conditions the minority group does not
have the opportunity to effectively participate in democratic
elections, inside a district or area where a minority could be
made into an effective electoral majority.
District-specific
evidence must demonstrate that the majority-minority group is
unable
to
elect
district.
We
happening
in
the
candidate
have
exactly
these
districts
of
zero
its
choice
evidence
in
of
Milwaukee.
in
a
any
such
There
specific
thing
is
zero
evidence on the conditions and environment of local communities
warranting a race-based remedy.
Yet, the majority incorrectly
surmises that there is "good reason" to nonetheless invent this
remedy.
¶71
The parties were free to engage in discovery, depose
experts, and gather the requisite information to advocate for
their positions.
The Governor completely failed to evidence any
factual support for his race-based designs.
The only party that
even attempted to provide the evidence sufficient to justify a
race-based remedy, the Black Leaders Organizing for Communities
("BLOC"), agrees that when examining the existing record, the
Governor's
maps
do
not
comply
with
the
VRA,
and
are
thus
unconstitutional.
¶72
Nonetheless, the majority places its imprimatur on the
Governor's
maps,
which
carve
seven
Assembly
districts
with
populations that are curiously at almost exactly 51% AfricanAmerican
populations.
His
maps
increase,
the
minority percentage in most majority-minority districts.
His
App. 43
reduce,
not
maps add what was referred to in VRA parlance as "white filler,"3
to these districts.
The majority cites no support for its VRA
remedy
white
that
adds
voters
and
reduces
black
voter
percentage.
¶73
The
majority
fails
to
follow
VRA
jurisprudence
and
instead the majority invents a new, heretofore unknown standard,
evolved from its own creation of the law and relying heavily on
alleged party concessions, not evidence.
So says the majority,
if there are "good reasons" to create race-based districts, the
court
is
endowed
with
the
authority
to
do
as
it
wishes,
regardless of the complete lack of evidence to support any VRA
violation.
Tellingly, the majority engages in no substantive
strict scrutiny analysis of the racial assignment of Milwaukee
voters, even though such scrutiny is required as a part of the
legal analysis.
B. Least Change Is Not Core Retention.
¶74
In our
November 30, 2021
opinion in this case,
we
concluded that our "judicial remedy should reflect the least
change necessary for the maps to comport with relevant legal
requirements."
Johnson v. Wis. Elections Comm'n, 2021 WI 87,
¶¶24-63, 72, 399 Wis. 2d 623, 967 N.W.2d 469.
Nowhere in that
opinion did we use the phrase "core retention".
Not only were
the
would
parties
not
advised
that
core
retention
be
the
decisive factor in the court's decision, but the parties were
explicitly
"invited"
by
the
concurrence
to
consider
factors
Counsel from CMS at oral argument explained how map
drawers construct majority-minority districts when considering
race.
3
App. 44
wholly unrelated to least change.4
Johnson, 399 Wis. 2d 623,
¶¶83, 87 (Hagedorn, J., concurring) (noting that "traditional
redistricting criteria" would assist in the selection of maps).
The
concurrence,
which
received
no
votes
support,
was
perfectly free to include core retention in its analysis.
It
did not, and for a very simple reason:
in
no one, neither among
the parties nor the court, understood core retention was the
sole
factor
for
determining
least
change
and
further,
for
selecting maps.
The core retention analysis in the majority is
an
made
invention,
after-the-fact
to
justify
a
policy
preference.
¶75
The law instructs us to consider more than one number:
population
deviation
and
local
underlie
the
validity
fundamentally
number.
government
divisions,
of
retention
any
core
Even so, the Governor's core retention numbers are
worse than the Legislature's in the Wisconsin Senate.
While the
Governor's maps move fewer individuals overall, those same maps
have inordinately high population deviations among districts,
far greater than the deviations in the Legislature's maps.
The
Governor's maps also divide an extraordinary number of local
communities,
maps.
orders
of
magnitude
more
than
the
Legislature's
We are constitutionally required to minimize population
deviations and local government splits.
constitutional
interest,
we
should
Given this significant
adopt
either
the
Sitting as a court of seven, the concurrence had no
authority to alone direct the court's business.
For further
explanation on the November 30 concurrence, see footnote 19,
infra.
4
App. 45
Legislature's or CMS's maps, which score the best out of all the
submitted maps, or the court should create a map out of the best
of each.
¶76
We
were
tasked
with
selecting
legislative
and
congressional maps that best conform with the law while also
making as little change as possible to existing district lines.
We accepted another round of briefing and expert reports, and we
held over five hours of oral argument.
Despite this extensive
opportunity to prepare, Governor Tony Evers presented maps that
had marked population deviation and divided dozens and dozens of
local municipalities.
C.
The Governor's Congressional Maps Are Unconstitutional.
¶77
Knowing
that
the
Legislature
and
the
Congressmen
intended to submit legislative and congressional maps that were
already
passed
by
the
Wisconsin
Legislature
in
2021,
the
Governor simply designed maps that met his own partisan ends,
which appear to be based solely on core retention.
In so doing,
the Governor substantially increased population deviation and
local government splits and engaged in an unsubstantiated racial
gerrymander.
retention
In other words, the Governor inflated the core
number
at
the
expense
of
the
Wisconsin
public.
Inexplicably, the majority now adopts the Governor's maps in
full, resting entirely on "core retention" as determinative.
¶78
amended
The court refused to allow the Congressmen to submit
maps,
conflicting
with
our
duty
to
consider
all
available information and the fact that other parties, including
the Governor, were permitted to amend their maps.
App. 46
Nonetheless,
the Governor has a greater population deviation, and under wellestablished constitutional law, there is no de minimus deviation
for congressional districts.
The Governor explained that his
deviation was caused by his lack of understanding that a lower
deviation
was
required.
But
carelessness
justification for excessive deviation.
is
not
a
valid
The Governor's (and now
Wisconsin's) congressional maps are unconstitutional.
The court
should have adopted the Congressmen's map, or in the alternative
CMS's map, which includes the lowest deviation available, and
are both least change.
II. STATE LEGISLATIVE MAPS
¶79
In our November 30 opinion, we indicated that any map
would need to comply with federal and state legal requirements
and
be
the
districts.
and
least
change
possible
to
existing
legislative
Six parties submitted maps for the Wisconsin Senate
Assembly:
the
Legislature,
CMS,
the
Hunter
Intervenor-
Petitioners ("Hunter"), Senator Janet Bewley, the Governor, and
BLOC.
The maps submitted by the Legislature and CMS achieve
minimal changes to existing district lines while best complying
with the demands of the Wisconsin Constitution and federal law.
For the most part, the parties argued for the adoption of either
the Legislature's or the Governor's maps.
A.
¶80
The Equal Protection Clause And The VRA
The maps adopted by the majority are nothing short of
a racial gerrymander, and the Governor failed to present any
material evidence warranting this substantial departure from the
principles of equal protection.
App. 47
¶81
Fatally,
the
majority
provides
at
most
a
cursory
analysis on the VRA and the Equal Protection Clause, mustering a
mere five pages to apply an incredibly important and complex
area of law.
See Ipse Dixit, Oxford English Dictionary (2022)
("An unproved assertion resting on the bare authority of some
speaker.").
Just as BLOC warned, the majority's VRA analysis is
woefully inadequate at best.
Its use of an aggressive race-
based remedy for no showing of a VRA violation, simply because
it can, is untenable and legal error.
¶82
The
majority's
use
of
race
to
draw
seven
bare-
majority-minority districts undermines that which the VRA was
properly meant to correct.
It utilizes racial categories to
move minority voters into newly created districts, with newly
defined
constituencies,
which
created
using
traditional
Notably,
the
majority
could
not
race-neutral
cites
broad
have
been
reasonably
redistricting
quotes
taken
methods.
from
United
States Supreme Court precedent, but it conspicuously omits any
detailed description of the facts and outcomes of those cases,
i.e., what those cases actually stand for.5
grappling
with
the
courts
the
United
to
vast
nuances
States
of
Supreme
VRA
No real attempt at
caselaw,
Court,
was
from
given.
lower
By
For instance, the majority cites Cooper, 137 S. Ct. 1455,
Shaw v. Hunt, 517 U.S. 899, LULAC, 548 U.S. 399, De Grandy, 512
U.S. 997. In Cooper and Shaw, the Court struck down race-based
district maps under the Equal Protection Clause due to the lack
of support for VRA compliance.
In LULAC, the Court found that
maps drawn in Texas lacked support under the VRA, and in
De Grandy, the Court held that the VRA did not apply at all,
where a plaintiff sought maximization of majority-minority
districts.
A more complete analysis on the VRA is provided
below.
5
App. 48
adopting the Governor's maps, the majority is now bringing to
the fore the incendiary and constitutionally suspect category of
race.
The majority has a legal responsibility to more fully and
thoroughly explain itself.
Below, I attempt to fill the void in
substance the majority leaves for future courts and the public.
¶83
What's next?
Perhaps a federal court challenge before
the United States Supreme Court.6
Although braving a face of
finality, the majority opinion practically begs that the adopted
maps be subject to further litigation.
¶84
I
first
discuss
the
legal
background
of
the
Equal
Protection Clause, and then turn to a discussion on the VRA and
its application to this case.
1.
The Equal Protection Clause
The parties to this lawsuit were given the opportunity to
present evidence, advance support for their favored maps, and
critique and oppose the maps ultimately adopted. The next step
for the case is appeal to the United States Supreme Court. See
Coleman v. Thompson, 501 U.S. 722, 730 (1991) (explaining that
the Supreme Court "reviews a state court decision on direct
review pursuant to 28 U.S.C. § 1257").
The parties are
precluded from relitigating this case in a separate federal
lawsuit. Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S.
75, 81 (1984) (explaining that "a federal court must give to a
state-court judgment the same preclusive effect as would be
given that judgment under the law of the State in which the
judgment was rendered"); Wickenhauser v. Lehtinen, 2007 WI 82,
¶22, 302 Wis. 2d 41, 734 N.W.2d 855 (stating the elements of
claim preclusion).
"Congress had empowered only [the United
States Supreme] Court to exercise appellate authority to reverse
or modify a state-court judgment."
Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 284 (2005).
Further, under
the "Rooker-Feldman" doctrine, "cases brought by state-court
losers complaining of injuries caused by state-court judgments
rendered before the district court proceedings commenced and
inviting district court review and rejection of those judgments"
fall
outside
federal
district
courts'
subject
matter
jurisdiction. Lance v. Dennis, 546 U.S. 459, 464 (2006).
6
App. 49
¶85
Recognizing the deeply American value that individuals
should be equally protected under the law, the United States
Supreme Court has repeatedly held that government cannot sort or
distinguish
individuals
on
extraordinary
justifications.
the
basis
of
"Distinctions
race
without
between
citizens
solely because of their ancestry are by their very nature odious
to a free people, and therefore are contrary to our traditions
and hence constitutionally suspect."
Fisher v. Univ. of Texas,
Austin,
(citations
570
omitted).
U.S.
297,
309
(2013)
and
quotations
The Court has recognized that government-sanctioned
distinctions "threaten to stigmatize individuals by reason of
their
membership
hostility."
in
a
racial
group
and
to
incite
Shaw v. Reno, 509 U.S. 630, 643 (1993).
racial
"Because
racial characteristics so seldom provide a relevant basis for
disparate treatment, the Equal Protection Clause demands that
racial classifications be subjected to the most rigid scrutiny."
Fisher, 570 U.S. at 309-10 (cleaned up).
Classifications based
on race "are constitutional only if they are narrowly tailored
to
further
Bollinger,
compelling
539
U.S.
governmental
306,
326
interests."
(2003).
This
is
Grutter
a
v.
"searching
judicial inquiry," id., that rejects "any but the most exact
connection between justification and classification."
Parents
Involved in Community Schools v. Seattle Sch. Dist. No. 1, 551
U.S. 701, 720 (2007) (quotations removed).
¶86
The Supreme Court has understood the pernicious nature
of dividing up individuals into legislative districts based on
App. 50
race,
and
has
redistricting.
applied
the
Equal
Protection
Clause
to
The Court is exacting in its scrutiny:
The idea is a simple one: At the heart of the
Constitution's guarantee of equal protection lies the
simple command that the Government must treat citizens
as individuals, not as simply components of a racial,
religious, sexual or national class.
When the State
assigns voters on the basis of race, it engages in the
offensive and demeaning assumption that voters of a
particular race, because of their race, think alike,
share the same political interests, and will prefer
the same candidates at the polls.
Race-based
assignments embody stereotypes that treat individuals
as the product of their race, evaluating their
thoughts and efforts——their very worth as citizens——
according to a criterion barred to the Government by
history and the Constitution. They also cause society
serious harm. . . .
Racial classifications with respect to voting carry
particular dangers.
Racial gerrymandering, even for
remedial purposes, may balkanize us into competing
racial factions; it threatens to carry us further from
the goal of a political system in which race no longer
matters——a goal that the Fourteenth and Fifteenth
Amendments embody, and to which the Nation continues
to aspire.
Miller v. Johnson, 515 U.S. 900, 911-12 (1995) (cleaned up).
¶87
With this is mind, it is striking how explicitly the
Governor——and the majority——divide up Wisconsin districts solely
by
race.
While
in
2011
the
Legislature
drew
six
assembly
districts that have a majority of black voting-age populations
("BVAP"), ranging from 51% to 62%, the Governor carves seven
districts by race with the exactness of only the most gifted
social scientists.
According to the Governor himself, he drew
seven districts with BVAP ranging from 50.1% to 51.4%.
At oral
argument and in briefing, it was clear that race imbued the
decisions of the Governor in drawing districts.
App. 51
Explaining his
district boundaries, he stated the intent was "to produce seven
majority Black districts in the Assembly."
There is simply no
way to deny that the Governor created "[d]istinctions between
citizens solely because of their ancestry," and if his maps are
adopted, they must overcome strict scrutiny.
Fisher, 570 U.S.
at 309; Grutter, 539 U.S. at 326.
¶88
On
the
other
hand,
it
Legislature drew race-neutral maps.
is
undisputed
that
the
The Legislature sought to
retain districts that have high percentages of black individuals
to as close to the same as they were drawn in 2011, i.e., "least
change."
See Johnson, 399 Wis. 2d 623, ¶72.
The core retention
statistics from high BVAP districts differ dramatically between
the Legislature and the Governor.
For the Legislature, the core
retention numbers for those districts were 87.7%, 85.4%, 88.1%,
100.0%, 94.3%, and 86.4%.
By contrast, high BVAP districts for
the Governor had core retention percentages of 85.8%, 56.1%,
58.7%, 91.3%, 58.5%, 75.9%, and 12.7%.
It is clear from the
data that the Legislature emphasized as little disruption as
possible for districts representing high percentages of AfricanAmerican citizens, as it did for all citizens, regardless of
race.
By contrast, the Governor's driving motivation was race.
The Legislature confirmed at oral argument that the drawing of
its districts was driven by race-neutral constitutional criteria
and least change, not race.
¶89
Core retention numbers for high BVAP districts were
not available for CMS.
However, the varying percentages of BVAP
in
help
the
maps
presented
satisfy
App. 52
any
concern
that
their
district choices were "motivated by a racial purpose or object."
Miller, 515 U.S. at 913.
CMS has seven districts varying from
35.2%
to
districts
83.2%
BVAP.7
The
ranging
from
45.8%
Legislature
similarly
to
By
71.5%.
has
six
comparison,
the
Governor has seven districts with pinpoint accuracy of 50% to
51%
BVAP.
While
the
Governor
has
the
hallmarks
of
an
unconstitutional racial gerrymander in violation of the Equal
Protection Clause, the Legislature and CMS do not.
2.
¶90
The
Governor
The VRA
contends
that
his
maps
would
survive
strict scrutiny because his seven districts are required under
§ 2 of the VRA.
Through argument, it was made clear that the
Governor believed seven majority-minority districts with exactly
51% BVAP must be drawn because it is mathematically possible to
do so.
That has never been the law.
Fundamentally, drawing a
map based on race, to create another district because it can be
created,
is
a
clear
violation
of
equal
protection.
No
VRA
violation has been demonstrated by district-specific evidence.
Despite the opportunity to engage in discovery, the Governor
presents no evidence on Wisconsin election history at all, no
evidence on the unique and specific history and socio-economic
experiences
manufacture.
of
minorities
At
most,
in
the
districts
BLOC
(not
the
they
Governor)
seek
to
submitted
At oral argument, CMS also noted the striking degree to
which race infused the court's consideration and discussions,
along with the Governor's and others' race-based proposals.
Unlike the Governor, CMS affirmed that race should not and
cannot be the motivating factor behind drawing districts.
7
App. 53
argument (not evidence) about Milwaukee as a county.
Absent the
requisite showing, no district can be reconfigured based upon
race without violating the constitutional prohibition against
race-based
action.
Because
Governor's
maps
and
fail
there
do
is
not
no
such
withstand
evidence,
the
constitutional
scrutiny.
¶91
The only support presented in an attempt to justify
race-based districts was submitted by a party who contends the
Governor's maps violate the VRA:
BLOC.
The majority does not
explain this but cites to BLOC's VRA record evidence to support
its
choice
of
(restating
the
BLOC's
Governor's
number
map.
that
See
majority
African-American
candidates are blocked "57.14%" of the time).
op.,
¶45
preferred
Even BLOC offers
only broad assertions that are county specific, and a dearth of
district-specific
race
vote
blocking.
No
party
except
BLOC
presented any details on the state and condition of minority
communities in the districts at issue, and even that evidence is
deeply flawed.
¶92
The
United
that . . . complying
Rights
Act
of
States
with
1965"
can
Supreme
operative
serve
Court
provisions
as
a
has
of
"assumed
the
compelling
Voting
interest.
However, the government must still satisfy the narrow tailoring
and "searching judicial inquiry" that strict scrutiny requires.
Parents Involved in Community Schools, 551 U.S. at 720; Bush v.
Vera,
517
U.S.
nonetheless,
952,
strict.").
978
(1996)
There
("Strict
must
be
a
scrutiny
remains,
"strong
basis
in
evidence" that the VRA requires the drawing of districts on race
App. 54
to ameliorate harm and lack of access experienced by a minority
community.
Miller, 515 U.S. at 922; accord Shaw v. Reno, 509
U.S. at 653 ("[R]acial bloc voting and minority-group political
cohesion
[the
requirements
of
a
VRA
redistricting
violation]
never can be assumed, but specifically must be proved in each
case in order to establish that a redistricting plan dilutes
minority voting strength in violation of § 2.").
the
context
of
evidence
is
refute, ignore, or deny."
(2022).
defined
as
"Strong" in
"convincing;
hard
to
Strong, Oxford English Dictionary
This is not, as the majority appears to take it, a
minor procedural speedbump on the way toward racialized district
lines.
See,
S. Ct. 1455,
Carolina
e.g.,
1464
lacked
Cooper
v.
Harris,
(2017)
(holding
evidence
to
that
support
581
U.S.
___,
137
the
State
of
North
race-based
district
boundaries after examining in detail electoral history in the
districts at issue);
detail
the
record
Vera, 517 U.S. at 965-83 (examining in
justifying
the
concluding
that
race
motivated
the
reasoning
that
the
districts
at
district
lines
district
issue
were
in
Texas,
boundaries,
and
insufficiently
compact to justify application of the VRA); Miller, 515 U.S. at
920-27 (reviewing in the context of § 5 of the VRA that the
record of the case, the justifications underlying district lines
in Georgia, and communications between the state and federal
government, and concluding that race-based district lines were
not justified under the VRA); Shaw v. Hunt, 517 U.S. at 916
(concluding, even assuming the existence of "strong evidence" to
support the use of race under the VRA, simply creating majority-
App. 55
minority districts where racially polarized voting occurs absent
a targeted remedy for the geographically compact voters harmed
fails to satisfy strict scrutiny).8
¶93
The
operative
language
in
§ 2
of
the
VRA
is
that
election procedures and practices cannot, in the "totality of
the circumstances," create
political processes leading to nomination or election
in the State or political subdivision are not equally
open to participation by members of a [protected]
class of citizens . . . in that its members have less
opportunity than other members of the electorate to
The majority contends that a complete record to support
racially motivated district lines can be produced in a lawsuit
after
the
maps
are
enacted.
Majority
op.,
¶41
n.24
(distinguishing a "VRA claim brought [] after the adoption of
new districts" from the review provided by the majority, reliant
upon a "limited record").
Under the majority's theory, VRA
requirements apply only when a government is brought to court.
However, state actors must consider whether there is a "strong
basis" to support race-based distinctions prior to engaging in
remedial action.
See Shaw v. Hunt, 517 U.S. at 910 ("[T]he
institution that makes the racial distinction must have had a
strong basis in evidence to conclude that remedial action was
necessary,
before
it
embarks
on
an
affirmative-action
program."); see, e.g., Cooper, 137 S. Ct. at 1469-72 (examining
the motivation and support for applying a race-based remedy
under the VRA at the time of redistricting); Miller v. Johnson,
515 U.S. at 920-27 (reviewing the justifications for a state's
use of race in redistricting at the time of adoption of the
maps); Bethune-Hill v. Vir. State Bd. of Elections, 580 U.S.
___, 137 S. Ct. 788, 801-02 (2017) (examining the evidence and
justifications for a race-based distinctions at the time
legislative districts were drawn).
As a court, the majority
should be considering the law when it selects its maps; the VRA
is the law.
8
App. 56
participate in the political process
representatives of their choice.[9]
52
U.S.C.
§ 10301(b).
The
United
and
States
to
elect
Supreme
Court
has
recognized that a violation of the statute is not dependent on
an "intent to discriminate against minority voters."
v. Gingles, 478 U.S. 30, 44 (1986).
Thornburg
Instead, courts must look
at effects to determine if the votes of a minority group have
been "diluted" to impair the ability of those minorities "to
elect representatives of their choice."
52 U.S.C. § 10301(b).
"[T]he 'essence' of a [VRA] § 2 vote dilution claim is that a
certain
electoral
inequality
in
the
law,
practice,
opportunities
or
structure
enjoyed
by
black
voters to elect their preferred representatives."
causes
and
an
white
Georgia v.
Ashcroft, 539 U.S. 461, 478 (2003).
¶94
Recognizing the broad remedial goals of § 2 of the VRA
and its more generalized application, untied to discriminatory
intent, the Supreme Court has held that the drawing of districts
could constitute an illegal impairment of minority voting rights
by permitting a white majority to override the minority's choice
in
candidate.
conditions,"
"[I]nteracting
district
lines
that
with
social
prevent
a
and
historical
cohesive
minority
from electing their preferred candidate "impairs the ability of
The statute also states that "nothing in this section
establishes a right to have members of a protected class elected
in numbers equal to their proportion in the population."
52
U.S.C. § 10301(b).
The United States Supreme Court has made
clear that there is a difference between minority-preferred
candidates and minority candidates.
"[T]he ultimate right of
§ 2 is equality of opportunity, not a guarantee of electoral
success for minority-preferred candidates of whatever race."
De Grandy, 512 U.S. at 1014 n.11.
9
App. 57
a protected class to [exercise voting rights] on an equal basis
with other voters."
(1994).
Johnson v. De Grandy, 512 U.S. 997, 1007
If certain conditions are met, a map may require the
"drawing of majority-minority district[s]."
Cooper, 137 S. Ct.
at 1470.
¶95
The
Supreme
Court
has
demanded
that
three
specific
elements be met before it finds that the creation of additional
majority-minority
group
is
constitute
districts
are
sufficiently
large
a
in
majority
a
necessary:
and
"(1)
the
geographically
single-member
racial
compact
district;
(2)
to
the
racial group is politically cohesive; and (3) the majority votes
sufficiently
minority's
as
a
bloc
preferred
to
enable
it
candidate."
usually
League
of
to
defeat
United
the
Latin
American Citizens v. Perry, 548 U.S. 399, 425 (2006) (cleaned
up) ("LULAC").
¶96
are
These three elements of the so-called "Gingles test"
necessary
minority
prerequisites
districts.
They
do
for
not
the
creation
necessarily
of
prove
majoritythat
an
election scheme fits the standard of "imped[ing] the ability of
minority voters to elect representatives of their choice" under
§ 2 of the VRA.
Gingles, 478 U.S. at 48.
To meet the standard,
there must be a proven record of discriminatory effects.
Taken
from a 1982 report from the United States Senate, courts have
recognized as potentially significant:
the history of voting-related discrimination in the
State or political subdivision; the extent to which
voting in the elections of the State or political
subdivision is racially polarized; the extent to which
the State or political subdivision has used voting
App. 58
practices or procedures that tend to enhance the
opportunity for discrimination against the minority
group . . . ; the extent to which minority group
members bear the effects of past discrimination in
areas such as education, employment, and health, which
hinder their ability to participate effectively in the
political process; the use of overt or subtle racial
appeals in political campaigns; and the extent to
which members of the minority group have been elected
to public office in the jurisdiction.
The Report
notes also that evidence demonstrating that elected
officials are unresponsive to the particularized needs
of the members of the minority group and that the
policy underlying the State's or the political
subdivision's use of the contested practice or
structure is tenuous may have probative value.
LULAC, 548 U.S. at 426 (citing Gingles, 478 U.S. at 44-45).
¶97
None of the factors above are dispositive; however,
the three Gingles factors must be met before a court considers
whether the totality of the circumstances justifies a race-based
remedy.
Courts consider the "totality of the circumstances" as
a second step to determine if the minority opportunities to
participate in the electoral process have been impeded.
This is
an intensively fact-based analysis; it requires submission of
testimony
and
detailed
expert
reports
on
the
state
and
conditions of a localities' minority community, the extent they
face
discrimination,
the
extent
past
discrimination
still
impairs their ability to participate, current election rules,
and how those rules impact minorities.
De Grandy, 512 U.S. at
1011 ("[E]quality or inequality of opportunity were intended by
Congress to be judgments resting on comprehensive, not limited,
canvassing of relevant facts"); Gingles, 478 U.S. at 45 ("[T]he
question
whether
the
political
processes
are
'equally
open'
depends upon a searching practical evaluation of the 'past and
App. 59
present reality,' and on a 'functional' view of the political
process.").
¶98
and
To show that a district map is in violation of the VRA
requires
the
creation
of
additional
majority-minority
districts, there must be thorough factual findings.
Court
has
repeatedly
refused
detailed
factual
evidence
Gingles
factors,
even
intensive
"totality
characteristics
behavior.
of
the
apply
demonstrating
prior
of
to
to
a
VRA
the
engaging
the
The Supreme
remedy
without
existence
the
the
more
fact-
circumstances,"
i.e.,
the
community
their
voter
minority
in
of
and
See, e.g., Cooper, 137 S. Ct. at 1471-72 (concluding
that a majority-minority district created for VRA compliance was
unconstitutional
because
past
election
data
showed
super-
majority vote percentages by the candidate preferred by AfricanAmericans
and
effective
white-bloc
voting,
the
third
Gingles
factor, was not proven, despite the possibility that new white
voters were added who could change the voting results); Bartlett
v. Strickland, 556 U.S. 1, 19-20 (2009) (plurality) (concluding
that § 2 of the VRA does not apply where the parties did not
prove
a
change
African-American
in
district
district,
lines
would
create
a
majority
reasoning
that
the
first
Gingles
factor was not met); LULAC, 548 U.S. at 432 (holding that a
majority-Hispanic
district
was
required
but
an
existing
map
creating a majority-Hispanic district failed to satisfy the VRA
because different Hispanics in different areas had "differences
in
socio-economic
status,
education,
employment,
health,
and
other characteristics," and there was insufficient evidence of
App. 60
"compactness" under the first Gingles factor); Gonzalez v. City
of Aurora, 535 F.3d 594, 600 (7th Cir. 2008) (concluding that no
evidence was provided that voting opportunities for Hispanics in
a
municipality
were
impaired,
the
plaintiff
did
not
"build . . . a factual record," and no VRA claim lay despite
Hispanics being dramatically less represented as a portion of
their population); Clarke v. City of Cincinnati, 40 F.3d 807,
812-13 (6th Cir. 1994) (noting that the electoral history for
the public offices at issue demonstrated that "47 percent of
blacks' preferred black candidates were elected" and thus there
was "no reason to find that blacks' preferred black candidates
have 'usually' been defeated" under Gingles).
¶99
states
Furthermore, well-established Supreme Court precedent
that
§ 2
violations
are
determined
individual districts and specific voting groups.
by
examining
Cooper, 137
S. Ct. at 1471-72, 1471 n.5 ("[G]eneralized conclusion[s]" of
state-wide racial polarization in voting "fails to meaningfully
(or
indeed,
at
all)
address
the
relevant
local
question:
whether, in a new version of District 1 created without a focus
on race, black voters would encounter sufficient white blocvoting to cancel their ability to elect representatives of their
choice." (cleaned up)); LULAC, 548 U.S. at 432, 437 (explaining
that VRA analysis requires "an intensely local appraisal" of the
relevant district); Shaw v. Hunt, 517 U.S. at 917 ("For example,
if a geographically compact, cohesive minority population lives
in south-central to southeastern North Carolina, as the Justice
Department's objection letter suggested, District 12 that spans
App. 61
the Piedmont Crescent would not address that § 2 violation.");
Abbott v. Perez, 585 U.S. ___, 138 S. Ct. 2305, 2333-34 (2018)
(noting, despite evidence of a "long history of discrimination"
in
Texas,
a
"pattern
of
disadvantage"
for
minorities,
and
racially polarized voting in the region, there was insufficient
evidence of "present local conditions" to support a VRA remedy);
United States v. City of Euclid, 580 F. Supp. 2d 584, 604-12
(N.D. Ohio 2008) (examining in detail the need for a race-based
VRA
remedy
specific
Comm.
by
considering
African-American
for
a
Fair
&
the
conditions
communities
Balanced
Map
v.
in
and
a
experiences
town
Ill.
State
of
of
50,000);
of
Bd.
of
Elections, 835 F. Supp. 2d 563, 583 (N.D. Ill. 2011) (noting
that "northern and southern enclaves" of a Hispanic district had
"a common heritage and share[d] common core value[s]").
¶100 The inquiry is emphatically not to create "the maximum
number of majority-minority districts," regardless of the onthe-ground
characteristics
communities at issue.
of
the
minority
neighborhoods
and
De Grandy, 512 U.S. at 1016 (reversing a
district court's finding of § 2 violation because more Hispanic
majority-minority districts could have been created); Gonzalez,
535 F.3d at 598 ("But neither § 2 nor Gingles nor any later
decision of the Supreme Court speaks of maximizing the influence
of
any
racial
or
ethnic
group.");
Bartlett,
556
U.S.
at
15
("Nothing in § 2 grants special protection to a minority group's
right to form political coalitions.").
¶101 Thus, from these legal principles a picture of narrow
VRA compliance for this court emerges.
App. 62
Legislative boundaries
must be drawn to create effective majority-minority districts
only
where
existing
proof
is
offered,
districts
or
and
accepted
by
drawn
using
districts
a
court,
that
race-neutral
criteria would result in white voters, as a bloc, preventing
minorities from electing candidates that they support and that
represent
them.
accepted
that
In
the
addition,
minority
evidence
needs
must
be
offered
representation
from
and
their
choice candidate due to depressed socio-economic statistics as a
result
of
practices
current
and
and
procedures
historical
that
discrimination,
encourage
or
election
facilitate
racial
discrimination, and the lack of non-choice candidates to respond
to the
"particularized needs of the members of the minority
group," among other factors.
¶102 Further,
there
LULAC, 548 U.S. at 426, 440.
must
be
available
districts with majority-minority composition.
the
creation
of
Id. (stating the
first Gingles factor of "the racial group is sufficiently large
and geographically compact to constitute a majority in a singlemember district" (emphasis added)); Bartlett, 556 U.S. at 19
(holding
that
§ 2
does
majority
"opportunity
not
require
districts,"
the
creation
reasoning
that
of
below-
"a
party
asserting § 2 liability must show by a preponderance of the
evidence that the minority population in the potential election
district is greater than 50 percent.").
Supreme
Court
explained
minority
group
act
as
in
Cooper,
sufficient
when
As the United States
voters
"crossover"
to
outside
"help
the
[the]
minority to elect its candidate of choice," "it is difficult to
see how the majority-bloc-voting requirement could be met" under
App. 63
Gingles.
Cooper,
137
S. Ct.
substantial
proof
that
a
created,
that
minority
at
1471.
If
majority-minority
voters
are
there
is
not
district
can
be
barred
from
effective
participation, or that minorities are blocked by white voters
from
having
representation,
any
consideration
of
redistricting would violate the constitution.
race
during
Id. at 1464-65.
Without the need to draw districts under the VRA, race-neutral
"traditional
districting
principles
such
as
compactness,
contiguity, and respect for political subdivisions" must control
this court's decision.
i.
Shaw v. Reno, 509 U.S. at 647.
Gingles Factors and Bloc Voting
¶103 Despite the high demands of the VRA, coupled with the
need to meet VRA standards to justify the use of race to create
government
policy
under
the
Equal
Protection
Clause,
it
is
striking how insubstantial a record the Governor has provided to
support his racially driven maps.
Courts have made it very
clear that substantial evidence must be produced of all three
Gingles
factors
boundaries.
to
permit
racial
motivations
in
district
Cooper, 137 S. Ct. at 1471-72; Bartlett, 556 U.S.
at 19-20; LULAC, 548 U.S. at 425; Gonzalez, 535 F.3d at 600;
Clarke, 40 F.3d at 812-13.
However, unlike the leading cases on
the VRA, only BLOC engages in any detailed analysis on electoral
history.
See LULAC, 548 U.S. at 423-29 (describing in detail
the electoral history, by race, of an at issue congressional
district to find a VRA violation); Cooper, 137 S. Ct. at 1470-72
(explaining the electoral history of an area to determine that a
App. 64
majority-minority district fell outside the VRA and was thus
unconstitutional).
¶104 The
accepts,
zero
Governor
presents,
evidence
of
application of the
Legislature's
support
his
Gingles
maps,
or
division
election
the
majority
history
to
opinion
support
the
factors to the current maps, the
other
of
and
race-neutral
districts
by
alternatives
to
Further,
the
race.
Governor presents no electoral history evidence to prove the
existence
of
the
Gingles
districts he drew.
factors
in
any
of
the
specific
Such evidence is also lacking to show the
Governor's maps comply with the VRA, as compared to BLOC's maps,
which also include seven black-majority districts.
In a twist
of fate, this leaves open the possibility that VRA compliance is
not met for the Governor's maps, even if the VRA is triggered
and requires raced-based districts.
¶105 The only thing the Governor does do that approaches
objective or scientific argument is cite population percentages
of
African-Americans
in
Wisconsin.
The
Governor
thereby
concludes that seven districts of a bare 51% BVAP can be drawn,
and must be drawn.
This notwithstanding that the United States
Supreme Court has explicitly rejected the same logic on numerous
occasions.
De Grandy, 512 U.S. at 1016 (rejecting a claim that
§ 2 requires states to create "the maximum number of majorityminority districts"); Bartlett, 556 U.S. at 15 ("Nothing in § 2
grants special protection to a minority group's right to form
political coalitions."); Gonzalez, 535 F.3d at 598 ("But neither
§ 2 nor Gingles nor any later decision of the Supreme Court
App. 65
speaks
of
group.").
maximizing
the
influence
of
any
racial
or
ethnic
Stopping here, the Governor has failed to provide any
evidence specific to his proposed districts warranting a finding
of
white
bloc
voting
overcome
a
strong
and
convincing evidence sufficient to overcome strict scrutiny.
See
politically-cohesive
that
black
Miller, 515 U.S. at 922.
reject
the
Governor's
can
voting
effectively
bloc,
let
alone
This alone should counsel the court to
map
and
adopt
the
race-neutral
maps
presented by either the Legislature or the CMS.
¶106 This is exactly the form of analysis that the Michigan
Supreme
Court
recently
applied.
Detroit
Caucus
v.
Indep.
Citizens Redistricting Comm'n, ___ N.W.2d ___, 2022 WL 329915
(Mem) (Mich. Feb. 3, 2022).
The court found that "a conclusory
expert affidavit with no accompanying bloc-voting analysis" was
insufficient to support the use of race to create additional
majority-minority districts which the state could have drawn,
but
did
not.
Id.
at
*2.
The
Governor
in
this
case
has
presented little more evidence than the inadequate VRA showing
made
in
Detroit
election
Caucus.
history
"significant
Notably,
analysis
white
candidates" was found.
crossover
was
when
a
full
performed
voting
for
and
in
complete
Michigan,
Black-preferred
Id.
¶107 Furthermore, the Governor's maps actually reduce the
percentage of African-American voters in the relevant districts
from
their
existing
levels.
The
VRA
is
invoked
only
when
minorities, due to a mobilized and oppositional majority, cannot
effectively
participate
and
elect
App. 66
preferred
candidates.
Gingles, 478 U.S. at 48; De Grandy, 512 U.S. at 1007.
The maps
adopted
allegedly
by
the
majority
reduce
this
population
overpowered by a white majority, instead of giving it a greater
voice
within
the
aggrieved
districts.
Of
course
then,
the
districts cannot be so aggrieved, and no evidence exists so to
invoke the VRA.
In other words, before a change is to be made
under the VRA, there must be a violation of the VRA so to invoke
its remedy.
by
giving
voice.
The remedy is to cure the suppressed voter effect
minority
voters
greater
voice,
not
reducing
their
Alone, this statistic puts a dagger in the Governor's
map.
¶108 Lacking any support in the record, one might turn to
the
presentations
made
by
BLOC,
the
only
supported racially-motivated district lines
electoral evidence.
other
but
party
that
also provided
In fact, the majority's sole citation to
electoral history evidence relied on BLOC's expert report.
See
majority op., ¶45 (restating BLOC's statistics on the rate in
which African-American preferred candidates are blocked).
even
that
evidence
is
flawed.
BLOC
selects
eight
Yet
oddly
identified races from Milwaukee County (two comptroller races,
and one race each for sheriff, democratic gubernatorial primary,
state
assembly,
superintendent)
mayor,
to
Milwaukee
evidence
county
the
executive,
region's
electoral
and
state
history.
Only one election was examined that involved the public offices
at
issue
elections.
analysis.
in
this
case:
This
is
assembly,
markedly
at
senate,
odds
and
with
congressional
traditional
VRA
See, e.g., Cooper, 137 S. Ct. at 1471-72 (examining
App. 67
the electoral history of a congressional district at issue in
the challenge); LULAC, 548 U.S. at 427-28 (explaining electoral
history in the congressional district at issue); City of Euclid,
580 F. Supp. 2d at 598-600 (describing non-applicable elections
in the context of a detailed review of city council elections at
issue in the lawsuit); Harper v. City of Chicago Heights, 824
F. Supp.
786,
790,
electoral
history
799-800
of
(N.D.
specific
Ill.
city
1993)
(examining
commissioner
the
offices
at
issue).
¶109 While some elections may be of more probative value
than others, the provision of only eight elections, and only one
of which involving the elected offices at issue, can hardly
demonstrate the extent to which black people, under existing and
race-neutral
maps,
participate
in
the
lack
the
political
same
"opportunity . . . to
process
and
to
representatives of their choice" as do white people.
elect
52 U.S.C.
§ 10301(b); see Bone Shirt v. Hazeltine, 336 F. Supp. 2d 976,
996 (D.S.D. 2004) (explaining a common hierarchy of election
history
value,
when
such
history
is
available,
noting
that
"[e]ndogenous elections, contests within the jurisdiction and
for the particular office that is at issue, are more probative
than exogenous elections").10
Undoubtedly, dozens of elections
have occurred in the Milwaukee-area state assembly, senate, and
If this were otherwise, it is highly likely that
governments would simply cite state-wide general election
results (white versus minority percentages) to justify racially
motivated district lines, in almost every state in almost every
region of the country.
This would be a dramatic expansion of
the permissible use of race in American election practices.
10
App. 68
congressional districts at issue in the past 10 years alone.11
The court's focus is on the "totality of the circumstances" and
whether as a whole African Americans are denied the opportunity
to effectively participate in electoral democracy.
§ 10301(b).
the
52 U.S.C.
The consistent election of candidates of choice for
African-American
community
into
public
office
in
the
districts at issue would be highly probative.
Yet the record is
completely
voters
devoid
of
any
evidence
that
the
in
these
districts were blocked from voting in the candidates of their
choice in a way that would invoke the VRA.
¶110 Even
under
BLOC's
selective
analysis,
white
voters
engaged in bloc voting to prevent the candidate of choice for
African-Americans four times.
That is around a 50% rate——hardly
the kind of strong evidence needed to overcome strict scrutiny.
Compare
Clarke,
40
F.3d
at
812-13
(even
when
considering
applicable electoral history, concluding that minority-preferred
candidates
were
not
"usually"
defeated
when
the
minority-
preferred candidate was selected in 47% of elections).
BLOC
disaggregated
each
allegedly
polarized
election
results
for
individual district it drew for only three races (a Democratic
gubernatorial primary, a Milwaukee county executive race, and a
state superintendent race).
perform
an
"intensely
But how can the court effectively
local
appraisal"
of
district-specific
evidence when election results for these districts are provided
for a mere three races, none of which were for the elected
The dissent of Justice Roggensack, which follows this
dissent, identifies many such elections of black-preferred
candidates in districts that are predominantly white.
11
App. 69
offices at issue?
LULAC, 548 U.S. at 437.
Of the three races
selected for district-specific treatment, only one of them had a
head-to-head
race
where
voters
did
not
split
votes
between
several candidates (thus preventing a more complete picture of
voter preferences).
¶111 The
district-specific
evidence
of
two
races
BLOC
provided was limited only to BLOC's proposed assembly districts.
BLOC did not provide detailed district analyses of the current
maps, an alternative race-neutral map, nor any other party's
maps outside one Democratic gubernatorial primary in 2018.
In
the process of this litigation, the court has not been made
aware of a single case that found the existence of a strong
evidentiary
record,
applied
the
VRA,
and
satisfied
strict
scrutiny through use of one election result, let alone a result
from
an
exogenous
candidates
with
community).12
election
strong
Compare
(from
a
support
LULAC,
548
partisan
from
the
U.S.
at
primary
between
African-American
427-28
(examining
partisan general election results); Cooper, 137 S. Ct. at 147071
(reviewing
partisan
general
election
results);
City
of
Euclid, 580 F. Supp. 2d at 598-99 (explaining electoral history
for non-partisan general election results); Harper, 824 F. Supp.
See
Wisconsin
Governor
Exit
Polls,
CNN,
https://www.cnn.com/election/2018/results/wisconsin/governor
(last visited Feb. 10, 2022) (explaining how the Governor was
elected statewide on the support of 85% of the African-American
population).
12
App. 70
at 790 (reviewing non-partisan general election results).13
To
understate the point, this substantially limits the ability of
the court to effectively judge if African-American voters are
having
their
candidates
blocked
and
their
voices
unlawfully
stifled, therefore justifying race-based redistricting.
See,
e.g., Comm. for Fair & Balanced Map, 835 F. Supp. 2d at 587
Of course, considering the wide-sweeping scope of VRA
review, primary elections may be valid considerations when
determining if a racial group has equal opportunity to
participate in elections.
See Thornburg v. Gingles, 478 U.S.
30, 59 (1986) (reviewing both general and primary election
results).
However, party makeups can change dramatically over
time.
At some points in history, a party may contain voters
with markedly different views on the treatment of minorities.
See, e.g., Glenn T. Eskew, George C. Wallace, Encyclopedia of
Alabama, (Jun. 10, 2021) (describing the political history of
George Wallace, an outspoken supporter of racial segregation and
a lifelong Democrat).
BLOC's analysis presents serious
questions of whether current Democratic primary elections in
Wisconsin, standing alone, are substantially probative on the
ability of African-Americans to have effective opportunities,
voices, and representation in democratic government.
13
App. 71
(concluding that white bloc voting was not met where an expert
failed to provide evidence on specific districts at issue).14
Furthermore, race-based redistricting under § 2 of the
VRA applies only where voting is polarized to such an extent
that
a
white
majority
blocks
African-American-supported
candidates so that the only way African-American individuals can
effectively participate in democracy is to create majorityminority districts. See Bartlett v. Strickland, 556 U.S. 1, 19
(2009) (plurality) (holding that § 2 does not require the
creation of below-majority "opportunity districts"); Cooper, 137
S. Ct. at 1464-65.
A bare majority of African-American voters
is unlikely, absent extraordinary polarization, to prevent white
bloc-voting (if it exists) from stopping effective AfricanAmerican representation.
Along these lines, courts attempting
to ensure VRA compliance have accepted the need to create VRA
districts with BVAP percentages materially greater than a bare
51% majority.
See, e.g., Comm. for a Fair & Balanced Map v.
Ill. State Bd. of Elections, 835 F. Supp. 2d 563, 582 (N.D. Ill.
2011) ("60 percent of voting-age population is reasonably
required to ensure minorities a fair opportunity to elect a
candidate of their choice."); Hastert v. State Bd. of Elections,
777 F. Supp. 634, at 647 (N.D. Ill. 1991) (noting that a "65%
minority population [or 60% minority voting-age population]
concentration [is] generally regarded as necessary to ensure
minorities a reasonable opportunity to control a district");
Baumgart v. Wendelberger, No. 01-C-0121, 2002 WL 34127471, at *5
(E.D. Wis. May 30, 2002) (recognizing expert testimony that "a
minority district requires an African–American voting age
population of at least 60% to guarantee the election of
candidates of choice"); United States v. City of Euclid, 580
F. Supp. 2d 584, 594 n.11 (N.D. Ohio 2008) (explaining that the
efficacy of a "narrow" majority-minority district is subject to
question and this is remedied by majority-minority districts in
excess of "60%"); Baldus v. Members of Wis. Gov't Accountability
Bd., 849 F. Supp. 2d 840, 851 (E.D. Wis. 2012) (creating a
majority-minority Hispanic district, effective at 67.7% votingage population); African American Voting Rights Legal Defense
Fund, Inc. v. Villa, 54 F.3d 1345, 1348 n.4 (8th Cir. 1995)
("[A] guideline of 65% of total population (or its equivalent)
has
achieved
general
acceptance
in
redistricting
jurisprudence."); Ketchum v. Byrne, 740 F.2d 1398, 1403 (7th
Cir. 1984) ("A guideline of 65% of total population has been
adopted and maintained for years by the Department of Justice
and by reapportionment experts and has been specifically
approved by the Supreme Court.").
When commenting on total
voter population percentage, the court in Prosser explained that
14
App. 72
¶112 Strikingly, under BLOC's analysis, the Governor's maps
do not satisfy the VRA, and are thus unconstitutional.
The
majority not only lacks evidence to support the maps it adopts,
but
the
only
party
who
even
attempted
to
prove
a
VRA
need
determined those maps were illegal.15
ii.
¶113 The
Totality of the Circumstances
Gingles
factors
are
only
"necessary
prerequisites," they are not "sufficient" to justify a race-
effective majority-minority districts require 65% minority
populations "(50 percent plus 5 percent to reflect the lower
average age of blacks and hence lower voting population, 5
percent to reflect a lower fraction of registered voters, and 5
percent to reflect a lower turnout)." Prosser v. Elections Bd.,
793 F. Supp. 859, 869 (W.D. Wis. 1992).
Even if evidence
supported the race-based remedy offered by the Governor, his
bare-majority districts fall outside the mainstream of accepted
VRA redistricting measures.
Even if, due to specific electoral statistics and
community-based evidence in Milwaukee, a seventh high-BVAP
district were required, that in no way explains why the
remaining six high-BVAP districts must be drawn with a scalpel
to reach exactly 51% BVAP. Racially motivated government action
must be "narrowly tailored" to satisfy strict scrutiny. Grutter
v. Bollinger, 539 U.S. 306, 326 (2003); see, e.g., Shaw v. Hunt,
517 U.S. at 916-18 (concluding that districts drawn on the basis
of race were not "narrowly tailored" because the government drew
district lines from scattered minority communities which may
have different VRA needs and were thus not sufficiently
compact).
The VRA must be tied to individuals and their
specific communities, not general categories of race.
Shaw v.
Hunt, 517 U.S. at 917 (affirming that the VRA protects
"individual[s]" not "the minority as a group"); LULAC, 548 U.S.
at 437 ("A local appraisal is necessary because the right to an
undiluted vote does not belong to the minority as a group, but
rather to its individual members."); De Grandy, 512 U.S. at 1016
(explaining that, even when the Gingles factors and the totality
of the circumstances require race-based redistricting, the VRA
does not support creating "the maximum number of majorityminority districts").
15
App. 73
based remedy under the VRA.
512 U.S. at 1011.
Gingles, 478 U.S. at 50; De Grandy,
In addition to the Gingles factors, the VRA
requires proof that the "totality of the circumstances" supports
the drawing of districts on the basis of race.
Gingles, 478
U.S. at 50; De Grandy, 512 U.S. at 1011; LULAC, 548 U.S. at 436;
Bartlett, 556 U.S. at 24.
Totality of the circumstances is an
independent, separate requirement; to apply a race-based remedy
a totality of the circumstances analysis must be provided.
The
majority's description of the totality of the circumstances is
shockingly insubstantial.
¶114 Proportionality of majority-minority districts to the
"citizen voting-age population" can be relevant to the totality
of the circumstances analysis.
Legislature's
expert
African-American
notes
citizen
that
LULAC, 548 U.S. at 436.
various
voting-age
data
files
population
The
show
an
("CVAP")
of
either 6.1% of 6.4% (taken from two different U.S. Census data
files).
The Governor fails to present evidence on the issue.
While BLOC strenuously opposes the Legislature's numbers, their
expert
suggests
an
African-American
CVAP
of
6.5%.
Even
if
BLOC's number were accepted, a proportionality analysis would
not support seven assembly districts.
There are 99 assembly
districts, 6.5% of 99 is 6.4, which rounding to the nearest
whole number would be 6.
At the very least, a proportionality
analysis does not provide strong support for a seventh district.
¶115 The majority notes that the African-American CVAP in
Wisconsin falls between 6.1% and 6.5%, but it fails to complete
the final step of a proportionality inquiry: multiplying the
App. 74
CVAP by the relevant number of seats, here 99.
¶48.
Majority op.,
It thus states a misleading statistic of 6.5% and hopes
the reader confuses it for a complete proportionality analysis.
Further, the majority relies heavily on population trends among
black and white individuals, as well as demographic statistics
in Milwaukee County.
See majority op., ¶48 ("[A] significant
proportion of Wisconsin's Black population lives in Milwaukee
County where the subject districts are principally located.").
Yet the United States Supreme Court in League of United Latin
American
Citizens
"regional"
for
v.
Perry
as opposed to
statewide
districting
explicitly
"statewide"
plans.
rejected
the
use
of
proportionality analysis
548
U.S.
at
436-38.
And
proportionality refers to the percentage of a given race in a
state.
Id. at 436 (explaining that the proportionality of a
race is determined by comparing the number of minority districts
to "the [minority] share of the citizen voting-age population").
Proportionality does not encompass an increase or decrease of
anything, i.e., population trends amongst the African-American
population.
The majority both twists the natural meaning of
English
refuses
and
to
comply
with
explicit
Supreme
Court
directives.
¶116 Beyond proportionality, the majority fails to discuss
any of the 1982 Senate Report factors relied upon by courts to
determine
if
the
VRA
applies.
Gingles,
478
U.S.
at
43-45;
LULAC, 548 U.S. at 426; see, e.g., City of Euclid, 580 F. Supp.
2d
at
604-12
analysis).
(providing
a
totality
of
the
circumstances
Those factors lay at the heart of a totality of the
App. 75
circumstances
analysis;
they
are
the
reason
motivated maps may satisfy strict scrutiny.
why
racially
Gingles, 478 U.S.
at 50; De Grandy, 512 U.S. at 1011; LULAC, 548 U.S. at 426;
Bartlett,
556
U.S.
at
24.
Nonetheless,
the
factors
are
required
analysis
and
completely ignored.
¶117 The
majority
shortcuts
the
instead relies on the flawed belief that proportionality is the
preeminent
consideration
Majority
op.,
¶46
for
n.28,
totality
of
the
¶¶47-50
(stating
circumstances.
that
courts
"focus[] . . . [their] attention on considerations not mentioned
in the Senate Report, such as proportionality," and examining
only
proportionality
analysis).
That
is
in
a
flatly
totality
of
the
contradicted
by
established
States Supreme Court precedent.
circumstances
United
De Grandy, 512 U.S. at 1011-12
(rejecting the argument that proportionality is determinative of
VRA compliance and noting that "[n]o single statistic provides
courts with a shortcut"); Gingles, 478 U.S. at 47 ("The essence
of a § 2 claim is that a certain electoral law, practice, or
structure
interacts
with
social
and
historical
conditions
to
cause an inequality in the opportunities enjoyed by black and
white voters to elect their preferred representatives."); LULAC,
548
U.S.
at
426,
436-42
(laying
out
the
Senate
Factors
as
considerations for totality of the circumstances analyses and
examining both proportionality and several Senate Factors when
determining the VRA required redrawing of certain districts in
Texas).
By
statute,
the
VRA
requires
examination
of
the
"totality of the circumstances," 52 U.S.C. § 10301; nowhere in
App. 76
the statute does it state or imply that proportionality should
be
the
primary
"focus[] . . . of
[the
court's]
attention."
Majority op., ¶46 n.28.
¶118 There is a simple reason no real support is provided
by the majority for the totality of the circumstances:
there is
none.
for
The
only
party
who
even
attempted
to
argue
VRA
application under the totality of the circumstances was BLOC.
The Governor presented no totality of the circumstance support
for his districts.
Either the majority does not rely on BLOC,
and thus zero evidence is available to support the application
of
the
solely
VRA,
on
or,
in
BLOC's
the
alternative,
analysis.
In
the
either
majority
case,
must
there
rely
is
no
justification for use of race in drawing the Governor's maps.
¶119 BLOC's
totality
of
the
circumstances
analysis
is
deeply flawed and is in the form of an expert opinion alone.
This lone source of evidence is highly debatable, and strikes an
unmistakable tone of partisanship, attacking political opponents
and disfavored policies.
Such conclusory opinion evidence does
not amount to the kind of factual district-specific evidence
that
could
support
a
conclusion
that
a
VRA
violation
has
occurred and the remedy must be creation of seven bare-majority
districts.
Cooper, 137 S. Ct. at 1471-72; LULAC, 548 U.S. at
432;
Shaw
v.
Hunt,
F. Supp. 2d
at
604-12;
517
U.S.
at
917;
City
Comm.
for
Fair
&
of
Euclid,
Balanced
Map,
580
835
F. Supp. 2d at 583.
¶120 For instance, BLOC claims Milwaukee's choice to close
polling locations during the COVID-19 Pandemic and voter ID laws
App. 77
demonstrate the existence of racially discriminatory election
practices.
No evidence or explanation is provided as to how
these
administrative
basic
and
perfectly
legitimate
election
practices "tend to enhance the opportunity for discrimination
against the minority group."
Gingles, 478 U.S. at 44-45.
This
is far cry from the "poll tax, an all-white primary system, and
restrictive voter registration time periods," used in the past
in parts of the country to mask disenfranchisement of AfricanAmerican voters.
512
U.S.
at
LULAC, 548 U.S. at 439-40; see also De Grandy,
1018
("In
a
substantial
number
of
voting
jurisdictions, that past reality has included such reprehensible
practices
as
ballot
box
stuffing,
outright
violence,
discretionary registration, property requirements, the poll tax,
and the white primary; and other practices censurable when the
object
of
elections,
their
use
runoff
gerrymandering,
is
discriminatory,
as
at-large
anti-single-shot
devices,
requirements,
the
impeachment
of
such
office-holders,
the
annexation or deannexation of territory, and the creation or
elimination of elective offices.").
¶121 The State of Wisconsin must strive to eliminate any
voting
practice
According
to
that
BLOC,
facilitates
must
the
unjust
state
discrimination.
control
election
administration in Milwaukee to prevent consolidation of polling
locations and covert discriminatory practices?
revoke its Voter-ID laws?
Must the state
See Frank v. Walker, 768 F.3d 744,
753-54 (7th Cir. 2014) (upholding a direct § 2 VRA challenge
against Wisconsin's Voter-ID law, noting "[s]ection 2(b) tells
App. 78
us that § 2(a) does not condemn a voting practice just because
it has a disparate effect on minorities," there was no finding
"blacks . . . have less 'opportunity' than whites to get photo
IDs,"
and
black
individuals
had
equal
if
not
higher
voter
registration and turnout in the 2012 election as compared to
white individuals); Brnovich, 141 S. Ct. at 2345 (noting that "a
distorted picture can be created" by the manipulative use of
statistics, such as "[i]f 99.9% of whites had photo IDs, and
99.7% of blacks did, it could be said that
blacks are three
times as likely as whites to lack qualifying ID (0.3 ÷ 0.1 = 3)"
(quotations omitted)); Crawford v. Marion Cnty. Elections Bd.,
553 U.S. 181, 204 (2008) ("The application of [Indiana's VoterID
law]
to
the
vast
majority
of
Indiana
voters
is
amply
justified by the valid interest in protecting the integrity and
reliability of the electoral process.").
¶122 BLOC also looks at general socio-economic correlations
between
white
and
African-American
individuals
in
Wisconsin,
including the lower rates of African-American homeownership and
lower average incomes, and concludes, without any substantial
analysis on the extraordinary complexities of causation, that
this is the result of current and past discrimination.
accepted
fact
that
African-American
individuals
The
experienced
despicable forms of discrimination, specifically racial housing
covenants in the Milwaukee-area, is certainly a factor impacting
VRA analyses, but mere conclusions of discriminatory effects for
all African-American individuals in Milwaukee from race-based
correlations
is
not
substantial
App. 79
evidence
of
discriminatory
hindrances on the ability of African-American individuals "to
participate effectively in the political process."
U.S. at 44-45.
Gingles, 478
It is the burden of those seeking to use race in
district boundaries to prove the need for such practices.
Mere
inferences and assumptions cannot be sufficient.
¶123 Further,
BLOC
asserts
proof
of
race
baiting
and
racially motivated campaigning by pointing to statements from
Republicans and conservatives critiquing the Black Lives Matter
organization,
taking
defunding
police.
the
knees
during
Notably,
national
despite
the
anthems,
fact
that
and
BLOC
relies heavily on Democratic primary data to demonstrate blocvoting and the need for race-drawn districts, the racial animus
directed toward African-American individuals in campaigns and
public
messages
Republicans.
all
allegedly
come
from
conservative
There is no evidence offered by BLOC that the
Democratic public officials who at times defeat African-American
preferred candidates, such as the Governor in his Democratic
primary, are "unresponsive to the particularized needs of the
members of" the African-American community.
Gingles, 478 U.S.
at 44-45; see LULAC, 548 U.S. at 426, 440 (explaining in detail
that a current representative for a district subject to VRA
scrutiny
was
community).
"unresponsive"
Shockingly,
to
BLOC
the
needs
contends
that
of
the
minority
African-American
candidates have only had "mixed success" in the districts at
issue.
Relying
ignores
the
on
fact
exogenous
that
the
and
state-wide
current
App. 80
elections,
assembly,
senate,
BLOC
and
congressional
districts
have
elected
African-American
office
holders in the vast majority of elections.
¶124 The evidence offered by BLOC of the totality of the
circumstances is hardly localized to the historical, societal,
and economic experiences of specific neighborhoods in Milwaukee.
Underlying BLOC's analysis is the assumption that all AfricanAmerican
individuals
in
Wisconsin
have
the
same
history,
experiences, and effects of discrimination, and there is no need
to
go
further
than
broad
strokes
assumptions, and talking-points.
(examining
in
a
VRA
different
parts
status,
education,
of
characteristics");
had
correlations,
that
different
"differences
employment,
Comm.
debatable
See LULAC, 548 U.S. at 432
analysis
Texas
of
for
in
Hispanics
socio-economic
health,
Fair
&
in
and
Balanced
other
Map,
835
F. Supp. 2d at 583 (noting that "northern and southern enclaves"
of
a
Hispanic
district
had
"a
common
heritage
and
share[d]
common core value[s]"); City of Euclid, 580 F. Supp. 2d at 60507 (explaining in detail, with numerous experts reports, record
evidence,
and
testimony,
forms
of
official
discrimination
against a discrete African-American community in Euclid, Ohio).
Individuals, communities, and societal groups differ, even if
they are the same race.
In fact, the maps offered by the
Legislature and CMS recognize that many of the African-Americans
moved under the Governor's maps are located in discrete and
compact
neighborhoods.
Following
traditional
redistricting
criteria, and putting together those with shared communities,
interests, and experience, the Legislature's and CMS's districts
App. 81
fluctuate in BVAP to recognize this geographical reality.16
By
comparison, for their purported benefit, the majority chooses to
displace many African Americans and move them into districts
with little societal, cultural, and economic similarities.17
iii. The Majority Opinion and Party Concessions
¶125 Despite all its faults, BLOC at least provided some
evidence supporting their VRA claims.
The Governor presented
nothing, let alone district-specific evidence.
the
face
of
well-accepted
precedent
scrutiny and proving VRA needs.
on
This flies in
overcoming
strict
See Vera, 517 U.S. at 965-83;
Miller, 515 U.S. at 920-27; Shaw, 517 U.S. at 916; Cooper, 137
S. Ct. at 1471-72; Bartlett, 556 U.S. at 19-20; Perry, 548 U.S.
at 432; Gonzalez, 535 F.3d at 600; Clarke, 40 F.3d at 812-13;
City of Euclid, 580 F. Supp. 2d at 604-12; Committee for a Fair
and Balanced Map, 835 F. Supp. 2d at 583; Harper, 824 F. Supp.
See John Johnson, Neighborhoods Where Milwaukee Isn't
Segregated, Marquette University Law School (Feb. 9, 2022),
https://law.marquette.edu/facultyblog/2022/02/neighborhoodswhere-milwaukee-isnt-segregated/
(describing
the
demographic
makeup of the many unique neighborhoods in Milwaukee).
16
In the process, to obtain his 51% BVAP districts, the
Governor shifted white voters (referred to as "filler" voters at
oral arguments) into new districts to achieve targeted racial
proportions. The VRA by its text does not apply solely to any
one race, and both the Equal Protection Clause and the Fifteenth
Amendment's prohibition on racial discrimination in voting
practices apply to all races.
See 52 U.S.C. § 10301; U.S.
Const. amend. XIV; U.S. Const. amend. XV; Shaw v. Reno, 509 U.S.
630, 657 (1993) ("Racial gerrymandering, even for remedial
purposes, may balkanize us into competing racial factions; it
threatens to carry us further from the goal of a political
system in which race no longer matters——a goal that the
Fourteenth and Fifteenth Amendments embody, and to which the
Nation continues to aspire.").
17
App. 82
At 790, 799-800. Yet that does not seem to bother the majority
as they walk blindfolded into a buzz saw of Equal Protection
law.
Given that, under BLOC's analysis, the Governor's maps
violate the VRA, the majority's maps may bear the usual stigma
of violating the Equal Protection Clause and the VRA at the same
time.
¶126 Counterintuitively, a linchpin of the majority's VRA
analysis
is
an
alleged
lack
of
evidence
and
argument.
The
majority opinion may leave the reader with the misperception
that
all
litigants
at
this
court
agreed
gerrymander under the VRA was necessary.
that
a
racial
See majority op., ¶45
(noting "little . . . alternative data or analysis" to counter
BLOC's
election
history
and
indicating
that
the
"parties
appeared to assume the VRA requires" race-based district lines).
That is patently inaccurate.
In briefing, the Legislature was
clear
provided
that
its
maps
opportunity
"to
participate
elect
representatives
both
of
in
their
the
African-Americans
political
choice"
(thus
process
equal
and
to
satisfying
the
VRA), 52 U.S.C. § 10301(b), and was not motivated by race (thus
satisfying the Equal Protection Clause), Miller, 515 U.S. at
911-12.
The
Legislature
asserted
that
the
Governor's
maps
"reveal a policy of prioritizing mechanical racial targets above
all
other
districting
criteria
(save
one-person,
one-vote),
meaning there is ample evidence that race motivated the drawing
of
particular
lines."
Further,
the
Legislature
claimed,
correctly, that the Governor "offered zero evidence that the
existing districts do not give all voters equal opportunity to
App. 83
elect their candidate of choice."
brief,
it
argued
the
Governor
In the Legislature's reply
presented
"novel
and
likely
unconstitutional" arguments in support of seven bare majorityminority
districts,
"unconstitutional
labeled
racial
by
the
Legislature
gerrymander."
The
as
an
Legislature
reaffirmed in the same brief that its "redistricting plan was
drawn
without
expert,
John
regard
Alford,
to
race."
described
Further,
in
many
the
pages
Legislature's
of
detail
the
computational and data concerns with the evidence submitted by
BLOC to support application of the VRA.
He stated explicitly,
"[T]he election patterns detailed by [BLOC] raise serious doubts
about whether the Gingles threshold standard is currently met in
Milwaukee County." Finally, Mr. Alford observed that, even using
BLOC's election data, the black-preferred candidate was blocked
in less than 50% of elections.
¶127 The central goal of the Legislature's proposed maps
was
to
BVAP,
conserve
not
draw
existing
boundaries
districts
to
App. 84
for
districts
maximize
with
high
majority-minority
districts.
The
Legislature's
race-neutral
intentions
were
confirmed at oral argument.18
¶128 But, even so, why is the majority attached to party
briefing?
They
have
understand
available
a
responsibility
evidence,
and
come
to
read
to
the
the
law,
correct
The majority adds in an argument that the Legislature's
districts in some way "pack" African-American voters into a
district with above 70% BVAP.
Majority op., ¶49.
The
Legislature has one district at 71.5% BVAP.
As the majority
notes, it is well established that the VRA requires the creation
of
race-based
districts
where
minorities
are
"fragment[ed] . . . among several districts where a bloc-voting
majority can routinely outvote them," or where minorities are
"pack[ed] . . . into one or a small number of districts to
minimize
their
influence
in
the
districts
next
door."
De Grandy, 512 U.S. at 1007; see majority op., ¶49.
But the
United States Supreme Court has clarified that the VRA applies
only to the creation of majority-minority districts; it does not
require splitting up high minority-percentage districts to more
effectively
spread
the
minority's
political
influence.
Bartlett, 556 U.S. at 19; Cooper 137 S. Ct. at 1471 (explaining
that
without
the
need
for
a
majority-minority
district
sufficient white crossover would undermine the satisfaction of
the Gingles factors).
Thus, the inquiry is whether there has
been presented evidence of effective white bloc voting to
prevent minorities in a specific area and district from
successfully electing candidates they support.
Even if the
Legislature drew a higher BVAP district following race-neutral
redistricting
criteria
such
as
preserving
continuity
of
interests, geographic compactness, and local government lines,
without the requisite evidence of a VRA violation in a separate,
neighboring district where a majority-minority district could be
created, no race-based remedy under the VRA can be used. Here,
there is no such district-specific evidence. The majority does
not cite a single case holding that merely having a high BVAP
district, without the need to prove the Gingles factors or the
need for a race-based remedy under the totality of the
circumstances, violates the VRA. See Ketchum, 740 F.2d at 140306, 1418 (case cited by the majority, noting the commonly
accepted target of 65-70% minority population percentages in
applying a VRA remedy, after a VRA violation in relevant
districts has been established).
18
App. 85
conclusion.
See State v. Hunt, 2014 WI 102, ¶42 n.11, 360
Wis. 2d 576, 851 N.W.2d 434 ("Because it is our constitutional
duty to say what the law is, we are not bound by a party's
concessions
of
law.").
government actors.
They,
not
the
litigants,
are
the
U.S. Const. amend. XIV sec. 1 ("No State
shall . . . deny to any person within its jurisdiction the equal
protection of the laws." (Emphasis added.)); Brentwood Academy
v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001)
(noting
that
only
those
organizations"
fall
outside
Amendment);
Johnson
("Under
strict
proving
that
measures
v.
that
the
formally
coverage
543
compelling
of
U.S.
government
classifications
further
(Emphasis added.)).
the
California,
scrutiny,
racial
"outside
the
499,
has
are
governmental
Fourteenth
505
the
burden
narrowly
governmental
(2005)
of
tailored
interests."
They are the ones choosing a map for the
State of Wisconsin, endorsing district boundaries unambiguously
motivated
by
race.
See,
e.g.,
De Grandy,
512
U.S.
997
(reviewing under traditional Equal Protection and VRA standards
maps approved by the Florida Supreme Court).
The court, acting
on
not
the
parties,
must
Grutter,
539
U.S.
326
behalf
overcome
of
the
strict
State
of
Wisconsin,
scrutiny.
See
at
(describing strict scrutiny demands when the government treats
individuals differently on the basis of race); Vera, 517 U.S. at
978
("Strict
scrutiny
remains,
nonetheless,
strict.");
see,
e.g., Cooper, 137 S. Ct. at 1464; Miller, 515 U.S. at 920-27;
Shaw v. Hunt, 517 U.S. at 916.
App. 86
¶129 Ultimately,
positions
is
a
the
tactic
majority's
of
focus
distraction.
on
the
parties'
The
majority
may
understand that it lacks sufficient evidence to support racedriven maps proposed by the Governor, so to compensate, it turns
around and reasons that the Governor's maps cannot be rejected
with what it views as inadequate argument on the part of the
Legislature
question:
and
other
parties.
But
this
merely
begs
the
why is the court adopting a racially motivated map
without support in the record?
The majority does not cite a
single case standing for the proposition that a state action can
survive
strict
scrutiny
by
pointing
to
the
fact
that
other
private, non-state actors did not present evidence or arguments
in
favor
of
a
constitutional
course
of
action.
Under
the
majority's logic, could the Legislature, when it passes maps at
the next redistricting cycle, draw districts on the basis of
race, without evidence supporting the application of the VRA, by
simply
allowing
object?
third-party
stakeholders
an
opportunity
to
The majority's reasoning is foreign to constitutional
jurisprudence.
¶130 The
majority
also
cites
a
prior
Wisconsin
federal
court decision that adopted districts in the 1990s with majority
BVAP.
Prosser v. Elections Bd., 793 F. Supp. 859 (W.D. Wis.
1992); see majority op., ¶45.
That decision did not analyze the
Gingles factors, the history of electoral success for AfricanAmerican
preferred
circumstances,
remedy.
as
is
candidates,
or
required
prove
to
the
totality
the
need
of
for
a
the
VRA
Cooper, 137 S. Ct. at 1471-72; Bartlett, 556 U.S. at
App. 87
19-20;
LULAC,
548
U.S.
at
Clarke, 40 F.3d at 812-13.
432;
Gonzalez,
535
F.3d
at
600;
It was also issued prior to almost
every major United States Supreme Court precedent on the VRA,
for example:
Shaw v. Reno, Shaw v. Hunt, Johnson v. De Grandy,
Miller v. Johnson, Bush v. Vera, League of United Latin American
Citizens v. Perry, Bartlett v. Strickland, and Cooper v. Harris.
Nonetheless, the contention that a decision from the 1990s on
conditions
warranting
a
race-based
remedy
supports
the
same
remedy today is similar to asserting that a race-based remedy in
Michigan warrants the same in Wisconsin.
antithetical to a proper VRA analysis.
actual
individuals
communities,
is
on
what
the
ground
drives
a
Both theories are
The circumstances of the
VRA
today,
in
review,
their
not
specific
assumptions
derived from how other individuals of the same race were treated
at different times, in different places, and under different
circumstances.
Cooper, 137 S. Ct. at 1471-72; LULAC, 548 U.S.
at 432; Shaw v. Hunt, 517 U.S. at 917; City of Euclid, 580 F.
Supp. 2d at 604-12; Comm. for Fair & Balanced Map, 835 F. Supp.
2d
at
583.
No
caselaw
is
cited
for
the
proposition
that
"historical practice," relied upon by the majority, can either
support race-based district lines or satisfy strict scrutiny.
Majority op., ¶45.
Surely, many governments in the past would
have relied on such an argument to support racially motivated
policies and practices.
¶131 History
is
littered
with
racial
discrimination, and desperate treatment.
animus,
hostility,
The Equal Protection
Clause demands that governments in the United States rise above
App. 88
the human temptation of dividing by race and treat individuals
how
basic
dignity
demands
they
Only
in
specific
cases,
with
be
treated:
exacting
as
individuals.
and
quantifiable
information, and with narrowly targeted remedies, may government
discard equal protection guarantees.
Fisher, 570 U.S. at 309-
10; Miller, 515 U.S. at 911-12, 922; Shaw v. Reno, 509 U.S. at
653.
Lowering the bar for equal protection and allowing it to
be ignored without extraordinary evidence, and relying primarily
on conclusory analysis and a court's subjective observations,
would mark a material turn for equal protection jurisprudence
and
an
unwelcome
principles.
departure
from
foundational
American
See majority op., ¶¶43-49 (relying heavily on party
concessions, incomplete evidence, and an out of context standard
of
"good
reasons"
classifications).
to
justify
unambiguous
racial
If that path is followed, a Pandora's box of
racial grouping, jealousy, division, and animosity may open more
fully.
And we all may look back in regret at the day equal
protection
was
made
into
an
insubstantial
and
secondary
interest.
¶132 Given the serious lack of evidence supporting the need
to draw districts as explicitly based on race as is done by the
Governor, this court should abide by its constitutional duty to
treat all Wisconsinites the same regardless of race.
Vera, 517
U.S. at 965-83; Miller, 515 U.S. at 922; Shaw v. Reno, 509 U.S.
at 653; Cooper, 137 S. Ct. at 1464; Fisher, 570 U.S. at 309-10.
The court has no lawful, constitutional basis to adopt any other
App. 89
maps than the race-neutral, constitutional, least change maps
submitted by the Legislature or, in the alternative, CMS.
B.
Least Change Is More Than One Core Retention Number.
¶133 Core retention is the percentage of individuals that
are retained in the same legislative districts as the maps in
existence prior to this lawsuit.
Never before oral argument did
we conclude that the core retention number alone was the sole
factor to be considered.
that
"our
necessary
In our November 30 opinion, we stated
judicial
remedy
should
for
maps
to
requirements."
the
reflect
comport
the
with
Johnson, 399 Wis. 2d 623, ¶72.
least
change
relevant
legal
We did not limit
the factors and considerations that can be taken into account
when
determining
whether
a
map
made
as
possible while complying with the law.
little
changes
as
Certainly, we did not
hold that the map that moves the lowest number of people will be
selected,
regardless
consideration.
of
any
other
change
or
constitutional
Our majority opinion on November 30 simply never
mentioned that phrase, "core retention."
A majority of this
court nonetheless takes a myopic approach and refuses to look
beyond core retention or even evaluate the underpinnings of how
those numbers were achieved.
See majority op., ¶24 ("[L]east
change approach should guide our decision" and "[c]ore retention
is central to analysis.").
¶134 Fundamental jurisprudence instructs that the data that
underlies the core retention numbers may be considered, but in
conjunction with other valid considerations such as county and
municipality division and population deviation.
App. 90
Such routine
considerations are valid, as is discussed in caselaw, and more
importantly, they are constitutionally required.
the
majority
opinion
now
distances
himself
The author of
from
these
basic
principles and even his own writing, which explicitly indicated
"traditional
redistricting
criteria"
would
be
considered.
Johnson, 399 Wis. 2d 623, ¶83 (Hagedorn, J., concurring).19
The majority opinion's author refused to sign onto small
parts of the November 30 opinion and wrote a separate
concurrence because, in that Justice's view, the November 30
opinion unduly limited the court's discretion in selecting a new
map.
"Legal standards establish the need for a remedy and
constrain the remedies we may impose, but they are not the only
permissible judicial considerations when constructing a proper
remedy," the November 30 concurrence declared triumphantly.
Johnson v. Wis. Elections Comm'n, 2021 WI 87, ¶83, 399
Wis. 2d 623, 967 N.W.2d 469 (Hagedorn, J., concurring).
In
fact, there was a specific factor the concurrence gave special
favor to: "one universally recognized redistricting criterion
is communities of interest," i.e., local communities and
governments.
Id. (Hagedorn, J., concurring).
The concurrence
contemplated reliance on this factor when multiple maps were
comparable on the issue of least change:
19
Suppose we receive multiple proposed maps that comply
with all relevant legal requirements, and that have
equally compelling arguments for why the proposed map
most aligns with current district boundaries. In that
circumstance, we still must exercise judgment to
choose the best alternative.
Considering communities
of
interest
(or
other
traditional
redistricting
criteria) may assist us in doing so.
Id. (Hagedorn, J., concurring).
Despite the urge to make this apparently principled opinion
known in a concurrence, the same logic is absent in the majority
opinion. Not only does the opinion cast as insignificant basic
constitutional
interests
in
maintaining
local
government
boundaries, but it also adopts maps with substantially greater
divisions of communities of interests, all the while having
immaterial differences on the (now controlling) least-change
metric of core retention.
Time changes all things, but
presumably not that quickly.
App. 91
¶135 Now,
four
of
my
colleagues
inexplicably
adopt
core
retention as the sole factor even though the phrase cannot be
found in the November 30 majority or concurring opinions.
This
comes out of thin air and much to the surprise of three members
of the court.
While the Governor retains 85.8% of individuals
in their existing districts, the Legislature retains 84.2%, a
1.6% difference.
However, the Legislature scores better than
the
the
Governor
in
senate,
moving
several
thousand
less
individuals.20
The Governor moves around 95,000 less people in
the assembly.
Thus, overall, combining the figures for the
senate and assembly, the Governor moves less people than the
Legislature,
although they are fairly close in measure.
By
comparison, CMS has a 61% core retention in the assembly and a
74.3% core retention in the senate.
¶136 One is left to wonder:
If the Legislature knew that
core retention was the only criteria to be used, might it have
submitted
different
maps
if
given
the
chance?
Recall,
all
parties had the benefit of knowing the Legislature's maps before
submitting their own.
The Legislature advanced support for maps
The parties in this lawsuit submitted maps under guidance
on what they viewed as the deciding factors for the author of
the November 30 concurrence.
It was not an unreasonable
inference that that Justice's vote may decide the outcome of
this case. Yet now that Justice, writing the majority opinion,
claims soft, non-legal factors such as communities of interest
are not of material importance when the court can identify a map
with the lowest core retention.
This is a classic example of
shifted standards.
I recognize that the percentages in the senate are very
close; with rounding the Governor and the Legislature have a
92.2% core retention in the senate.
20
App. 92
passed by the Assembly and Senate in 2021, which all parties
could examine in advance.
No such privilege was afforded to the
Legislature vis-a-vis the Governor's maps.
¶137 To be clear, core retention is a useful statistic for
evaluating the amount of changes in a given map, but it cannot
be
the
only
consideration
for
the
court.
opinion
made
clear
any
map
must
that
Our
not
November
only
30
consider
statistics reflecting the amount of change, but it must do so
while comporting best with other legal interests such as per
capita representation and retaining local communities.
Johnson,
399 Wis. 2d 623, ¶¶24-38, 72 (describing legal considerations in
detail).
The
November
constitutional
requirements
determining
judicial
a
30
opinion
must
remedy
be
for
made
clear
that
the
met.
Id.,
¶38
("In
we
will
malapportionment,
ensure preservation of these justiciable and cognizable rights
explicitly protected under the United States Constitution, the
VRA,
or
Article
IV,
Constitution.").
Sections
3,
made
clear
We
4,
or
5
that
of
in
the
Wisconsin
remedying
any
malapportionment in the existing maps we must not "inadvertently
choose
a
remedy
that
creating another."
solves
Id., ¶34.
one
constitutional
harm
while
As explained below, while the
Governor has higher core retention numbers than the Legislature
and
CMS,
he
considerations.
did
so
by
sacrificing
other
constitutional
As we stated in our November 30 opinion, the
law does not countenance such a result.
C.
One-Person-One-Vote
App. 93
¶138 The United States Supreme Court has continuously and
unambiguously
legislative
reminded
us
that,
in
districts,
"the
overriding
apportioning
objective
state
must
be
substantial equality of population among the various districts,
so that the vote of any citizen is approximately equal in weight
to that of any other citizen in the State."
Reynolds v. Sims,
377 U.S. 533, 579 (1964); see also Baumgart, 2002 WL 34127471,
at *2 (quoting Connor v. Finch, 431 U.S. 407, 409 (1977)) ("With
respect
to
reapportionment,
population
equality
is
the
'most
elemental requirement of the Equal Protection Clause.'").
The
Constitution "does not permit a State to relegate considerations
of equality to secondary status and reserve as the primary goal
o
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