Response to application from respondent Governor Tony Evers — The Wisconsin Legislature, et al., Applicants v. Wisconsin Elections Commission, et al.

Supreme Court briefMar 11, 2022

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No. 21A471

In the Supreme Court of the United States

THE WISCONSIN STATE LEGISLATURE, BILLIE JOHNSON,

ERIC O’KEEFE, ED PERKINS, AND RONALD ZAHN

Applicants,

MARGE BOSTELMANN IN HER OFFICIAL CAPACITY AS MEMBER

OF THE WISCONSIN ELECTIONS COMMISSION, ET AL.,

Respondents.

GOVERNOR TONY EVERS’S OPPOSITION

TO EMERGENCY APPLICATION FOR STAY AND INJUNCTIVE

RELIEF AND ALTERNATIVE PETITION FOR WRIT OF

CERTIORARI AND SUMMARY REVERSAL

Joshua L. Kaul

Wisconsin Attorney General

Anthony D. Russomanno

Brian P. Keenan

Assistant Attorneys General

WISCONSIN DEPARTMENT OF JUSTICE

17 West Main Street

Madison, WI 53703

(608) 267-2238

russomannoad@doj.state.wi.us

keenanbp@doj.state.wi.us

Joshua Matz

Counsel of Record

Raymond P. Tolentino

KAPLAN HECKER & FINK LLP

1050 K Street NW | Suite 1040

Washington, DC 20001

(929) 294-2537

jmatz@kaplanhecker.com

rtolentino@kaplanhecker.com

Christine P. Sun

Dax L. Goldstein

STATES UNITED DEMOCRACY CENTER

3749 Buchanan St., No. 475165

San Francisco, CA 94147

(415) 938-6481

christine@statesuniteddemocracy.org

dax@statesuniteddemocracy.org

Counsel for Respondent Governor Tony Evers

TABLE OF CONTENTS

PRELIMINARY STATEMENT ..................................................................................... 1

BACKGROUND ............................................................................................................. 3

ARGUMENT ................................................................................................................ 12

PETITIONERS’ ATTACKS ON THE DECISION BELOW LACK MERIT ....... 13

A. Petitioners Lack Article III Standing ........................................................... 13

The Individual Petitioners Lack Standing ............................................ 14

The Legislature Lacks Standing............................................................ 15

B. Petitioners Present a Meritless Constitutional Claim ................................. 17

Race Did Not Predominate in the Wisconsin Supreme Court’s

Decision to Adopt the Challenged Legislative Maps ............................ 18

Even if Race Predominated in the Map Adopted Below, the

Wisconsin Supreme Court’s Decision is Correct ................................... 21

a. The Wisconsin Supreme Court Correctly Stated the Law ............. 22

b. The Wisconsin Supreme Court Correctly Applied the Law ........... 24

II. THE EQUITIES WEIGH CONCLUSIVELY AGAINST PETITIONERS’

REQUEST THAT THIS COURT OVERTURN WISCONSIN’S MAPS ............. 29

III. PETITIONERS ARE NOT ENTITLED TO THE REMEDY THEY SEEK ........ 36

A. This Court Should Not, for the First Time Ever, Undertake the Act of

Redistricting State Electoral Maps in the First Instance ............................ 37

B. Petitioners Ask This Court to Adopt an Interim Map That Raises

Substantial Concerns under the VRA........................................................... 39

CONCLUSION............................................................................................................. 40

TABLE OF AUTHORITIES

Cases

Abbott v. Perez,

138 S. Ct. 2305 (2018) ............................................................................ 18, 19, 22, 23

Alabama Legislative Black Caucus v. Alabama,

575 U.S. 254 (2015) .......................................................................................... passim

Arizona State Legislature v. Arizona Indep. Redistricting Comm’n,

576 U.S. 787 (2015) .................................................................................................. 16

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) .................................................................................................... 13

ASARCO Inc. v. Kadish,

490 U.S. 605 (1989) .................................................................................................. 17

Backus v. South Carolina,

857 F. Supp. 2d 553 (D.S.C.) .................................................................................... 21

Baldus v. Members of Wis. Gov’t Accountability Bd.,

849 F. Supp. 2d 840 (E.D. Wis. 2012) .................................................................... 3, 6

Bartlett v. Strickland,

556 U.S. 1 (2009) ...................................................................................................... 22

Bethune-Hill v. Virginia State Bd. of Elections,

137 S. Ct. 788 (2017) .................................................................................... 19, 23, 38

BLOC v. Spindell,

No. 3:21 Civ. 534 (W.D. Wis.) .................................................................................... 4

Branch v. Smith,

538 U.S. 254 (2003) .................................................................................................. 24

Brnovich v. Democratic Nat’l Comm.,

141 S. Ct. 2321 (2021) .............................................................................................. 21

Clark v. Calhoun County,

88 F.3d 1393 (5th Cir. 1996) .................................................................................... 38

Cooper v. Harris,

137 S. Ct. 1455 (2017) ...................................................................................... passim

Crookston v. Johnson,

841 F.3d 396 (6th Cir. 2016) .................................................................................... 30

Cutter v. Wilkinson,

544 U.S. 709 (2005) .................................................................................................. 38

Democratic Nat’l Comm. v. Wis. State Legislature,

141 S. Ct. 28 (2020) .................................................................................................. 30

Easley v. Cromartie,

532 U.S. 234 (2001) ............................................................................................ 18, 19

Graves v. Barnes,

405 U.S. 1201 (1972) ................................................................................................ 12

Growe v. Emison,

507 U.S. 25 (1993) .................................................................................. 15, 24, 30, 37

Hollingsworth v. Perry,

558 U.S. 183 (2010) .................................................................................................. 12

Hollingsworth v. Perry,

570 U.S. 693 (2013) ............................................................................................ 13, 17

Hunt v. Cromartie,

526 U.S. 541 (1999) .................................................................................................. 38

Hunter v. Bostelmann,

No. 3:21 Civ. 512 (W.D. Wis.) .................................................................................... 4

Johnson v. De Grandy,

512 U.S. 997 (1994) ...................................................................................... 22, 26, 40

Johnson v. Wis. Elections Comm’n,

No. 2021AP1450-OA (Wis.) ........................................................................................ 4

Johnson v. Wis. Elections Comm’n,

399 Wis. 2d 623 (2021) ........................................................................................... 5, 6

Ketchum v. Byrne,

740 F.2d 1398 (7th Cir. 1984) .................................................................................. 39

iii

League of United Latin Am. Citizens v. Perry,

548 U.S. 399 (2006) ...................................................................................... 23, 26, 38

Lux v. Rodrigues,

561 U.S. 1306 (2010) ................................................................................................ 12

Merrill v. Milligan,

142 S. Ct. 879 (2002) ........................................................................................ passim

Miller v. Johnson,

515 U.S. 900 (1995) ...................................................................................... 18, 19, 30

Moore v. Harper,

No. 21A455, 2022 WL 667937 (Mar. 7, 2022) ......................................................... 29

Perry v. Perez,

565 U.S. 388 (2012) .................................................................................................. 38

Purcell v. Gonzalez,

549 U.S. 1 (2006) ...................................................................................................... 30

Raines v. Byrd,

521 U.S. 811 (1997) ............................................................................................ 13, 15

Sanchez v. Colorado,

97 F.3d 1303 (10th Cir. 1996) .................................................................................. 38

Scott v. Germano,

381 U.S. 407 (1965) .................................................................................................. 24

Shaw v. Hunt,

517 U.S. 899 (1996) .................................................................................................. 14

United States v. Hays,

515 U.S. 737 (1995) ............................................................................................ 14, 15

Virginia House of Delegates v. Bethune-Hill,

139 S. Ct. 1945 (2019) ........................................................................................ 15, 16

Westwego Citizens for Better Gov’t v. City of Westwego,

872 F.2d 1201 (5th Cir. 1989) .................................................................................. 38

Williams v. Zbaraz,

442 U.S. 1309 (1979) ................................................................................................ 12

Constitution and Statutes

U.S. Const. art. III ............................................................................................... passim

52 U.S.C. § 10301(b) .............................................................................................. 10, 26

52 U.S.C. § 20302(a)(8) ................................................................................................ 35

Wis. Admin. Code § EL 2.07(2)(a) ............................................................................... 34

Wis. Admin. Code § EL 2.07(2)(b) ............................................................................... 35

Wis. Stat. § 5.15(6)(b) .................................................................................................. 35

Wis. Stat. § 5.25(3) ....................................................................................................... 35

Wis. Stat. § 5.72(1) ....................................................................................................... 35

Wis. Stat. § 6.02(1-2).................................................................................................... 35

Wis. Stat. § 6.875(6) ..................................................................................................... 35

Wis. Stat. § 7.10(2) ....................................................................................................... 35

Wis. Stat. § 7.10(3) ....................................................................................................... 35

Wis. Stat. § 7.15(cm) .................................................................................................... 35

Wis. Stat. § 7.50(2)(em) ............................................................................................... 35

Wis. Stat. § 8.15 ............................................................................................................. 4

Wis. Stat. § 10.06(2)(j) ................................................................................................. 35

Wis. Stat. § 19.43(4) ..................................................................................................... 34

Wis. Stat. § 803.09(2m)................................................................................................ 16

Other Authorities

Petition for Writ of Mandamus, In re Wis. Legislature,

No. 21-474 (U.S. filed Sept. 24, 2021)............................................................ 4, 30, 38

Stephen M. Shapiro et al., Supreme Court Practice (10th ed. 2013) ................... 12, 13

PRELIMINARY STATEMENT

Over the past five months, the State of Wisconsin—through its highest court—

has exercised its sovereign responsibility to devise legislative maps. To ensure a factdriven and thorough process, the Wisconsin Supreme Court received four rounds of

briefing and hundreds of pages of expert reports, held a five-hour oral argument, and

issued two comprehensive and careful opinions. Ultimately, the Wisconsin Supreme

Court adopted a final legislative map on a schedule consistent with unanimous and

bipartisan guidance from the Wisconsin Election Commission (WEC), which saw a

serious risk of disruption and confusion if the map were not finalized by March 1,

2022. WEC based that advice on a detailed description of the State’s electoral

calendar, its own experience with the State’s highly decentralized election system,

and the need for arduous (sometimes manual) work at both the state and county level

to implement new districting data in advance of deadlines that are now a mere month

away.

In a brief that blows past all this, paying virtually no heed to the facts on the

ground or this Court’s recent orders, Petitioners seek a stay or summary reversal of

the State’s districting decision. They also ask this Court in the first instance to issue

an unprecedented injunction—one that would require Wisconsin to use a map that

failed in the State’s political process, that the State’s map-drawer did not adopt, and

that (as the court below noted) is “problematic” under the Voting Rights Act.

The Court should reject these requests for three reasons. First, Petitioners do

not carry their heavy burden of proving error in the Wisconsin Supreme Court’s map-

drawing decision. Indeed, Petitioners skip past their obligation to demonstrate that

they have Article III standing—which, under this Court’s precedents, they do not.

And if the Court nonetheless reached the merits, Petitioners fare no better. Given the

Wisconsin Supreme Court’s clearly articulated standard, which Petitioners had urged

upon that court, it was “least changes” analysis (not race) that predominated in its

decision adopting a legislative map. Moreover, even if race were seen as predominant

in the Wisconsin Supreme Court’s map-drawing, that court considered a voluminous

expert record (which Petitioners ignore) and faithfully applied this Court’s recent

precedents interpreting the VRA and the Equal Protection Clause. In seeking to show

otherwise, Petitioners misstate or skip over key facts, misdescribe the decision below,

and misread this Court’s precedents. They offer no basis for emergency relief.

Second, the equities cut powerfully against Petitioners’ position. Rather than

engage in detail with the realities of election administration in Wisconsin—and the

needs of officials, candidates, and voters—Petitioners breezily assert that there’s

plenty of time to redo the legislative map. A closer inspection of the calendar, and the

record assembled on this point in the Wisconsin Supreme Court, makes clear that

Petitioners are wrong. Federal judicial intervention is especially disfavored here

because it would sharply infringe upon the State’s sovereign role in redistricting and

administering its own elections. Five weeks ago, in a case presenting questions about

the interaction of the Equal Protection Clause and the VRA, this Court held that it

was too late for a federal court to overturn Alabama’s maps; here, too, it would be

improper for this federal court to overturn Wisconsin’s maps. See Merrill v. Milligan,

142 S. Ct. 879, 880-81 (2002) (Kavanaugh, J., concurring in grant of applications for

stays); id. at 883 (Roberts, C.J., dissenting from grant of applications for stays).

Finally, as Petitioners recognize, a stay alone would only invite chaos, since

Wisconsin needs to know what map to use. But their solution—this Court serving as

the map-drawer for Wisconsin and mandating immediate use of Petitioners’ preferred

map—is only more deeply flawed. To our knowledge, this Court has never provided

such relief, let alone in a fast-paced emergency proceeding with skimpy briefing, no

argument, no evidentiary presentations, and hundreds of pages of expert evidence

that the lower court absorbed over months of deliberation. That proposed remedy is

also squarely at odds with this Court’s refusal to serve as a forum of first view, as

well as its deference to map-drawers and fact-finders in election cases. It would be

especially improper here given substantial concerns—endorsed by the Wisconsin

Supreme Court—that Petitioners’ proposed map violates the VRA. And it would only

invite future litigants to seek equally intrusive, extravagant, and disruptive relief.

For all these reasons, Petitioners’ application should be denied.

BACKGROUND

In 1982, 1992, and 2002, federal district courts drew Wisconsin’s legislative

districts. See Baldus v. Members of Wis. Gov’t Accountability Bd., 849 F. Supp. 2d

840, 844 (E.D. Wis. 2012). Following the 2020 census, the legislature passed a

redistricting proposal, the Governor vetoed it, and the State once again reached an

impasse. App. 6-7, 37. Meanwhile, two groups of plaintiffs filed suit in federal court,

and the Individual Petitioners filed an original action in the Wisconsin Supreme

Court. See Hunter v. Bostelmann, No. 3:21 Civ. 512 (W.D. Wis.); BLOC v. Spindell,

No. 3:21 Civ. 534 (W.D. Wis.); Johnson v. Wis. Elections Comm’n, No. 2021AP1450OA (Wis.). The federal court agreed that the State had primary responsibility for

map-making—but

when

declined

dismiss

outright,

the

Legislature

(unsuccessfully) sought mandamus relief in this Court, denouncing federal

intervention in the State’s redistricting process as an “affront to Wisconsin’s

sovereignty.” See Petition for Writ of Mandamus at 2, In re Wis. Legislature, No. 21474 (U.S. filed Sept. 24, 2021).

Ultimately, the Wisconsin Supreme Court proceedings took precedence, with

private parties, the Governor, and the Legislature participating as intervenors. On

September 22, 2021, the Wisconsin Supreme Court asked the parties “when (identify

a specific date) must a new redistricting plan be in place, and what key factors were

considered to identify this date?” Order at 3, Johnson (Sept. 22, 2021). The Wisconsin

Elections Commission—a bipartisan state agency—unanimously replied as follows:

“[I]n order to enable the Commission to accurately integrate new districting data into

its statewide election databases, and to timely and effectively administer the fall 2022

general election, a new redistricting plan must be in place no later than March 1,

2022.” Letter Br. of Wis. Elections Comm’n at 1, Johnson (Oct. 6, 2021) (“WEC

Letter”). 1 Citing Wis. Stat. § 8.15, which statutorily establishes April 15, 2022 as the

nomination paper circulation date for candidates in Wisconsin, the WEC added that

“if new maps are not in place at least 45 days before April 15, 2022, there is a

1 https://www.wicourts.gov/courts/supreme/origact/docs/ltrbriefwec.pdf.

significant risk that there will be errors in the statewide system[.]” Id. at 3. 2

In early October, the Wisconsin Supreme Court sought additional briefing from

the parties on (among other things) “what factors we should consider in evaluating

or creating new maps” and “what litigation process should we use to determine a

constitutionally sufficient map[.]” Order at 2, Johnson (Oct. 14, 2021). Petitioners

supported a “least changes” analysis and agreed that compliance with Section 2 of

the VRA is essential. See Br. of Wis. Legislature at 32-41, Johnson (Oct. 25, 2021);

Br. of Wis. Inst. for L. & Liberty at 21-27, Johnson (Oct. 25, 2021). The Governor

(among others) disagreed with employing a “least changes” approach, explaining that

it was not the proper standard. See, e.g., Br. of Resp’t at 8-13, Johnson (Oct. 25, 2021).

Just over a month later, the Wisconsin Supreme Court—divided 4-3—issued a

decision agreeing with Petitioners and adopting a “least changes” methodology:

“[T]his court will confine any judicial remedy to making the minimum changes

necessary in order to conform the existing congressional and state legislative

redistricting plans to constitutional and statutory requirements” Johnson v. Wis.

Elections Comm’n, 399 Wis. 2d 623, 634 (2021). Concurring, Justice Hagedorn agreed

that least changes would be the “primary concern,” though “traditional redistricting

criteria” might also “prove helpful.” Id. at 677 (Hagedorn, J., concurring).

On December 15, 2021, the parties submitted proposed maps—and 15 days

2 Respondent BLOC identified March 14, 2022 as the latest date, since March 15, 2022 “is a

statutory deadline for [WEC] to provide notice of those new districts to county clerks,” and “Wisconsin

statutes, as well as practical constraints, require election officials and candidates to complete multiple

administrative steps well in advance” of the August 2022 primary. Letter Br. of Black Leaders

Organizing for Communities (BLOC) at 1, Johnson (Oct. 6, 2021).

later, they filed responses to each other’s maps. This briefing left no doubt that the

Governor’s map significantly outperformed all others with respect to “least changes”

analysis. As confirmed by a detailed expert report, the Governor’s maps moved only

14.21% of the population to different Assembly Districts, as compared to 15.84% in

the Legislature’s proposal. App. 170. With respect to Senate Districts, 7.83% of the

population moved under the Governor’s plan, while the Legislature’s plan moved a

negligibly different 7.79%. Id. And whereas the Legislature proposed changes to every

single Assembly District, the Governor left 13 untouched. Id. With “least changes” as

its core concern, the Governor’s map most directly satisfied the controlling criterion

advocated by Petitioners and adopted by the state court. In addition, the Governor’s

map met a host of state and federal requirements, including Wisconsin’s significant

compactness, contiguity, and population equality standards. See App. 168-184.

Most relevant here, the Governor’s map complied with Section 2 of the VRA,

which had long been understood to require the drawing of majority-minority districts

in Milwaukee. See, e.g., Baldus, 849 F. Supp. 2d at 855. As the Governor explained in

his own briefs before the Wisconsin Supreme Court—and as we address at length

infra in Part I.B—a careful study of the updated population data made clear that

Section 2 required the creation of one more majority-Black district in Milwaukee. The

Governor did not reach this view lightly. It followed from a study of precedent and a

review of changes in population data, which revealed (among other things) a decrease

in the number of white voters, an increase in the number of Black voters, the

persistence of a geographically compact and politically cohesive Black population, the

endurance of highly racially polarized voting, and changes in proportionality data

bearing on the totality of circumstances relevant to VRA analysis. See Resp. Br. of

Resp’t at 15-19, Johnson (Dec. 30, 2021). The Governor’s view that Section 2 required

an additional majority-Black district in Milwaukee was supported by comprehensive

reports by two experts, each filed separately by BLOC and adopted by the Governor

(and the Governor’s expert) in his own submissions. See id. at 16; App. to Br. of BLOC

at 13-152, Johnson (Dec. 15, 2021); App. to Resp. Br. of BLOC at 5-22, Johnson (Dec.

30, 2021); App. to Reply Br. of BLOC at 7-12, Johnson (Jan. 4, 2022).

The Legislature proposed a plan that fared less well under the very criterion

that the Legislature itself had successfully urged the Wisconsin Supreme Court to

adopt. See Resp. Br. of Resp’t at 7-25, Johnson (Dec. 30, 2021). Moreover, as the

Governor and BLOC explained in detail in their responsive submissions, the

Legislature’s plan violated the Wisconsin Supreme Court’s guidance because it

unlawfully diluted Black voting strength under Section 2. See id. at 14-19; Resp. Br.

of BLOC at 8-20, Johnson (Dec. 30, 2021). Most notably, the Legislature packed Black

voters in District 11 (increasing BVAP from 65.55% to 73.3%), while cracking Black

voters elsewhere (principally in the Village of Brown Deer). See Resp. Br. of BLOC at

9, Johnson (Dec. 30, 2021). Although the Legislature proffered an expert to support

its approach, his report suffered from intractable methodological flaws, including an

underestimate of the total Black adult population. Id. at 12.

On January 19, 2022, the Wisconsin Supreme Court heard five hours of oral

argument on the proposed maps. Petitioners, the Governor, the BLOC Respondents,

and other intervenors participated in this hearing. Both the Justices and the parties

focused mainly on the “least-change” criterion. In attending to that touchstone

consideration, the parties and the court also explored whether the proposed plans

complied with the VRA. Notably, there was no serious dispute among the parties that

Section 2 of the VRA applied to (and had implications for) all of the proposed maps.

Justice Hagedorn thus noted that he “didn’t read any arguments that the VRA doesn’t

apply to the black population in Milwaukee.” Oral Arg. Video Recording at 1:20:2026. 3 Counsel to the Legislature agreed, stating that “[t]he question is not whether the

VRA applies,” but rather “what the VRA requires.” Id. at 4:51:24-30. In fact, in direct

response to Justice Hagedorn’s questioning as to whether the VRA “requires the

drawing of some black opportunity districts in and around the city of Milwaukee,” the

Legislature’s lawyer indicated that the Legislature “assumed that is so.” Id. at

1:57:26-43. The Legislature’s counsel clarified that its proposed plan “complies with

the Voting Rights Act”: although the “legislative process” was “race neutral,” the

Legislature nevertheless “made arguments about the racial makeup of the districts

in [its] briefs” and its “expert [had] done a VRA analysis.” Id. at 1:59:54-2:00:17. In

other words, the Legislature insisted that it had acted in a race-neutral manner, but

it also recognized (or at least assumed) that the VRA required consideration of race

in Milwaukee—and it also argued and analyzed questions of race in its briefing.

On March 3, 2022, the Wisconsin Supreme Court issued an opinion adopting

the Governor’s legislative map. After restating its “least change” approach, the court

3 Citations refer to the time-stamps of the argument recording, which is accessible at this link:

https://invintus-client-media.s3.amazonaws.com/2789595964/6563c4ae1b950699ec71ca651028be4bc5424423.mp4.

found that “[t]he proposed senate and assembly maps making the least changes from

current law are … those of Governor Evers.” App. 10. The court added: “No other

proposal comes close.” Id. Although the Legislature raised complaints about districts

in the Milwaukee area, the court rejected these arguments on the ground that the

Legislature’s proposal would “change districts even more elsewhere.” App. 22.

After finding that the Governor’s maps complied with all other requirements,

the court turned to the VRA. In so doing, it emphasized the “unusual procedural

posture,” adding: “our task is to produce districts in the first instance without the

benefit of a trial and a fully-developed factual record regarding the performance of

specific districts.” App. 27. The court further noted that “this case does not involve a

claim under the Equal Protection Clause or VRA.” App. 29 n.24 (emphasis added).

Instead, the court sat as Wisconsin’s “remedial map-drawers,” and considered the

VRA’s applicability out of a desire to “act in compliance with the Constitution and

applicable federal laws” while “relying on the more limited record before us.” Id.

Because it functioned in the capacity of map-drawer, the Wisconsin Supreme

Court followed cases describing the role that an assessment of VRA requirements

should play “when a State invokes the VRA” during districting. App. 27. Under those

cases, the state’s map-drawer must show “‘a strong basis in evidence’ for concluding

that the statute required its action.” Cooper v. Harris, 137 S. Ct. 1455, 1464 (2017).

Given the limitations inherent to map-drawing and the possibility of reasoned

dispute about exactly when Section 2 may require creating an additional majorityminority district, this “strong basis” standard “gives States ‘breathing room’” in

adopting “reasonable compliance measures” when they draw maps. Id.

Applying that standard, the Wisconsin Supreme Court saw “good reasons” to

find that “the three Gingles preconditions are met for the Black voting age population

in the Milwaukee area.” App. 29, 32. Indeed, it did not see any credible reasons to

doubt that conclusion. To start, it was “undisputed” that the Black voting age

population in this area is sufficiently large and compact to draw seven majority-Black

districts. App. 29. It was “also undisputed that Black voters in the Milwaukee area

are politically cohesive.” App. 30. And with respect to the third Gingles precondition,

the court found “a strong evidentiary basis to believe white voters in the Milwaukee

area vote ‘sufficiently as a bloc to usually defeat the minority’s preferred candidate.’”

Id. While the Legislature had questioned that point at oral argument, it offered no

“expert analysis or argument” and its briefs did not “advance or develop this in any

meaningful way.” App. 31 & n.27. Accordingly, after examining the evidence before

it—including numerous expert reports—the Wisconsin Supreme Court found

substantial evidence supporting all three Gingles preconditions. App. 32.

The court next considered “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 representatives of their

choice.’” Id. (quoting 52 U.S.C. § 10301(b)). Here, while recognizing the role of the

Senate factors, it highlighted proportionality: “whether the number of districts in

which the minority group forms an effective majority is roughly proportional to its

share of the population in the relevant area.” Id. (internal quotation marks omitted).

Considering the evidence before it, the court observed that “[o]ver the last decade, the

Black population in Wisconsin grew by 4.8% statewide, while the white population

fell by 3.4%.” App. 33-34. This resulted in a Black voting population statewide

“between 6.1% to 6.5%,” suggesting the need for “between six and seven majorityBlack assembly districts.” App. 34. But looking “a bit deeper”—and assessing whether

an additional, seventh majority-Black district was required—the court observed that

“a significant proportion of Wisconsin’s Black population lives in Milwaukee County,”

where “the Black voting age population increased 5.5%, while the white voting age

population decreased 9.5%.” Id. Given that fact, “[t]he baseline of six districts ten

years ago, combined with population trends since then and statewide population

numbers now, suggest a seventh majority-Black district may be required.” Id.

Finally, turning back to the Legislature’s proposal, the court found that it

“could prove problematic under the VRA.” Id. After all, the Legislature’s

configuration had only “five majority-Black districts, and a sixth just under a

majority.” Id. And one of the Legislature’s proposed districts exceeded “a level some

courts have found to be unlawful ‘packing’ under the VRA.” Id. “The risk of packing

Black voters under a six-district configuration further suggests drawing seven

majority-Black districts is appropriate to avoid minority vote dilution.” App. 34-35.

For these reasons—and based on its independent “assessment of the totality of

the circumstances”—the court found “good reasons to conclude a seventh majorityBlack assembly district may be required.” App. 33-35. This conclusion was explicitly

not based on a belief that the VRA requires “drawing maps to maximize the number

of majority-minority districts.” App. 35. “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.” Id.

ARGUMENT

This

Court

grants

stay

pending

appeal

“only

extraordinary

circumstances.” Graves v. Barnes, 405 U.S. 1201, 1203 (1972) (Powell, J., in

chambers). An applicant must “meet a heavy burden of showing not only that the

judgment of the lower court was erroneous on the merits, but also that the applicant

will suffer irreparable injury if the judgment is not stayed pending his appeal.”

Williams v. Zbaraz, 442 U.S. 1309, 1311 (1979); see also Hollingsworth v. Perry, 558

U.S. 183, 190 (2010) (requiring a “reasonable probability” of certiorari, a “fair

prospect” of ultimate reversal, and a likelihood of irreparable harm absent a stay).

The standard for a mandatory injunction is higher still: an applicant must

show that the “legal rights at issue” in the underlying dispute are “indisputably clear”

in its favor, Lux v. Rodrigues, 561 U.S. 1306, 1307 (2010) (Roberts, C.J., in chambers),

such that this Court is reasonably likely to grant certiorari and reverse any judgment

adverse to the applicant entered upon the completion of lower-court proceedings, see

Stephen M. Shapiro et al., Supreme Court Practice § 17.13(b) (10th ed. 2013).

Petitioners do not satisfy these standards. They lack Article III standing to

raise an Equal Protection Clause claim in this proceeding. Their varied attacks on

the Wisconsin Supreme Court’s opinion are meritless. At this stage in the election

process, the equities cut overwhelmingly against the extraordinary relief they seek.

And their request for a mandatory injunction is foreclosed by precedent.

PETITIONERS’ ATTACKS ON THE DECISION BELOW LACK MERIT

For three reasons, Petitioners cannot meet their burden of demonstrating that

the decision below was erroneous (let alone that it suffered from indisputably clear

error). First, Petitioners make no attempt to demonstrate that they have Article III

standing to press their Equal Protection Clause claims in this federal court, and in

fact they do not possess such standing. Second, Petitioners fail to demonstrate that

the Wisconsin Supreme Court allowed race to predominate in its decision about which

legislative map to adopt—a decision it based almost entirely on the neutral “least

change” criterion. Finally, even if this Court concludes that race predominated in the

Wisconsin Supreme Court’s map, the decision below faithfully applies this Court’s

precedents to a substantial record that supports its conclusions under the VRA.

Petitioners Lack Article III Standing

“No principle is more fundamental to the judiciary’s proper role in our system

of government than the constitutional limitation of federal-court jurisdiction to actual

cases or controversies.” Raines v. Byrd, 521 U.S. 811, 818 (1997). Thus, Article III

“‘must be met by persons seeking appellate review, just as it must be met by persons

appearing in courts of first instance.’” Hollingsworth v. Perry, 570 U.S. 693, 705

(2013) (quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997)); see

also Shapiro, Supreme Court Practice § 19.1(b) (“[A] party who seeks entry into the

federal court system for the first time must be able to satisfy the Article III standing

requirements at that point. That is true even if the initial entry occurs at the Supreme

Court level.”). Here, none of the Petitioners complies with this fundamental

constitutional requirement. In fact, despite the burden they bear in seeking

emergency relief, they do not even attempt to affirmatively demonstrate their

entitlement to proceed in this Court—and, as we will establish below, any arguments

they could offer would be foreclosed by precedent.

The Individual Petitioners Lack Standing

As this Court has repeatedly observed, a “racial gerrymandering claim” applies

only to “the boundaries of individual districts,” not to “a State considered as an

undifferentiated ‘whole.’” Alabama Legislative Black Caucus v. Alabama, 575 U.S.

254, 262 (2015) (ALBC). Given the “personal” nature of the harms alleged in any such

claim, it follows (and this Court has held) that standing is limited to voters who reside

in districts allegedly drawn in violation of equal protection principles. See id. at

262-63; Shaw v. Hunt, 517 U.S. 899, 904 (1996) (“[A] plaintiff who resides in a district

which is the subject of a racial-gerrymander claim has standing to challenge the

legislation which created that district, but [] a plaintiff from outside that district lacks

standing absent specific evidence that he personally has been subjected to a racial

classification.”); United States v. Hays, 515 U.S. 737, 744-45 (1995).

None of the Individual Petitioners resides in a district alleged to be the product

of a racial gerrymander. Pet. for Original Action of Johnson et al., ¶¶ 14-17, Johnson

(Aug. 23, 2021). So none of them has standing to raise an equal protection challenge

to the legislative map adopted by the Wisconsin Supreme Court.

The Legislature Lacks Standing

Like the Individual Petitioners, the Wisconsin Legislature cannot satisfy the

requirements of Article III. This Court has carefully delineated the circumstances in

which a legislature has standing to sue—and has never held that a legislature itself

suffers injury-in-fact from the alleged racial gerrymander of specific districts. See

Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1955 (2019) (holding the

Virginia House of Delegates lacked standing to bring a racial gerrymander claim).

That is unsurprising. The Court has consistently described the harm in racial

gerrymandering cases as “personal,” ALBC, 575 U.S. at 263, and “individualized,”

Hays, 515 U.S. at 744. This focus on individual voters who live in allegedly affected

districts—and this rejection of statewide theories of harm—is squarely at odds with

treating an alleged racial gerrymander as injuring the entire state legislature. So,

too, is the Court’s observation that a racial gerrymander may cause “representational

harms”: that harm accrues to a person with the right to representation, not to the

entire branch of government in which all state representatives sit. See id. at 744-45.

This conclusion is bolstered by the Court’s broader approach to legislative

standing. State courts have long stepped in to draw state legislative maps when the

political branches reach an impasse. See Growe v. Emison, 507 U.S. 25, 30-31 (1993).

That judicial duty arises only when a state legislature fails to enact maps under state

law procedures (which may include a gubernatorial veto). So there is no basis for

concluding that judicial map-drawing inflicts institutional injury on the legislature,

cf. Raines, 521 U.S. at 829, or works a permanent deprivation of legislative authority,

cf. Arizona State Legislature v. Arizona Indep. Redistricting Comm’n, 576 U.S. 787,

804 (2015), or undermines the state legislature’s proper role in the redistricting

process, cf. Virginia House, 139 S. Ct. at 1953. Simply put, the Legislature’s authority

remains fully intact. And to the extent the judicial map-drawing function gives rise

to equal protection (or other) challenges, those claims are properly brought by parties

alleged to suffer actual injury-in-fact from the specific alleged constitutional defect. 4

As a fallback, the Legislature may contend that it is authorized by state law to

bring a claim. That would be incorrect. Wisconsin law empowers the Legislature to

intervene “[w]hen a party to an action challenges in state or federal court the

constitutionality of a statute, facially or as applied, challenges a statute as violating

or preempted by federal law, or otherwise challenges the construction or validity of a

statute.” Wis. Stat. § 803.09(2m). Here, the Legislature seeks to bring a distinct Equal

Protection Clause challenge to the remedial map adopted by the Wisconsin Supreme

Court; whatever statutory authorization it had to serve as an intervenor in the state

court original action, that authorization by its terms does not apply here.

Finally, the Legislature might assert that by virtue of the denial of its

proposed map in the Wisconsin Supreme Court, it suffered injury-in-fact from that

court’s ruling adopting a map. If the Legislature did advance that argument (again,

we have to guess what it might say, since it did not seek to establish its Article III

4 Nor does the Wisconsin Supreme Court’s decision inflict injury-in-fact on the Legislature by

sole virtue of affecting its composition or operations: “[A]lthough redrawing district lines indeed may

affect the membership of the chamber, the [Legislature] as an institution has no cognizable interest

in the identity of its members,” and it is “scarcely obvious how or why” changes to district lines will

“profoundly disrupt its day-to-day operations.” Virginia House, 139 S. Ct. at 1955.

standing), it would be mistaken. The issue before the Wisconsin Supreme Court,

acting as a map-drawer, was solely which map to adopt. As that court noted, “this

case does not involve a claim under the Equal Protection Clause or VRA.” App. 29

n.24 (emphasis added). The Legislature participated in the state court redistricting

process below only as an intervenor advocating adoption of a particular map. Its

failure to persuade the Wisconsin Supreme Court to adopt its preferred map does not

suddenly vest it with Article III standing (which it would otherwise lack) to bring an

equal protection claim (which was not otherwise part of the case) in the federal courts

(whose involvement in the redistricting process it otherwise denounced). See, e.g.,

Hollingsworth, 570 U.S. at 705. Put differently, where a party would otherwise lack

Article III standing to advance federal claims, it does not somehow grab hold of such

standing just because it lost as an intervenor in state court (again, especially where

the federal claim it seeks to maintain was not even part of that proceeding). 5

Because Petitioners cannot demonstrate Article III standing—and certainly

cannot demonstrate indisputably clear standing—their application cannot succeed.

Petitioners Present a Meritless Constitutional Claim

Separate from their lack of standing, Petitioners’ position fails because it is

fundamentally meritless. Rather than engage with the evidentiary record in the case,

5 To be sure, the Court can grant review where “the judgment of the state court causes direct,

specific, and concrete injury to the parties who petition for our review, where the requisites of a case

or controversy are also met.” ASARCO Inc. v. Kadish, 490 U.S. 605, 623-24 (1989). But here, for the

reasons given above, the requisites of a case or controversy are not met. Moreover, ASARCO’s limited

rule is inapplicable because the state court’s adoption of the Governor’s map—among varied proposals

set before it—did not cause “direct, specific, and concrete” injury to the Legislature. Holding otherwise

would blow open the doors to Supreme Court review from any and all state map-making decisions,

even if a party otherwise lacked standing and had not even pressed their claims for relief below.

or with the Wisconsin Supreme Court’s actual reasoning, Petitioners ignore the facts

and attack a strawman. Along the way, they misstate settled law and misdescribe

precedent. For these reasons—among others—their position must be rejected.

Race Did Not Predominate in the Wisconsin Supreme

Court’s Decision to Adopt the Challenged Legislative Maps

The first question in any racial gerrymandering claim is whether “race was the

predominant factor motivating the legislature’s decision to place a significant number

of voters within or without a particular district.” Miller v. Johnson, 515 U.S. 900, 916

(1995). Here, the Wisconsin Supreme Court served as Wisconsin’s map-drawer—and

there is no basis to conclude that race predominated in its decisionmaking, especially

in light of its express adherence to “least change” analysis as the decisive criterion.

In determining whether race predominated, the Court affords a presumption

of good faith to the Wisconsin Supreme Court: because “[f]ederal-court review of

districting [decisions] represents a serious intrusion on the most vital of local

functions,” courts “exercise extraordinary caution in adjudicating claims that a State

has drawn district lines on the basis of race.” Miller, 515 U.S. at 915-16. “The burden

of proof lies with the challenger,” Abbott v. Perez, 138 S. Ct. 2305, 2324 (2018), who

must show that “the [state’s map-drawer] subordinated other factors—compactness,

respect for political subdivisions, partisan advantage, what have you—to racial

considerations.” Cooper, 137 S. Ct. at 1463-64 (cleaned up). “Race must not simply

have been a motivation for the drawing of a majority-minority district, but the

predominant factor motivating the [] districting decision.” Easley v. Cromartie, 532

U.S. 234, 241 (2001) (cleaned up). “[I]n many cases, perhaps most cases, challengers

will be unable to prove an unconstitutional racial gerrymander without evidence that

the enacted plan conflicts with traditional redistricting criteria.” Bethune-Hill v.

Virginia State Bd. of Elections, 137 S. Ct. 788, 799 (2017).

Here, despite the steep standard for emergency relief and their heightened

burden of proof, Petitioners make virtually no effort to show that race predominated

in the Wisconsin Supreme Court’s decision. Contra Abbott, 138 S. Ct. at 2324. Nor do

they identify any specific respect in which its map conflicts with or subordinates

traditional redistricting criteria. Contra Bethune-Hill, 137 S. Ct. at 799. Instead, they

gesture at statistics about the racial demographics of challenged districts and insist

that the thing speaks for itself. That conclusory assertion contrasts starkly with the

fact-intensive inquiry required (and demonstrated) by this Court’s precedent. See

ALBC, 575 U.S. at 272-75; Cromartie, 532 U.S. at 241-57; Miller, 515 U.S. at 916-19. 6

Petitioners’ position is especially untenable in light of the Wisconsin Supreme

Court’s explicit criteria for selecting a map. At Petitioners’ insistence, that court

placed “least change” analysis at the very heart of its decision. See App. 9-10; Br. of

Wis. Legislature at 32-41, Johnson (Oct. 25, 2021). This was no mere background

6 There is no merit to Petitioners’ suggestion that the shape of the legislative map itself proves

the predominance of race. To start, Petitioners point out that Assembly District 11 expands into

Ozaukee County. Pet. 11. Leaving aside that Petitioners’ proposed Assembly District 23 crosses that

very same county line, District 11 was shaped by efforts to increase its population while protecting

Senate incumbents. Assembly District 12’s expansion into Waukesha County can be similarly

explained; it was drawn to keep wards intact while following the Washington County line to the north

and a preexisting Assembly line to the west. In a similar vein, Districts 10, 17, and 18 avoided pairing

incumbents and kept wards intact; District 16 was left largely unchanged to promote least change;

and District 14 was altered to remain in one county and include two, rather than three, cities. These

changes to the Assembly Districts, in turn, required changes to Senate Districts 4 and 6 that

themselves uphold traditional redistricting principles—SD 4 was drawn to include adjacent wards,

and SD 6 maintains similar northern, eastern, and southern boundaries to the preexisting map.

rule, see ALBC, 575 U.S. at 273, but rather a controlling redistricting criterion that

constituted the predominant basis on which the Wisconsin Supreme Court selected a

map from the options before it, see App. 9-10. The “least change” criterion—moving

as few people as possible into new districts—prevailed over every other redistricting

consideration and was the single overriding reason why the Wisconsin Supreme

Court ordered the use of this specific map. It was only after the court reached this

conclusion that it double-checked to ensure the map complied with state and legal

standards—including the Wisconsin Constitution’s controlling requirements “that

districts be compact, contiguous, and proportionally populated; [that] they must

respect certain local political boundaries; and [that] the districts must ‘nest’ three

assembly districts within each senate district.” App. 23-24. Nothing about this

procedure suggests that race predominated in the Wisconsin Supreme Court’s

decisionmaking: a slate of maps was set before it; it chose the one that made the least

change; and it then confirmed that its selection complied with relevant law.

It was only in this latter confirmatory analysis that the Wisconsin Supreme

Court considered the VRA at the express urging of every party, including Petitioners

(who separately sought to assure the court that its own map complied with the VRA,

and presented both briefing and expert analysis to demonstrate that it had respected

the VRA’s requirements regarding majority-Black districting around Milwaukee).

Nothing in the record suggests that the Wisconsin Supreme Court engaged in

this analysis because it believed race had predominated in its own selection of a map.

To the contrary, the selection criteria it stated and applied were entirely race neutral.

Rather, this VRA analysis was a happenstance of the “unusual procedural posture”

confronting the court, App. 27: beyond the undoubted neutrality of its own criteria,

which led it to adopt this map without considering race at all, it wanted to doublecheck that if the Governor had taken race into account in drafting his proposal, he

had done so consistent with the Constitution. This reflected an admirable degree of

caution and rigor on the part of the Wisconsin Supreme Court. But it does not support

a conclusion that the Wisconsin Supreme Court itself allowed race to predominate in

drawing districts, or that any consideration of race by the Governor (in seeking to

comply with the VRA) somehow tainted or infected the Wisconsin Supreme Court’s

own selection process, which was explicitly devoid of any race-based considerations.

See Brnovich v. Democratic Nat’l Comm., 141 S. Ct. 2321, 2350 (2021) (rejecting

attempt to impute discriminatory intent to Arizona legislature based on statements

by the bill’s legislative sponsors or proponents); Backus v. South Carolina, 857 F.

Supp. 2d 553, 564-65 (D.S.C.), aff’d 568 U.S. 801 (2012) (similar in South Carolina).

For these reasons, Petitioners are mistaken: the legislative map chosen by the

Wisconsin Supreme Court resulted from a race-neutral decisionmaking process and

does not trigger strict scrutiny under this Court’s equal protection precedents.

Even if Race Predominated in the Map Adopted Below, the

Wisconsin Supreme Court’s Decision is Correct

That all said, even if this Court does find that the Wisconsin Supreme Court

allowed race to predominate in its map, the record powerfully supports that court’s

conclusion that any such limited consideration of race was justified under Section 2

of the VRA. Based on the substantial evidence before it—including multiple expert

reports—the Wisconsin Supreme Court properly found a strong basis to conclude that

Section 2 required creating one more majority-Black district in Milwaukee.

a. The Wisconsin Supreme Court Correctly Stated the Law

Petitioners identify precious little that the Wisconsin Supreme Court allegedly

got wrong in stating the law—and the few criticisms they level are meritless.

To start with common ground, where race predominates in drawing districts,

strict scrutiny applies. See Cooper, 137 S. Ct. at 1464; App. 26. This Court has long

assumed compliance with the VRA ranks as a compelling interest in such analysis.

See Cooper, 137 S. Ct. at 1464; App. 27. That is partly because the VRA prohibits the

manipulation of district lines in ways that “dilute the voting strength of politically

cohesive minority group members.” Johnson v. De Grandy, 512 U.S. 997, 1007 (1994);

App. 27. When faced with a vote dilution claim under Section 2, courts ask two key

questions: whether the three Gingles preconditions are met, and whether the totality

of the circumstances shows a dilution of minority voting power. See Abbott, 138 S. Ct.

at 2330-31; De Grandy, 512 U.S. at 1007; App. 28. The Gingles factors are especially

important: “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.” Cooper, 137 S. Ct. at 1470; App. 27-28.

As the Wisconsin Supreme Court further recognized—without serious dispute

here from Petitioners—when the Gingles factors and the totality of circumstances

support it, Section 2 can require the creation of a new majority-minority district. See

App. 28; see also, e.g., Bartlett v. Strickland, 556 U.S. 1, 13 (2009) (holding that “§ 2

can require the creation of these districts”); League of United Latin Am. Citizens v.

Perry, 548 U.S. 399, 435 (2006) (LULAC) (holding that Texas should have created six

majority-Latino districts but had instead created only five); id. at 495 (Roberts, C.J.,

concurring) (“[I]n cases involving single-member districts, the question was whether

an additional majority-minority district should be created[.]”).

So far, so good. But as several Justices have noted, putting these principles

into effect is “notoriously unclear and confusing.” Merrill, 142 S. Ct. at 881

(Kavanaugh, J., concurring); accord id. at 883 (Roberts, C.J., dissenting) (finding

“considerable disagreement and uncertainty” in this field).

Over the past decade—and as the Wisconsin Supreme Court described in its

opinion—this Court has responded to such concerns by giving states “‘breathing room’

to adopt reasonable compliance measures.” Cooper, 137 S. Ct. at 1464 (citation

omitted); see App. 28. In case after case, the Court has affirmed that a state need

demonstrate only “good reasons” or a “strong basis in evidence” for its assessment of

what the VRA requires. See, e.g., Abbott, 138 S. Ct. at 2335; Cooper, 137 S. Ct. at

1464; Bethune-Hill, 137 S. Ct. at 801; ALBC, 575 U.S. at 278. This standard is no free

pass: it requires a “strong showing” based on facts and sound analysis. Abbott, 138 S.

Ct. at 2335. But it does not demand unattainable precision that would leave states

“‘trapped between the competing hazards of liability’ under the Voting Rights Act and

the Equal Protection Clause.” Bethune-Hill, 137 S. Ct. at 802 (citation omitted).

Petitioners insist (at 27-32) that this standard does not apply when state courts

are called upon to draw maps. To our knowledge, no court has ever agreed with that

position, which makes it an unlikely basis on which to grant the extraordinary relief

they seek. Regardless, Petitioners’ view is nonsensical. Every reason supporting the

allowance of “breathing room” applies with equal force to both judicial and legislative

map-drawers. If “[t]he law cannot lay a trap for an unwary legislature,” ALBC, 575

U.S. at 278, there is no good reason why it can lay a trap for state courts—many of

whom take on redistricting reluctantly and with limited resources. Forcing judges

(but not legislatures) to find mathematical precision in vote dilution doctrine would

disserve the redistricting process, offend principles of federalism, and invite conflict

and confusion. See id. It would also be inconsistent with this Court’s recognition that

state courts stand in the shoes of states legislature—and exercise a core sovereign

state function—when they redistrict, including when they are drawn into that role by

a malapportionment dispute. See Branch v. Smith, 538 U.S. 254, 272 (2003); Growe,

507 U.S. at 30-31, 33-34; Scott v. Germano, 381 U.S. 407, 409 (1965).

Accordingly, if race predominated in the Wisconsin Supreme Court’s drawing

of district lines, it was required to ascertain whether a “strong basis in evidence” or

“good reasons” supported that consideration of race under Section 2. If so, then it was

proper to allow or require the creation of an additional majority-Black district.

b. The Wisconsin Supreme Court Correctly Applied the Law

The Wisconsin Supreme Court’s VRA analysis centered on whether Section 2

required the creation of an additional, seventh majority-Black district in Milwaukee.

Petitioners focus the bulk of their attacks on this analysis. But in launching these

criticisms, they steadfastly ignore or trivialize the evidence before that court. They

also misdescribe the decision below. Taken on their terms—and approached with all

due deference—the Wisconsin Supreme Court’s findings are right and reasonable.

That analysis began with the Gingles factors. Petitioners largely skip past this

point, but it’s an important one: with respect to a seven-district map, the Wisconsin

Supreme Court found good reason to believe (and no credible reason to doubt) that

all three Gingles factors were satisfied. Indeed, this issue was hardly contested. No

party disputed that the first and second Gingles factors were met (a conclusion

supported by all experts). And nobody disputed that the third Gingles factor was met

until oral argument, when the Legislature raised conclusory objections; the court

rejected these late-in-the-day, unsupported contentions because they were

inconsistent with expert evidence analyzing racially polarized voting behavior in

prior Milwaukee elections.

There is thus no doubt that all three Gingles factors are present here: in other

words, that the Black voting age population in the Milwaukee area is large and

compact enough to form a majority in seven reasonably configured districts; that this

Black voting age population is politically cohesive; and that the risk of vote dilution

is stark because white voters in the area vote sufficiently as a bloc to usually defeat

the Black voting age population’s preferred candidates. See App. 29-32.

Under Cooper v. Harris, that conclusion goes a long way toward establishing a

sufficient basis for believing “that § 2 requires drawing a majority-minority district.”

137 S. Ct. at 1470. Strangely, Petitioners insist that Cooper cuts the other way. Pet.

24-27. But they are mistaken. In the section of Cooper that they repeatedly quote and

cite, the Court held only that a state lacked “good reasons” to believe Section 2

required a majority-minority district where the third Gingles factor was not satisfied.

See 137 S. Ct. at 1470-72. Here, of course, the third Gingles factor is satisfied. So

Petitioners’ reliance on Cooper is simply misplaced. And to the extent Petitioners seek

to relitigate the third Gingles factor, despite failing to brief or develop that position

below (and despite failing to conduct an alternative expert analysis), their position is

foreclosed by numerous detailed expert analyses that the Wisconsin Supreme Court

properly credited in its capacity as finder of fact. See App. 30 & nn.26-27.

After concluding that all three Gingles factors are present, the Wisconsin

Supreme Court turned to the totality of the circumstances analysis. Here, too,

Petitioners find fault, asserting that the court failed to adhere to the text of the VRA,

failed to account for proportionality, and failed to provide specific reasoning. Pet. 2124. Once again—and with respect to each criticism—Petitioners are wholly mistaken.

To start, the Wisconsin Supreme Court expressly framed its totality of the

circumstances analysis by reference to the statutory text, which directs attention to

whether members of a racial group “have less opportunity than other members of the

electorate to participate in the political process and to elect representatives of their

choice.” App. 32 (quoting 52 U.S.C. § 10301(b)). The Wisconsin Supreme Court then

followed this Court’s own clear guidance by undertaking a proportionality analysis in

seeking to evaluate whether the statutory framework supported creation of a new

majority-Black district. App. 32-34 & n.28 (engaging in a proportionality analysis and

discussing this Court’s use of proportionality analysis in LULAC and De Grandy). To

perform that analysis, it started by addressing concrete statewide figures that had

been briefed by the parties and contested by the experts. After finding that statewide

data would “suggest somewhere between six and seven majority-Black assembly

districts are appropriate,” the court looked “a bit deeper” to proportionality data from

Milwaukee County. App. 34. There, it determined, a substantial increase in the

number of Black voters and decrease in the number of white voters over the past

decade indicated a starker disparity and supported the need for a new majority-Black

district. Id. These conclusions were careful, thorough, and well supported. They

constitute precisely the evidence-based reasoning this Court has approved. 7

In finding good reasons to believe an additional majority-Black district was

required, the Wisconsin Supreme Court cited this Court’s holding that “§ 2 does not

require a mapmaker to maximize minority representation.” App. 33. It added: “To be

clear, the VRA does not require drawing maps to maximize the number of majorityminority districts, and we do not seek to do so here.” App. 35. Unimpressed, and

apparently unwilling to take the Wisconsin Supreme Court at its word, Petitioners

devote an entire section of their brief to insisting that the Wisconsin Supreme Court

improperly undertook to maximize majority-minority districts. Pet. 18-21.

7 Petitioners assert that the court “never grappled with the proportionality of the existing six

districts.” Pet. 23. But the entire premise of its statewide proportionality analysis was to determine

how many districts would be proportional: six or seven. It concluded that proportionality could support

either number, and then more carefully probed local conditions to refine its understanding.

Moreover, all of the remaining totality of the circumstances factors strongly supported the

Wisconsin Supreme Court’s conclusion that the requirements of the VRA were met, as demonstrated

by expert reports from Dr. Loren Collingwood and Dr. David Canon. This expert testimony confirmed

the court’s assessment. It also left no doubt that Black voters in Milwaukee face precisely the political

and governmental impediments that the VRA exists to address. Contra Pet. 21-25.

No, it didn’t. The rule against maximization is not a requirement that states

maintain less than the number of majority-minority districts required by Section 2.

Here, all the Gingles factors were fully implicated (even with a seventh district) and

the totality of the circumstances (including proportionality and demographic trends)

strongly supported creating a new majority-Black district. In these circumstances,

the Wisconsin Supreme Court did not seek to maximize. Instead, the only thing it

sought to maximize was the “least changes” approach as compared to the prior 2011

map. Beyond that, it strove only to double-check that the top “least changes” map also

complied with the law—and, based on the record, it had “good reasons” and a “strong

basis in evidence” to determine that the legislative map before it reflected a

reasonable assessment of what Section 2 of the VRA required in Milwaukee.

The Wisconsin Supreme Court had a difficult job to do here. After an impasse

in the Wisconsin political process forced it to draw legislative districts, it received

four separate rounds of briefing and multiple rounds of expert reports and rebuttals.

It issued a detailed opinion adopting the neutral criterion of “least change” analysis

as the North Star of its map selection process. It made clear its intent to ensure the

chosen map complied with an array of state and federal requirements. It held a fivehour hearing with argument from a host of intervenors. And finally, after months of

deliberation and review, it issued an exceptionally thoughtful opinion.

Recognizing the irregular nature of his institution’s role as both map-drawer

and court, Justice Hagedorn adhered to the least-change criterion and selected a map

on that basis. He then double-checked to ensure there were no possible lurking state

or federal defects—and, in so doing, he engaged in a VRA analysis (as urged by every

party) even though his own court had not considered race at all in deciding what the

legislative map would be. This VRA analysis required him to apply a series of vote

dilution doctrines that Members of this Court have criticized as confounding. Yet he

applied them faithfully, carefully, and with close attention to precedent and the

record. His decision is properly reasoned and supported by the facts. Petitioners have

offered no sound reason (let alone an indisputable one) to block it—and, in asking

this Court to do so, they tread far beyond settled limits imposed by Article III.

Given all that, there is no basis for granting extraordinary relief to stay or

summarily reverse the Wisconsin Supreme Court, or to issue a mandatory injunction.

II.

THE EQUITIES WEIGH CONCLUSIVELY AGAINST PETITIONERS’

REQUEST THAT THIS COURT OVERTURN WISCONSIN’S MAPS

Petitioners’ application should also be denied because the equities cut firmly

against their proposed federal judicial intervention in Wisconsin’s electoral process,

which soon confronts a series of statutory deadlines that can be met only through

fast-paced and immediate action by local and statewide officials and candidates.

As Justice Kavanaugh explained earlier this week in voting to deny a request

to alter North Carolina’s congressional districts, “this Court has repeatedly ruled that

federal courts ordinarily should not alter state election laws in the period close to an

election.” Moore v. Harper, No. 21A455, 2022 WL 667937, at *1 (Mar. 7, 2022)

(Kavanaugh, J., concurring in denial of application for stay); see also, e.g., Merrill,

142 S. Ct. at 880-81 (Kavanaugh, J., concurring) (staying federal district court order

requiring Alabama to redraw its congressional district lines in early February).

“Call it what you will—laches, the Purcell principle, or common sense—the idea is

that courts will not disrupt imminent elections absent a powerful reason for doing

so.” Crookston v. Johnson, 841 F.3d 396, 398 (6th Cir. 2016) (Sutton, J.); see also

Purcell v. Gonzalez, 549 U.S. 1 (2006). These decisions reflect “a basic tenet of election

law” that the Court affirmed in another case arising from Wisconsin: “When an

election is close at hand, the rules of the road should be clear and settled.” Democratic

Nat’l Comm. v. Wis. State Legislature, 141 S. Ct. 28, 31 (2020) (Kavanaugh, J.,

concurring in denial of application to vacate stay).

That principle takes on special force where, as here, a federal court is asked to

encroach upon a state’s sovereign prerogative to administer its own electoral process.

Under this Court’s precedents, the state—“through its legislative or judicial branch,”

Growe, 507 U.S. at 33—is entrusted with principal responsibility for carrying out the

redistricting process. See also Miller, 515 U.S. at 915 (holding that redistricting “is

primarily the duty and responsibility of the State”). Accordingly, “[i]t is one thing for

a State on its own to toy with its election laws close to a State’s elections,” but “it is

quite another thing for a federal court to swoop in and re-do a State’s election laws in

the period close to an election.” Merrill, 142 S. Ct. at 881 (Kavanaugh, J., concurring).

That rule is well known to Petitioners, who filed a mandamus petition in this Court

last year expressing outrage at the prospect of a federal court, rather than the

Wisconsin Supreme Court, “oversee[ing] [the] State’s redistricting process.” Pet. for

Writ of Mandamus at 2, In re Wisconsin Legislature, No. 21-474; see also id. at 29

(“States, not federal courts, have primary redistricting responsibility[.]”).

Here, the State of Wisconsin, acting pursuant to its own constitutional process,

through its highest court, and with extensive fact-finding and deliberate process, has

adopted legislative maps for the upcoming election. This federal court, for reasons it

has expressed many times, should not attempt an on-the-fly redo of that process at

this late stage and with minimal briefing. If it was too late in early February for a

federal district court in Alabama to overturn a state’s maps (especially based on its

views about the “notoriously unclear and confusing” interaction of Section 2 and the

Equal Protection Clause), then it follows a fortiori that it is too late in mid-March for

this federal court to overturn Wisconsin’s maps (especially given that Petitioners base

that request on arguments arising from the same legal doctrine at stake in Merrill).

In seeking to resist this conclusion, Petitioners rely on two strategies. First,

they discuss the harms that this Court has recognized in cases involving illegal racial

gerrymanders, which (a) are not present in this case for the reasons given above and

(b) are not different in kind from the alleged harms advanced by other parties who

have unsuccessfully sought late-stage stays of state election procedures.

Second, and most surprisingly, Petitioners simply ignore the extensive briefing

below on the deadlines and procedures for Wisconsin’s election. To hear them tell it,

the primary is scheduled for August 9, 2022, candidates need to qualify between April

15 and June 1, 2022, and there really aren’t any other deadlines of note, so there is

plenty of time to rewrite the legislative map and otherwise tinker with the election.

That account of Wisconsin’s electoral process is jarringly incomplete. A more

accurate picture makes clear that preparing for the August 2022 primary election

and November 2022 general election in Wisconsin is a herculean task—and that it is

too late in the statutorily prescribed electoral calendar to change the legislative map

without inflicting substantial disruption and confusion on candidates, local officials,

and statewide election administrators. See Merrill, 142 S. Ct. at 880 (Kavanaugh, J.,

concurring) (“State and local election officials need substantial time to plan for

elections. Running elections state-wide is extraordinarily complicated and difficult.

Those elections require enormous advance preparations by state and local officials,

and pose significant logistical challenges.”).

An important but oft-overlooked consideration in Wisconsin is that it has a

highly decentralized election system. Although the Wisconsin Elections Commission

(WEC) takes the lead in overseeing the electoral process, there are 1,851 moving

pieces—namely, county clerks, who need to coordinate with WEC and other local

government actors—which means that even seemingly minor changes in legislative

maps have ripple effects across municipalities and impose significant burdens (that

are magnified as the April 15, 2022 nominating petition circulation period

approaches).

For these reasons, WEC explained to the Wisconsin Supreme Court last year

that “in order to enable the Commission to accurately integrate new districting data

into its statewide election databases, and to timely and effectively administer the fall

2022 general elections, a new redistricting plan must be in place no later than March

1, 2022.” WEC Letter at 1. As WEC explained, once new districts are drawn, its staff

“must begin the complex process of recording these new boundaries in WisVote” and

“integrate the new redistricting data with existing voter registration and address

data.” Id. at 2. “This process includes manual review of ward map changes and parcel

boundary data throughout [] Wisconsin.” Id. In addition, “[c]ommunication with

municipal clerks about certain addresses is required because only local clerks would

have such knowledge.” Id. This burdensome and time-consuming process is necessary

to ensure “that each voter receives the correct ballot and is correctly located in their

proper districts.” Id. Moreover, as WEC explained, if legislative maps are not settled

“well before April 15, candidates will not know in what district they reside and in

turn will not know for what office they can run,” and “voters will not know what

candidates’ petitions they may properly sign.” Id. at 2-3. That would be a serious issue

because “[i]mproper residency of both a candidate and a signor of a petition are bases

for a challenge to a candidate’s nomination papers.” Id. Commission staff therefore

need to “produce new district lists for nomination paper review,” and must do so

“before candidates can begin to prepare and circulate nomination papers.” Id.

Given all this, WEC advised that “if new maps are not in place at least 45 days

before April 15, 2022, there is a significant risk that there will be errors in the

statewide system.” Id. More recently, following entry of the Wisconsin Supreme

Court’s decision, WEC has reaffirmed its conclusion that staying or modifying the

legislative maps “would be contrary to the goal of providing final state senate and

assembly district maps in time for them to be properly implemented for the fall

general election.” Letter Br. of Wis. Elections Comm’n at 2, Johnson (Mar. 9, 2022). 8

That is particularly true in light of the fact—unmentioned by Petitioners—that WEC

and county officials are already hard at work administering the Spring 2022

statewide election for certain state executive and judicial officers. WEC Letter at 3.

Petitioners resist all this, asserting (without citing anything) that a stay will

not cause disruption because there is “sufficient time” for officials to reallocate “time

and resources” and implement the Legislature’s preferred map before the April 15

nominating period. Pet. 34-35. But as WEC itself pointed out, it “is in the best position

to say what work its staff needs to do to prepare for the fall election.” See Letter Br.

of Wis. Elections Comm’n at 1-2, Johnson (Oct. 13, 2021). 9 Moreover, WEC is a

bipartisan agency. Here, its six commissioners (of both political parties) took no

position on which map should be adopted, but have remained unanimous in their

conclusions about the risks of staying or altering the State’s legislative maps at this

point in the primary election calendar.

And there is more: if county and statewide elections officials fall behind now,

resulting in delay, confusion, and heightened error rates, there will be cascading

effects across the fast-paced and interconnected deadlines that follow the nominating

petitions period. By June 4, 2022, candidates must file their Statement of Economic

Interests with the state ethics commission, Wis. Stat. § 19.43(4), and any challenges

to nomination papers must be filed, Wis. Admin. Code § EL 2.07(2)(a). By June 7,

8 https://www.wicourts.gov/courts/supreme/origact/docs/wec_mst.pdf.

9 https://www.wicourts.gov/courts/supreme/origact/docs/resltrbriefswec.pdf.

2022, candidates facing challenges to their nomination papers must file a verified

response. See id. § EL 2.07(2)(b). Meanwhile, as those issues are resolved (and there

will be many more of them if this Court changes the maps in the coming weeks),

county clerks must also prepare ballots and send drafts to WEC for review. See Wis.

Stat. §§ 5.72(1), 7.10(2). Once ballots are finalized—and by no later than June 22,

2022—county clerks must deliver ballots and supplies to municipal clerks for the

partisan primary. Id. § 7.10(3). By June 23, any requested absentee ballots must be

delivered, id. § 7.15(cm), and two days later is the federal deadline for transmission

of eligible overseas and military voters, 52 U.S.C. § 20302(a)(8). There are then a

series of continuing deadlines through July and into August. See, e.g., Wis. Stat.

§§ 5.15(6)(b), 5.25(3), 6.02(1-2), 7.50(2)(em), 6.875(6), 10.06(2)(j).

If Petitioners’ application is granted, the foreseeable (indeed, the inevitable)

result will be a significant disruption to local and statewide election administration

in Wisconsin, as well as confusion for candidates and voters—particularly as they

seek to understand what districts they live in, what offices can be sought, and who

can sign which nominating petitions. See Merrill, 142 S. Ct. at 881 (Kavanaugh, J.,

concurring) (warning against “unanticipated and unfair consequences for candidates,

political parties, and voters, among others”). The Wisconsin Supreme Court clearly

took the risk of disruption seriously, issuing a decision on March 1, 2022. That

considered judgment of the experts, officials, and judges charged with supervising

Wisconsin’s upcoming election deserves respect, not the rough treatment that

Petitioners would have this Court inflict.

III. PETITIONERS ARE NOT ENTITLED TO THE REMEDY THEY SEEK

For the reasons just given, Petitioners’ request for emergency relief should be

denied: they fail to establish error (let alone indisputably clear error) in the Wisconsin

Supreme Court’s opinion and the equities cut overwhelmingly against rewriting the

rules for Wisconsin’s upcoming primary. But Petitioners do not seek only a stay; they

also seek a mandatory injunction from this Court “that orders the Legislature’s 2021

districts as the appropriate districts until this Court resolves the Applicants’ request

for review.” Pet. 4-5. To our knowledge, this Court has never issued the unusual

remedy that Petitioners request: throwing out the map adopted by a state’s high

court, selecting its own preferred redistricting plan in the first instance, and then

directing the State to implement that plan during the pendency of an appeal. That

request would be startling in any circumstance. Here, though, it arrives with just

weeks to spare before statutory deadlines requiring substantial advance preparation,

with limited briefing that hardly addresses any of the underlying factual disputes or

evidentiary issues, and with a request that the Court replace in mere days a map that

the Wisconsin Supreme Court adopted after months of study and deliberation.

The standard for a mandatory injunction from this Court is an exceptionally

high one. Petitioners come nowhere close to meeting it. There is no good reason for

this Court to rewrite the rules and award an unprecedented injunction at this stage

in the electoral process. Even if this Court had the most urgent and grievous concerns

about the ruling below (which it should not), the proper course would be a remand to

the Wisconsin Supreme Court with directions to rule expeditiously to try to mitigate

the ensuing disruption. Otherwise, this Court risks ordering the use of a map that

itself violates federal law, and further risks establishing a precedent that invites all

manner of mischief as parties ask this Court for ever-more-disruptive remedies.

This Court Should Not, for the First Time Ever, Undertake the

Act of Redistricting State Electoral Maps in the First Instance

This Court has long acknowledged that “reapportionment is primarily the duty

and responsibility of the State through its legislature or other body, rather than of a

federal court.” Growe, 507 U.S. at 34. Consistent with that principle, and its own state

constitution, the Wisconsin Supreme Court exercised original jurisdiction over this

redistricting matter, conducted five months of highly fact-intensive evidentiary

proceedings, reviewed hundreds of pages of briefs, evidence, and expert reports,

analyzed several proposed maps, and held a five-hour oral argument. See supra pp.

4-10. After careful deliberation and studious application of governing law to the

underlying facts, the Wisconsin Supreme Court adopted the map that made “the least

change” from the 2011 redistricting maps and complied with the law. App. 35.

Even if the Court believed that the Wisconsin Supreme Court committed clear

error in that process, the appropriate remedy would be to send this matter back to

the Wisconsin Supreme Court so that the state court can correct any such errors and

retain its principal role as mapmaker in the redistricting process. It would not be

what Petitioners urge: the United States Supreme Court serving as map-drawer for

Wisconsin and ordering use of a specific map in an emergency posture, on a highly

expedited turnaround, and without full briefing or argument. That course of action

would unquestionably be, in Petitioners’ own words, an “affront to Wisconsin’s

sovereignty.” Petition for Writ of Mandamus at 2, In re Wis. Legislature, No. 21-474.

It would also be exceedingly irregular. When this Court invalidates a state’s

redistricting map, its practice is to remand for further proceedings—not to redraw

the lines itself in the first instance. See, e.g., LULAC, 548 U.S. at 447; Perry v. Perez,

565 U.S. 388, 399 (2012); accord Clark v. Calhoun County, 88 F.3d 1393, 1408 (5th

Cir. 1996); Sanchez v. Colorado, 97 F.3d 1303, 1329 (10th Cir. 1996) (similar). While

lower federal courts have sometimes engaged in map-drawing when faced with state

maps that they view as constitutionally defective, they play that role only rarely and

reluctantly and with significant fact-finding, expert input, and deliberation. Unlike

those lower federal courts, moreover, this Court serves as a forum of “review, not of

first view.” Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005). Particularly given the

deference due to state mapmakers and judicial fact-finders in election law cases—and

also accounting for the unique sovereign interests at stake in our federal system—it

would be a jolting departure from past practice and principle for this Court to issue a

mandatory injunction requiring use of a particular legislative map. See Bethune-Hill,

137 S. Ct. at 800; ALBC, 135 S. Ct. at 1272; Hunt v. Cromartie, 526 U.S. 541, 553

(1999); accord Westwego Citizens for Better Gov’t v. City of Westwego, 872 F.2d 1201,

1203 (5th Cir. 1989) (“We have stressed repeatedly the special need for detailed

findings of fact in vote dilution cases.”). That innovation would surely lead a horde of

future parties to seek comparable relief, and would drag this Court into a thicket it

has never previously seen fit to enter.

Petitioners Ask This Court to Adopt an Interim Map That Raises

Substantial Concerns under the VRA

As if that were not enough, the map that Petitioners ask this Court to mandate

in an emergency posture is itself substantively infirm. In the Wisconsin Supreme

Court’s view, Petitioners’ favored map is “problematic under the VRA.” App. 34. That

conclusion is both correct and entitled to deference. If the coffin were not already

sealed on Petitioners’ unprecedented request, this would surely be the final nail.

In rejecting the Legislature’s proposed map, the Wisconsin Supreme Court

critically noted that the Legislature “submitted a configuration with five majorityBlack districts, and a sixth just under a majority.” App. 34. The court added that one

of the Legislature’s proposed majority-Black districts “has a Black voting age

population of 73.28%, a level some courts have found to be unlawful ‘packing’ under

the VRA.” Id. at 34 (citing Ketchum v. Byrne, 740 F.2d 1398, 1418 (7th Cir. 1984)).

For these reasons, which had been fully briefed before it, the court had “some concern

that a six-district configuration could prove problematic under the VRA.” App. 34.

If anything, the Wisconsin Supreme Court understated the issue based on the

record before it. The Legislature’s proposed map packs 73.28% Black voting age

population into District 11 and 61.81% Black voting age population into District 17,

see App. 178 (expert report of Dr. Clelland). In addition, the Legislature’s map

contains only five performing majority-Black districts because its proposed District

10 contains 47.2% Black voting age population. See App. 34; App. to Resp. Br. of

BLOC, Collingwood Rpt. at 10-12, Johnson (Jan. 4, 2021); Resp. Br. of BLOC at 9,

Johnson (Dec. 30, 2021). By packing Black voters into fewer districts, the

Legislature’s plan “minimize[s] their influence in the districts next door”—a textbook

violation of Section 2 of the VRA. De Grandy, 512 U.S. at 1007.

Despite fulsome briefing on this issue below, and despite an explicit warning

by the Wisconsin Supreme Court that their proposed map may itself be unlawful,

Petitioners devote only a footnote to the point. Pet. 38 n.15. In that footnote, they do

not cite any of the expert reports or findings below, or any of the briefing below that

canvassed this issue, or any of their own statements at oral argument concerning

their own efforts to comply with the VRA, or any cases supporting their bare assertion

that their maps do not “pack” voters in violation of Section 2. For a party to ask this

Court to issue a mandatory injunction imposing a legislative map, and then to say so

little in defense of that map, is itself a sign that their request is beyond the pale.

This Court has never been in the business of mandating specific maps for state

elections. It certainly has never done so on such a thin record, with so little time, in

contradiction of a fulsome state supreme court redistricting process, and with election

officials actively advising that is it too late to change the maps without causing harm

to candidates, voters, and the statewide election administration. Now is not the time

to open that door. Petitioners’ application should be denied in its entirety.

CONCLUSION

Petitioners’ application for a stay and injunctive relief—and alternative

petition for writ of certiorari and summary reversal—should be denied.

Respectfully submitted,