Justia Summary

The 2020 census revealed that Wisconsin’s State Assembly and Senate districts were no longer equally apportioned. The Governor vetoed new maps passed by the legislature. The Wisconsin Supreme Court invited proposed maps and selected the Governor's proposed maps; the Assembly map created seven majority-black districts—one more than the current map. The court stated there were “good reasons” to think that the Voting Rights Act of 1965 (VRA), 52 U.S.C. 10301 “may” require the additional majority-black district.

The U.S. Supreme Court reversed. Under the Equal Protection Clause, districting maps that sort voters on the basis of race cannot be upheld unless they are narrowly tailored to achieving a compelling state interest, such as compliance with the VRA. Preconditions to demonstrating a VRA violation require showings that the minority group is sufficiently large and compact to constitute a majority in a reasonably configured district, the minority group is politically cohesive, and a majority group votes sufficiently as a bloc to enable it to usually defeat the minority group’s preferred candidate. If the preconditions are established, a court considers the totality of circumstances.

The Governor’s main explanation for the seventh majority-black district was that there is now a sufficiently large and compact population of black residents to fill it. Strict scrutiny requires more. The Wisconsin Supreme Court’s analysis of the preconditions improperly relied on generalizations and “made virtually no effort” to parse data at the district level or respond to criticisms of expert analysis. The court improperly reduced the totality-of-circumstances analysis to a single factor–proportionality–and failed to address whether a race-neutral alternative that did not add another majority-black district would deny black voters equal political opportunity.