WUWM: UW Law School report says Wisconsin's maps are the most partisan in the country.

"On every one of these standard partisan fairness metrics, these new maps are the worst, court-adopted maps that we’ve seen anywhere in the country," says Rob Yablon, an associate professor at the law school, who published the analysis.

The analysis finds that Wisconsin's state legislative maps have substantially higher levels of partisan inequity than other court-adopted maps, with a score three to five times worse on each metric. The inequity in these maps means that despite Republicans and Democrats getting approximately the same number of votes statewide, Republican politicians will likely continue to control the vast majority of seats in the Wisconsin state Legislature.
​
Milwaukee Journal Sentinel: Jacob Blake dismisses his lawsuit against Kenosha officer who shot him.

Reuters: The trend of criminalizing student misbehavior.

Much more troubling, teachers and administrators across the state have been routinely referring students’ misbehavior to local police, turning disciplinary issues that might have previously warranted a trip to the principal’s office into law enforcement matters, according to an analysis published April 28 by the Chicago Tribune and ProPublica

The police issue costly tickets to students that carry long-term consequences, including tagging kids with a record and harming future credit scores. And the money extracted from families funds the system itself: It pays for lawyers who prosecute the students and for hearing officers who rule on the cases, according to the Tribune.

The New York Times: The stories of five men claiming innocence who helped each other obtain freedom from New York prisons.

The “Dateline” segments, which were broadcast over the span of a dozen years, bolstered each convict’s claims of innocence with new evidence and new witnesses, highlighting problems in how cases were investigated and prosecuted.

The chance of even a single inmate achieving exoneration is a long shot in the New York State prison system, where out of thousands of inmate appeals, only a handful are successful each year. The fact that these five men rallied to support one another is exceptionally rare.

In interviews with The New York Times, the men discussed how they bonded and worked together in prison to overturn the convictions that put them behind bars for a combined century’s worth of time. One after the other, they were released, but they would continue to help those left behind by visiting, donating money, raising awareness and even searching for other possible witnesses.

Reuters: Moderna argues immunity from any patent infringement regarding COVID-19 vaccine.

Facing claims that its COVID-19 vaccine violates the patent rights of two biopharma companies, Moderna Inc told a Delaware federal court on Friday that the companies should have sued the U.S. government instead.

Moderna said it is shielded from the lawsuit brought by Arbutus Biopharma Corp and Genevant Sciences GmbH, thanks to its agreement to supply the vaccine to the federal government. It cited a federal law that was previously used to keep patent claims from interfering with the supply of war materials during World War I.
​
Intelligencer: Donald Trump's new explanation for not complying with subpoenas: he can't find his cell phones.

In an affidavit filed to the Supreme Court of the State of New York on Friday night, Trump’s lawyers wrote that he could not comply with state attorney general Letitia James’s subpoena to hand over documents related to a civil fraud probe into the Trump Organization because he lost the four cell phones containing those documents. “I don’t know its current whereabouts,” he says in the filing of one of the four phones provided to him by the Trump Organization. “I do not know their current location,” he says of “two flip phones and a Samsung mobile phone” he has owned since 2010 — adding that the Samsung was “was taken from me at some point while I was President.”

Reuters: Retired judge Richard Posner sued for payment regarding short-lived Posner Center for Justice for Pro Se's.

DCist: Fencing and concrete barriers installed around U.S. Supreme Court building.

By Wednesday evening, after two days of demonstrations, workers had begun constructing a “non-scalable,” eight-foot-tall fence around the Supreme Court building, according to NBC, similar to the fencing that surrounded the Capitol for six months following the Jan. 6 insurrection. ...

Despite the ominous optics of the black metal fence and concrete slabs, the demonstrations at the Supreme Court this week have been largely peaceful — prompting criticism of the fencing as perhaps more symbolic than practical. (Some pointed out an apparent hypocrisy in the Court’s protection; in 2014, the Court struck down a law that would have added a buffer zone around clinics that provide abortion services, ruling it impeded on protesters’ First Amendment rights.)  And while it’s the first time in recent years this level of security has been installed around the Supreme Court, Washingtonians are now no strangers to barricades and troops in their home city.

Grid: Other instances of the Supreme Court ruling contrary to public opinion.

A 2021 study found that Americans, by and large, have become more liberal since the 1990s, but six of the Supreme Court justices are staunch conservatives. “We’re going to start to see a court that’s deciding cases out of step with public opinion, and that’s something we haven’t really seen in a long time in this country,” (political scientist Michael J.) Nelson said.

With the court stacked heavily in the GOP’s favor, Nelson expects more decisions to come that will cause an uproar with the American public.

Vox: Warnings about the loss of Supreme Court legitimacy.

The New York Times: Secretive teams within U.S. Border Patrol to be disbanded.

The elimination of the teams was announced Friday in a Customs and Border Protection memo. The decision, according to the memo from Chris Magnus, the agency’s commissioner, was made “to ensure our agency achieves the highest levels of accountability.”

Mr. Magnus, a former police chief, came into the job late last year with a reputation for changing up police department operations to restore public trust. Disbanding the teams — which for decades operated with little to no public awareness — is one of his first significant policy changes at the Border Patrol, which has long been criticized as lacking accountability.​

Reuters: Shareholder lawsuit challenges Elon Musk's takeover of Twitter.

WBAY: Corrections officer asks for National Guard assistance to address prison staffing shortages.

Now, a 23-year veteran of the DOC is warning Governor Tony Evers and lawmakers that backup cannot wait any longer. Through an open records request, Action 2 News obtained the email that employee sent Saturday, asking them to call in the National Guard, writing, “We immediately need the National Guard to be activated and start filling these vacant positions until Madison truly sees the horrifying outcome they have been watching develop since Act 10.”

WPR: A shortage of public defenders amid a 35,000-case backlog.

Wisconsin public defenders say creative solutions are needed to deal with a backlog of thousands of criminal cases in the state's courts.

Last month, Wisconsin State Public Defender Kelli Thompson told WisPolitics a shortage of public defenders means it will take years to get through a 35,000-case backlog. She said her agency, which had around 615 full-time equivalent positions in the 2019 fiscal year, is around 20 percent short of being fully staffed. 

Courthouse News Service: Judge holds that the lame-duck law giving Legislature control over the attorney general's settlement of civil lawsuits is unconstitutional.

(Dane County Circuit Judge Susan) Crawford considered the Legislature’s description of the provision as only giving lawmakers a “seat at the table” to be an understatement.

“It is more accurate to characterize [the statute] as granting absolute power to the Legislature, far greater than a ‘seat at the table’ alongside the prosecutor,” Crawford wrote.

Slate: Arizona's clearing of man for execution highlights the issues regarding application of the death penalty to those with mental illness.

The Hill: U.S. Department of Justice announces new Office of Environmental Justice.

Slate: The most extreme lines from Justice Alito's leaked opinion – and there are many.

Alito justifies overturning nearly 50 years of precedent because he says women don’t have any real reliance on Roe. . . .

Alito cites outdated science and questionable common law from the 17th and 18th centuries (including a 1732 journal called Gentleman’s Magazine) to justify abortion bans that would criminalize women for terminating their pregnancies. . . .

Alito frames himself as a champion of women, who can now decide these issues at the ballot box—without acknowledging those ballot boxes have been rigged by Supreme Court decisions eviscerating voting rights.

The case: Billie Johnson v. Wisconsin Elections Commission

Concurrence: Justice Rebecca Grassl Bradley (49 pages), joined by Justices Patience D. Roggensack and Annette K. Ziegler

Concurrence: Justice Brian Hagedorn (4 pages)

Dissent: Justice Jill J. Karofsky (39 pages), joined by Justices Ann Walsh Bradley and Rebecca F. Dallet (See part 2)

​Majority opinion: Ziegler (50 pages), joined by Grassl Bradley, Hagedorn, and Roggensack (See part 1)

Grassl Bradley's concurrence

This redistricting cycle proceeded in a manner heavily focused on color, supposedly for remedial purposes, but accomplishing nothing but racial animosity as showcased by the dissent's race-baiting rhetoric and condescension toward people of color. 

The United States Supreme Court rejected Homer Plessy's argument that racial segregation violates the Fourteenth Amendment, to its everlasting shame. Plessy exists in our nation's history as a stain, dishonoring America's quest for equality under the law for all, which began with the founding. At times, the United States has strayed from this sacred principle, often on the basis of sham social science of the day promoting the repugnant notion that people of different races would be better off if the law distinguished between them. Allowing social science to infect constitutional analysis inevitably "result[s] in grave abuses of individual rights and liberty." 
 
                                                                                  ***

Judges can certainly consider whether a particular government action has had a disparate impact on minorities – our color-blind Constitution does not countenance ignoring incidents of discrimination. Under a color-blind approach, however, this court may not order a remedy that purports to address racial discrimination by discriminating on the basis of race. The Constitution prohibits this court from sorting people on the basis of their race.

                                                                                  ***

Imposing a race-based redistricting plan, without strong evidence of necessity, endorses the stereotype that people of the same race must think alike and must think differently than people of other races. Governor Evers' plan, adopted by this court on March 3, imposed "distinctions . . . based upon race and color alone," which is "the epitome of that arbitrariness and capriciousness constitutionally impermissive under our system of government."

                                                                                  ***

The inconclusive pseudo-science presented to this court fell far short of justifying race-based redistricting, as the majority opinion thoroughly explains. It amounted to little more than selectively-cited election data, which appears to have been researched only after-the-fact. That is to say, mapmakers seem to have used racial stereotypes, not legitimate social science, to heuristically draw maps that segregated people based on race. No such "shortcuts" are allowed for proponents of race-based redistricting as a remedy for past discrimination. 

The dissent's ambitious attempt to paint Milwaukee County as the Jim Crow-era South reflects "an effort to cast out Satan by Beelzebub." The dissent would remedy what it perceives as racial disparities by literally "draw[ing] lines between the white and the black" with no apparent recognition that doing so replaces one devil with another. 

                                                                                  ***

The people have a "right to know" what happened this redistricting cycle. Unfortunately, media coverage on this case, like on so many others, has been skewed by partisan pundits disappointed in the "results." 

One media outlet went so far as to run a subheadline attacking the motives of the nation's highest court: "The justices [of the United States Supreme Court] are concerned that Wisconsin's legislative maps may give too much political power to Black people." Ian Millhiser, Black Voters Suffer Another
Significant Loss in the Supreme Court, Vox (Mar. 23, 2022)  https://www.vox.com/2022/3/23/22993107/supreme-court-wisconsinrace-gerrymander-voting-rights-act-legislature-electionscommission. Worse still, while accusing the justices of indulging an "inflammatory assumption," specifically, "[t]hat legislative maps with fewer Black-majority districts are often preferred to those that give more power to Black voters," the author made an inflammatory assumption of his own, seemingly designed to foster racial tension. See id.; see also Mark Joseph Stern, The Supreme Court's Astonishing, Inexplicable Blow to the Voting Rights Act in Wisconsin, Slate (Mar. 23, 2022), https://slate.com/news-and-politics/2022/03/supreme-court-voting-rights-shredder-wisconsin.html.

Governor Evers' oddly shaped districts are numerous — and many of the odd shapes in his plan are analogous to the PMC's (People's Maps Commission). For example, Governor Evers redrew Senate District 4, currently represented by Sen. Taylor, to extend into Waukesha and Ozaukee Counties. The result was a substantial decrease in BVAP (Black voting-age population). Under his plan, Assembly District 11 would extend to Mequon. In critiquing a similar feature of the PMC's map, Rep. LaKeshia Myers rhetorically asked, "[w]hy? That's going to cross the county line. Doesn't make sense. Doesn't make sense at all. . . . That's not going to stick when it comes to people's interest. That's not going to stick when it comes to thinking you're going to elect people that look like me."  Without any VRA (Voting Rights Act)-grounded justification, Governor Evers violated Article IV, Section 4 the Wisconsin Construction, which requires assembly districts "to be bounded by county, . . . town, or ward lines[.]" ​

Governor Evers' plan also would have harmed the Black community by forcing it to bear the brunt of disruption stemming from redistricting. While demonstrating high overall core retention, Governor Evers concentrated major changes in Milwaukee County, proposing what the Legislature fairly labelled a "most-change Milwaukee" map. According to the Legislature, Governor Evers' plan would have retained merely 72.6% of Milwaukee-area voters in their current district. In accordance with the principles expounded in our November 30 opinion, this court rightly rejects a "most-change Milwaukee," as the Legislature did with a bipartisan vote months ago. "State authorities" should not "localize the burdens of race reassignment" on a particular community. It leaves "the impression of unfairness" when a discrete and insular minority "disproportionately bears the adverse consequences of a race-assignment policy."

U.S. News & World Report: Judge orders Rep. Robin Vos to stop investigator Michael Gableman's destruction of records.

“I don’t want any records destroyed,” Dane County Circuit Judge Valeria (sic) Bailey-Rihn said. “I’m frankly amazed that I have to say, `Don’t destroy records that are subject to an open records request,' order that to occur. All of us know what the law is.” . . .

“I just can’t believe the explanation is ‘We can’t control our contractors,’" Bailey-Rihn said. "That doesn’t seem to be satisfactory to the court. . . . They have to control their contractors.”

Slate: Justice Roberts' investigation into the leak will be a farce.

We are confident that the marshal, Col. Gail Curley, is highly competent in her duties, which include overseeing the court’s tiny police force, paying out the justices’ salaries, and shouting “oyez.” But count us skeptical that she has the tools necessary to conduct an effective probe of the leak. That’s not her fault, but the court’s: For decades, SCOTUS has resisted adopting the bare minimum reforms necessary to implement and enforce ethics rules, confidentiality guarantees, and basic transparency necessary for maintaining and ensuring the public trust.

The Atlantic: Opinion on what Justice Alito gets right in his leaked opinion.

CBS News: Woman who received second chance in criminal justice system now helping other women get their second chances, too.

CNN: Intuit to pay $141 million to selling claims that it steered customers away from free tax services to paid versions.

Bloomberg Law: No absolute immunity for Louisiana prosecutor and detective who fabricated evidence that resulted in a conviction and death sentence.

Reuters: Federal judge dismisses investor's lawsuit accusing company of fraud for cofounder's impersonation of a YouTube executive.

WKOW: Attorney General Josh Kaul says he's not planning to enforce old abortion prohibition if Roe v. Wade is overturned.

"Whether a law that has been dormant for essentially two generations would all of a sudden spring back to life is really an unprecedented issue," Kaul said. "I think there'd be litigation over that."

Kaul, the state's top law enforcement official, said his office would not uphold the abortion law, saying the Wisconsin Department of Justice was better served focusing its resources on other crimes like homicide and drug trafficking.

Wispolitics.com: Governor Tony Evers appoints Ryan Hetzel to Washington County Circuit Court.
The New York Times: Who benefits from the Supreme Court leak?

Kermit Roosevelt, a law professor at the University of Pennsylvania, said the source was probably trying to increase the price of switching positions.

“In terms of who leaked it and why, it seems much more likely to me that it comes from the right in response to an actual or threatened defection by one of the five who voted to overturn Roe,” he said. “Leaking this early draft makes that more costly for a defector because now people will think that they changed their vote after the leak in response to public outrage.”

The Guardian: More on the Supreme Court draft-decision leak, including statements from Marquette University law professor.

Edward Fallone, an associate professor at Marquette University Law School in Milwaukee, Wisconsin, said: “It’s unprecedented. Even those few instances where a law clerk, after leaving the court, wrote a ‘tell-all’ book was viewed as unprecedented then, but for a draft opinion in the midst of the process to come out, I can’t think of any single example.”

Reuters: Federal government to extend immigrant work permits due to renewal-processing backlog.

Yahoo (Associated Press): Judge denies motion to dismiss lawsuit seeking government liability for 1921 Tulsa massacre.

The city and insurance companies never compensated victims for their losses, and the massacre ultimately resulted in racial and economic disparities that still exist today, the lawsuit claims. In the years following the massacre, according to the lawsuit, city and county officials actively thwarted the community’s effort to rebuild and neglected the Greenwood and predominantly Black north Tulsa community in favor of overwhelmingly white parts of Tulsa.

USA Today: Tennessee governor suspends 2022 executions to review lethal injection process.

 Note: Hey, this one is a little different! WJI's "SCOW docket" pieces generally include decisions, dissents and concurrences all in one post. This time, with this case, we are doing it in three: First we shortcutted the decision, then the dissent, and next the concurrences. Why? Because this package of writings, and the strange U.S. Supreme Court decision that led to it, are extremely important to the state and country. Besides that, the SCOW decisions are unusually long – 142 pages, all in, not counting the cover sheets.

And instead of allowing each writing justice 10 paragraphs, we are giving each 15. Other than that, the rules remain the same. We've removed citations from the opinion for ease of reading, but have linked to important cases cited or information about them. ​Italics indicate WJI insertions except for case names, which also are italicized.

The case: Billie Johnson v. Wisconsin Elections Commission

Dissent: Justice Jill J. Karofsky (39 pages),  joined by Justices Ann Walsh Bradley and Rebecca F. Dallet

Concurrence: Justice Rebecca Grassl Bradley (49 pages), joined by Justice Patience D. Roggensack and Chief Justice Annette K. Ziegler

Concurrence: Justice Brian Hagedorn (4 pages)

​Majority opinion: Ziegler (50 pages), joined by Grassl Bradley, Hagedorn, and Roggensack (See part 1)

Karofsky begins her dissent with a bit of background on the "odyssey" that led to SCOW's original decision to select redistricting maps submitted by Gov. Tony Evers. That decision was appealed to the U.S. Supreme Court, which overturned it and sent it back to SCOW, which then selected maps submitted by the Legislature.

We are careening over the waterfall because the Legislature's maps fare no better than the Governor's under the U.S. Supreme Court's rationale. If, according to the U.S. Supreme Court, the Governor's addition of a Milwaukee-area majority-minority district evinces a disqualifying consideration of race, then the Legislature's removal of a Milwaukee-area majority-minority district reveals an equally suspect, if not more egregious, sign of race-based line drawing. In addition, if a further-developed record is required to definitively determine whether the Governor's seventh majority Black district is required then a further-developed record is also required to definitively determine that the Legislature's removal of a majority-minority district does not violate federal law. The Court indicated that in a case like this where the court sits as the map-drawer in the first instance, the court, rather than the parties, are responsible for showing that the number of majority-minority districts required by the VRA (Voting Rights Act) constitutes the narrowly tailored remedy allowed under the Fourteenth Amendment's Equal Protection Clause. In choosing the Legislature's maps the majority repeats this court's reversible mistake by again failing to implement fact-finding procedures conducive to addressing the relevant issues under both the VRA and the Equal Protection Clause.
                                                                            ***
Karofsky briefly traces Milwaukee's history of segregation and discrimination.

The VRA's application in redistricting is designed to remedy precisely these kinds of historical wrongs – those that create current barriers to democratic participation. Instead of allowing the past unconstitutional practices of redlining and racially restrictive covenanting to continue limiting Black people's opportunity to participate in our democracy, the VRA establishes that it is a sufficiently compelling government interest to draw districts that counteract the historical racial ​gerrymander.

We must, of course, also consider the Fourteenth Amendment's Equal Protection Clause. And in doing so, it is impossible to ignore the 180-degree turn from that clause's purpose to how it has been wielded in this case. Ratified in 1868 after the Civil War, the Fourteenth Amendment demands that no state shall "deny to any person within its jurisdiction the equal protection of the laws." Since Brown v. Board of Education, the Equal Protection Clause has been invoked to desegregate this country, protect the voting rights of its citizens, and fight discrimination in its many forms.

More recently, the Equal Protection Clause has been turned on its head and used, not to fight against the constant pull of our collective historical failing toward the promise of a better future, but to bar our government's ability to remedy past mistakes. The majority opinion perfectly captures this reversal by relying on cases pontificating that "[r]acial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions," and that "[r]ace-based assignments . . . embody stereotypes that treat individuals as the product of their race[.]"  This argument is nothing short of gaslighting, seemingly denying Milwaukee's history of purposeful racial segregation. It was unrelenting overt racial discrimination that balkanized Milwaukee into "competing racial factions" and reduced Black individuals to a "product of their race." The fault and responsibility to remedy this systemic segregation lies not with Milwaukee's residents but instead with the government and the society that perpetuated racial redlining and restrictive covenants. Those practices shaped Milwaukee and that history of discrimination cannot be undone by force of will alone. 

The Milwaukee area perfectly demonstrates why the VRA's race-conscious remedy is often needed. Segregation of minority communities does not happen accidentally. If this country were anywhere close to living up to the "goal of a political system in which race no longer matters," then maybe we could apply the promise of Equal Protection in a race-blind manner. But the overwhelming evidence shows that we have not lived up to that goal. As such, a race-blind and effects-blind application of the Equal Protection Clause has become a sword against progress wielded by majority groups who fear giving away too much of their accumulated power. I fervently hope it will regain its place as a shield against harmful discriminatory action.

                                                                            ***

Prior to the U.S. Supreme Court's decision, an Equal Protection analysis began with whether "race was the predominant factor motivating the [map-drawer]'s decision to place a significant number of voters within or without a particular district. That entails demonstrating that the [map-drawer] 'subordinated' other factors –compactness, respect for political subdivisions, partisan advantage, what have you – to 'racial considerations.'" Yet, the Court's opinion did not first analyze whether race was the "predominant factor" motivating this court's districting decisions. Instead, it appeared that the Court took this court's limited analysis regarding the VRA, meant only to ensure the least-change map did not violate that law, as evidence that race – not least change – predominated our choice of maps. Our March 3 opinion never professed as much. 

While the U.S. Supreme Court's opinion said it was unclear whether this court viewed itself or the Governor as the map-drawer, we plainly stated that the court itself was the map-drawer. ("As a map-drawer, we understand our duty is to determine whether there are 'good reasons' to believe the VRA requires a seven-district configuration.")

                                                                            ***​

Despite our clear declaration that "least change" predominated our choice of maps, and despite the purported purpose of "least change" as a neutral criterion to shed ourselves of the political baggage that would be inherent in party-drawn maps, the Court nonetheless transposed the Governor's motivations onto this court. We are left to conclude that the motivations of the party submitting the map are the relevant motivations we must analyze going forward. This court can no longer hide behind a "least change" gloss to ignore a party's ulterior motives. 

The U.S. Supreme Court left us with other unanswered questions:

• Is the court required to fully address a VRA challenge when selecting a purportedly race-neutral map or have we been given carte blanche to ignore federal law?
• Which race-neutral configuration was the court to use when analyzing the Governor’s maps given the myriad potential "race-neutral" district configurations in Milwaukee?
• How do we proceed if the process we adopted prevented the parties from sufficiently testing the evidence necessary for a VRA determination?
• Could this court simply explain ourselves further to satisfy the Court's newly voiced standard?

The majority opinion attempts to shift the blame by noting that the parties stipulated through their joint discovery plan that they did not anticipate discovery "beyond the exchange of maps, expert disclosures, and any documents or data that a party intends to rely upon or an expert has relied upon." But we had the authority, indeed the responsibility, to direct further discovery or examination of expert witnesses. This court's initial reliance on the joint discovery plan was guided by the court's "least change" directive, which failed to account for the full and definitive Equal Protection or VRA inquiry the U.S. Supreme Court now demands. This persistent imprudence in developing a record has now led us to a legally untenable outcome at odds with the Court's directive. The Equal Protection and VRA claims usually litigated after the implementation of a remedial map must now be fully adjudicated as part of this decision – an impossible task on this record.

                                                                            ***
The Legislature's maps fail for two reasons: first, we are not to act as a gubernatorial veto override body; and second, the Legislature's maps show evidence of racially motivated packing and cracking that could violate both the Equal Protection Clause and the VRA. ​​

The Legislature's maps derive from a failed political process. In Wisconsin, the redistricting process follows the same process as the enactment of any law. Both houses of the legislature must pass a bill containing new maps, which is then presented to the governor who may approve or veto the bill, the latter of which the legislature may override with a supermajority vote. Here, the Legislature, having failed to override the gubernatorial veto, submitted the very same proposal to us. By now implementing that failed bill, this court judicially overrides the Governor's veto, thus nullifying the will of the Wisconsin voters who elected that governor into office. But our constitution provides only one avenue to override such a veto; no judicial override textually exists. Nor, historically, has this court ever exercised such a supreme power. By judicially enacting the very bill that failed the political process, a bare majority of this court, rather than a supermajority of the legislature, has taken the unprecedented step of removing the process of lawmaking from its constitutional confines and overriding a governor's veto ourselves. ​

In addition to being derived from a failed political process, the Legislature's maps show signs of violating the Equal Protection Clause. If, as the U.S. Supreme Court explained, the Governor's addition of a majority-minority district sufficed to show that race predominated its proposal, then equally, if not more, suspect is the Legislature's removal of a majority-minority district. Despite the majority opinion's assertions, the Legislature's maps do not appear to be race-neutral and calling the claim "indisputable" does not make it so. The Legislature's claim that it drew its maps without considering race, quite frankly, flies in the face of its transfiguration of Milwaukee's six current districts with a Black voting age population (BVAP) majority. In Milwaukee, the BVAP increased 5.5 percent while the White voting age population decreased 9.5 percent over the last decade. Those demographic changes make the Legislature's draw down of BVAP percentage in five out of six VRA districts – one by over 12 percent – with the remaining VRA district packed at 73.3 percent BVAP highly suspicious.

                                                                            ***

Self-serving professions of race-neutrality should also be ignored because the Legislature offered no alternative reasons for making decisions regarding Milwaukee's districts. The Legislature's "least change" pretext fails when it openly admits its Milwaukee-area changes substantially differed from its treatment of the rest of the state. Nor can the Legislature justify its unique redrawing of Milwaukee districts on a desire to keep municipalities whole; it split at least one relevant village, Brown Deer, by dividing its Black population between two districts. Respecting "communities of interest" also fails to justify the Legislature's actions because no party submitted evidence establishing such communities. That leaves the more nefarious partisan advantage reasoning – a reliable pretext for racial motivations. But a neutral judicial body cannot adopt a map on such a justification, especially now that the party's motives are imputed onto the court. The Legislature also has not, and could not, claim such a justification as this court barred consideration of partisanship in our redistricting process. As such, no judicially acceptable justification for the Legislature's Milwaukee-area redistricting decisions exists.

                                                                            ***

This has been a profoundly disheartening odyssey. The unavoidable political nature of remedial redistricting plagued us every step of the way. Too rarely did this process present true questions of law – this court's only area of expertise. At every change in the tide, this court seemed to choose what it hoped to be a short-cut to streamline our voyage, only to find ourselves lost and unable to do our work as a non-partisan court of law. But the redistricting process is likely to stalemate and come before this court again in the future. And when it does, I hope that we have learned our lesson. I hope that we will permit a politically insulated federal court to manage the task. Federal courts are better able to conduct extensive factfinding through trial-style litigation, a task for which we proved ill equipped. ​

Milwaukee Journal Sentinel: Almost all abortions will be illegal in Wisconsin if U.S. Supreme Court overturns Roe v. Wade.

If the opinion holds and the 1973 decision is overturned, a 19th century state law would go back into effect that bans Wisconsin doctors from performing abortions except when saving the life of the mother. 

If the state's abortion law went back into effect, doctors could be charged with felonies for performing abortions and face up to six years in prison and $10,000 in fines. Wisconsin lawmakers passed the law in 1849, a year after Wisconsin became a state.

Milwaukee Journal Sentinel: Judge says Cedarburg School District must reopen racial-discrimination investigation.

Slate: Leaked Alito draft shows overturning of Roe v. Wade and possibly more. (Mark Joseph Stern will likely have more to say about this at WJI's May 19 event. Register here.)

It is also remarkably extreme. Alito’s Dobbs opinion does not seek out any middle path. He disparages Roe and its successors as dishonest, illegitimate, and destructive to the court, the country, and the Constitution. He quotes a wide range of anti-abortion activists, scholars, and judges who view abortion as immoral and barbaric; there’s even a footnote that approvingly cites Justice Clarence Thomas’ debunked theory that abortion is a tool of eugenics against Black Americans.

And he disavows the entire line of jurisprudence upon which Roe rests: the existence of “unenumerated rights” that safeguard individual autonomy from state invasion. Alito asserts that any such right must be “deeply rooted” in the nation’s history and tradition, and access to abortion has no such roots.

The obvious problem with this analysis is that the Supreme Court has identified plenty of “unenumerated rights” that lack deep roots in American history. Most recently, the court established the right of same-sex couples to be intimate (2003’s Lawrence v. Texas) and get married (2015’s Obergefell v. Hodges). Alito dismissed both decisions in harsh terms, mocking their “appeals to a broader right to autonomy” as a slippery slope. The “high level of generality” in their reasoning, he wrote, could “license fundamental rights to illicit drug use, prostitution, and the like.” It is difficult to square this opprobrium toward Lawrence and Obergefell with Alito’s later assurance that his decision “should not be understood to cast doubt on precedents that do not concern abortion.” This unreasoned disclaimer is not worth much on the heels of 62 pages shredding dozens of precedents over a half-century.

The Washington Post: Effects of the unprecedented leak of a Supreme Court draft opinion.

Leaks are damaging for the court because the rule of law should speak with a final voice, not a tentative one. A draft opinion is a tentative thing, a work under development. It isn’t the law.

Negotiations about opinions follow an internal logic — and a private one. If this draft can be leaked, anything can be. That changes the game, probably forever. Justices won’t be able to make suggestions or proposals without worrying about them becoming public. The whole way the court reaches decisions is now poised to change.

The National Law Review: Fifth Circuit Court of Appeals upholds President Joe Biden's replacement of general counsel for National Labor Relations Board.

NPR: Special grand jury seated in Fulton County, Georgia, to investigate whether illegal interference with 2020 election occurred.

It's not clear exactly what charges (Fulton County District Attorney Fani) Willis could choose to pursue against (Former President Donald) Trump or anyone else. In a letter she sent to top-ranking state officials last year, she said she was looking into "potential violations of Georgia law prohibiting the solicitation of election fraud, the making of false statements to state and local government bodies, conspiracy, racketeering, violation of oath of office and any involvement in violence or threats related to the election's administration."

Wisconsin Watch: Questions about the doctor whose abusive-head-trauma diagnoses underlie convictions of people who continue to claim they're innocent.

(Dr. Barbara) Knox testified to a “reasonable degree of medical certainty” that each child died from abuse. Defense experts, who specialized in pediatric neurology and forensic neuropathology, blamed other possible conditions, saying they saw no signs of abuse. 

“It would be most unusual to have a fatal head injury without an obvious large bruise on the scalp and a skull fracture,” Black’s expert, neuropathologist Dr. Jan Leestma, said in a report. “This child doesn’t have any of these things.” 

Reuters: Seventh Circuit Court of Appeals rejects latest challenge to Wisconsin's mandatory bar dues.

The CT Mirror: Criminal justice reform bills are lingering in Congress.

President Joe Biden campaigned on reforming and strengthening the criminal justice system, but critics say his administration has allowed many of those issues to fall by the wayside. This week, Biden took a significant step by commuting the sentences of 75 individuals with drug-related convictions and granting pardons to three. The move broke with a long streak of presidents who have not used their executive clemency powers during their first two years in office – the last was George H.W. Bush in 1989, when he granted nine pardons and one clemency petition.

But many of Biden’s other major commitments, such as ending the federal death penalty and incarceration for drug use alone, haven’t been fulfilled. And in Congress, other proposed prison reform bills have stalled.

USA Today: Bipartisan reforms needed to address over-incarceration.

It’s important to understand just how harsh the U.S. criminal legal system is. Our courts dole out some of the longest punishments in the entire world. More than 200,000 people in the United States are serving life sentences and have virtually no hope of getting out. And between 1986 and 2016, the average time spent incarcerated for a federal drug offense more than tripled.

The Hill: Biden Administration updates regulations implementing National Environmental Policy Act.

For years, courts have held that NEPA requires agencies to consider direct, indirect and cumulative impacts. Agencies cannot permit oil and natural gas development and then pretend that combustion of those resources will not impact our air or climate. But that is precisely what the prior administration attempted to do by defining away most impacts, inviting five lawsuits claiming the Trump administration’s regulations failed to live up to the statute’s demands. The new NEPA regulations resolve that mistake.

Reuters: Second Circuit Court of Appeals hears argument on whether the Sacklers should get bankruptcy protection from lawsuits as part of settlement of Purdue Pharma opioid litigation.

The Sacklers should not be allowed to benefit from bankruptcy protections without filing for bankruptcy themselves, attorney Michael Shih said.

Politico: Donald Trump's attorney John Eastman to produce another 10,000 documents to the January 6 committee.

The upshot

Upon review of the record, we conclude that insufficient evidence is presented to justify drawing state legislative districts on the basis of race. The maps proposed by the Governor, Senator Janet Bewley, Black Leaders Organizing for Communities ("BLOC"), and Citizen Mathematicians and Scientists ("CMS") are racially motivated and, under the Equal Protection Clause, they fail strict scrutiny.

By contrast, the maps proposed by the Wisconsin Legislature are race neutral. The Legislature's maps comply with the Equal Protection Clause, along with all other applicable federal and state legal requirements. Further, the Legislature's maps exhibit minimal changes to the existing maps, in accordance with the least change approach we adopted in Johnson v. Wis. Elections Comm'n. Therefore, we adopt the state senate and assembly maps proposed by the Legislature for the State of Wisconsin. ​

Background

In 2011, the Wisconsin Legislature passed and the Governor signed state legislative and congressional maps after the 2010 census. Over the subsequent ten years, the population of Wisconsin changed; people moved away from some areas and people moved into others. These changes were recognized in the 2020 census, which identified a population increase in the state from 5,686,986 to 5,893,718. 

The Petitioners filed this original action in August 2021 to remedy alleged malapportionment in Wisconsin's state legislative and congressional maps. In September 2021, this court accepted the case, and in October 2021, the court directed the parties to file briefs addressing what factors the court should consider when selecting new maps. ...

On November 30, 2021, the court issued a decision explaining the framework by which the court would select maps. The court identified that under the Equal Protection Clause of the United States Constitution, "a State [must] make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as practicable...."  

The court explained that, in addition to satisfying all Equal Protection Clause requirements, the court must consider compliance with Section 2 of the Voting Rights Act ("VRA"). ...

In its November 30 decision, the court adopted the "least change approach," whereby the court would select maps that "comport with relevant legal requirements" while "reflect[ing] the least change necessary." The court rejected the suggestion that the court consider partisan fairness and proportional representation of political parties when selecting maps.

                                                                                       *** 

On March 3, 2022, the court issued a decision adopting the Governor's state legislative and congressional maps. The court reasoned that the Governor's maps included the least alterations to preexisting maps. In addition, the court said that the Governor's maps complied with the Equal Protection Clause, the VRA, and the Wisconsin Constitution. 

After the court issued its March 3 decision, the Petitioners and the Legislature sought certiorari review by the United States Supreme Court, asserting that the court's adoption of the Governor's state legislative maps constituted a racial gerrymander in violation of the Equal Protection Clause. ...

On March 23, 2022, the United States Supreme Court reversed the court's decision to select the Governor's state legislative maps. The Supreme Court confirmed that, under the Equal Protection Clause, a state government cannot draw district maps on the basis of race unless the state satisfies strict scrutiny. However, the state must possess this evidence before it creates maps based on racial classifications. 

In the case before this court, the Supreme Court reasoned that, based on the filings and presentations made by the Governor, the Governor had failed to present a strong evidentiary basis for believing the VRA mandated the district lines he drew. Specifically, the Supreme Court identified that the Governor's primary explanation for his racially drawn maps was the fact that it was cartographically possible to draw them.  According to the Supreme Court, "[s]trict scrutiny requires much more." Based on the record, the Governor's maps failed to satisfy this legal standard. ...

The Supreme Court remanded the case to us for further proceedings. The Court explained that we could "choose from among...other submissions." Alternatively, the court could "take additional evidence if [we] prefer[ed] to reconsider the Governor's maps." It instructed, however, that "[a]ny new analysis...must comply with our equal protection jurisprudence."

                                                                                       *** 
​
The Supreme Court has demanded that three specific preconditions be met before it can conclude that the creation of additional majority-minority districts may be necessary: "(1) the racial group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) the racial group is politically cohesive; and (3) the majority vote[s] sufficiently as a bloc to enable it . . . usually to defeat the minority's preferred candidate." These three requirements are called the "Gingles preconditions." ...

The VRA requires an "intensely local appraisal" which "pars[es] . . . data at the district level" and evidences a lack of minority electoral opportunity, such that a race-based remedy is needed. ...The inquiry is emphatically not to create "the maximum number of majority-minority districts," regardless of the on-the-ground characteristics of the minority communities under consideration. ...

The guts

​Here, examining the available record, we conclude that there is not a "strong basis in evidence" that the VRA requires the use of race to draw majority-black legislative districts. Specifically, there is insufficient evidence to demonstrate that here, black voters have their choice of candidate blocked by a cohesive and oppositional voting bloc. 

The Governor failed to present evidence that a race-based remedy was necessary under the VRA, but nonetheless drew districts on the basis of race to create seven majority-black districts. The Supreme Court recognized that the Governor "provided almost no other evidence or analysis supporting his claim that the VRA required the seven majority-black districts that he drew."  The Supreme Court further noted that the Governor's "main explanation for drawing the seventh majority-black district was that there is now a sufficiently large and compact population of black residents to fill it apparently embracing just the sort of uncritical majority-minority district maximization that we have expressly rejected."  This is clearly in violation of the Equal Protection Clause, as a race-based remedy cannot precede proof of a VRA violation. ...

The Governor's maps were racially motivated and are thus subject to strict scrutiny. ...

He produced no evidence of electoral history and no district-specific evidence demonstrating that the black communities he moved among districts would be denied the opportunity to effectively participate in democracy absent his proposed district lines. ...

(Ziegler outlined reasons for rejecting maps submitted by Bewley, BLOC, and CMS. All, she said, failed to meet VRA requirements.)

In contrast to the maps proposed by the Governor, Senator Bewley, BLOC, and CMS, the Legislature's proposed maps are indisputably race neutral. No party argued and no evidence was provided demonstrating that the Legislature's maps were, in fact, not race neutral. The Legislature affirmed multiple times that the maps proposed by the Governor and BLOC to create exactly 51% BVAP (Black voting-age population) districts were a "racial gerrymander," and by contrast, the Legislature utilized "race-neutral criteria" to draw districts in the Milwaukee area, as it did for all other citizens regardless of race in the remainder of the state. Unlike the other parties, the Legislature never asserted that the Gingles preconditions required the drawing of majority-black districts. To the contrary, the Legislature's expert stated correctly that "the electoral patterns detailed by [BLOC] raise serious doubts about whether the Gingles threshold standard is currently met." 

                                                                                       *** ​

Only those maps that purposefully discriminate between individuals are subject to strict scrutiny. Maps come under strict scrutiny "not just when they contain express racial classifications, but also when, though race neutral on their face, they are motivated by a racial purpose or object." The standard to demonstrate racial motivations through circumstantial evidence alone is high and rarely met. The map must be "so highly irregular that, on its face, it rationally cannot be understood as anything other than an effort to segregate[e] ... voters on the basis of race."

                                                                                       *** 

No such evidence of discriminatory intent has been provided, and, with the presumption of good faith in mind, we cannot conclude that the Legislature's maps are so highly irregular that they are "unexplainable on grounds other than race." Unlike the Governor and BLOC, who carefully calibrated BVAP in their districts, the BVAP in the Legislature's districts varies depending on the unique geography and community characteristics of those districts. BVAP in the Legislature's districts varies from 45.8% to 71.5%. In so doing, the Legislature's maps perform very well in race-neutral criteria. Out of the plans proposed, the Legislature's maps have low population deviation and have a low number of local government splits, including in the Milwaukee-area districts. In addition, the Legislature's maps include few incumbency pairings, and they move few voters into new senate districts with different election cycles. Those characteristics are seen in the Milwaukee-area districts, as they are throughout the state. Further, the districts with high BVAP are compact and do not have "highly irregular" features common to racial gerrymanders. ... When drawing districts, race-neutral considerations drove the Legislature's decisions; racial targets did not. ...

No party challenged or presented evidence which would support a claim that any of the districts in the Legislature's maps were racially motivated. In addition, no evidence was presented in the record that could overcome the presumption of good faith or show that any district lines in the Legislature's maps, including those districts with high BVAP, were "unexplainable on grounds other than race."

The Governor and BLOC argue that the Legislature's maps violate the VRA by having one assembly district at 45.8% BVAP and another at 71.5% BVAP. However, neither the Governor nor BLOC cite authority standing for the position that, using race-neutral redistricting criteria, having low or high percentages of black voters in a given district on its own violates the VRA. ...

The Governor and BLOC also argue that the Legislature's 10th assembly district, which has 45.8% BVAP, does not provide effective democratic opportunity for black voters. Thus, the Governor and BLOC aver that the Legislature's maps include only five effective black assembly districts. However, assembly district 10 does not create a VRA violation because the Gingles preconditions are not satisfied – namely, the record does not demonstrate that black voters are usually denied their preferred candidate. In fact, the evidence demonstrates otherwise. ...

The Governor and BLOC point to BLOC's analysis on a single election result, the 2018 Democratic Gubernatorial Primary, to demonstrate that the 10th assembly district violates the VRA. We are unaware of a single case that has found the existence of a strong evidentiary record, applied the VRA, and satisfied strict scrutiny through consideration of a single result from an exogenous election in a party primary. ...

Even so, under BLOC's own statistics, the black preferred candidate won in the Legislature's 10th assembly district by a comfortable margin. According to BLOC, the black preferred candidate, Mahlon Mitchell, won a plurality of the vote and beat the next strongest candidate, the Governor, 39% to 29%. This indicates that the Legislature's 10th assembly district supports black preferred candidates, not that white coalitions stymie black electoral opportunity in violation of the VRA. ...

[T]he Legislature provides its own analysis on the 10th assembly district that contradicts BLOC's conclusions. The Legislature did not rely on one election, but instead considered the 2018 Democratic Lieutenant Gubernatorial Primary in addition to the 2018 Democratic Gubernatorial Primary. Not only did the Legislature find that the 10th assembly district selected the black-preferred candidate in the gubernatorial primary (as did BLOC), the Legislature also found that the 10th assembly district supported the black-preferred candidate in the lieutenant gubernatorial primary by a wide margin. Given this evidence, the Legislature concluded that this district would not usually exhibit white coalition voting blocking black-preferred candidates. In addition, CMS analyzed the Legislature's 10th assembly district by considering whether "the outcome in most general elections favors the Black candidate of choice" and whether "Mandela Barnes and Mahlon Mitchell [the black candidates of choice in the 2018 Democratic lieutenant gubernatorial and gubernatorial races] perform strongly in their respective 2018 Democratic primary elections." CMS concluded that the Legislature's 10th assembly district was "perfectly effective" for black voters. On this record, we cannot agree with the Governor and BLOC that the Legislature's race-neutral proposal would violate the VRA. ...

                                                                                       *** 

​Because the maps submitted by the Governor, Senator Bewley, BLOC, and CMS are eliminated for being racially motivated, we concentrate our review on the Legislature's maps. In maximum population deviation, the Legislature's maps perform exceptionally well. The Legislature's maps recognize the sizable population shifts, keep Wisconsin citizens in their existing districts and also achieve population equality across districts. The Legislature's maximum population deviation is .57% for the Senate and .76% for the Assembly. This is in line with deviations accepted by federal courts. 

                                                                                       *** 

The Legislature's maps comply with the Equal Protection Clause, along with all other applicable federal and state legal requirements. Further, the Legislature's maps exhibit minimal changes to the existing maps. Therefore, we adopt the state senate and assembly maps of the Legislature for the State of Wisconsin. 

Next: The dissent. Karofsky takes on the SCOW majority and the U.S. Supreme Court.