The SCOW docket: The redistricting decision, part 3 – the concurrences

 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 now 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

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

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." 
 
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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.

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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."

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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. 

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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.

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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."

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. - Wisconsin Supreme Court Justice Rebecca Grassl Bradley

In contrast to Governor Evers' plan, the Legislature's plan does not engage in the systematic and discriminatory dismantling of districts in Milwaukee. Governor Evers would sever Black voters' existing constituent-representative relationships and undermine existing voter coalitions, while largely preserving them for White voters. Whether maximizing majority Black voting districts would actually benefit the Black community remains highly suspect. Had it survived the scrutiny of the United States Supreme Court, Governor Evers' plan arguably would have limited Black communities' political power. Senator Lena Taylor wrote an amicus brief to the United States Supreme Court explaining how Governor Evers' maps "dilute[] the voting strength of Black voters in Wisconsin." She continued, "the [Wisconsin] supreme court's conclusion – with no analysis whatsoever – that the Governor's map complies with the Voting Rights Act is clearly erroneous. ... It made no determination of whether the Governor's map – or any other – contains seven Assembly districts with an effective Black majority."

The Legislature has repeatedly told this court its maps are race neutral. No party presented any evidence to this court calling into question the Legislature's attorneys' compliance with their duty of candor, but the dissent nevertheless lodges the accusation. 

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Governor Evers' maps reflect a longstanding practice of using the VRA as a shield to justify partisan gerrymandering. As a proper reading of Cooper v. Harris confirms, the Constitution prohibits this. Contrary to the dissent's misreading of Cooper, the case establishes why Governor Evers' maps raise serious equal protection problems while the Legislature's maps do not. Although this court does not consider partisan fairness in redistricting, it should be skeptical of VRA claims presented by partisan actors who do not even try to provide evidence sufficient to survive strict scrutiny. 

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The dissent errs by making assumptions unsupported by the record. For all we know, adopting any particular number of majority-minority districts could dilute the Black vote. In fact, we have good reason to believe Governor Evers' maps would do exactly that because a plethora of data suggests White voters are not inhibiting the success of Black-preferred candidates. If we were to draw additional Black majority districts, what BVAP should we set? What BVAP will assure Black voters sufficient success without wasting their votes? The dissent does not say because it cannot say.

Contrary to the dissent's suggestion, this court cannot take more evidence at this point: maps are needed immediately. Also contrary to the dissent's ad hominem criticisms of the majority, this court has not taken any "shortcuts" nor has the majority "willfully shut[] its eyes and ears to critical information." As the majority opinion explains, this court has spent an extraordinary amount of resources on this case. The dissent's suggestion to reopen the record to let Governor Evers present new evidence, followed by each party submitting its own (and perhaps competing) evidence, followed by even more briefing, would send this court on an "odyssey" even more lamentable than the one the dissent decries.

Hagedorn

Hagedorn's concurrence

The United States Supreme Court has determined that in adopting remedial maps, this court needed to conduct a detailed, fact-specific Voting Rights Act (VRA) analysis – in effect, requiring a full adjudication of a VRA claim. We are obligated, the Court said, to examine the record and determine "whether a race-neutral alternative that did not add a seventh majority-black district would deny black voters equal political opportunity." Absent such evidence, the Court held, a race-conscious remedy may not be employed.

As our previous opinion expressed, a majority of this court did not understand itself to be adjudicating a VRA claim. Had we understood our task this way, this court likely would have taken a different approach to this litigation. Our process of choosing from among a discrete group of proposals – a method recommended by several parties – was a poor vehicle for conducting the kind of VRA analysis the Supreme Court indicates we should have done. We did not approach record-development with an eye toward resolving factual disputes, making intensely localized factual findings, or receiving an adversarial, district-by-district analysis of every proposal. In other words, we did not conduct the sort of fact-specific inquiry and analysis that one sees in federal VRA cases because we did not view our role as adjudicating a full-blown VRA claim. To be sure, we attempted to comply with all relevant laws – much as a legislature drawing maps in the first instance would – and therefore sought input and briefing. But we anticipated further litigation involving a fully developed Equal Protection or VRA claim could, and likely would, follow.

Note: Hagedorn includes, as a footnote, this quote from the opinion struck down by SCOTUS: "To be clear, this case does not involve a claim under the Equal Protection Clause or VRA. Rather, as remedial map-drawers, we strive to act in compliance with the Constitution and applicable federal laws necessarily relying on the more limited record before us. A standard VRA claim is brought after the adoption of new districts. Such a claim would proceed much differently, requiring a fully developed factual record and detailed findings regarding the performance of specific districts." 

With this in view, complying with the directive of the United States Supreme Court at this stage of the proceedings raises some difficult challenges. Most notably, our record is, at best, incomplete. One solution could be to develop a fuller record, make factual findings, and adjudicate a VRA claim with a firmer factual foundation. But the timing does not work. It would undoubtedly require delaying statutory deadlines and otherwise disrupting the administration of the fall elections. The window of opportunity to conduct a fresh trial with new evidence, new briefing, and potentially new arguments is well past. Supplementing the record would pose the same logistical challenges. For better or worse, the only reasonable course I see is selecting a map based on the record we have. 

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In other words, we did not conduct the sort of fact-specific inquiry and analysis that one sees in federal VRA cases because we did not view our role as adjudicating a full-blown VRA claim. – Wisconsin Supreme Court Justice Brian Hagedorn

An additional difficulty with the path the Supreme Court tells us to pursue is determining what "race-neutral alternative" should serve as the baseline from which to evaluate whether the VRA requires a race-conscious remedial alteration. We cannot use the 2011 maps enacted into law. Those are now unconstitutionally malapportioned and contained at least some race-conscious districts. 

We could construct one ourselves or with the assistance of an expert, but time and our institutional limitations make that unrealistic at this juncture. The remaining option is to choose one of the proposed maps we received as the baseline. Only one proposal was represented as race-neutral in its construction: the maps submitted by the Legislature.

Therefore, as I understand our charge, the United States Supreme Court asks us to start with a baseline race-neutral map – the Legislature's proposal constituting our only feasible option. Then we must determine whether that map contains a VRA violation. If a violation exists, a race-conscious remedy may be crafted. If no violation is established, race-conscious alterations to district lines are impermissible. As the majority explains, the record, such as it is, does not sufficiently support the conclusion that the Legislature's maps violate the VRA. Perhaps a court deciding a VRA challenge on a more complete record would reach a different result. But I cannot conclude a violation is established based on the record we have before us. That means that in light of the Supreme Court's clarified instructions, the Legislature's state senate and state assembly maps are the only legally compliant maps we received. ​