Breaking: Supreme Court, in Bizarre Unsigned Opinion, Strikes Wisconsin Legislative Maps on Voting Rights Grounds, Signalling New Hostility to the Voting Rights Act

In a per curiam (unsigned) opinion on the shadow docket, over the dissent of Justices Kagan and Sotomayor, the Supreme Court has rejected a redistricting plan that a divided Wisconsin Supreme Court had adopted for drawing state assembly and senate districts. I am on my way to teach and so I have time for just a brief analysis here, but the way this case was handled is quite bizarre and is another signal of a conservative supermajority of the Supreme Court showing increasing hostility to section 2 of the Voting Rights Act.

The majority decision essentially says this: there was an impasse between the Democratic governor and the Republican legislature over drawing district lines. So the court had to draw lines in the first instance. It set forth criteria which essentially said that parties should propose maps that make the least change from the maps of the last decade. The court adopted the Governor’s maps, and those maps added another majority-minority district around Milwaukee. The governor added this district saying it was required by the Voting Rights Act because the failure to draw the district would violate Section 2 of the VRA. When the state supreme court adopted the Governor’s maps, it left open the possibility that they could be challenged later as violating the VRA or as an unconstitutional racial gerrymander (a Shaw claim), violating the Constitution’s equal protection clause. There was no full airing of either issue in this fast-track litigation to draw the district lines.

The Supreme Court’s opinion today says either the Governor or the Supreme Court misapplied the Supreme Court’s VRA and racial gerrymandering precedents, in part by elevating just one of the VRA Gingles factors (proportionality). It said that the VRA should be read in light of the racial gerrymandering cases and require the drawing of a majority-minority district only when a certain kind of strict scrutiny analysis is applied. The state supreme court should have considered under strict scrutiny “whether a race-neutral alternative that did not add a seventh majority-black district would deny black voters equal political opportunity.”

This ruling is bizarre on many levels, all canvassed by the dissenting opinion. The state supreme court did not purport do to a full VRA analysis: it was adopting maps, and those maps could have been challenged later on VRA or equal protection grounds. In reaching this decision, the Supreme Court majority resolved some uncertain issues of statutory and constitutional interpretation. The Court did so on skimpy briefing with no oral argument or a chance to fully consider the issues, treating the stay request as a cert petition and deciding the full case on the merits. And, at least on my first quick look, the Court’s substantive resolution of these issues even further narrows the scope of Section 2 of the VRA, making it harder for plaintiffs to win such cases.

So, to sum up: the Court used a case in an emergency procedural posture to reach out and decide an issue that could have waited for full briefing and argument either in a lower court in a challenge to the maps or if the Supreme Court had set the case for argument. It decided these issues in ways hostile to minority voting rights without giving a full opportunity for airing out the issues and pointing out how this will further hurt voters of color. It continues to chip away at the Voting Rights Act without acknowledging that it is killing off the last major protection for minority voters from discriminatory districting plans.

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