WI Supreme Court Approves Legislature’s Version of Maps

On Friday, the Wisconsin Supreme Court in a 4-3 decision approved the maps drawn by the Republican-controlled Legislature.

Chief Justice Annette Ziegler authored the majority opinion and wrote, “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, 2021 WI 87, 399 Wis. 2d 623, 967 N.W.2d 469. Therefore, we adopt the state senate and assembly maps proposed by the Legislature for the State of Wisconsin.” Ziegler was joined by Justices Rebecca Grassl Bradley, Patience Roggensack and Brian Hagedorn.

Originally the court issued a 4-3 decision, authored by Justices Brian Hagedorn, Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky selecting the Assembly and Senate maps drawn by Wisconsin Governor Tony Evers. In their opinion, they noted that in their senate proposals, both Governor Evers and the Legislature move a nearly identical 7.8% of voters to different districts (92.2% core retention), with a slight edge to the Legislature for moving 1,958 fewer people. However, in their assembly map proposals, Governor Evers moves 14.2% of voters to new districts, while the Legislature moves 15.8% (85.8% vs. 84.2% core retention), a difference that affects 96,178 people. They concluded the Governor’s proposed senate and assembly maps produce less overall change than other submissions, and therefore selected his maps.

Republicans appealed the Court’s decision to the US Supreme Court arguing the Governor’s maps violate the equal protection clause of the 14th Amendment by setting a racial target of maximizing majority-minority districts and violates the Voting Rights Act by creating 7 barely majority minority districts, lessening those communities’ ability to elect candidates of their choice.

On March 23rd the US Supreme Court ruled that the state Supreme Court had erred in its interpretation of the federal Voting Rights Act (VRA). “We agree that the court committed legal error in its application of decisions of this Court regarding the relationship between the constitutional guarantee of equal protection and the VRA.” The decision of the Wisconsin Supreme Court on these two maps was therefore reversed and remanded “for further proceedings not inconsistent with this opinion.”

What are the impacts on the maps?

Senator Kooyenga can run for re-election in the 5th SD

The maps proposed by Governor Evers took the 5th Senate District (SD), represented by Sen. Dale Kooyenga (R-Brookfield), and moved its borders further East into the city of Milwaukee as part of an effort to create a 7th majority minority assembly seat. The Evers’ map was drawn in a way that Sen. Kooyenga’s residence would have no longer been in the 5th SD but instead would have been located in the 8th SD represented by Sen. Alberta Darling (R-River Hills). Sen. Darling is not up for re-election in 2022, which meant that if Gov. Evers’ maps were in place Sen. Kooyenga would have had to move to continue representing the 5th SD if he had run for re-election to that seat. Sen. Kooyenga said previously that if the Governor’s map survived the legal challenge, he would not move to run for re-election. The Supreme Court’s decision on Friday places Sen. Kooyenga’s residence back in his current district and allowing him to run for re-election. Under the enacted map, the 5th SD is a more Republican leaning seat that it was previously drawn.

Senate District 13 no longer includes the City of Madison

The map proposed by Governor Evers took the Senate District 13 seat held by Sen. Jagler from a seat that was safely Republican to highly competitive with a westward shift of the district and the inclusion of parts of the City of Madison . Under the map adopted by the court, this shifts to the west and the impact is distributed between District 13 and District 11 (held by Sen. Steve Nass). Both the 13th and 11th SDs are safe Republican seats.

Different incumbents paired

Under the maps drawn by Governor Evers, Rep. Barb Dittrich (R-Oconomowoc) and Rep. Dan Knodl (R-Menomonee Falls) were drawn into the same district, as were Rep. Cody Horlacher (R-Mukwonago) and Rep. Chuck Wichgers (R-Muskego). Under the maps adopted by the State Supreme Court those lawmakers are no longer paired and are seeking re-election, with the exception of Rep. Horlacher who is running for the Waukesha Circuit Court Branch 7. That election is in April of 2023.

However, under the new maps affirmed by the Wisconsin State Supreme Court, there are three legislative districts where two incumbent lawmakers would be paired with one another in the newly drawn district. Those districts are:

• 15th Assembly District: Currently represented by Rep. Joe Sanfelippo (R-New Berlin), who is not running for re-election. Drawn into the new 15th AD is Rep. Mike Kuglitsch (R-New Berlin), who currently represents the 89th AD and who is also not seeking re-election.
• 82nd Assembly District: Currently represented by Rep. Ken Skowronski (R-Franklin), who is not running for re-election. Drawn into the 82nd AD is Rep. Chuck Wichgers (R-Muskego) who is running re-election.
• 93rd Assembly District: Currently represented by Rep. Warren Petryk (R-Town of Washington), the new 93rd is drawn to include member of the Joint Committee on Finance Rep. Shannon Zimmerman (R-River Falls). Currently both candidates are seeking re-election and would face off in the August 9th, Partisan Primary Election.

PlanScore analysis of the new maps

PlanScore (a project of the Campaign Legal Center) has done an analysis of the new Wisconsin maps. PlanScore bases its scores on predicted precinct-level votes for each office (State House, State Senate, and U.S. House) built from past election results and U.S. Census data. More information about the predictive model used to score this plan.

Below please find a couple charts that graphically show their predicted scores.

Source: https://planscore.campaignlegal.org/plan.html?20220418T182621.925335697Z

Source: https://planscore.campaignlegal.org/plan.html?20220418T182910.688258000Z

Implementation

The Wisconsin Elections Commission (WEC) announced that it has begun to implement the state legislative maps proposed by Republicans that were approved by the Wisconsin Supreme Court last week.

The WEC received detailed map data from the Legislative Technology Services Bureau so that it can implement the maps. Barring any further legal challenges, the WEC said that these maps will be used for the 2022 election cycle.

The WEC also said that it will take time to review, implement, and validate the maps in WisVote, Wisconsin’s voter registration system. Although there is no deadline for implementation, the WEC said that it would finish implementation as soon as possible. Additionally, localities will be simultaneously amend their ward boundaries to ensure they align with the new maps.

Candidates begun circulating nomination papers on April 15th and have until June 1st to file their signatures. There is currently no stay preventing candidates from circulating their nomination papers.

Reaction to the Supreme Court Decision

Assembly Speaker Robin Vos (R- Rochester)

“We have thought our maps were the best option from the beginning. We appreciate the court’s due diligence and are glad to move forward with these maps that make the least changes and comply with traditional redistricting criteria. It is a relief to have this resolved in time for candidates to circulate nomination papers for the upcoming elections, and for voters to know what districts will be used this fall.” (via Twitter @SpeakerVos)

Issued the following statement:

State Senator Melissa Agard (D- Madison)

“This is a terrible day for democracy in Wisconsin. Our state and our democracy has suffered tremendously in the last ten years due too grossly rigged, gerrymandered maps by the GOP behind closed doors. Today, the Wisconsin Supreme Court has sided with another ten years of highly partisan maps… The people of Wisconsin are fierce advocates for fair, nonpartisan maps. Voters should be choosing their elected officials—not the other way around. I am ashamed of this blatantly partisan decision made by the State Supreme Court.”

Read her full statement here.

Wisconsin Governor Tony Evers

Gov. Tony Evers released the following statement regarding the Wisconsin Supreme Court’s decision.

“This is an outrageous decision by the Wisconsin Supreme Court. This court had clearly and decisively rejected the Legislature’s maps prior to this case being considered by the Supreme Court of the United States, and today, they have backtracked on that decision, upholding the very maps they had previously found to unlawfully ‘pack’ Black voters. At a time when our democracy is under near-constant attack, the judiciary has abandoned our democracy in our most dire hour. Wisconsinites want a democracy, they want fair representation, and they want fair maps as they have demanded of this government for ten years. Today, they receive no recourse.

“This is an unconscionable miscarriage of justice for which the people of this state will see no reprieve for another decade.”

Wisconsin Attorney General Josh Kaul

“This decision is a travesty for democracy in Wisconsin. The court, applying a new standard in a case it never should have taken, has made one of the most extreme gerrymanders in America even worse.

This ruling entrenches control by politicians rather than voters, sapping what life remained from any claim that our legislature meaningfully represents the People.“ (via Twitter @WisDOJ)

Fair Elections Project

“Today, the justices in the majority chose judicial activism. The rigged maps drawn by the legislature last year were previously rejected three times — and these maps are even more gerrymandered than those drawn in 2011. Without any legal basis or precedent, and ignoring a decision they made just a month ago, the Wisconsin Supreme Court is showing its true colors: political gain over judicial fairness.”

Read their full statement here.

The Wisconsin Institute for Law & Liberty (WILL)

WILL President and General Counsel, Rick Esenberg, said,

“We are pleased that the Court recognized that our Constitution reserves race-based decision-making for the most extreme situations. The Governor did not justify his race-based redistricting. The Court was right to reject it.”