Sunday, May 22, 2022

Wisconsin Supreme Court decision makes it harder to stop racist gerrymanders

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On Wednesday, when the Senate Judiciary Committee held a hearing on the first black woman nominated to the Supreme Court, the incumbent judges passed a decision that undermined the right of black people to participate equally in US elections.

The Court’s ruling in Wisconsin Legislature v. Wisconsin Election Commission knocks down state legislative maps selected by the Wisconsin Supreme Court after the Republican legislature and Democratic governor couldn’t agree on which maps the state should use. The cards passed by the state court were proposed by Democratic administration Tony Evers, but Evers was also limited by criteria established by the state’s GOP-controlled Supreme Court that favor Republicans.

These cards apply to the state legislature. The Court’s decision don’t touch the state congressional cards

The court drew on a confusing array of legal doctrines related to racial gerrymanders, but one key, incendiary assumption seems to support the decision: that legislative maps with fewer black-majority districts are often preferred over those that give more power to black voters.

US Supreme Court has not revealed how each judge voted Wisconsin Legislature, but the Court used a process known as “summary reversal” to throw out Wisconsin’s cards — meaning the Court overruled the Wisconsin Supreme Court decision without receiving a full briefing or hearing oral arguments. . Usually the Court requires six votes to summarily reverse the decision of a lower court.

Two judges, Sonia Sotomayor and Elena Kagan, publicly disagreed.

The opinion of the majority in Wisconsin Legislature, which has not been signed, accuses Evers and the state Supreme Court of possibly doing too much to protect the voting rights of African Americans. The state’s previous maps included six majority black districts, and Evers suggested adding a seventh such district. The Supreme Court rejected that proposal, which was approved by the state’s GOP-controlled Supreme Court (though most Republican members of the state court disagreed).

Wisconsin Legislature puts new hurdles in the way of parties challenging racial gerrymanders

Admittedly, the laws and precedents governing racial gerrymanders are not easy to navigate.

The constitution’s equal protection clause largely prohibits mapmakers from taking race into account when drawing legislative lines. But the Voting Rights Act also prohibits cards that weaken the voting rights of racial minorities, even if those cards are not intentionally drawn to diminish the political power of voters of color.

These two requirements often come under tension. To create maps that don’t unduly diminish minority voting rights, mapmakers often have to pay close attention to the racial demographics of the state. For that reason, the Supreme Court ruled in Cooper v. Harris (2017) that a state has a “breathing room” to create cards that benefit racial minorities.

below CooperWhen a state “calls on the VRA to justify race-based districts”, its cards will be upheld if the state had a “strong basis in evidence” to conclude that it should take into account when drawing its cards race. In narrow cases, Cooper proposes that judges err in enforcing cards drawn to comply with the Voting Rights Act.

The Court’s new decision in Wisconsin LegislatureHowever, seems to turn this rule on its head and apply a presumption in favor of less majority-minority districts. Majority opinion alleges that the state Supreme Court erred in failing to consider “whether a race-neutral alternative that does not add a seventh-majority black district would deny black voters equal political opportunity.”

So before the state could draw a map with seven black majority districts, it must first have ruled out at least some alternate maps containing only six such districts. That leaves open the possibility that the Wisconsin Supreme Court can reinstate the cards originally selected, but only after it has jumped through new procedural hoops.

The Court ran unusually fast to knock down Evers’ card

Aside from the novelty of this rule of law – law professor and suffrage expert Rick Hasen writes that “the way this case was handled it’s kinda weird and is another signal from a conservative Supreme Court majority showing growing hostility to Section 2 of the Voting Rights Act” — there are a number of procedural issues with the Wisconsin Legislature opinion.

For starters, the Court comes to this new, precedent-setting conclusion despite only minimal briefing — the case emerged on the “shadow list,” a mix of historically very short injunctions and emergency rulings that the judges rule on an expedited basis.

Moreover, the Court hastened to decide cases that were hardly litigated in the lower courts. As Justice Sotomayor points out in dissent, the state’s Supreme Court selected the card in question here, and it explicitly reserved “the possibility that an appropriate plaintiff might provide an equal protection or VRA challenge” for that card going forward.

Normally, when someone challenges a legislative card, they have to wait for the mapmakers to finish that card. Only then can they file a new lawsuit in a state or federal court to challenge that card. This regular process gives the lower courts plenty of time to develop a full file and sort through the nuances of the case before it gets to the Supreme Court. In Wisconsin Legislatureby contrast, the Supreme Court rushed to decide the case just weeks after the new maps were finalized.

Finally, it is unclear how Wednesday’s decision can be reconciled with the so-called “Purcell principle.”

In Purcell v. Gonzalez (2006), the Court warned that judges should exercise restraint in making decisions that affect elections, as the election itself approaches. In recent years, the Court’s Republican majority has steadily extended the time period in which judges are not allowed to change state election laws. In early February, Judge Brett Kavanaugh wrote an op-ed, along with Judge Samuel Alito, suggesting that this “Purcell window” extends to nine months before the next general election.

Again, the Court has not revealed how each judge voted Wisconsin Legislature† But if six judges voted to summarily reverse the Wisconsin Supreme Court, that means Alito or Kavanaugh — and most likely both — voted with the majority. Wisconsin Legislature

Neither court explained why the… Purcell principle does not apply in this case, although the majority opinion Wisconsin Legislature However, claims Wednesday’s decision gives the Wisconsin Supreme Court “enough time to accept cards consistent with the schedule for the August 9 Wisconsin primary.”

In other words, the Court appears to have done its best to reach a decision on a major voting trial, with minimal briefing and on an exceptionally fast schedule. It also did so despite warnings from conservative judges that judges should be more cautious in election years.

And the result of the Court’s opinion is that black people now have less influence in Wisconsin’s elections — and possibly those of other states.

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