Supreme Court, in Bizarre Unsigned Opinion, Strikes Wisconsin Legislative Maps

[airmid]

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.

[link:https://electionlawblog.org/?p=128343|

[elleng]

1. Re: Voting Rights Act

*In 2021, the Brnovich v. Democratic National Committee Supreme Court ruling reinterpreted Section 2 of the Voting Rights Act of 1965, substantially weakening it.[16][11] The ruling interpreted the "totality of circumstances" language of Section 2 to mean that it does not generally prohibit voting rules that have disparate impact on the groups that it sought to protect, including a rule blocked under Section 5 before the Court inactivated that section in Shelby County v. Holder.[16][11] In particular, the ruling held that fears of election fraud could justify such rules, even without evidence that any such fraud had occurred in the past or that the new rule would make elections safer. [11]

Research shows that the Act had successfully and massively increased voter turnout and voter registrations, in particular among black people.[17][18] The Act has also been linked to concrete outcomes, such as greater public goods provision (such as public education) for areas with higher black population shares, and more members of Congress who vote for civil rights-related legislation.[19][20] . .

In a 5–4 decision in Shelby County v. Holder (2013),[176] the Supreme Court struck down Section 4(b) as unconstitutional.[13][133] The court reasoned that the coverage formula violates the constitutional principles of "equal sovereignty of the states" and federalism because its disparate treatment of the states is "based on 40 year-old facts having no logical relationship to the present day", which makes the formula unresponsive to current needs.[13][132] The court did not strike down Section 5, but without Section 4(b), no jurisdiction may be subject to Section 5 preclearance unless Congress enacts a new coverage formula.[14] After the decision, several states that were fully or partially covered—including Texas, Mississippi, North Carolina, and South Carolina—implemented laws that were previously denied preclearance. This prompted new legal challenges to these laws under other provisions unaffected by the court's decision, such as Section 2.[177]: 189–200  Research has shown that the coverage formula and the requirement of preclearance substantially increased turnout among racial minorities, even as far as the year before Shelby County.[18] Some jurisdictions that had previously been covered by the coverage formula increased the rate of voter registration purges after Shelby County.[178] On 1 July 2021, the Act's preclearance requirements were further weakened at the state and local level following the Brnovich v. Democratic National Committee in 6-3 Supreme Court ruling which held that Section 2 preclearance provisions could not apply to out-of-precinct voting or ballot collecting.[16][11]'

https://en.wikipedia.org/wiki/Voting_Rights_Act_of_1965

Near the end of her dissent in Shelby County v. Holder, Justice Ginsburg suggested a simple analogy to illustrate why the regional protections of the Voting Rights Act (VRA) were still necessary. She wrote that “[t]hrowing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

https://repository.law.umich.edu/book_chapters/81/

[jaxexpat]

3. I thought we had a 6 to 3 "conservative" majority.

Did only 2 of the 3, vote against this mini-travesty?

This is a part of the story that should be loud and clear for any number of reasons. Not the least of which is to, once and for all, answer the question: can we act as a cohesive movement or will our precious and tender egos perpetually undermine our every step forward?

[jaxexpat]

6. Quick search and I didn't find that he was ill or not in attendance for some other reason.

[Kaleva]

5. SCOTUS did let stand WIs Congressional district map

[jaxexpat]

8. The map, proposed prior to the plan which the USSC rejected, is preserved.

The proposed plan would have been preferable, from the perspective of Democrats. Are we on the same page?

Original districts highly gerrymandered. New maps largely retained gerrymandering.

2 maps:
first map, bad- generated by republican legislature- retained by USSC ruling
second map, not so bad- compromise with Democratic governor has one additional majority minority district- rejected by USSC ruling

[obamanut2012]

9. The Congressional map is intact, the state one isn't