WISCONSIN LEGISLATURE ET AL. v. WISCONSIN ELECTIONS COMMISSION ET AL.
No. 21A471
SUPREME COURT OF THE UNITED STATES
March 23, 2022
595 U.S. 398
ON APPLICATION FOR STAY AND INJUNCTIVE RELIEF
Thе Wisconsin Supreme Court agreed to hear an original action brought by a group of Wisconsin voters seeking to remedy malapportionment in Wisconsin‘s State Assembly and Senate districts. The court invited the parties and intervenors—including the Wisconsin Legislature and the Governor—to propose maps that both minimized changes from the current maps and complied with legal requirements of the State Constitution, the Federal Constitution, and the Voting Rights Act of 1965 (VRA). The court issued a decisiоn selecting the Assembly and Senate maps that the Governor had proposed. Johnson v. Wisconsin Elections Comm‘n, 2022 WI 14, 400 Wis. 2d 626, 971 N. W. 2d 402. The Governor‘s Assembly map intentionally created seven majority-black districts—one more than the current map—which the Governor argued was necessary for compliance with the VRA. In adopting the Governor‘s map, the court explained that it could not “say for certain” that the additional majority-black district was required by the VRA, but concluded that the Governor‘s map complied with the Equal Protection Clause because there were “good reasons” to think that the VRA “may” require it. Id., at 658, 659, 971 N. W. 2d, at 418, 419. Applicants ask this Court either to grant an emergency stay or to construe their application as a petition for certiorari and to reverse the decision below.
Held: The judgment of the Supreme Court of Wisconsin is reversed as to the selection of the Governor‘s State Assembly and Senate maps, and the case is remanded for further proceedings not incоnsistent with this opinion. The Wisconsin court erred in its application of decisions of this Court regarding the relationship between the constitutional guarantee of equal protection and the VRA. Under the Equal Protection Clause, districting maps that sort voters on the basis of race “cannot be upheld unless they are narrowly tailored to achieving a compelling state interest.” Miller v. Johnson, 515 U. S. 900, 904. This Court has assumed that complying with the VRA is a compelling interest and held that if race is the prеdominant factor motivating the placement of voters in or out of a particular district, the State bears the burden of showing that the design of that district withstands strict scrutiny. Cooper v. Harris, 581 U. S. 285, 292. When a State invokes § 2 of the VRA to
Here, the Wisconsin Supreme Court erred in its efforts to apply Cooper‘s understanding of what the Equal Protection Clause requires. Whether the court viewed the Governor or itself as the state mapmaker who must satisfy strict scrutiny, the court‘s application of Cooper was flawed. The Governor failed to carry his burden as he provided insufficient evidence or analysis to support his claim that the VRA required the seven majority-black districts that he drew. Similarly, the court failed to satisfy strict scrutiny itself, for three reasons. First, the court erroneously believed that it had to conclude only that the VRA might support race-based districting—not that the statute required it. But the Court‘s precedent instructs otherwise. In Cooper, for example, the Court explained that “race-based districting is narrowly tailored . . . if a State had `good reasons’ for thinking that the Act demanded such steps.” 581 U. S., at 301 (emphasis added). Second, the court fell short in its application of the analytical framework this Court provided in Thornburg v. Gingles, 478 U. S. 30, 46–51, to demonstrate a § 2 violation. Rather than carefully evaluating evidence at the district level, as required, the court relied on generalizations to reach the conclusion that the preconditions to demonstrating a § 2 violatiоn identified in Gingles were satisfied. Third, the court improperly reduced Gingles’ totality-of-circumstances analysis to the single factor of proportionality, an approach the Court rejected in Johnson v. De Grandy, 512 U. S. 997, 1020–1021. In sum, this Court‘s VRA precedents ask a question not answered below: whether a race-neutral alternative that did not add a seventh majority-black district would deny black voters equal political opportunity. The Wisconsin Supreme Court‘s strict-scrutiny analysis did not comply with this Court‘s equal protection jurisprudence and its judgment cannot stand.
Certiоrari granted; 2022 WI 14, 400 Wis. 2d 626, 971 N. W. 2d 402, reversed and remanded.
PER CURIAM.
Because of population shifts revealed by the 2020 decennial census, Wisconsin‘s State Assembly and Senate districts are no longer equally apportioned. The Wisconsin Legislature passed new maps to fix the problem, but the Governor vetoed them. At an impasse, the legislature and the Governor turned to the Wisconsin Supreme Court, which had already agreed to hear an original action brought by a group
On March 3, the court issued a decision selecting the Assembly and Senate maps that the Governor had proposed. Johnson v. Wisconsin Elections Comm‘n, 2022 WI 14, 400 Wis. 2d 626, 971 N. W. 2d 402. (Because the State Cоnstitution requires three Assembly districts to be nested within each Senate district, the court analyzed and selected the maps as a unit. Id., at 644–645, 971 N. W. 2d, at 411.) The Governor‘s Assembly map intentionally created seven majority-black districts—one more than the current map.1 The Governor argued that the addition of a seventh majority-black district was necessary for compliance with the VRA. In adopting the Governor‘s map, the court explained: “[W]e cannot say for certain on this record that sеven majority-Black assembly districts are required by the VRA.” Id., at 658, 971 N. W. 2d, at 418. It nevertheless concluded that the Governor‘s map complied with the Equal Protection Clause of the Fourteenth Amendment because there were “good reasons” to think that the VRA “may” require the additional majority-black district. Id., at 659, 971 N. W. 2d, at 419.
The legislature and the voters who initiated the state-court proceeding now seek relief from that decision. They argue that the court selected race-based maps without suffi-
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. We accordingly construe the application for stay presented to JUSTICE BARRETT and by her referred to the Court as a petition for certiorari, grant the petition, reverse the imposition of the Governor‘s State Assembly and Senate maps, and remand to the Wisconsin Supreme Court for proceedings not inconsistent with this opinion. Summarily correcting the error gives the court sufficient time to adopt maps consistent with the timetable for Wisconsin‘s August 9th primary election.
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Under the Equal Protection Clause, districting maps that sоrt voters on the basis of race “`are by their very nature odious.‘” Shaw v. Reno, 509 U. S. 630, 643 (1993). Such laws “cannot be upheld unless they are narrowly tailored to achieving a compelling state interest.” Miller v. Johnson, 515 U. S. 900, 904 (1995). We have assumed that complying with the VRA is a compelling interest. Cooper v. Harris, 581 U. S. 285, 292 (2017). And we have held that if race is the predominant factor motivating the placement of voters in or out of a particular district, the State bears the burden of showing that the design of that district withstands strict scrutiny. Ibid. Thus, our precedents hold that a State can satisfy strict scrutiny if it proves that its race-based sorting of voters is narrowly tailored to comply with the VRA. Ibid.
A State violates § 2 of the VRA “if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of [a
If the preconditions are established, a court considers the totality of circumstances to determine “whether the political process is equally open to minority voters.” Id., at 79; see also Johnson v. De Grandy, 512 U. S. 997, 1011–1012 (1994) (satisfying the Gingles preconditions is necessary but not sufficient to show a § 2 violation; “courts must also examine other evidence in the totality of circumstances“). We have identified as relevant to the totality analysis several factors enumerated in the Senate Report on the 1982 amendments to the VRA, as well as “whether the number of districts in which the minority group forms an effective majority is roughly proportional to its share of the population in the relevant area.” League of United Latin American Citizens v. Perry, 548 U. S. 399, 426 (2006) (LULAC).
We said in Cooper that when a State invokes § 2 to justify race-based districting, “it must show (to meet the `narrow tailoring’ requirement) that it had `a strong basis in evidence’ for concluding that the statute required its action.” 581 U. S., at 292. The Wisconsin Supreme Court concluded that the Governor‘s intentional addition of a seventh majority-black district triggered the Equal Protection Clause and that Cooper‘s strict-scrutiny test must accordingly be satisfied.
It is not clear whether the court viewed the Governor or itself as the state mapmaker who must satisfy strict scrutiny, but the court‘s application of Cooper was flawed either way. If the former, the Governor failed to carry his burden. His main explanation for drawing the seventh majority-black district was that there is now a sufficiently large and compact population of black residents to fill it, Brief for Intervenor-Respondent Evers in Johnson v. Wisconsin Elections Comm‘n, No. 2021AP1450–OA (Wis. Sup. Ct., Dec. 15, 2021), p. 14—apparently embracing just the sort of uncritical majority-minority district maximization that we have expressly rejected. De Grandy, 512 U. S., at 1017 (“Failure to maximize cannot be the measure of § 2“). He рrovided almost no other evidence or analysis supporting his claim that the VRA required the seven majority-black districts that he drew. See 400 Wis. 2d, at 676–677, 686–689, 971 N. W. 2d, at 427–428, 432–433 (Ziegler, C. J., dissenting). Strict scrutiny requires much more. See Abbott v. Perez, 585 U. S. 579, 616 (2018) (“[W]here we have accepted a State‘s `good reasons’ for using race in drawing district lines, the State made a strong showing of a preenactment analysis with justifiable conclusions“). If the Wisconsin Supreme Court was reviewing whether the Governor satisfied strict scrutiny, it erred by adopting his maps.
If, on the оther hand, the court sought to shoulder strict scrutiny‘s burden itself, it fared little better. First, it misunderstood Cooper‘s inquiry. The court believed that it had to conclude only that the VRA might support race-based districting—not that the statute required it. See 400 Wis. 2d, at 658, 659, 971 N. W. 2d, at 418, 419 (“[W]e cannot say for certain on this record that seven majority-Black assembly districts are required by the VRA,” but “we see good reasons to conclude a seventh majority-Black assembly district
To be sure, we said in Cooper that States have “`breathing room‘” to make reasonable mistakes; we will not fault a State just because its “compliance measures . . . may prove, in perfect hindsight, not to have been needed.” 581 U. S., at 293. But that “leeway” does not allow a State to adopt a racial gerrymander that the State does not, at the time of imposition, “judg[e] necessary under a proper interpretation of the VRA.” Id., at 306.
Second, the court‘s analysis of Gingles’ preconditions fell short of our standards. As we explained in Cooper, “[t]o have a strong basis in evidеnce to conclude that § 2 demands . . . race-based steps, the State must carefully evaluate whether a plaintiff could establish the Gingles preconditions . . . in a new district created without those measures.” 581 U. S., at 304. Rather than carefully evaluating evidence at the district level, the court improperly relied on generalizations to reach the conclusion that the preconditions were satisfied. See id., at 305, n. 5 (a “generalized conclusion fails to meaningfully . . . address the relеvant local question” whether the preconditions would be satisfied as to each district).
The court‘s entire discussion of the first precondition was to say that “it is undisputed” and “the parties’ submissions
Third, the court improperly reduced Gingles’ totality-of-circumstances analysis to a single factor. The court aсknowledged the Senate factors but concluded that they had no role to play in its analysis. 400 Wis. 2d, at 656–657, and n. 28, 971 N. W. 2d, at 417–418, and n. 28. Instead, it focused exclusively on proportionality. See id., at 656–659, 971 N. W. 2d, at 417–419. We rejected just that approach in De Grandy, explaining that “[n]o single statistic provides courts with a shortcut to determine whether a set of single-member districts unlawfully dilutes minority voting strength.” 512 U. S., at 1020–1021; see also id., at 1026 (O‘Connor, J., concurring) (“The Court . . . makes clear that proportionality is never dispositive. Lack of proportionality can never by itself prove dilution, for courts must always carefully аnd searchingly review the totality of the circumstances“).
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The judgment of the Supreme Court of Wisconsin is reversed as to the selection of the Governor‘s State Assembly and Senate maps, and the case is remanded for further proceedings not inconsistent with this opinion. On remand, the court is free to take additional evidence if it prefers to reconsider the Governor‘s maps rather than choose from among the other submissions. Any new analysis, however, must comply with our equal prоtection jurisprudence.
It is so ordered.
WISCONSIN LEGISLATURE ET AL. v. WISCONSIN ELECTIONS COMMISSION ET AL.
No. 21A471
SUPREME COURT OF THE UNITED STATES
March 23, 2022
595 U.S. 398
SOTOMAYOR, J., dissenting
The Court‘s action today is unprecedented. In an emergency posture, the Court summarily overturns a Wisconsin Supreme Court decision resolving a conflict over the State‘s redistricting, a decision rendered after a 5-month process involving all interested stakeholders. Despite the fact that summary reversals are generally reserved for decisions in violation of settled law, the Court today faults the State Supreme Court for its failurе to comply with an obligation that, under existing precedent, is hazy at best.
When the Wisconsin Legislature and executive were unable to agree on reapportioned electoral maps following the 2020 census, the Wisconsin Supreme Court granted a voter petition to ensure that maps were in place before the 2022 elections. The court announced the criteria that it would
The court proceeded to a preliminary analysis of whether the Equal Protection Clаuse or the Voting Rights Act of 1965 (VRA) precluded it from adopting the Governor‘s map, which increased the number of majority-Black Assembly districts in Milwaukee from six to seven based on changes in population.2 The court noted that the parties before it had all “appeared to assume the VRA requires at least some majority-Black districts in the Milwaukee area” and that there had been no dispute that the preconditions in Thornburg v. Gingles, 478 U. S. 30 (1986) (for assessing whether race-conscious districting is requirеd in order to avoid diluting minority voting power) were satisfied, aside from an undeveloped reference at oral argument. 400 Wis. 2d, at 655, 971 N. W. 2d, at 417. The court stressed, however, that no Equal Protection Clause or VRA claim was before it and that adjudicating such claims would require a fuller record and a closer assessment. It concluded that neither the Equal Protection Clause nor the VRA clearly foreclosed adopting the Governor‘s map in the first instance, id., at 658, 971 N. W. 2d, at 418, but left open the possibility that a “standard VRA
Applicants now assert that the Wisconsin Supreme Court misapplied this Court‘s precedents in its preliminary assessment of whether the Governor‘s map violated the Equal Protection Clause. The Court agrees and summarily reverses. In doing so, however, the Court assumes the answers to multiple questions that our precedent leaves uncertain.
In its brief discussion of equal protection and the VRA, the Wisconsin Supreme Court presumed that the framework summarized in this Court‘s decision in Cooper v. Harris, 581 U. S. 285 (2017), governed in this posture. The Court tacitly accepts that assumption. Ante, at 402–403. Cooper, however, arose in a starkly different posture. Cooper outlines the specific, burden-shifting procedure for adjudicating claims brought under the Equal Protection Clause “[w]hen a voter sues state officials for drawing . . . race-based lines.” 581 U. S., at 291. That framework requires that the plaintiff first “prove that race was the predominant factor motivating the legislature‘s decision to place a significant number of voters within or without a particular district.” Ibid. (internal quоtation marks omitted). If the court finds that “racial considerations predominated over others,” the burden then “shifts to the State to prove that its race-based sorting of voters” satisfies strict scrutiny. Id., at 292. The State can meet that burden by showing that “it had a strong basis in evidence” for concluding that the VRA required its actions, a standard that “gives States breathing room to adopt reasonable compliance measures that may prove, in perfect hindsight, not to have been needеd.” Id., at 293 (internal quotation marks omitted).3 It is far from clear whether this burden-shifting framework should also apply in the unusual
Even accepting the assumption that this framework controls, it remains unclear how a court in the posture below should apply it. Again, the Wisconsin Supreme Court was selecting a map itself, not adjudicating a subsequent challenge in the manner that Cooper and other сases have addressed. The court accepted an original action to supervise the redistricting and, with the input of the parties, designed its own process for doing so: accepting proposed maps from litigants rather than “craft[ing its] own map” and determining to “choose the maps that best conform[ed] with [its] directives,” even if those maps were “imperfect,” rather than “modify[ing]” the lines they drew. 400 Wis. 2d, at 634–635, 971 N. W. 2d, at 406. Although the Governor reported that he considered race in drawing his Assembly map, the Wisconsin Supreme Court selected the Governor‘s map because it scored best on a race-neutral “least change” metric. Id., at 635, 971 N. W. 2d, at 407. Our precedents offer no clear answers to the question whose motives should be analyzed in these circumstances (the four justices who selected the map based on the “least change” criteria, the Governor, or some combination) or how. The Court does not purport to answer this question.
The Court аlso faults the Wisconsin Supreme Court for failing to scrutinize each of the Gingles preconditions independently after the parties agreed that some majority-Black districts needed to be drawn in Milwaukee. Ante, at 404–405.4 But courts generally are not mandated to investigate “`undisputed‘” and nonjurisdictional issues. Ante, at 404.
This Court‘s intervention today is not only extraordinary but also unnecessary. The Wisconsin Supreme Court rightly preserved the possibility that an appropriate plaintiff could bring an equal protection or VRA challenge in the proper forum. 400 Wis. 2d, at 653, n. 24, 971 N. W. 2d, at 416, n. 24. I would allow that process to unfold, rather than further complicating these proceedings with legal confusion through a summary reversal. I respectfully dissent.
REPORTER’S NOTE
The attached opinion has been revisеd to reflect the usual publication and citation style of the United States Reports. The revised pagination makes available the official United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or filed briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made:
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