High Court Reverses Wisconsin Supreme Court on State Legislative Map

Steven D. Schwinn, University of Illinois Chicago School of Law

The Supreme Court earlier this week reversed the Wisconsin Supreme Court's ruling that adopted the governor's proposed state legislative map. The Court held that the state high court didn't adequately scrutinize the map under equal protection and sent the case back to the Wisconsin Supreme Court for a re-do. (The same day, the Court declined to reverse the state court's adoption of the governor's map for the state's congressional districts.)

The ruling is a short-term win for legislative Republicans against the Democratic governor. But because the state supreme court has a chance to reanalyze the governor's proposed map, the result may be the same--adoption of the governor's map.

The case, Wisconsin Legislature v. Wisconsin Elections Commission, arose when the state supreme court directed the governor and the state legislature, who couldn't agree on a map, to propose maps. The governor proposed a map that included a new seventh majority-black district--the current map includes only six--in order to comply with Section 2 of the Voting Rights Act. (Section 2 requires that a state's "political process" must be "equally open to participation" to members of racial minority groups, so that group members have an equal opportunity "to participate in the political process and to elect representatives of their choice.")

The court adopted the governor's map. The legislature then filed for a stay at the Supreme Court, arguing that the map used race in violation of the Equal Protection Clause.

The Court agreed. The Court noted that under equal protection a state's use of race as a "predominant" factor in redistricting must satisfy strict scrutiny. That means that a state must show that its use of race is narrowly tailored to meet a compelling government interest. The Court acknowledged that under Court precedent compliance with the Voting Rights Act is a compelling interest. But still, a state map must be narrowly tailored to comply with the VRA to satisfy strict scrutiny.

The Court held that the map failed this test. It said that the governor didn't sufficiently prove that a seventh majority-black district was necessary to comply with the VRA, or that the court didn't sufficiently assess whether the map was necessary to comply with the VRA. In particular, the Court said that the Wisconsin court failed to determine whether a race-neutral map that didn't include a seventh majority-black district could satisfy the VRA. (If so, the governor's map wouldn't be necessary to comply with the VRA.)

The Court remanded the case to the Wisconsin Supreme Court "to undertake a full strict-scrutiny analysis." This could mean that the court simply collects more evidence, sharpens its analysis, and re-adopts the governor's map. Or it could go in a different direction.

Justice Sotomayor dissented, joined by Justice Kagan. She argued that the Court's action was "unprecedented." That's because "summary reversals are generally reserved for decisions in violation of settled law," but law in this area "is hazy at best." She also claimed that the Court would do better to let an appropriate plaintiff bring a direct equal protection challenge or VRA challenge in the appropriate forum.