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

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|