Billie Johnson v. Wisconsin Elections Commission

2022 WI 19

SUPREME COURT OF WISCONSIN
CASE NO.: 2021AP1450-OA

COMPLETE TITLE: Billie Johnson, Eric O'Keefe, Ed Perkins and
Ronald Zahn,
Petitioners,
Black Leaders Organizing for Communities, Voces
de la Frontera, League of Women Voters of
Wisconsin, Cindy Fallona, Lauren Stephenson,
Rebecca Alwin, Congressman Glenn Grothman,
Congressman Mike Gallagher, Congressman Bryan
Steil, Congressman Tom Tiffany, Congressman
Scott Fitzgerald, Lisa Hunter, Jacob Zabel,
Jennifer Oh, John Persa, Geraldine Schertz,
Kathleen Qualheim, Gary Krenz, Sarah J.
Hamilton, Stephen Joseph Wright, Jean-Luc
Thiffeault, and Somesh Jha,
Intervenors-Petitioners,
v.
Wisconsin Elections Commission, Marge Bostelmann
in her official capacity as a member of the
Wisconsin Elections Commission, Julie Glancey in
her official capacity as a member of the
Wisconsin Elections Commission, Ann Jacobs
in her official capacity as a member of the
Wisconsin Elections Commission, Dean Knudson in
his official capacity as a member of the
Wisconsin Elections Commission, Robert Spindell,
Jr. in his official capacity as a member of the
Wisconsin Elections Commission and Mark Thomsen
in his official capacity as a member of the
Wisconsin Elections Commission,
Respondents,
The Wisconsin Legislature, Governor Tony Evers,
in his official capacity, and Janet Bewley
Senate Democratic Minority Leader, on behalf of
the Senate Democratic Caucus,
Intervenors-Respondents.

ORIGINAL ACTION
ON REMAND FROM THE SUPREME COURT OF THE UNITED
STATES

OPINION FILED: April 15, 2022
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: January 19, 2022
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:

JUSTICES:
ZIEGLER, C.J., delivered the majority opinion of the Court, in
which ROGGENSACK, REBECCA GRASSL BRADLEY, and HAGEDORN, JJ.,
joined. REBECCA GRASSL BRADLEY, J., filed a concurring opinion,
in which ZIEGLER, C.J., and ROGGENSACK, J., joined. HAGEDORN,
J., filed a concurring opinion. KAROFSKY, J., filed a
dissenting opinion, in which ANN WALSH BRADLEY and DALLET, JJ.,
joined.
NOT PARTICIPATING:

ATTORNEYS:
For the petitioners, there were briefs filed by Richard M.
Esenberg, Anthony F. LoCoco, Lucas T. Vebber and Wisconsin
Institute for Law & Liberty, Milwaukee. There was oral argument
by Richard M. Esenberg.

For the intervenors-petitioners Black Leaders Organizing
for Communities, Voces de la Frontera, League of Women Voters of
Wisconsin, Cindy Fallona, Lauren Stephenson and Rebecca Alwin,
briefs, including amicus briefs, were filed by Douglas M.
Poland, Jeffrey A. Mandell, Rachel E. Snyder, Richard A. Manthe,
Carly Gerads and Stafford Rosenbaum LLP, Madison; Mel Barnes and
Law Forward, Inc., Madison; Mark P. Gaber (pro hac vice),
Christopher Lamar (pro hac vice)and Campaign Legal Center,
Washington, D.C.; Annabelle Harless (pro hac vice) and Campaign
Legal Center, Chicago. There was oral argument by Douglas M.
Poland.

For the intervenors-petitioners Congressmen Glenn Grothman,
Mike Gallagher, Bryan Steil, Tom Tiffany and Scott Fitzgerald
there were briefs, including amicus briefs, filed by Misha
Tseytlin, Kevin M. LeRoy, and Troutman Pepper Hamilton Sanders
LLP, Chicago. There was oral argument by Misha Tseytlin.

2
 For the intervenors-petitioners Lisa Hunter, Jacob Zabel,
Jennifer Oh, John Persa, Geraldine Schertz and Kathleen
Qualheim, there were briefs, including amicus briefs filed by
Charles G. Curtis, Jr. and Perkins Coie LLP, Madison; Marc Erik
Elias (pro hac vice), Aria C. Branch (pro hac vice), Daniel C.
Osher (pro hac vice), Jacob D. Shelly (pro hac vice), Christina
A. Ford (pro hac vice), William K. Hancock (pro hac vice) and
Elias Law Group LLP, Washington, D.C. There was oral argument
by John Devaney (pro hac vice), Perkins Coie LLP, Washington,
D.C.

For the intervenors-petitioners Citizens Mathematicians and
Scientists Gary Krenz, Sarah J. Hamilton, Stephen Joseph Wright,
Jean-Luc Thiffeault and Somesh Jha, briefs were filed by Michael
P. May, Sarah A. Zylstra, Tanner G. Jean-Louis and Boardman &
Clark LLP, Madison, and David J. Bradford (pro hac vice) and
Jenner & Block LLP, Chicago. There was oral argument by Sam
Hirsch (pro hac vice), Jenner & Block LLP, Washington, D.C.

For the respondents Wisconsin Elections Commission, Marge
Bostelmann, Julie Glancey, Ann Jacobs, Dean Knudson, Robert
Spindell, Jr. and Mark Thomsen there were letter-briefs filed by
Steven C. Kilpatrick, assistant attorney general, Karla Z.
Keckhaver, assistant attorney general, Thomas C. Bellavia,
assistant attorney general.

For the intervenors-respondents the Wisconsin Legislature
there were briefs, including amicus briefs, filed by Kevin M.
St. John and Bell Giftos St. John LLC, Madison; Jeffrey M.
Harris (pro hac vice), Taylor A.R. Meehan (pro hac vice), James
P. McGlone and Consovoy McCarthy PLLC, Arlington, Virginia and
Adam K. Mortara and Lawfair LLC, Chicago. There was oral
argument by Taylor A.R. Meehan.
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 For the intervenor-respondent Governor Tony Evers there
were briefs filed by Joshua L. Kaul, attorney general, Anthony
D. Russomanno, assistant attorney general and Brian P. Keenan,
assistant attorney general. There was oral argument by Anthony
D. Russomanno.

For the intervenor-respondent Janet Bewley, State Senate
Democratic Minority Leader on behalf of the State Senate
Democratic Caucus there were briefs filed by Tamara B. Packard,
Aaron G. Dumas and Pines Bach LLP, Madison. There was oral
argument by Tamara B. Packard.

There was an amicus brief filed on behalf of William
Whitford, Hans Breitenmoser, Mary Lynne Donohue, Wendy Sue
Johnson and Deborah Patel by Ruth M. Greenwood (pro hac vice),
The Election Law Clinic, Harvard Law School, Cambridge, MA; with
whom on the brief were law student-practitioners Mary F. Brown,
Mark R. Haidar, Meredith A. Manda, Sarah A. Sadlier, Corey M.
Stewart, Harvard Law School and Jakob Feltham and Hawks Quindel,
S.C., Madison.

There was an amicus brief filed on behalf of Concerned
Voters of Wisconsin by Joseph S. Goode, Mark M. Leitner, John W.
Halpin and Laffey, Leitner & Goode, L.L.C., Milwaukee.

There was an amicus brief filed on behalf of Non-Party
Legal Scholars by Allison Boldt, Robert Yablon and the
University of Wisconsin Law School, Madison.

There was an amicus brief filed by Daniel R. Suhr,
Thiensville.

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 2022 WI 19
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2021AP1450-OA

STATE OF WISCONSIN : IN SUPREME COURT

Billie Johnson, Eric O'Keefe, Ed Perkins and
Ronald Zahn,

Petitioners,

Black Leaders Organizing for Communities, Voces
de la Frontera, League of Women Voters of
Wisconsin, Cindy Fallona, Lauren Stephenson,
Rebecca Alwin, Congressman Glenn Grothman,
Congressman Mike Gallagher, Congressman Bryan
Steil, Congressman Tom Tiffany, Congressman
Scott Fitzgerald, Lisa Hunter, Jacob Zabel,
Jennifer Oh, John Persa, Geraldine Schertz,
Kathleen Qualheim, Gary Krenz, Sarah J.
Hamilton, Stephen Joseph Wright, Jean-Luc
Thiffeault, and Somesh Jha,
FILED
Intervenors-Petitioners,
APR 15, 2022
v.
Sheila T. Reiff
Wisconsin Elections Commission, Marge Clerk of Supreme Court
Bostelmann in her official capacity as a member
of the Wisconsin Elections Commission, Julie
Glancey in her official capacity as a member of
the Wisconsin Elections Commission, Ann Jacobs
in her official capacity as a member of the
Wisconsin Elections Commission, Dean Knudson in
his official capacity as a member of the
Wisconsin Elections Commission, Robert
Spindell, Jr. in his official capacity as a
member of the Wisconsin Elections Commission
and Mark Thomsen in his official capacity as a
member of the Wisconsin Elections Commission,

Respondents,

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The Wisconsin Legislature, Governor Tony Evers,
in his official capacity, and Janet Bewley
Senate Democratic Minority Leader, on behalf of
the Senate Democratic Caucus,

Intervenors-Respondents.

ZIEGLER, C.J., delivered the majority opinion of the Court, in
which ROGGENSACK, REBECCA GRASSL BRADLEY, and HAGEDORN, JJ.,
joined. REBECCA GRASSL BRADLEY, J., filed a concurring opinion,
in which ZIEGLER, C.J., and ROGGENSACK, J., joined. HAGEDORN,
J., filed a concurring opinion. KAROFSKY, J., filed a
dissenting opinion, in which ANN WALSH BRADLEY and DALLET, JJ.,
joined.

ORIGINAL ACTION. On remand from the United States Supreme

court. Relief granted.

¶1 ANNETTE KINGSLAND ZIEGLER, C.J. This is an original

action filed by Petitioners Billie Johnson, Eric O'Keefe, Ed

Perkins, and Ronald Zahn to remedy malapportionment in

Wisconsin's state legislative and congressional districts. On

March 3, 2022, this court selected legislative and congressional

maps drawn by Governor Tony Evers. Johnson v. Wis. Elections
Comm'n, 2022 WI 14, ¶52, 400 Wis. 2d 626, ___ N.W.2d ___. Upon

a request for certiorari review by the United States Supreme

Court, the Supreme Court granted certiorari and summarily

reversed the selection of the Governor's state legislative maps.

Wis. Legislature v. Wis. Elections Comm'n, 595 U.S. ___, 142

S. Ct. 1245, 1251 (2022) (per curiam). Racial motivations drove

the Governor's selection of district lines, and the Supreme
Court reasoned that the court relied on insufficient evidence to

endorse such race-based decision making. Id. at 1249-51. The

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 No. 2021AP1450-OA

Supreme Court remanded the case to the court for further

proceedings regarding the Wisconsin State Senate and Assembly

maps. Id. at 1251.

¶2 Upon review of the record, we conclude that

insufficient evidence is presented to justify drawing state

legislative districts on the basis of race. The maps proposed

by the Governor, Senator Janet Bewley, Black Leaders Organizing

for Communities ("BLOC"), and Citizen Mathematicians and

Scientists ("CMS") are racially motivated and, under the Equal

Protection Clause, they fail strict scrutiny.

¶3 By contrast, the maps proposed by the Wisconsin

Legislature are race neutral. The Legislature's maps comply

with the Equal Protection Clause, along with all other

applicable federal and state legal requirements. Further, the

Legislature's maps exhibit minimal changes to the existing maps,

in accordance with the least change approach we adopted in

Johnson v. Wis. Elections Comm'n, 2021 WI 87, 399 Wis. 2d 623,

967 N.W.2d 469. Therefore, we adopt the state senate and
assembly maps proposed by the Legislature for the State of

Wisconsin.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶4 In 2011, the Wisconsin Legislature passed and the

Governor signed state legislative and congressional maps after

the 2010 census. Over the subsequent ten years, the population

of Wisconsin changed; people moved away from some areas and

people moved into others. These changes were recognized in the

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 No. 2021AP1450-OA

2020 census, which identified a population increase in the state

from 5,686,986 to 5,893,718. See Johnson, 399 Wis. 2d 623, ¶15.

¶5 The Petitioners filed this original action in August

2021 to remedy alleged malapportionment in Wisconsin's state

legislative and congressional maps.1 In September 2021, this

court accepted the case, and in October 2021, the court directed

the parties to file briefs addressing what factors the court

should consider when selecting new maps. Johnson v. Wis.

Elections Comm'n, No. 2021AP1450-OA, unpublished order (Wis.

Sept. 22, 2021, amend. Sept. 24, 2021); Johnson v. Wis.

Elections Comm'n, No. 2021AP1450-OA, unpublished order (Wis.

Oct. 14, 2021). On November 17, 2021, the court directed the

parties to confer and, if they wished to participate in a

discovery period, to file a joint proposed discovery plan by

December 3, 2021. Johnson v. Wis. Elections Comm'n, No.

2021AP1450-OA, unpublished order (Wis. Nov. 17, 2021).

¶6 On November 30, 2021, the court issued a decision

explaining the framework by which the court would select maps.
The court identified that under the Equal Protection Clause of

The
1 Legislature is constitutionally tasked with
responsibility to act in reapportionment. Wis. Const. art. IV,
§ 3 ("At its first session after each enumeration made by the
authority of the United States, the legislature shall apportion
and district anew the members of the senate and assembly,
according to the number of inhabitants."). In 2021, after
completion of the 2020 census, the Legislature passed new
redistricting maps. However, "[that] legislation did not
survive the political process." Johnson v. Wis. Elections
Comm'n, 2021 WI 87, ¶72 n.8, 399 Wis. 2d 623, 967 N.W.2d 469.
As a result, this court is called upon to select redistricting
maps.

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 No. 2021AP1450-OA

the United States Constitution, "a State [must] make an honest

and good faith effort to construct districts, in both houses of

its legislature, as nearly of equal population as practicable."

Johnson, 399 Wis. 2d 623, ¶24 (quoting Reynolds v. Sims, 377

U.S. 533, 577 (1964)). This "one person, one vote" principle

applies with less force when selecting districts for state

legislative maps than it does for congressional maps.

"Consistent with principles of federalism, states have limited

flexibility to pursue other legitimate policy objectives, such

as 'maintain[ing] the integrity of various political

subdivisions' and 'provid[ing] for compact districts of

contiguous territory.'" Id., ¶26 (alterations in original)

(quoting Brown v. Thomson, 462 U.S. 835, 842 (1983)). The court

explained that, in addition to satisfying all Equal Protection

Clause requirements, the court must consider compliance with

Section 2 of the Voting Rights Act ("VRA"). Id., ¶27 (citing 52

U.S.C. § 10301).

¶7 Under state law, the court recognized that the
Wisconsin Constitution, as with the United States Constitution,

imposes a requirement for population equality among legislative

districts. Id., ¶¶28-33 (citing Wis. Const. art. IV, § 3).

Although "perfect exactness in the apportionment, according to

the number of inhabitants, is neither required nor possible,"

"there should be as close an approximation to exactness as

possible." Id., ¶28 (quoting State ex rel. Attorney General v.

Cunningham, 81 Wis. 440, 484, 51 N.W. 724 (1892)). Further, the
court identified a state constitutional interest in retaining

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 No. 2021AP1450-OA

assembly districts within "county, precinct, town, [and] ward

lines." Id., ¶35 (quoting Wis. Const. art. IV, § 4). The court

recognized that, under federal one person, one vote

jurisprudence, bounding districts by county lines may not be

possible, but "the smaller the political subdivision, the easier

it may be to preserve its boundaries." Id. Finally, the court

stated that assembly districts must be "contiguous" and "in as

compact form as practicable." Id., ¶¶36-37 (citing Wis. Const.

art. IV, § 4). Both the assembly and senate must have single

member districts, and assembly districts may not be "divided in

the formation of a senate district," i.e., senate districts must

"nest" within assembly district boundaries. Id., ¶37 (citing

Wis. Const. art. IV, §§ 4, 5).

¶8 In its November 30 decision, the court adopted the

"least change approach," whereby the court would select maps

that "comport with relevant legal requirements" while

"reflect[ing] the least change necessary." Id., ¶72 (citation

omitted). The court rejected the suggestion that the court
consider partisan fairness and proportional representation of

political parties when selecting maps. Id., ¶¶40-52.

¶9 Following the court's November 17 order directing the

parties to confer and develop a discovery plan, the parties on

December 3, 2021, submitted a joint discovery plan. The parties

agreed that any discovery in this case and the legal issues

presented therein would be completed by December 23, 2021. They

stipulated that no discovery "beyond the exchange of maps,
expert disclosures, and any documents or data that a party

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 No. 2021AP1450-OA

intends to rely upon or an expert has relied upon" was

anticipated. As that information would be included in briefing

with the court, the parties consequently undertook no other

discovery. See Johnson, No. 2021AP1450-OA, unpublished order,

at 2 (Wis. Nov. 17, 2021) (explaining the timeline for filing

briefing with the court).

¶10 Between December 15, 2021, and January 4, 2022, the

court received hundreds of pages of briefing and expert reports

from the parties. The court heard oral arguments on January 19,

2022. Between September 22, 2021, when the court first accepted

this original action, and January 19, 2022, when the court held

oral arguments, the court received no formal request or motion

to permit additional discovery, beyond what was included in the

joint discovery plan, or to modify the court's schedule to

accommodate discovery needs.

¶11 On January 19, 2022, the court heard a total of five

hours of oral arguments over the course of the day. On March 3,

2022, the court issued a decision adopting the Governor's state
legislative and congressional maps. Johnson, 400 Wis. 2d 626,

¶52. The court reasoned that the Governor's maps included the

least alterations to preexisting maps. Id., ¶¶26-33. In

addition, the court said that the Governor's maps complied with

the Equal Protection Clause, the VRA, and the Wisconsin

Constitution. Id., ¶¶34-51.

¶12 After the court issued its March 3 decision, the

Petitioners and the Legislature sought certiorari review by the
United States Supreme Court, asserting that the court's adoption

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 No. 2021AP1450-OA

of the Governor's state legislative maps constituted a racial

gerrymander in violation of the Equal Protection Clause.

Congressmen Glenn Grothman, Mike Gallagher, Bryan Steil, Tom

Tiffany, and Scott Fitzgerald ("the Congressmen") filed a

separate appeal to the Supreme Court, challenging this court's

selection of the Governor's congressional map.2

¶13 On March 23, 2022, the United States Supreme Court

reversed the court's decision to select the Governor's state

legislative maps. The Supreme Court confirmed that, under the

Equal Protection Clause, a state government cannot draw district

maps on the basis of race unless the state satisfies strict

scrutiny. Wis. Legislature v. Wis. Elections Comm'n, 142 S. Ct.

at 1248-49. If the state has before it a "strong basis in

evidence" for believing the VRA "require[s] [the state] to move

voters based on race," and the evidence is district specific, a

racially motivated map can satisfy strict scrutiny. Id. at 1249

(quoting Cooper v. Harris, 581 U.S. ____, 137 S. Ct. 1455, 1470

(2017)). However, the state must possess this evidence before
it creates maps based on racial classifications. Id. (quoting

Shaw v. Hunt, 517 U.S. 899, 910 (1996)).

¶14 In the case before this court, the Supreme Court

reasoned that, based on the filings and presentations made by

the Governor, the Governor had failed to present a strong

2The United States Supreme Court denied review of the
Congressmen's appeal. Grothman v. Wis. Elections Comm'n, No.
21A490, 2022 WL 851726 (Mar. 23, 2022) (stay denied). Thus, the
March 3 decision to adopt the Governor's congressional map
remains unchanged.

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 No. 2021AP1450-OA

evidentiary basis for believing the VRA mandated the district

lines he drew. Id. at 1249. Specifically, the Supreme Court

identified that the Governor's primary explanation for his

racially drawn maps was the fact that it was cartographically

possible to draw them. Id. According to the Supreme Court,

"[s]trict scrutiny requires much more." Id. Based on the

record, the Governor's maps failed to satisfy this legal

standard. Id.

¶15 The Supreme Court concluded that this court's March 3

decision fell short because this court had concluded only that

the "VRA might support race-based districting." Id. (quoting

Johnson, 400 Wis. 2d 626, ¶47 ("[W]e cannot say for certain on

this record that seven majority-Black assembly districts are

required by the VRA.")). Strict scrutiny requires more: it

requires strong, district-specific evidence that race-based map

drawing is required, not just that it "might" be required. Id.

at 1249-50. The Equal Protection Clause "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 1250 (quoting Cooper, 137

S. Ct. at 1472).

¶16 Further, the Supreme Court indicated that the court

failed to properly examine the three-step prerequisites to

proving a VRA violation, as stated in Thornburg v. Gingles, 478

U.S. 30, 46-51 (1986). Although, in its March 3 decision, the

court cited electoral history analysis provided by BLOC, the
court failed to thoroughly examine whether and to what extent

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that report proved a VRA violation. Wis. Legislature v. Wis.

Elections Comm'n, 142 S. Ct. at 1249-50.

¶17 Finally, the Supreme Court noted that, when the court

examined whether under the totality of the circumstances racial

considerations were mandated by the VRA, the court improperly

"focused exclusively on proportionality." Id. at 1250. "[N]o

single statistic provides courts with a shortcut to determine

whether a set of single-member districts unlawfully dilutes

minority voting strength." Id. (quoting Johnson v. De Grandy,

512 U.S. 997, 1020–21 (1994)).

¶18 The Supreme Court concluded, "The question that our

VRA precedents ask and the court failed to answer is whether a

race-neutral alternative that did not add a seventh majority-

black district would deny black voters equal political

opportunity." Id. at 1250-51. "Answering that question

requires an 'intensely local appraisal' of the challenged

district." Id. at 1251 (quoted source omitted).

¶19 The Supreme Court remanded the case to us for further
proceedings. The Court explained that we could "choose from

among . . . other submissions." Id. Alternatively, the court

could "take additional evidence if [we] prefer[ed] to reconsider

the Governor's maps." Id. It instructed, however, that "[a]ny

new analysis . . . must comply with our equal protection

jurisprudence." Id.

II. ANALYSIS

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¶20 Five parties submitted maps for the Wisconsin Senate

and Assembly: the Governor, Senator Janet Bewley, BLOC, CMS,

and the Legislature.

¶21 In line with our November 30 decision, we apply a

"least change approach." We "[t]read[] [no] further than

necessary to remedy current legal deficiencies." Johnson, 399

Wis. 2d 623, ¶64. In so doing, we "begin with the current

boundaries and change them as little as possible." Id., ¶73.

Previously, the court indicated that "core retention," or the

percentage of voters who remain in their preexisting districts,

is an "especially helpful" metric of change. Johnson, 400

Wis. 2d 626, ¶13. Regardless of how much weight is given to

core retention as a measure of change, only the Legislature's

maps comply with the law, as we explain below. As a matter of

law, the Legislature's maps are superior to the available

alternatives.

¶22 Under the record presented before us, and with

clarification from the Supreme Court, we conclude that the
Legislature proposed the only legally compliant maps. The maps

proposed by the Legislature also reflect minimal changes to

existing maps. Thus, the Legislature's maps are the best, and

only, viable proposal. We will first analyze whether the

proposed legislative maps comply with federal and state law. We

will then discuss the least-change principle.

A. Compliance With The Law
1. The Equal Protection Clause and the VRA

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¶23 Section 1 of the Fourteenth Amendment states that

"[n]o State shall make or enforce any law which shall . . . deny

to any person within its jurisdiction the equal protection of

the laws." In recognition of this basic constitutional

guarantee, the United States Supreme Court has recognized that

"[d]istinctions between citizens solely because of their

ancestry are by their very nature odious to a free people, and

therefore are contrary to our traditions and hence

constitutionally suspect." Fisher v. Univ. of Texas, Austin,

570 U.S. 297, 309 (2013) (citations and quotations omitted);

accord Wis. Legislature v. Wis. Elections Comm'n, 142 S. Ct. at

1248 (explaining that government-endorsed racial distinctions

"are by their very nature odious" (quotations omitted)).

¶24 The Equal Protection Clause strongly protects

individuals from race-based classifications in redistricting.

"Racial classifications with respect to voting carry particular

dangers. Racial gerrymandering, even for remedial purposes, may

balkanize us into competing racial factions[.]" Shaw v. Reno,
509 U.S. 630, 657 (1993). "Race-based assignments [in voting

districts] embody stereotypes that treat individuals as the

product of their race, evaluating their thoughts and efforts——

their very worth as citizens——according to a criterion barred to

the Government by history and the Constitution." Miller v.

Johnson, 515 U.S. 900, 912 (1995). Such behavior "threatens to

carry us further from the goal of a political system in which

race no longer matters——a goal that the Fourteenth and Fifteenth

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Amendments embody, and to which the Nation continues to aspire."

Shaw v. Reno, 509 U.S. at 657.

¶25 Classifications based on race, in redistricting just

like in other contexts, "are constitutional only if they are

narrowly tailored to further compelling governmental interests."

Grutter v. Bollinger, 539 U.S. 306, 326 (2003). This is a

"searching judicial inquiry," id., that rejects "any but the

most exact connection between justification and classification."

Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551

U.S. 701, 720 (2007) (quotations removed). The Supreme Court

has "assumed that . . . complying with operative provisions of

the Voting Rights Act of 1965" can serve as a compelling

interest. However, the government must still satisfy the narrow

tailoring and "searching judicial inquiry" that strict scrutiny

requires. Grutter, 539 U.S. at 326; Bush v. Vera, 517 U.S. 952,

978 (1996) (plurality) ("Strict scrutiny remains, nonetheless,

strict."). In order to satisfy strict scrutiny, there must be a

"strong basis in evidence" that the VRA requires the drawing of
districts on the basis of race. Miller, 515 U.S. at 922; Wis.

Legislature v. Wis. Elections Comm'n, 142 S. Ct. at 1249

(emphasizing that an observation, based on available records,

that race-based districts "may" be required is insufficient to

satisfy strict scrutiny).

¶26 Section 2 of the VRA prohibits election practices and

procedures that, in the "totality of the circumstances," create

political processes leading to nomination or election
in the State or political subdivision [that] are not

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equally open to participation by members of a
[protected] class of citizens . . . in that its
members have less opportunity than other members of
the electorate to participate in the political process
and to elect representatives of their choice.
52 U.S.C. § 10301(b). "[I]nteracting with social and historical

conditions," district lines that prevent a cohesive minority

from electing their preferred candidate "impairs the ability of

a protected class to [exercise voting rights] on an equal basis

with other voters." De Grandy, 512 U.S. at 1007. If certain

conditions are met in a specific location, the law may require
the "drawing of [] majority-minority district[s]." Cooper, 137

S. Ct. at 1487.

¶27 The Supreme Court has demanded that three specific

preconditions be met before it can conclude that the creation of

additional majority-minority districts may be necessary: "(1)

the racial group is sufficiently large and geographically

compact to constitute a majority in a single-member district;

(2) the racial group is politically cohesive; and (3) the

majority vote[s] sufficiently as a bloc to enable

it . . . usually to defeat the minority's preferred candidate."

League of United Latin American Citizens v. Perry, 548 U.S. 399,

425 (2006) ("LULAC") (quotations omitted). These three

requirements are called the "Gingles preconditions." Wis.

Legislature v. Wis. Elections Comm'n, 142 S. Ct. at 1250.

¶28 Satisfaction of the Gingles preconditions does not, on

its own, prove a VRA violation. To meet the standard, there

must be an established record of discriminatory, district-
specific effects. The Supreme Court has repeatedly cited a 1982

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report from the United States Senate which lists numerous

factors of potential significance, including, for example, the

history and practice of state-sponsored discrimination, the

extent to which discrimination hinders the ability of a minority

to effectively participate in democratic elections, and the use

of racial appeals in campaigning. LULAC, 548 U.S. at 426

(citing Gingles, 478 U.S. at 44-45). In addition,

proportionality of effective minority districts to the

minority's "citizen voting-age population" can be relevant to

the totality of the circumstances analysis. LULAC, 548 U.S. at

436; accord Wis. Legislature v. Wis. Elections Comm'n, 142 S.

Ct. at 1249 ("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 [proportionality].").

Proportionality, however, is "never dispositive." Wis.

Legislature v. Wis. Elections Comm'n, 142 S. Ct. at 1250

(quoting De Grandy, 512 U.S. at 1026 (O'Connor, J.,

concurring)).
¶29 The VRA requires an "intensely local appraisal" which

"pars[es] . . . data at the district level" and evidences a lack

of minority electoral opportunity, such that a race-based remedy

is needed. Id. at 1250-51; LULAC, 548 U.S. at 432-34 (holding

that a majority-Hispanic district was required but an existing

map creating a majority-Hispanic district failed to satisfy the

VRA, explaining that different Hispanic individuals in different

locales had "differences in socio-economic status, education,
employment, health, and other characteristics," and there was

19
 No. 2021AP1450-OA

insufficient evidence of "compactness" under the first Gingles

precondition); Cooper, 137 S. Ct. at 1471-72, 1471 n.5

("[G]eneralized conclusion[s]" of state-wide racial polarization

in voting "fail[] to meaningfully (or indeed, at all) address

the relevant local question: whether, in a new version of

District 1 created without a focus on race, black voters would

encounter sufficient[] white bloc-voting to cancel [their]

ability to elect representatives of their choice." (quotations

omitted)). The inquiry is emphatically not to create "the

maximum number of majority-minority districts," regardless of

the on-the-ground characteristics of the minority communities

under consideration. De Grandy, 512 U.S. at 1016 (reversing a

district court's finding of § 2 violation because more Hispanic

majority-minority districts could have been created). In other

words, a district-specific VRA violation must be demonstrated in

evidence before a race-based remedy may be used. Wis.

Legislature v. Wis. Elections Comm'n, 142 S. Ct. at 1249-50

(emphasizing that a state must have evidentiary support for a
race-based action "before" the action is taken (citing Shaw v.

Hunt, 517 U.S. at 910)); Miller, 515 U.S. at 922; LULAC, 548

U.S. at 437; Cooper, 137 S. Ct. at 1471-72, 1471 n.5.

¶30 Without a "strong basis in evidence" that the VRA

requires the use of race to draw legislative districts, Miller,

515 U.S. at 922, race-neutral "traditional districting

principles such as compactness, contiguity, and respect for

political subdivisions" must control. Shaw v. Reno, 509 U.S. at
647; accord Wis. Legislature v. Wis. Elections Comm'n, 142 S.

20
 No. 2021AP1450-OA

Ct. 1250-51 (explaining that the VRA requires the use of race in

redistricting only when a "race-neutral alternative . . . would

deny [a protected class of] voters equal political

opportunity").

¶31 Here, examining the available record, we conclude that

there is not a "strong basis in evidence" that the VRA requires

the use of race to draw majority-black legislative districts.

Specifically, there is insufficient evidence to demonstrate that

here, black voters have their choice of candidate blocked by a

cohesive and oppositional voting bloc. See LULAC, 548 U.S. at

436 (explaining the Gingles preconditions).

¶32 The Governor failed to present evidence that a race-

based remedy was necessary under the VRA, but nonetheless drew

districts on the basis of race to create seven majority-black

districts. Wis. Legislature v. Wis. Elections Comm'n, 142 S.

Ct. at 1249; Miller, 515 U.S. at 922. The Supreme Court

recognized that the Governor "provided almost no other evidence

or analysis supporting his claim that the VRA required the seven
majority-black districts that he drew." Wis. Legislature v.

Wis. Elections Comm'n, 142 S. Ct. at 1249. The Supreme Court

further noted that the Governor's "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 apparently embracing just the sort of uncritical

majority-minority district maximization that we have expressly

rejected." Id. (citation omitted). This is clearly in
violation of the Equal Protection Clause, as a race-based remedy

21
 No. 2021AP1450-OA

cannot precede proof of a VRA violation. Id. at 1249-50 (citing

Shaw v. Hunt, 517 U.S. at 910). Supreme Court precedent

confirms this to be the case. De Grandy specifically concluded

that the "failure to maximize cannot be the measure of § 2."

De Grandy, 512 U.S. at 1017.

¶33 The Governor's maps were racially motivated and are

thus subject to strict scrutiny. To determine whether a map is

race based, we must examine "direct evidence going to . . . [the

map-drawer's] purpose," in addition to circumstantial evidence,

such as "a district's shape and demographics." Shaw v. Hunt,

517 U.S. at 905. In briefing and at oral argument, the Governor

repeatedly asserted that the VRA required the drawing of seven

majority-black districts. He stated in his initial brief that

the VRA "requires the drawing of majority-minority districts"

and that his maps "create[] seven majority Black districts"

because there is now a "sufficiently large and compact

population of Black residents" to do so. In the Governor's

response brief he stated, "[S]even majority-minority Black
districts can be drawn in Milwaukee and so 'should be.'" In

addition to his overt reliance on race, he indisputably drew

districts to reach precise racial targets in district

demographics. The Governor drew seven districts all at almost

exactly 51% black voting-age population ("BVAP"), the lowest

BVAP being 50.2% and the highest being 51.4%. See Miller, 515

U.S. at 917-18 (holding that a state subordinated traditional

redistricting criteria to race by noting the objective
characteristics of the district which strongly indicated racial

22
 No. 2021AP1450-OA

motivations as well as statements made by map drawers,

confirming the use of race in drawing districts).

¶34 The Governor did not present evidence of a VRA

violation, despite drawing maps on the basis of race. He

produced no evidence of electoral history and no district-

specific evidence demonstrating that the black communities he

moved among districts would be denied the opportunity to

effectively participate in democracy absent his proposed

district lines. See 52 U.S.C. § 10301(b); Cooper, 137 S. Ct. at

1471-72, 1471 n.5; LULAC, 548 U.S. at 432, 437. Upon review of

this case, the Supreme Court confirmed that "the Governor failed

to carry his burden" of showing "the VRA required the seven

majority-black districts that he drew." Wis. Legislature v.

Wis. Elections Comm'n, 142 S. Ct. at 1249. As the Supreme Court

explained, "[s]trict scrutiny requires much more" than what the

Governor produced and relied upon.3 Id.

¶35 Importantly, the Governor had more than adequate

opportunity to produce a sufficient record. The court accepted
this case in September 2021. In November 2021, the court

directed the Governor to confer with the other parties and

develop a joint discovery plan, and in December 2021, an open

The dissent critiques the Supreme Court's Equal Protection
3

Clause jurisprudence and restates arguments made by the
dissenting justices in the Supreme Court's per curiam opinion.
See, e.g., dissent, ¶178 (quoting Wis. Legislature v. Wis.
Elections Comm'n, 595 U.S. ___, 142 S. Ct. 1245, 1251 (2022)
(Sotomayor, J., dissenting)). Obviously, we must follow the
majority's directives.

23
 No. 2021AP1450-OA

discovery period was held. Oral arguments were held on

January 19, 2022, four months after the court accepted this case

and two months after the parties conferred on discovery

procedure. Notably, in the joint discovery plan, the Governor

stipulated that no discovery outside briefs and expert reports

produced for the court was needed. Not once did the Governor

notify the court that there was a need to develop a more

detailed record or that the procedures adopted by the court

failed to permit adequate discovery. The Governor chose to

place his case on the evidentiary support included in his briefs

and expert reports, and as the Supreme Court held, that evidence

was not sufficient to justify racially motivated district lines.

Wis. Legislature v. Wis. Elections Comm'n, 142 S. Ct. at 1249-

50.

¶36 The same flaws of the Governor's maps exist for

Senator Bewley's maps. She, like the Governor, contends that

the Gingles preconditions are met and race must be used in order

to comply with the VRA. Like the Governor, Senator Bewley puts
the cart before the horse: she creates a race-based remedy

without district-specific evidence of a VRA violation. To

justify her race-based measures, Senator Bewley relies on a

single statewide general election, which, at most, suggests that

white voters had weaker preference for the Democratic Party

candidate than black voters. Such evidence falls far short of

demonstrating a VRA violation. It fails to prove whether

specific black communities in the Milwaukee-area within Senator
Bewley's racially drawn districts would experience bloc-voting

24
 No. 2021AP1450-OA

resistance from a white majority that could effectively and

consistently prevent the election of black-supported candidates.

Wis. Legislature v. Wis. Elections Comm'n, 142 S. Ct. at 1249-

51; LULAC, 548 U.S. at 432, 437; Cooper, 137 S. Ct. at 1471-72,

1471 n.5. Thus, Senator Bewley's legislative maps are likewise

disqualified as there is not a "strong basis in evidence" to

believe that her racially motivated maps are required under the

VRA. Wis. Legislature v. Wis. Elections Comm'n, 142 S. Ct. at

1249-50; Miller, 515 U.S. at 922.4

Hunter
4 Intervenor-Petitioners ("Hunter") originally
submitted state legislative maps. However, Hunter seemingly
withdrew those maps from consideration, contending that the
court should consider the Governor's maps in lieu of their maps.
Hunter's position was made apparent by the conclusion of
briefing. After opening briefing and responses, in its reply
brief, Hunter "urge[d] adoption of the Governor's congressional
map or, alternatively, the Hunter congressional map . . . ." By
contrast, Hunter did not advance support for its state
legislative maps. Hunter stated that the court should
"adopt[] . . . either the Governor's or BLOC's legislative
maps." At oral arguments, Hunter reiterated this position. It
stated that it would "stand by" its congressional maps, despite
the Governor presenting, in Hunter's opinion, a superior
congressional map. [Oral Arguments 1:59.] For state
legislative maps, Hunter asserted that it would "not argue for"
its state legislature maps, reasoning that, in its view, the
available alternatives presented by other parties were superior.
Id. Upon remand from the United States Supreme Court, Hunter
stood by its decision to support the Governor's legislative
maps. Hunter offered only three options for the court on
remand: receive new evidence and "re-adopt the Governor's
proposed maps"; "amend the boundaries of [the Governor's]
particular districts"; or simply select the Governor's maps
without additional analysis on the VRA. Since Hunter filed its
reply brief, it has neither affirmatively asserted nor
implicitly suggested that we should consider its state
legislative maps. Instead, it has dedicated the entirety of its
arguments toward opposing the Legislature's state legislative
maps and supporting the Governor's maps. Even if we were to
25
 No. 2021AP1450-OA

¶37 Like the Governor and Senator Bewley, BLOC also

provided maps that were racially motivated. The evidence BLOC

produced in support of a VRA violation, while more than either

the Governor or Senator Bewley, nonetheless falls short of that

required under the law. On close examination of BLOC's

analysis, there exists an inadequate evidentiary basis to

support the use of race in drawing BLOC's legislative districts.

At most, BLOC produced incomplete, regional information that was

not sufficiently district-specific. The record BLOC provided

cannot overcome strict scrutiny.

¶38 There is no doubt race was a driving factor in BLOC's

selection of legislative districts. BLOC argues in briefing

that the VRA requires the use of race to draw seven majority-

black districts. In so doing, BLOC's maps include seven bare

majority-black districts like the Governor's maps. BLOC's maps

target exact 51% BVAP thresholds: seven assembly districts vary

between 50.2% and 52.3% BVAP.

¶39 From the start, it is clear by examining the BVAP of
BLOC's districts that BLOC's remedy for an alleged VRA violation

consider Hunter's maps, they would be rejected for the same
reasons we reject Senator Bewley's maps. Hunter argued that the
Gingles preconditions are satisfied and we must use race to
"create a seventh Black opportunity district." However, Hunter
presents no district-specific evidence that black voters in
particular communities in the Milwaukee area are "usually"
denied the opportunity to elect candidates they support. League
of United Latin American Citizens v. Perry, 548 U.S. 399, 425,
432, 437 (2006) ("LULAC"); Wis. Legislature v. Wis. Elections
Comm'n, 142 S. Ct. at 1249-51; Cooper v. Harris, 581 U.S. ___,
137 S. Ct. 1455, 1471-72, 1471 n.5. (2017).

26
 No. 2021AP1450-OA

is to actually reduce, not increase, the population percentages

of black voters. In fact, the BLOC proposed "remedy" is to

reduce minority percentage, ranging from 51% to 62% BVAP, to

about 50%, in all six current majority-black assembly districts.

This same feature is found in the Governor's maps. The Supreme

Court explicitly noted this reduction of minority percentages

when the Court summarily reversed the Governor's maps. Wis.

Legislature v. Wis. Elections Comm'n, 142 S. Ct. at 1247 n.1

(stating that the Governor "intentionally created seven

majority-black districts" by "reducing the black voting-age

population in the other six majority-black districts" to a

cluster around 51% BVAP).5

5 Of course, this concern regarding the reduction of
minority percentages is not the same when the Gingles
preconditions have been satisfied and the VRA requires a
reduction in the percentage of minorities in a given district so
as to avoid "packing." See Johnson v. De Grandy, 512 U.S. 997,
1007 (1994) (indicating that the VRA remedy could be necessary
where minorities are "pack[ed] . . . into one or a small number
of districts to minimize their influence in the districts next
door"). However, the court is not aware of a single case where
a court has found a sufficient evidentiary basis to apply a
race-based remedy and subsequently reduced the percentage of
minorities across multiple districts from safe majorities of
around 60% to a bare 51%. Compare, e.g., Comm. for a Fair &
Balanced Map v. Ill. State Bd. of Elections, 835 F. Supp. 2d
563, 582 (N.D. Ill. 2011) ("60 percent of voting-age population
is reasonably required to ensure minorities a fair opportunity
to elect a candidate of their choice."); Hastert v. State Bd. of
Elections, 777 F. Supp. 634, 647 (N.D. Ill. 1991) (noting that a
"65% minority population [or 60% minority voting-age population]
concentration [is] generally regarded as necessary to ensure
minorities a reasonable opportunity to control a district");
Baumgart v. Wendelberger, Nos. 01-C-0121 & 02-C-0366,
unpublished slip op., 2002 WL 34127471, at *5 (E.D. Wis. May 30,
2002) (recognizing expert testimony that "a minority district
requires an African–American voting age population of at least
27
 No. 2021AP1450-OA

¶40 To justify the use of race in drawing district lines,

BLOC selects eight election results to prove the existence of

white voters blocking candidates supported by the black voters.

Notably, BLOC's analysis focuses on five election results from

Milwaukee County and two election results from the City of

Milwaukee. As part of its election analysis, it includes only

one election from an elected office at issue, a party primary

for the 12th assembly district in 2018. But BLOC explicitly

excludes that election from its bloc-voting analysis because it

"only covers a small subset of the wider jurisdiction," i.e., it

is district specific. No other election analysis of senate or

assembly districts for any other district at any other time is

provided, and no other evidence on the existence of the Gingles

preconditions is provided on the district level. The BLOC

analysis is simply devoid of district-specific evidence. Such

local evidence is required under the VRA to first demonstrate a

violation, thereby necessitating a race-based remedy. Wis.

Legislature v. Wis. Elections Comm'n, 142 S. Ct. 1245, at 1249-
51; LULAC, 548 U.S. at 432, 437; Cooper, 137 S. Ct. at 1471-72,

1471 n.5.

¶41 Notably, BLOC does not consider any November general

elections, when the candidates for the public offices at issue

are selected to represent the districts at issue. The

Legislature notes that, in November general elections in the

local districts at issue, the black-preferred candidate is

60% to guarantee the election of candidates of choice").

28
 No. 2021AP1450-OA

rarely, if ever blocked by a white coalition. Although primary

data and exogenous elections can be relevant to a VRA analysis,

to exclude completely any consideration of the elections that

decide who holds the seats under consideration in the districts

under consideration is markedly at odds with standard VRA

analysis. See, e.g., Cooper, 137 S. Ct. at 1471-72 (examining

general election history of a congressional district at issue in

the challenge); LULAC, 548 U.S. at 427-28 (explaining general

election history in the congressional district at issue); United

States v. City of Euclid, 580 F. Supp. 2d 584, 604-12 (N.D. Ohio

2008) (describing non-applicable elections in the context of a

detailed review of city council general elections at issue in

the lawsuit); Harper v. City of Chicago Heights, 824 F. Supp.

786, 790, 799-800 (N.D. Ill. 1993) (examining the general

election history of specific city commissioner offices at

issue); see also Bone Shirt v. Hazeltine, 336 F. Supp. 2d 976,

996 (D.S.D. 2004) (explaining a common hierarchy of election

history value, when such history is available, noting that
"[e]ndogenous elections, contests within the jurisdiction and

for the particular office that is at issue, are more probative

than exogenous elections"). Without a full and complete

accounting of district-specific election results, and the extent

to which candidates supported by the relevant black communities

are elected to the state senate and assembly in the districts at

issue, we cannot conclude that without the use of race, black

voters in those districts would lack the same
"opportunity . . . to participate in the political process and

29
 No. 2021AP1450-OA

to elect representatives of their choice" as would other voters.

52 U.S.C. § 10301(b). The court must examine the "totality of

the circumstances," not just election data supporting a race-

based remedy. Id.

¶42 BLOC's evidence fails because it is not district

specific. Even if we were to look beyond that, at best, BLOC's

incomplete analysis shows that the black candidate of choice was

elected in four out of the eight races.6 A 50% success rate is

hardly strong evidence of extensive racial bloc voting such that

the black-preferred candidate is "usually" blocked from office.

LULAC, 548 U.S. at 425; see, e.g., Clarke v. City of Cincinnati,

40 F.3d 807, 812-13 (6th Cir. 1994) (noting that the electoral

6 As noted above, BLOC excluded the 2018 Democratic Party
primary for the 12th assembly district from its bloc-voting
analysis, reasoning that the election was too localized. In
that election, the black-preferred candidate was not blocked by
a white coalition. Thus, by excluding that election, BLOC
contended that the black candidate of choice was blocked in four
out of seven races, or 57% of the time. Upon further review of
BLOC's analysis, it is apparent that a proper VRA record cannot
selectively exclude elections that weigh against a race-based
remedy. See 52 U.S.C. § 10301(b) (requiring courts to examine
the "totality of the circumstances"); see, e.g., Cooper, 137
S. Ct. at 1471-72 (examining general election history of a
congressional district at issue in the challenge); LULAC, 548
U.S. at 427-28 (explaining general election history in the
congressional district at issue). In fact, BLOC's reasoning
runs counter to Supreme Court precedent, which mandates
district-specific evidence of the Gingles preconditions. Wis.
Legislature v. Wis. Elections Comm'n, 142 S. Ct. at 1249-51;
LULAC, 548 U.S. at 432, 437; Cooper, 137 S. Ct. at 1471-72, 1471
n.5. Even if we were to look past the fatal deficiencies of
BLOC's analysis as a whole, we do not accept BLOC's premise that
the 2018 primary for the 12th assembly district can be excluded
from its analysis.

30
 No. 2021AP1450-OA

history for the public offices at issue demonstrated that "47

percent of blacks' preferred black candidates were elected" and

thus there was "no reason to find that blacks' preferred black

candidates have 'usually' been defeated" under Gingles).

¶43 The Legislature noted that, despite BLOC focusing on

county-wide races and including the 2018 Democratic

Gubernatorial primary in its analysis, BLOC conspicuously

omitted any consideration of the 2018 Democratic Lieutenant

Gubernatorial primary in Milwaukee County. BLOC's only response

was circular: "This election is less probative of the

performance of districts, because it does not simulate an

election in which white bloc voting might defeat the choice of

Black voters." With the addition of the 2018 Lieutenant

Gubernatorial primary in Milwaukee County, the Legislature

correctly notes that only four of nine races, using BLOC's own

analysis, involve the black-preferred candidate being blocked

from office. This does not satisfy the Gingles preconditions

for the local black communities at issue.
¶44 The Supreme Court stated explicitly that reliance in

the March 3 decision on BLOC's analysis of "eight previous

races . . . in the Milwaukee area" was flawed because there was

no demonstration that the Gingles preconditions were satisfied

at the district level. Wis. Legislature v. Wis. Elections

Comm'n, 142 S. Ct. at 1250 (reasoning that the March 3 analysis

on the Gingles preconditions was improper, citing BLOC's

electoral evidence, and stating the court "made virtually no
effort to parse that data at the district level"). The court's

31
 No. 2021AP1450-OA

March 3 decision itself acknowledged that "we cannot say for

certain on this record that seven majority-Black assembly

districts," as proposed by the Governor and BLOC, "are required

by the VRA." Johnson, 400 Wis. 2d 626, ¶47. The Supreme Court

has made clear that amount of evidence is inadequate to justify

a race-based remedy. Wis. Legislature v. Wis. Elections Comm'n,

142 S. Ct. at 1249-50 (evidence showing the VRA "might" require

a race-based remedy does not satisfy strict scrutiny). Upon

further review of BLOC's analysis, we conclude that BLOC has not

presented sufficient evidentiary support to justify the use of

race to draw the legislative districts it proposes. Id.;

Miller, 515 U.S. at 922. Therefore, BLOC's maps must be

rejected.

¶45 CMS's maps, while performing well on several race-

neutral criteria, upon further review also fail for being race-

based.7 "[S]trict scrutiny applies when race is the

'predominant' consideration in drawing the district lines such

that 'the legislature subordinates traditional race-neutral
districting principles to racial considerations.'" Shaw v.

Hunt, 517 U.S. at 907 (quoting Miller, 515 U.S. at 916). CMS

applied an algorithm that considered thousands of possible

alternative maps, and it tasked the algorithm to produce a map

that performed best on various metrics of least change,

CMS scored well on several race-neutral factors.
7 For
example, CMS's maps had less than half the population deviation
of the Governor, Senator Bewley, and BLOC. In addition, CMS had
hundreds fewer local government splits than the Governor,
Senator Bewley, and BLOC.

32
 No. 2021AP1450-OA

population deviation, and local boundary splits. In addition,

it tasked the algorithm to produce seven assembly districts that

had "a substantial concentration of black [voters]" and that

elected black candidates of choice. CMS did not concern itself

with creating districts with exact BVAP amounts, as did the

Governor and BLOC. The BVAP in CMS's relevant assembly

districts varied widely from 35% to 83.2%.

¶46 Nonetheless, it is clear that under CMS's algorithm,

maps would not be selected if they did not create seven

districts with substantial black populations that also elected

black-preferred candidates, according to its inputs of election

data. Although, by using cutting edge technology CMS selected a

map that performed well in other race-neutral criteria,

alternative maps run through the algorithm that could have

performed better on those race-neutral criteria were not

considered by CMS because they did not contain seven districts

with specific racial characteristics. See Shaw v. Hunt, 517

U.S. at 907 (explaining that a redistricting map was racially
motivated, even though race-neutral criteria were considered in

the selection of districts, because the race-neutral criteria

"came into play only after the race-based decision had been

made"). Therefore, we conclude that CMS's maps "subordinated

traditional race-neutral districting principles . . . to racial

considerations." Miller, 515 U.S. at 916.

¶47 Like other parties, CMS did not present district-

specific evidence that the communities being placed in race-
based boundaries would be denied equal opportunities in

33
 No. 2021AP1450-OA

elections and would have their choice of candidates blocked by a

white majority coalition if CMS's racially motivated districts

were not adopted. 52 U.S.C. § 10301(b). In fact, CMS argued

that the Legislature's maps——which, as explained below, are race

neutral——would produce six effective districts for black-

preferred candidates. In lieu of the local appraisal required

under law, CMS cited state-wide election data to show that, on

average, black voters in the State of Wisconsin support

different candidates than white voters. That is not the

relevant local inquiry to determine the existence of the Gingles

preconditions, sufficient to trigger a race-based remedy. Wis.

Legislature v. Wis. Elections Comm'n, 142 S. Ct. 1245, at 1249-

51; LULAC, 548 U.S. at 432, 437; Cooper, 137 S. Ct. at 1471-72,

1471 n.5. Creating race-based districts, as CMS does, without

first demonstrating a VRA violation, is fundamentally and

constitutionally flawed. Wis. Legislature v. Wis. Elections

Comm'n, 142 S. Ct. at 1249-50 (citing Shaw v. Hunt, 517 U.S. at

910).
¶48 In contrast to the maps proposed by the Governor,

Senator Bewley, BLOC, and CMS, the Legislature's proposed maps

are indisputably race neutral. No party argued and no evidence

was provided demonstrating that the Legislature's maps were, in

fact, not race neutral. The Legislature affirmed multiple times

that the maps proposed by the Governor and BLOC to create

exactly 51% BVAP districts were a "racial gerrymander," and by

contrast, the Legislature utilized "race-neutral criteria" to
draw districts in the Milwaukee area, as it did for all other

34
 No. 2021AP1450-OA

citizens regardless of race in the remainder of the state.

Unlike the other parties, the Legislature never asserted that

the Gingles preconditions required the drawing of majority-black

districts. To the contrary, the Legislature's expert stated

correctly that "the electoral patterns detailed by [BLOC] raise

serious doubts about whether the Gingles threshold standard is

currently met."8

¶49 The Equal Protection Clause "guarantees equal laws,

not equal results." Personal Adm'r of Mass. v. Feeney, 442 U.S.

256, 273 (1979). Only those maps that purposefully discriminate

between individuals are subject to strict scrutiny. Shaw v.

Reno, 509 U.S. at 642. Maps come under strict scrutiny "not

just when they contain express racial classifications, but also

when, though race neutral on their face, they are motivated by a

racial purpose or object." Miller, 515 U.S. at 913. The

standard to demonstrate racial motivations through

circumstantial evidence alone is high and rarely met. The map

must be "so highly irregular that, on its face, it rationally
cannot be understood as anything other than an effort to

8 The Legislature stated that their maps complied with the
VRA. A race-neutral map can comply with the VRA. Specifically,
a map does not violate the VRA when the Gingles preconditions
have not been satisfied. LULAC, 548 U.S. at 425. Indeed, a
race-neutral map is the preferred outcome, and an outcome
explicitly contemplated by the Supreme Court. Wis. Legislature
v. Wis. Elections Comm'n, 142 S. Ct. at 1250-51 ("The question
that our VRA precedents ask and the court failed to answer is
whether a race-neutral alternative that did not add a seventh
majority-black district would deny black voters equal political
opportunity.").

35
 No. 2021AP1450-OA

segregate[e] . . . voters on the basis of race." Id. at 914

(quotations omitted); Shaw v. Reno, 509 U.S. at 643 (explaining

that there are "rare [maps] that . . . are, on their face,

unexplainable on grounds other than race" (quotations omitted));

Feeney, 442 U.S. at 272 ("This rule applies as well to a

classification that is ostensibly neutral but is an obvious

pretext for racial discrimination." (Emphasis added.)). Courts

recognize that redistricting is a "sensitive" process which

involves a "complex interplay of forces"; mapmakers are

"presumed" to be acting in a good faith, race-neutral manner.

Miller, 515 U.S. at 915-16.

¶50 No such evidence of discriminatory intent has been

provided, and, with the presumption of good faith in mind, we

cannot conclude that the Legislature's maps are so highly

irregular that they are "unexplainable on grounds other than

race." Miller, 515 U.S. at 913; Shaw v. Reno, 509 U.S. at 643.

Unlike the Governor and BLOC, who carefully calibrated BVAP in

their districts, the BVAP in the Legislature's districts varies
depending on the unique geography and community characteristics

of those districts. BVAP in the Legislature's districts varies

from 45.8% to 71.5%. In so doing, the Legislature's maps

perform very well in race-neutral criteria. Out of the plans

proposed, the Legislature's maps have low population deviation

and have a low number of local government splits, including in

the Milwaukee-area districts. In addition, the Legislature's

maps include few incumbency pairings, and they move few voters

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into new senate districts with different election cycles.9 Those

characteristics are seen in the Milwaukee-area districts, as

they are throughout the state. Further, the districts with high

BVAP are compact and do not have "highly irregular" features

common to racial gerrymanders. Miller, 515 U.S. at 917

(reasoning that, although a district did not "seem bizarre on

its face," the shape in conjunction with its exacting

demographic characteristics painted a "story of racial

gerrymandering"); Shaw v. Hunt, 517 U.S. at 905-06 (stating a

district was "serpentine" and "geographically non-compact by any

objective standard"); Bush v. Vera, 517 U.S. at 959-60

(explaining that, based on the shape of a district, there was

"no integrity in terms of traditional, neutral redistricting

criteria"). When drawing districts, race-neutral considerations

drove the Legislature's decisions; racial targets did not. See

Miller, 515 U.S. at 916 (examining, to determine if a map was

race neutral, whether the map included exact percentages of

black voters in a district and whether the map performed poorly
on race-neutral considerations such as compactness, contiguity,

and preservation of communities of interest); Alabama

Legislative Black Caucus v. Alabama, 575 U.S. 254, 273-74 (2015)

(listing evidence that could show a map was not race neutral,

Under the Wisconsin Constitution, senators are "chosen
9

alternately from the odd and even-numbered districts for the
term of 4 years.” Wis. Const. art. IV, § 5. Thus, if voters are
moved between odd and even senatorial districts, their ability
to participate in senatorial elections could be delayed for
several years, as compared to their original districts.

37
 No. 2021AP1450-OA

including exact racial demographics and splitting high numbers

of local government boundaries); Cooper, 137 S. Ct. at 1468

(explaining that "[u]nconteested evidence in the record show[ed]

that the State's mapmakers . . . purposefully established a

racial target . . . .").

¶51 "[I]ndividual districts [are] subject to . . . racial

gerrymandering challenges." Alabama Legislative Black Caucus,

575 U.S. at 263-64. Logically, if such challenges are brought,

the individual district at issue must be examined. Id. Here,

no such challenge has been made to the Legislature's maps. No

party challenged or presented evidence which would support a

claim that any of the districts in the Legislature's maps were

racially motivated. In addition, no evidence was presented in

the record that could overcome the presumption of good faith or

show that any district lines in the Legislature's map, including

those districts with high BVAP, were "unexplainable on grounds

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other than race."10 Miller, 515 U.S. at 913. On this record, no

available evidence exists showing that race was "the

10 The dissent indicates that the Legislature could have
moved more black voters into Milwaukee-area districts to boost
BVAP. It also states that the Legislature performed well on
core retention in the Milwaukee area and it split a village that
contains a higher percentage of black voters. Dissent, ¶¶189-
191. Simply because the Legislature could have drawn maps
differently does not prove, given the "complex interplay of
forces" in redistricting, that the Milwaukee-area districts are
"unexplainable on grounds other than race." Miller v. Johnson,
515 U.S. 900, 913 (1995). The dissent fails to examine in a
district-specific manner how the Milwaukee-area districts could
be rationally drawn using race-neutral criteria, such as respect
for local boundaries and communities of interest or least
change. Citation to a single municipality split, in a state
with thousands of local governments, as well as strong
performance on race-neutral criteria such as core retention, is
a far cry from an "obvious pretext for racial discrimination."
Personal Adm'r of Mass. v. Feeney, 442 U.S. 256, 272 (1979).
High core retention, for instance, can be readily explained by
the fact that the Milwaukee-area districts were underpopulated
and, of course, a larger portion of the core would be retained.
The Legislature may have reasonably believed municipal splits
were needed to avoid ward splits, achieve least change, and
minimize population deviation. The dissent essentially admits
that proof of a racial gerrymander is lacking. It states that
it has "no . . . submitted evidence" on whether the
Legislature's choices in Milwaukee were driven by respect for
communities of interest, and it contends that the maps could be
politically motivated. Dissent, ¶191; see Rucho v. Common
Cause, 588 U.S. ___, 139 S. Ct. 2484 (2019) (holding that claims
of partisan motivation in map drawing is not cognizable under
the United States Constitution); Johnson, 399 Wis. 2d 623, ¶39
(reasoning that "partisan fairness presents a purely political
question" and is not derived from an identifiable legal right).
The dissent cites to Cooper, but that case actually supports the
conclusion that the Legislature's maps are race neutral.
Dissent, ¶190; see Cooper, 137 S. Ct. at 1466, 1468-69, 1472-78,
1482-84 (holding that racial considerations predominated where
mapmakers expressly stated they were moving black voters to
comply with the VRA, altering two congressional districts to
have almost exactly 51% BVAP, creating districts with a "finger-
like extension" and a "snakelike body," having one district with
"stark racial borders" within the same local government, and
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 No. 2021AP1450-OA

'predominant' consideration in drawing the [Legislature's]

district lines such that '[it] subordinate[d] traditional race-

neutral districting principles to racial considerations.'" Shaw

v. Hunt, 517 U.S. at 907 (quoting Miller, 515 U.S. at 916). To

determine otherwise would be wholesale speculation.

¶52 The Governor and BLOC argue that the Legislature's

maps violate the VRA by having one assembly district at 45.8%

BVAP and another at 71.5% BVAP. However, neither the Governor

nor BLOC cite authority standing for the position that, using

race-neutral redistricting criteria, having low or high

percentages of black voters in a given district on its own

violates the VRA. It is well established that the VRA mandates

the use of race in redistricting only upon proof that the

Gingles preconditions are satisfied in a potential or existing

district. LULAC, 548 U.S. at 425; Cooper, 137 S. Ct. at 1471-

72; Wis. Legislature v. Wis. Elections Comm'n, 142 S. Ct. 1245,

at 1249-50. It is true that maps can violate the VRA where

black voters are "fragment[ed] . . . among several districts
where a bloc-voting majority can routinely outvote them" as well

as where black voters are "pack[ed] . . . into one or a small

number of districts to minimize their influence in the districts

next door." De Grandy, 512 U.S. at 1007. But where there

exists no strong evidence that an identifiable community of

black voters is being denied equal opportunity to participate

having another district whose racial composition materially
changed despite having "no need for significant total-population
changes" under one person, one vote).

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 No. 2021AP1450-OA

due to the existence of the Gingles preconditions, race cannot

be used to distribute black voters from one district to another.

Id. at 1015 (explaining that the existence of one district with

a high percentage of minorities and another district with a low

percentage of minorities, by itself, shows "only that lines

could have been drawn elsewhere, nothing more"); Gonzalez v.

City of Aurora, 535 F.3d 594, 598 (7th Cir. 2008) ("But neither

§ 2 nor Gingles nor any later decision of the Supreme Court

speaks of maximizing the influence of any racial or ethnic

group."); Bartlett v. Strickland, 556 U.S. 1, 15 (2009)

(plurality) ("Nothing in § 2 grants special protection to a

minority group's right to form political coalitions."). No

party presents strong evidence showing the existence of the

Gingles preconditions in individual districts, as they currently

exist, in race-based proposals, or in the Legislature's race-

neutral maps. Without that evidence of a VRA violation, a race-

based remedy is not justified, whether to boost BVAP in one

district to above 50% or to lower BVAP in another district to
below 71.5%. Wis. Legislature v. Wis. Elections Comm'n, 142 S.

Ct. at 1249-51; LULAC, 548 U.S. at 432, 437; Cooper, 137 S. Ct.

at 1471-72, 1471 n.5.

¶53 The Governor and BLOC also argue that the

Legislature's 10th assembly district, which has 45.8% BVAP, does

not provide effective democratic opportunity for black voters.

Thus, the Governor and BLOC aver that the Legislature's maps

include only five effective black assembly districts. However,
assembly district 10 does not create a VRA violation because the

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 No. 2021AP1450-OA

Gingles preconditions are not satisfied——namely, the record does

not demonstrate that black voters are usually denied their

preferred candidate. In fact, the evidence demonstrates

otherwise.

¶54 The Governor and BLOC point to BLOC's analysis on a

single election result, the 2018 Democratic Gubernatorial

Primary, to demonstrate that the 10th assembly district violates

the VRA. We are unaware of a single case that has found the

existence of a strong evidentiary record, applied the VRA, and

satisfied strict scrutiny through consideration of a single

result from an exogenous election in a party primary. Compare

LULAC, 548 U.S. at 427-28 (examining partisan general election

results for the congressional district at issue); Cooper, 137

S. Ct. at 1470-71 (reviewing partisan general election results

for the congressional district at issue); City of Euclid, 580

F. Supp. 2d at 598-99 (explaining electoral history for non-

partisan general election results for the offices at issue);

Harper, 824 F. Supp. at 790 (reviewing non-partisan general
election results for the offices at issue). That is a far cry

from "strong basis in evidence" demanded by the Equal Protection

clause. Wis. Legislature v. Wis. Elections Comm'n, 142 S. Ct.

at 1249; Miller, 515 U.S. at 922.

¶55 Even so, under BLOC's own statistics, the black

preferred candidate won in the Legislature's 10th assembly

district by a comfortable margin. According to BLOC, the black

preferred candidate, Mahlon Mitchell, won a plurality of the
vote and beat the next strongest candidate, the Governor, 39% to

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29%. This indicates that the Legislature's 10th assembly

district supports black preferred candidates, not that white

coalitions stymie black electoral opportunity in violation of

the VRA.

¶56 Nonetheless, BLOC theorizes that, because there were

many candidates on the ballot other than Mitchell and the

Governor, it is possible white voters may have voted for the

Governor and blocked the selection of Mitchell if those other

candidates were not on the ballot. This amounts to nothing more

than speculation. Whether and to what extent voters would have

selected other candidates if their preferred candidates were not

on the ballot is unknowable, lying firmly within in the realm of

guesswork. The Supreme Court, in this case and in several prior

cases, has made it clear that governments cannot rely on

presumptions, speculation, and belief to utilize race in

redistricting and satisfy a VRA need. See Wis. Legislature v.

Wis. Elections Comm'n, 142 S. Ct. at 1249-51; Cooper, 137 S. Ct.

at 1470-71; Miller, 515 U.S. at 920-27; Shaw v. Hunt, 517 U.S.
at 916. Instead, we must have a "strong basis in evidence" to

believe the VRA would be violated if race were not used. Wis.

Legislature v. Wis. Elections Comm'n, 142 S. Ct. at 1249;

Miller, 515 U.S. at 922. BLOC's evidence on the Legislature's

10th assembly district does not meet that threshold.

¶57 Even if we were to credit BLOC's reasoning, the

Legislature provides its own analysis on the 10th assembly

district that contradicts BLOC's conclusions. The Legislature
did not rely on one election, but instead considered the 2018

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Democratic Lieutenant Gubernatorial Primary in addition to the

2018 Democratic Gubernatorial Primary. Not only did the

Legislature find that the 10th assembly district selected the

black-preferred candidate in the gubernatorial primary (as did

BLOC), the Legislature also found that the 10th assembly

district supported the black-preferred candidate in the

lieutenant gubernatorial primary by a wide margin. Given this

evidence, the Legislature concluded that this district would not

usually exhibit white coalition voting blocking black-preferred

candidates. In addition, CMS analyzed the Legislature's 10th

assembly district by considering whether "the outcome in most

general elections favors the Black candidate of choice" and

whether "Mandela Barnes and Mahlon Mitchell [the black

candidates of choice in the 2018 Democratic lieutenant

gubernatorial and gubernatorial races] perform strongly in their

respective 2018 Democratic primary elections." CMS concluded

that the Legislature's 10th assembly district was "perfectly

effective" for black voters. On this record, we cannot agree
with the Governor and BLOC that the Legislature's race-neutral

proposal would violate the VRA.

¶58 Finally, the Governor and BLOC argue that the VRA

requires the creation of a seventh majority-black assembly

district. However, as stated above, we cannot use race in

redistricting unless there is strong evidence that the Gingles

preconditions are satisfied in the districts being considered.

Here, there is no strong evidentiary basis. Furthermore, the
court recognized in its March 3 decision that "on this record,"

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 No. 2021AP1450-OA

"we cannot say for certain . . . that seven majority-black

assembly districts are required by the VRA." Johnson, 400 Wis.

2d 626, ¶47. The Supreme Court noted that contention and held

that level of proof was inadequate to justify a race-based

remedy. Wis. Legislature v. Wis. Elections Comm'n, 142 S. Ct.

at 1250 (explaining that a record showing the VRA "might" be

violated "does not allow a State to adopt a racial

gerrymander"). Consequently, we conclude that the Legislature's

race-neutral maps do not violate the VRA simply because they do

not include seven majority-black districts.11

The Governor and BLOC cite proportionality of black
11

voters to support the creation of seven majority-black
districts. First, a VRA violation is not established solely by
a determination that effective black districts are not in
proportion to the statewide black voting population. See
De Grandy, 512 U.S. at 1020 (rejecting the argument that
proportionality is determinative of VRA compliance and noting
that "[n]o single statistic provides courts with a shortcut");
Wis. Legislature v. Wis. Elections Comm'n, 142 S. Ct. at 1250
("[P]roportionality is never dispositive" (citation omitted).).
Second, proportionality is considered in a totality of the
circumstances analysis, but the totality of the circumstances is
considered only after the Gingles preconditions have been
established. LULAC, 548 U.S. at 425; Wis. Legislature v. Wis.
Elec. Comm'n, 142 S. Ct. at 1248-50. Under the record as it
currently exists, we cannot conclude the Gingles preconditions
are satisfied. Third, even if proportionality were considered,
"the Black voting age population statewide is between 6.1% and
6.5%." Johnson v. Wis. Elections Comm'n, 2022 WI 14, ¶48, 400
Wis. 2d 626, ___ N.W.2d ___. Taking the highest possible
figure, given that there are 99 assembly districts, 6.4
majority-black assembly districts would be proportional to the
statewide black voting population. A proportionality analysis
does not support the contention that six majority-black assembly
districts would violate the VRA.

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 No. 2021AP1450-OA

¶59 The Legislature's maps are race neutral and legally

compliant. None of the parties have established that the

Legislature's race-neutral maps violate the VRA. At most, the

parties in opposition to those maps raise arguments without

evidence. In fact, the Legislature would be without any

constitutional basis for maneuvering districts to hover closer

to 50% as was done by the Governor. Such action would also be

contrary to Cooper v. Harris, 137 S. Ct. 1455, and Johnson v.

De Grandy, 512 U.S. 997. In short, the Legislator's maps are

indisputably race-neutral, supported by the expert testimony and

evidence, and there is no detailed, local evidence in the record

to demonstrate they violate the VRA. The Governor, Senator

Bewley, BLOC, and CMS all drew districts on the basis of race

without the necessary proof that the Gingles preconditions were

satisfied and that the VRA required a race-based remedy.12 Thus,

12 The dissenting justices conceded that there is
insufficient proof of the Gingles preconditions to warrant a
race-based remedy. Johnson v. Wis. Elections Comm'n, 400 Wis.
2d 626, ¶47 (reasoning that the court "cannot say for certain on
this record" that the VRA required the drawing of seven
majority-black districts on the basis of race); see also Wis.
Legislature v. Wis. Elections Comm'n, 142 S. Ct. 1245, at *3
(citing that exact quote from the court's March 3 decision and
explaining that it was inadequate to support a race-based
remedy). They bemoan the lack of evidence in support of a race-
based remedy, noting that, to prove a VRA violation, parties
must rely on extensive "discovery, sworn affidavits, and
examination and cross-examination of witnesses and experts,"
which no party chose to provide. Dissent, ¶¶184, 198 n.28.
They explain that the evidence in support of the Gingles
preconditions "has not been sufficiently tested through a proper
adversarial fact-finding process," and they conclude that we
"cannot definitively say the Gingles preconditions are
satisfied" in this case. Id., ¶196. When the Gingles
preconditions have not been met, we cannot hold that "the VRA
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 No. 2021AP1450-OA

no maps other than the Legislature's maps satisfy the requisite

constitutional and legal requirements for adoption.

2. The Equal Protection Clause and Population Equality

¶60 As the court explained in our November 30 decision,

the Equal Protection Clause requires states to "make an honest

and good faith effort to construct districts, in both houses of

its legislature, as nearly of equal population as practicable."

Johnson, 399 Wis. 2d 623, ¶24 (quoting Reynolds, 377 U.S. at

577). "Consistent with principles of federalism, states have

limited flexibility to pursue other legitimate policy

objectives, such as 'maintain[ing] the integrity of various

political subdivisions' and 'provid[ing] for compact districts

of contiguous territory.'" Id., ¶26 (quoting Brown v. Thomson,

462 U.S. at 842). Population equality among districts is

measured by maximum population deviation, which is the "sum of

the percentage deviations from perfect population equality of

the most- and least-populated districts. For example, if the

require[s] [us] to move voters based on race." Wis. Legislature
v. Wis. Elections Comm'n, 142 S. Ct. at 1249-50; De Grandy, 512
U.S. at 1007 (stating that the Gingles preconditions are
"necessary"). While the dissent goes to great lengths to make
known its position on the "totality of the circumstances" and
the state of race relations in Wisconsin, we will not engage in
a debate on those issues that are not relevant to the inquiry
here under the law. Only when all three Gingles preconditions
are established are we "direct[ed] to consider the totality of
the circumstances." LULAC, 548 U.S. at 425. Evidence of the
Gingles preconditions is insufficient on this record to warrant
a race-based remedy under the VRA. Therefore, the totality of
the circumstances discussion of the dissent is legally
insufficient to support the dissent's conclusion.

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 No. 2021AP1450-OA

largest district is 4.5% overpopulated, and the smallest

district is 2.3% underpopulated, the map's maximum population

deviation is 6.8%." Evenwel v. Abbott, 578 U.S. 54, 60 n.2

(2016) (citation omitted).

¶61 Because the maps submitted by Governor, Senator

Bewley, BLOC, and CMS are eliminated for being racially

motivated, we concentrate our review on the Legislature's maps.

In maximum population deviation, the Legislature's maps perform

exceptionally well. The Legislature's maps recognize the

sizable population shifts, keep Wisconsin citizens in their

existing districts and also achieve population equality across

districts. The Legislature's maximum population deviation is

.57% for the Senate and .76% for the Assembly. This is in line

with deviations accepted by federal courts. Wis. State AFL-CIO

v. Elections Bd., 543 F. Supp. 630, 639-42 (E.D. Wis. 1982)

(adopting maps with 1.2% deviation for the Senate and 1.74% for

the assembly); Prosser v. Elections Bd., 793 F. Supp. 859, 870-

71 (W.D. Wis. 1992) (labeling deviations below 1% as "margin[s]
of error" and adopting a map with a maximum population deviation

of .52%); Baumgart v. Wendelberger, Nos. 01-C-0121 & 02-C-0366,

unpublished slip op., 2002 WL 34127471 (E.D. Wis. May 30, 2002)

(adopting a map with a maximum population deviation of 1.48%).

These population shifts are also consistent with or better than

prior redistricting plans. Baldus v. Members of Wis. Gov't

Accountability Bd., 849 F. Supp. 2d 840, 851 (E.D. Wis. 2012)

(2011 assembly districts were .76% and senate were .62%).

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 No. 2021AP1450-OA

¶62 Therefore, we conclude that the Legislature's maps

comply with the Equal Protection Clause's one person, one vote

requirement.

3. The Wisconsin Constitution

¶63 "[T]he Wisconsin Constitution requires that districts

be compact, contiguous, and proportionally populated; they must

respect certain local political boundaries; and the districts

must 'nest' three assembly districts within each senate

district." Johnson, 400 Wis. 2d 626, ¶34 (citing Wis. Const.

art. IV, §§ 3-5). As explained above, we consider whether the

Legislature's maps comply with the Wisconsin Constitution

because the maps proposed by the other parties are

unconstitutionally race based.

¶64 Population equality and respect for local government

boundaries are closely interlinked in Wisconsin law. Under

Article IV, Section 3 of the Wisconsin Constitution, legislative

districts must be apportioned "according to the number of

inhabitants." Apportionment among districts must be "as close
an approximation to [exact population equality] as possible."

Johnson, 399 Wis. 2d 623, ¶28 (quoting Cunningham, 81 Wis. at

484). The court has long recognized that perfect population

equality is not required, in large part due to requirements in

the Wisconsin Constitution that mapmakers preserve local

government boundaries. Legislative districts must be of equal

population "subject only to (1) practical limitations in

execution of this principle, and (2) precise constitutional
restrictions about observance of governmental boundaries in

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 No. 2021AP1450-OA

drawing district lines." State ex rel. Reynolds v. Zimmerman,

22 Wis. 2d 544, 566, 126 N.W.2d 551 (1964); see also Cunningham,

81 Wis. at 485 (stating that population equality must be as

exact as possible, but also noting that respect for local

government boundaries "is a most important restriction on the

power of the legislature to make an apportionment").

Nonetheless, mapmakers do have a level of discretion in ensuring

population equality. Johnson, 400 Wis. 2d 626, ¶36 n.20.

¶65 Under Article IV, Section 4 of the Wisconsin

Constitution, assembly districts must "be bounded by county,

precinct, town or ward lines." Given federal one person, one

vote requirements, bounding every assembly district by county,

precinct,13 town, and ward lines may not be possible. Johnson,

399 Wis. 2d 623, ¶35 (citing Wis. State AFL-CIO, 543 F. Supp. at

635); see also 58 Wis. Att'y Gen. Op. 88, 91 (1969) ("In my

opinion the Wisconsin Constitution no longer may be considered

as prohibiting assembly districts from crossing county lines, in

view of the emphasis the United States Supreme Court has placed
upon population equality among electoral districts.").

13 "In one of this court's seminal cases on redistricting,
Chief Justice Lyon explained a precinct was a form of local
government that ceased to exist when a part of Article IV of the
Wisconsin Constitution became fully operative." Johnson v. Wis.
Elections Comm'n, 400 Wis. 2d 626, ¶219 n.16 (Bradley, J.,
dissenting) (citing State ex rel. Attorney General v.
Cunningham, 81 Wis. 440, 520, 51 N.W. 724 (1892) (Lyon, C.J.,
concurring)). "Under Article IV, 'precinct' does not mean
election precinct." Id.

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 No. 2021AP1450-OA

¶66 However, Article IV, Section 4 must be given "full

effect" to the extent it does not conflict with federal law.

See H. Rupert Theobald, Equal Representation: A Study of

Legislative and Congressional Apportionment in Wisconsin,

Wisconsin Blue Book 71, 72 (1970). We are particularly

skeptical of town and ward splits because "the smaller the

political subdivision, the easier it may be to preserve its

boundaries." Johnson, 399 Wis. 2d 623, ¶35; see also 60

Wis. Att'y Gen. Op. 101, 106 (1971) (explaining town and ward

lines must be followed "insofar as may be consistent with

population equality[.]"). In particular, "gratuitously

break[ing] up wards," the smallest political unit in the state,

makes little sense because they are "the basic unit of Wisconsin

state government for voting purposes. You vote by ward."

Prosser, 793 F. Supp. at 866. For voters in the same ward to

have different ballots is an "inconvenience" to the

administration of elections and provides, at most, nominal

"gain[s] in population equality[.]" Id.
¶67 The Legislature drew maps that comply with the federal

one person, one vote requirements. The Legislature's deviation

was .57% for the Senate and .76% for the Assembly. Given how

low these deviations are, and how few local government splits

were included in the Legislature's maps, the Legislature's maps

are compliant with Wisconsin's equal apportionment requirements.

Wis. Const. art. IV, § 3.

¶68 On March 3, the court opined that the Governor's maps
complied with Wisconsin's equal apportionment requirements, and

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 No. 2021AP1450-OA

his deviations were almost double that of the Legislature.

Johnson, 400 Wis. 2d 626, ¶36 ("[T]he Governor's population

deviations——1.20% for the senate and 1.88% for the assembly——are

well under the deviations previously adopted by the legislature

and those prescribed by this court."). Deviations of .57% and

.76% are well within constitutional bounds. Furthermore, in

adopting its deviations, the Legislature kept the number of

local government divisions low. The Legislature split 53

counties in the assembly, and it split 52 municipalities,

including 16 towns. In addition, the Legislature maintained 100

percent of all ward lines.

¶69 The Legislature's resulting number of splits fits well

within accepted historical practice. When federal courts drew

maps for the 1980, 1990, and 2000 censuses, they included a

similar number of local government splits as the Legislature's

maps. Wis. State AFL-CIO v. Elections Bd., 543 F. Supp. at 636

(explaining that "municipal splits [were] used sparingly," and

adopting a map with no ward splits); Prosser, 793 F. Supp. at
871 (selecting a map with 115 municipality splits and no ward

splits); Baumgart, unpublished slip op., 2002 WL 34127471, at *7

(adopting a map with 50 municipality splits and no ward splits).

Further, when the 2011 maps were enacted, they had 58 county

splits and 78 municipality splits, including 30 town splits, in

the assembly. Therefore, the record affirmatively demonstrates

that the Legislature retained low population deviations while

also limiting divisions of local governments. The Legislature's

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 No. 2021AP1450-OA

maps sufficiently respect local government boundaries under the

Wisconsin Constitution. Wis. Const. art. IV, § 4.

¶70 The Legislature has satisfied the remainder of

Wisconsin's constitutional requirements. The assembly districts

are contiguous and sufficiently compact.14 Wis. Const. art. IV,

§ 4. Both senate and assembly maps include single member

districts, and assembly districts are not divided in the

formation of senate districts. Wis. Const. art. IV, §§ 4, 5.

In all, the Legislature's senate and assembly maps comply with

the Wisconsin Constitution.

B. Least Change

¶71 In its November 30 decision, the court stated that it

would not tread "further than necessary to

remedy . . . deficiencies" of the current maps. Johnson, 399

Wis. 2d 623, ¶64. The court's selection would be driven by a

decision on which map "comport[s] with relevant legal

requirements" while still "reflect[ing] the least change

necessary." Id., ¶72.
¶72 The Legislature adopted minimal changes to the

existing maps while still complying with federal and state law.

While other parties also limited changes to the existing maps,

they failed to comply with federal Equal Protection

requirements. No other maps comply with all legal requirements.

The Legislature's maps address malapportionment in a least

"We
14 have never adopted a particular measure of
compactness, but the constitutional text furnishes some latitude
in meeting this requirement." Johnson, 399 Wis. 2d 623, ¶37.

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changes way. Therefore, the Legislature's maps are our least

change selection.

III. CONCLUSION

¶73 Upon review of the record, we conclude that

insufficient evidence is presented to justify drawing state

legislative districts on the basis of race. The maps proposed

by the Governor, Senator Bewley, BLOC, and CMS are racially

motivated and, under the Equal Protection Clause, do not survive

strict scrutiny. By contrast, the maps proposed by the

Wisconsin Legislature are race neutral. The Legislature's maps

comply with the Equal Protection Clause, along with all other

applicable federal and state legal requirements. Further, the

Legislature's maps exhibit minimal changes to the existing maps.

Therefore, we adopt the state senate and assembly maps of the

Legislature for the State of Wisconsin.

By the Court.—Relief granted.

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 No. 2021AP1450-OA.rgb

¶74 REBECCA GRASSL BRADLEY, J. (concurring).

"Justice is pictured blind and her daughter, the Law,
ought at least to be color-blind."
Brief for Plaintiff in Error, Plessy v. Ferguson, 163 U.S. 537

(1896) (No. 210), 1893 WL 10660, at *19. This redistricting

cycle proceeded in a manner heavily focused on color, supposedly

for remedial purposes, but accomplishing nothing but racial

animosity as showcased by the dissent's race-baiting rhetoric

and condescension toward people of color.

¶75 I join the majority opinion in full and write

separately to expound on the primacy of color-blindness in Equal

Protection jurisprudence. Based on the record in this case, the

Constitution mandates a color-blind remedy for the protection of

all citizens, irrespective of color. I also write to provide a

thorough examination of this redistricting cycle, which

demonstrates why the United States Supreme Court summarily

rejected the maps selected by a majority of this court: those

race-based maps, which were drawn by Governor Tony Evers,

violate the Constitution by insidiously sorting people into

districts based on the color of their skin. The Wisconsin

Legislature drew its maps without regard to race——the only party

to do so——therefore, I respectfully concur with the majority's

decision to select them.

I. OUR COLOR-BLIND CONSTITUTION

¶76 The United States Supreme Court rejected Homer

Plessy's argument that racial segregation violates the
Fourteenth Amendment, to its everlasting shame. Plessy exists

in our nation's history as a stain, dishonoring America's quest
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for equality under the law for all, which began with the

founding. See The Declaration of Independence para. 2

(U.S. 1776) ("We hold these truths to be self-evident, that all

men are created equal[.]"); see also Wis. Const. art. I, § 1

("All people are born equally free and independent, and have

certain inherent rights; among these are life, liberty and the

pursuit of happiness; to secure these rights, governments are

instituted, deriving their just powers from the consent of the

governed."). At times, the United States has strayed from this

sacred principle, often on the basis of sham social science of

the day promoting the repugnant notion that people of different

races would be better off if the law distinguished between them.

See State v. Roberson, 2019 WI 102, ¶43, 389 Wis. 2d 190, 935

N.W.2d 813 ("Social science often embodies the subjective

beliefs of the time. When these beliefs become enshrined as

constitutional law, they have a long-lasting impact even if

proved incorrect at a later date. . . . Plessy embodied

abhorrent social beliefs regarding the superiority and
inferiority of people based on race. This belief then became

law through United States Supreme Court decision-making that was

purporting to interpret the United States Constitution. It took

more than half a century to correct course because it is

difficult to overturn constitutional precedent."). Allowing

social science to infect constitutional analysis inevitably

"result[s] in grave abuses of individual rights and liberty."

State v. Brown, 2020 WI 63, ¶46, 392 Wis. 2d 454, 945 N.W.2d 584
(Rebecca Grassl Bradley, J., concurring), cert. denied, 141

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S. Ct. 881. "Deplorable decisions such as Plessy v. Ferguson

and Buck v. Bell were rooted in evil concepts supported by social

science and elitist mores antithetical to the Constitution.

Ascertaining and faithfully applying the original meaning of the

Constitution's words precludes appalling social science-based

notions of the day from infecting constitutional analysis. Only

the Constitution can serve as reliable bulwark of the rights and

liberty of the people." Roberson, 389 Wis. 2d 190, ¶86 (Rebecca

Grassl Bradley, J., concurring).

¶77 Despite the United States Supreme Court's approval of

racial segregation in Plessy, the words of Justice Harlan, the

lone dissenter, ultimately prevailed:

[I]n view of the constitution, in the eye of the law,
there is in this country no superior, dominant, ruling
class of citizens. There is no caste here. Our
constitution is color-blind, and neither knows nor
tolerates classes among citizens. In respect of civil
rights, all citizens are equal before the law. The
humblest is the peer of the most powerful. The law
regards man as man, and takes no account of his
surroundings or of his color when his civil rights as
guaranteed by the supreme law of the land are
involved. It is therefore to be regretted that this
high tribunal, the final expositor of the fundamental
law of the land, has reached the conclusion that it is
competent for a state to regulate the enjoyment by
citizens of their civil rights solely upon the basis
of race.
163 U.S. at 559 (Harlan, J., dissenting) (emphasis added). As

Justice Harlan understood, "[t]he moral imperative of race

neutrality is the driving force of the Equal Protection Clause."

Johnson v. De Grandy, 512 U.S. 997, 1029 (1994) (Kennedy, J.,
concurring in part and concurring in the judgment) (quoting City

of Richmond v. J.A. Croson Co., 488 U.S. 469, 518 (1989)
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(Kennedy, J., concurring in part and concurring in the

judgment)). "As a general matter, the sorting of persons with

an intent to divide by reason of race raises the most serious

constitutional questions." Id. "Therefore, as a general rule,

all race-based government decisionmaking——regardless of context—

—is unconstitutional." Parents Involved in Cmty. Schs. v.

Seattle Sch. Dist. No. 1, 551 U.S. 701, 752 (2007) (Thomas, J.,

concurring).

¶78 As a legal concept, color-blindness is often

misunderstood. See generally Peter C. Myers, The Case for

Color-Blindness, First Principles, Sept. 2019, at 1. Judges can

certainly consider whether a particular government action has

had a disparate impact on minorities——our color-blind

Constitution does not countenance ignoring incidents of

discrimination. See Parents Involved in Cmty. Schs., 551

U.S. at 772 n.19. Under a color-blind approach, however, this

court may not order a remedy that purports to address racial

discrimination by discriminating on the basis of race. The
Constitution prohibits this court from sorting people on the

basis of their race. See Holder v. Hall, 512 U.S. 874, 894–96

(1994) (Thomas, J., concurring in the judgment) (explaining the

"first generation" of Voting Rights Act (VRA) litigation focused

on laws inhibiting ballot access, such as "literacy tests," but

over time, the scope of the act was reinterpreted to permit

"vote dilution" claims, which present tougher remedial

problems).

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¶79 The idea that a minority group's voting power has been

diluted necessarily requires a subjective inquiry into the share

of the vote to which that group is entitled. See id. at 892.

Such an inquiry represents a significant departure from the idea

of "one person, one vote," a concept premised on the

uncontroversial axiom that each person, as an individual, is

entitled to "political equality[.]" Gray v. Sanders, 372

U.S. 368, 381 (1963) ("The conception of political equality from

the Declaration of Independence, to Lincoln's Gettysburg

Address, to the Fifteenth, Seventeenth, and Nineteenth

Amendments can mean only one thing——one person, one vote.").

¶80 The strong evidence necessary to establish the Gingles

preconditions ensures a collection of individuals can be fairly

deemed, in fact, a community. Communities of interest are

sometimes protected as a traditional redistricting criteria.

See Johnson v. Wis. Elections Comm'n (Johnson I), 2021 WI 87,

¶83, 399 Wis. 2d 623, 967 N.W.2d 469 (Hagedorn, J., concurring).

When the Gingles preconditions are clearly established, a race-
based redistricting plan provides a shield protecting

communities of interest as opposed to remedy devised solely on

the basis of race. Unlike race-based plans, acknowledging

people's voluntary association with one another does not offend

individual dignity. So long as communities of interest (or

their individual members) are not treated differently on the

basis of race, the Fourteenth Amendment is not offended.

¶81 Imposing a race-based redistricting plan, without
strong evidence of necessity, endorses the stereotype that

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people of the same race must think alike and must think

differently than people of other races. See Holder, 512 U.S. at

903. Governor Evers' plan, adopted by this court on March 3,

imposed "distinctions . . . based upon race and color alone,"

which is "the epitome of that arbitrariness and capriciousness

constitutionally impermissive under our system of government."

Brief for Appellants, Brown v. Bd. of Educ., 347 U.S. 483 (1954)

(No. 1), 1952 WL 82041, at *6–7 (authored in part by Thurgood

Marshall) (citation omitted).

¶82 In addition to harming individual dignity, this

redistricting cycle is replete with examples of the harm

inflicted on all people when courts assume, without a strong

evidentiary basis, that the Equal Protection Clause of the

Fourteenth Amendment tolerates a particular method of

affirmative action. See Wis. Legislature v. Wis. Elections

Comm'n, 595 U.S. __, No. 21A471, slip op., at 5 (Mar. 23, 2022)

(per curiam) (explaining "the institution that makes the racial

distinction must have had a 'strong basis in evidence' to
conclude that remedial action was necessary, 'before it embarks

on an affirmative action program." (quoting Shaw v. Hunt, 517

U.S. 899, 910 (1996)). Drawing people into districts based on

race for the purpose of competing as members of a racial group

for political power is antithetical to achieving a more

pluralistic society. "The way to stop discrimination on the

basis of race is to stop discriminating on the basis of race."

Parents Involved in Cmty. Schs., 551 U.S. at 748 (plurality).
"[S]tate entities may not experiment with race-based means to

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achieve ends they deem socially desirable." Id. (Thomas, J.,

concurring).

¶83 The inconclusive pseudo-science presented to this

court fell far short of justifying race-based redistricting, as

the majority opinion thoroughly explains. It amounted to little

more than selectively-cited election data, which appears to have

been researched only after-the-fact. That is to say, mapmakers

seem to have used racial stereotypes, not legitimate social

science, to heuristically draw maps that segregated people based

on race. No such "shortcuts"1 are allowed for proponents of

race-based redistricting as a remedy for past discrimination.

See United Jewish Orgs. of Williamsburgh, Inc. v. Carey, 430

U.S. 144, 184 (1977) (Burger, C.J., dissenting) ("The record is

devoid of any evidence that the 65% figure was a reasoned

response to the problem of past discrimination. It is, rather,

clear that under the time pressure of upcoming elections, and

'in an atmosphere of hasty dickering,' the New York Legislature

simply accepted the standard formula from the Department of
Justice and treated it as mandatory." (internal citation

omitted)).

¶84 The dissent's ambitious attempt to paint Milwaukee

County as the Jim Crow-era South reflects "an effort to cast out

Satan by Beelzebub." Frederick Douglass, Speech, The Blessings

of Liberty and Education (Sept. 3, 1894). The dissent would

remedy what it perceives as racial disparities by literally

"draw[ing] lines between the white and the black" with no

1 Dissent, ¶161.

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apparent recognition that doing so replaces one devil with

another. See id. A closer examination of this redistricting

cycle and how the VRA can be misused illustrates the problem.

II. BACKGROUND:
Governor Evers' People's Maps Commission, How It Might Have
Harmed Minority Communities in Milwaukee, and His "New" Plan

¶85 [A]t least the Republican map goal was not to
decimate the voices of the Black and Brown communities
of Wisconsin. . . . I can see the agenda, Mr.
Speaker. And the agenda is to dilute and crack and
cancel out the voice of minority communities. It's
regressive. Just to create more Democratic seats.
There is the intent, Mr. Speaker.
Wisconsin Assembly Floor Session, at 2:15:09 (Nov. 11, 2021)

(statement of Rep. Sylvia Ortiz-Velez (Assemb. District 8)),

https://wiseye.org/2021/11/11/wisconsin-state-assemblyfloor-

session-42.

¶86 The people have a "right to know" what happened this

redistricting cycle. See Hawkins v. WEC, 2020 WI 75, ¶14, 393

Wis. 2d 629, 948 N.W.2d 877 (Roggensack, C.J., dissenting).

Unfortunately, media coverage on this case, like on so many

others, has been skewed by partisan pundits disappointed in the
"results." See Johnson I, 399 Wis. 2d 623, ¶78 (majority op.)

(quoting Patience Drake Roggensack, Tough Talk and the

Institutional Legitimacy of Our Courts, Hallows Lecture (Mar. 7,

2017), in Marq. Law., Fall 2017, at 45, 46). See generally Tah

v. Global Witness Publishing, Inc., 991 F.3d 231, 255 (D.C. Cir.

2021) (Silberman, J., dissenting in part) ("There can be little

question that the overwhelming uniformity of news bias in the
United States has an enormous political impact. . . . [T]he

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press and media do not even pretend to be neutral news

services.").

¶87 One media outlet went so far as to run a subheadline

attacking the motives of the nation's highest court: "The

justices [of the United States Supreme Court] are concerned that

Wisconsin's legislative maps may give too much political power

to Black people." Ian Millhiser, Black Voters Suffer Another

Significant Loss in the Supreme Court, Vox (Mar. 23, 2022),

https://www.vox.com/2022/3/23/22993107/supreme-court-wisconsin-

race-gerrymander-voting-rights-act-legislature-elections-

commission. Worse still, while accusing the justices of

indulging an "inflammatory assumption," specifically, "[t]hat

legislative maps with fewer Black-majority districts are often

preferred to those that give more power to Black voters," the

author made an inflammatory assumption of his own, seemingly

designed to foster racial tension. See id.; see also Mark

Joseph Stern, The Supreme Court's Astonishing, Inexplicable Blow

to the Voting Rights Act in Wisconsin, Slate (Mar. 23, 2022),
https://slate.com/news-and-politics/2022/03/supreme-court-

voting-rights-shredder-wisconsin.html.

¶88 For context, in the early 2000s, Wisconsin had divided

government. Republicans controlled the assembly, Democrats

controlled the senate, and Governor James Scott McCallum, a

Republican, controlled the executive branch.2 The Legislature

2 Legis. Reference Bureau, Profile of the 2001 Wisconsin
Legislature, Wis. Br. 01-3, at 1–2 (Jan. 3, 2001),
http://lrbdigital.legis.wisconsin.gov/digital/collection/p16831c
oll2/id/1073.
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did not adopt a redistricting plan; a federal court redrew

Wisconsin's state legislative maps. Baumgart v. Wendelberger,

No. 01-C-0121, 2002 WL 34127471, at *1, 8 (E.D. Wis. May 30,

2002) (per curiam). Jim Doyle, a Democrat, became governor in

2003. In 2009, Republicans lost control of the assembly. At

this time, Democrats gained what is known in political parlance

as a "trifecta": they had control of both houses of the state

legislature, as well as the executive branch.

¶89 In 2007 and again in 2009, a few Democrats introduced

a joint resolution, which would have begun the process of

amending the Wisconsin Constitution to significantly alter how

district lines are drawn. They did not succeed, leaving Article

IV, Section 3 of the Wisconsin Constitution unchanged:

The members of the assembly shall be chosen
biennially, by single districts, on the Tuesday
succeeding the first Monday of November in even-
numbered years, by the qualified electors of the
several districts, such districts to be bounded by
county, precinct, town or ward lines, to consist of
contiguous territory and be in as compact form as
practicable.
The 2007 proposal would have created a "state redistricting

board," composed of the attorney general, the secretary of

state, the state treasurer, the state superintendent of public

instruction, and one member appointed by this court. Analysis

Legis. Reference Bureau, 2007 Assemb. J.R. 63. It also would

have "define[d] demographic and political standards for the

drawing of legislative districts and establishe[d] a procedure

for the drawing of legislative districting." Id. The 2009
proposal would not have created a board, but it would have

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circumscribed the "criteria" the Legislature could consider when

drawing districts. Analysis Legis. Reference Bureau, 2009

Assemb. J.R. 29.

¶90 Neither resolution received a floor vote even though

Democrats controlled the senate in 2007 and 2008 (but, by a

small margin, not the assembly) and controlled both chambers in

2009. When Democrats had a trifecta, they maintained the status

quo, i.e., allowing the Legislature substantial discretion to

draw lines subject to gubernatorial veto.3

¶91 Under the 2002 court-drawn map, Republicans gained

control of the Legislature in 2011. That same year, Wisconsin

elected Republican Scott Walker governor. The Republican-

controlled Legislature drew state legislative districts in the

manner prescribed by Article IV, Section 3, which the governor

signed. 2011 Wis. Act 43.

¶92 In 2018, Republicans lost their trifecta. Wisconsin

elected a Democrat, Tony Evers, to serve as governor. On the

eve of the 2020 redistricting cycle, Governor Evers signed
Executive Order No. 66 creating the "People's Maps Commission"

(PMC), tasked with drawing redistricting maps.4 Wis. Exec. Order

3This court's precedent, prohibiting the Legislature from
enacting state legislative redistricting plans by joint
resolution, does not comport with the Wisconsin Constitution and
should be revisited. See Johnson v. Wis. Elections Comm'n, 2022
WI 14, ¶¶253–59, 400 Wis. 2d 626, __ N.W.2d __ (Rebecca Grassl
Bradley, J., dissenting), summarily rev'd sub. nom. Wis.
Legislature v. Wis. Elections Comm'n, 595 U.S. __, No. 21A471,
slip op. (Mar. 23, 2022) (per curiam).
4Governor Evers referred this court to both Executive Order
No. 66 and the PMC's public website, specifically the "Hearings
& Meetings" page.

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No. 66 (2020). Never mind the Wisconsin Constitution's

"textually demonstrable . . . commitment" of the duty and power

to redistrict the state to the Legislature——without any mention

of the executive. Johnson I, 399 Wis. 2d 623, ¶51 (quoting

Baker v. Carr, 369 U.S. 186, 217 (1962)).

¶93 This commission was "the People's" in name alone.

Regardless of its title, Governor Evers, pursuant to the statute

he used to create the PMC, retained plenary control over it.

Wisconsin Stat. § 14.019(1) (2019–20)5 states, "[u]nder the

general powers of the office of the governor the governor may,

by executive order, create nonstatutory committees in such

number and with such membership as desired, to conduct such

studies and to advise the governor in such matters as directed."

Section 14.019(1)(a) continues, "[p]ersons appointed to a

nonstatutory committee may be removed or replaced, or the

committee may be abolished, by the governor at pleasure." As

the plain text of the authorizing statute indicates, the PMC was

in no way an independent or non-partisan commission.6

All subsequent references to the Wisconsin Statutes are to
5

the 2019–20 version.

So-called "independent" or "non-partisan" redistricting
6

commissions have been subject to substantial criticism, even by
commentators who decry partisan gerrymandering. Kevin Reyes,
Note, Redistricting or Rethinking? Why Proportional
Representation May Be a Better Solution than California's
Independent Commission, S. Cal. Interdisciplinary L.J. 655, 659–
61 (2011). The California Citizens Redistricting Commission is
an oft-cited example. Under its handiwork, in 2014, Democratic
congressional candidates received 57% of the vote statewide, but
won 73.6% of the seats (39 of 53). Andrew Spencer, Christopher
Hughes & Rob Richie, Escaping the Thicket: The Ranked Choice
Voting Solution to America's Districting Crisis, 46 Cumb. L.
Rev. 377, 388 (2016).
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¶94 Governor Evers ordered the PMC to "prepare proposed

maps for the Legislature to consider" which "shall, whenever

possible":

a. Be free from partisan bias and partisan advantage;

b. Avoid diluting or diminishing minority votes,
including through the practice of "packing" or
"cracking";

c. Be compact and contiguous;

d. Avoid splitting wards and municipalities;

e. Retain the core populations in each district;

f. Maintain traditional communities of interest;

g. Prevent voter disenfranchisement.
Exec. Order No. 66, at 2 (emphasis added). His instruction to

"[r]etain the core populations in each district" is particularly

striking given the governor's attacks on the legitimacy of the

least-change approach. In a press release following this

court's November 30, 2021 decision adopting the least-change

approach, he stated, "I urged the Wisconsin Supreme Court to

consider the maps prepared by a nonpartisan redistricting

commission, and it's unfortunate the Wisconsin Supreme Court

rejected those maps and decided they will only consider maps

that make minimal changes from the gerrymandered maps we have

now[.]"7

7 Press Release, Gov. Evers Submits New Redistricting Maps
Using "Least Change" Approach Pursuant to Court Order, Office of
the Governor, State of Wis. (Dec. 15, 2021),
https://content.govdelivery.com/accounts/WIGOV/bulletins/3010fc.
Notwithstanding Governor Evers' goal for the PMC to "[r]etain
the core populations in each district," Attorney General Josh
Kaul, a Democrat, declared, "[f]or a court to rule that a court-
drawn map must be based on an extreme partisan gerrymander
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¶95 The PMC created a memorandum explaining how it

understood Governor Evers' order. Among other considerations,

it promised to comply with relevant laws, including the VRA.8

The PMC produced final recommendations at the eleventh hour, too

late for thorough analysis before the Legislature was scheduled

to consider the maps it created.9 See Written Testimony of

Speaker Robin J. Vos, Joint Public Hearing of the Senate

Committee on Government Operations, Legal Review, and Consumer

Protection and the Assembly Committee on State Affairs, at 4

(Oct. 28, 2021),

https://docs.legis.wisconsin.gov/misc/lc/hearing_testimony_and_m

aterials/2021/sb621/sb0621_2021_10_28.pdf ("[T]he draft maps

released by the commission contained inconsistent district

numbering making our analysis difficult."). The PMC's maps were

of such questionable fairness and legality, many members of

Governor Evers' party disavowed them.

[i.e., the 2011 maps] is simply stunning." Press Release, AG
Kaul Issues Statement on Wisconsin Supreme Court Redistricting
Decision (Nov. 30, 2021),
https://www.doj.state.wi.us/sites/default/files/news-
media/11.30.21_Redistricting.pdf.
8Memorandum from the People's Maps Commission, Criteria for
Drawing Districts, at 2 (last visited Apr. 4, 2022),
https://evers.wi.gov/Documents/PMCCriteriaMemoFINAL.pdf.
9Governor Evers held a press conference on November 2, 2021
releasing the final recommendations of the PMC. News
Conference, Gov. Evers on People's Maps Commission Final Maps
Submissions (Nov. 2, 2021), https://wiseye.org/2021/11/02/news-
conference-gov-evers-on-peoples-maps-commission-final-map-
submissions/. At this point, the legislative process was far
along, so many legislators had already begun to evaluate the
PMC's drafts——not their final work product.

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¶96 Notwithstanding Governor Evers' arguments before this

court for maximizing the number of majority-minority districts,

the PMC proposed maps with only three Black majority districts:

two in the assembly and one in the senate.10 Governor Evers' own

commission proposed eliminating four Black majority districts in

the assembly and one in the senate; nevertheless, Governor Evers

told this court and the United States Supreme Court that the

failure to add a Black majority district in the assembly would

violate the VRA.11 Governor Evers' commission also significantly

10 People's Maps Commission Final Map Submissions (PMC's
Final Maps), The People's Maps Commission (updated Nov. 3,
2021), https://govstatus.egov.com/peoplesmaps/work-records
(click "District Link Here" for either the "Assembly Map" or the
"Senate Map"; then click "Evaluation"; then click "Population by
Race").

11During an executive session of the Senate Committee on
Government Operations, Legal Review, and Consumer Protection,
the chairman, Senator Duey Stroebel, noted the PMC's assembly
map had significantly fewer majority-minority districts than the
Legislature's proposal; Democratic committee members had no
response. Executive Session of the Wisconsin Senate Committee
on Government Operations, Legal Review, and Consumer Protection,
at 12:37 (Nov. 4, 2021) (statement of Senator Duey Stroebel
(Sen. District 20)), https://wiseye.org/2021/11/04/senate-
committee-on-government-operations-legal-review-and-consumer-
protection-9/ ("[T]he last item would be majority-minority
districts. SB [621], six Black . . . assembly and two Black
senate. . . . People's Maps Commission, two
Black . . . assembly, one Black senate[.]").

Senator Stroebel also noted the similarity between the
criteria established by Executive Order No. 66 and 2021 Senate
Joint Resolution 63, which established the criteria the
Legislature used. Both sets of criteria included, among other
things, core retention. Compare Wis. Exec. Order No. 66, at 2
(2020) ("whenever possible . . . [r]etain the core populations
in each district"), with 2021 S. J.R. 63 ("Retain as much as
possible the core of existing districts"). Democrats had no
response.

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reduced the Hispanic population in the one of the two Hispanic

majority districts that a federal court held were necessary for

VRA compliance——although it did keep the Hispanic population

above a majority. Specifically, the PMC drew the district with

a Hispanic population of approximately 63.3%.12 The Hispanic

voting-age population (HVAP) in that district is currently

67.2%.13

¶97 The PMC expressed little concern about the VRA.14 A

substantial portion of the public hearing discussed the

purported harms of partisan gerrymandering, not racial

gerrymandering——in fact, it permeated the entire commentary of

one of the speakers.15

PMC's Final Maps.
12 I assume the PMC used voting-age
population, although whether it did so is unclear from its
public website.

The PMC would have slightly increased the Hispanic
13

population in the other Hispanic majority district; however,
that district would have had less than a 60% Hispanic population
nonetheless.

People's Maps Commission Online Public Hearing | 4th
14

Congressional District (PMC's VRA Hearing), YouTube (Jan. 14,
2021), https://www.youtube.com/watch?v=qdagL0feabA&t=2s. Based
on the PMC's final report, other public hearings may have
discussed the VRA, but this particular hearing was the only one
designated for discussion of the VRA. The People's Maps
Commission, Final Report and Maps of the People's Maps
Commission, at A6 (2021),
https://evers.wi.gov/Documents/PMC/PMC_Report_Final_Full-
compressed%20(2).pdf.

The speaker discussed, among other things, Gill v.
15

Whitford, 585 U.S. __, 138 S. Ct. 1916 (2018), and the
"efficiency gap," which is a purported way to measure the
partisan fairness of a redistricting plan that was at the heart
of Gill.

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¶98 The commissioners admitted their inexperience in this

area of law. Although the PMC invited two attorneys, both

acknowledged they lacked competence to give legal advice about

the VRA. These speakers described the VRA as a "passion" but

admitted primarily practicing other areas, such as employment

law.16 Notably, one of the commissioners asked the speakers if

the PMC's plans could be "misconstrued" as a "racial

gerrymander," to which the answer was, "I guess it could be."17

¶99 No Democrat in the assembly was willing to introduce

the PMC's maps. See Wisconsin Assembly Floor Session, at

1:35:30 (statement of Speaker Robin J. Vos). Speaker Robin J.

Vos, a Republican, did so. On the assembly floor, Democrats

castigated Governor Evers for placing the Democratic Party's

goals above minority communities' needs.

¶100 Representative Sylvia Ortiz-Velez, a Latina Democrat

from Milwaukee County, rose for the first time in her tenure to

voice her concerns. "[A]t least the Republican map goal was not

to decimate the voices of the Black and Brown communities of
Wisconsin," she stated. Id. at 2:15:09 (statement of Rep.

Sylvia Ortiz-Velez). Among her concerns, she identified the

PMC's proposed reduction of the HVAP in at least one Hispanic

16 PMC's VRA Hearing, at 1:39:14.

Id. at 1:25:01.
17 From the commissioner's question, it
appears the PMC (or at least some of its members) thought it
could simply relabel the consideration of "race" as the
consideration of a "community of interest." Labelling does not
fix the problem. Only if the Gingles preconditions are
satisfied may the treatment of a racial group as a community of
interest be lawful.

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majority district. She explained the Hispanic population

typically has low voter turnout and some members of the

community are counted for census purposes even though they

cannot vote.18 Id. at 2:11:35.

¶101 Representative Ortiz-Velez also said the PMC's maps

"promote[] a white supremacy agenda that says it's okay for

other folks . . . who we don't choose to rule over us and make

decisions for us." Id. at 2:16:01. She noted the PMC's maps

were "unconstitutional for several reasons," and "[w]e can

litigate that in the courts. We know there's a third branch.

And we'll get our justice there because the law is on our

side[.]" Id. at 2:15:30. According to Rep. Ortiz-Velez, the

PMC had "dilute[d] and crack[ed] and cancel[ed] out the voice of

minority communities. . . . Just to create more Democratic

seats." Id. at 2:16:44. She said similar Democratic Party

18Standing alone, low turnout is an unlawful basis for
drawing a majority-minority district. The VRA guarantees equal
opportunity, not equal success. United States v. Euclid Sch.
Bd., 632 F. Supp. 2d 740, 763 (N.D. Ohio 2009) ("That being
said, there is no right under the Voting Rights Act to win;
there is, rather, a right to meaningfully compete. While the
effects of long-standing electoral discrimination on voter
turnout are undeniable, there is assuredly some point at which
potential voters must themselves come to the polls. This is
likely the reason that four of the five courts previously to
consider the threshold of exclusion employ VAP in their
treatment of the concept, as opposed to a consideration of
historical turnout." (internal citation and citations
omitted)). Increasing the minority population in a district
solely in response to low turnout actually has the troubling
consequence of "artificially cap[ping]" minority voting power.
Id. at 765. The remedy for low turnout——packing minority voters
into fewer districts——necessarily reduces the power the minority
group could have if its members turned out at a higher rate.

18
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plans were being proposed and adopted nationwide. Id. at

2:18:00.

¶102 Of particular frustration to Rep. Ortiz-Velez was the

manner in which she and other members of minority communities

had been treated by the executive branch:

We were shut out of the process by the executive
branch. We tried, Mr. Speaker. There was a concerted
effort by the executive branch to lock us out of the
process so we couldn't act as a check. I want the
record to reflect that many members of this body, and
at least one member of the Senate, Senator Lena
Taylor, have repeatedly tried to stop this injustice
before it happened. Including myself, Mr. Speaker.
We tried many times speaking with the Governor's
Office and the People's Maps Commission to address our
concerns, and we were basically dismissed, gaslighted,
and ignored.
Id. at 2:19:46. On this point, she concluded, "Mr. Speaker

there was a significant lack of responsiveness on [the] part of

the elected officials to the particular needs of the members of

a minority group." Id. at 2:20:23.

¶103 Representative LaKeshia Myers, a Black Democrat from

Milwaukee County, spoke next. She said, "[t]his body is based
off population. So I know I didn't teach math, but if you got

almost 100 and you got 6.4 that sounds like it should be six

seats." Id. at 2:38:06 (Rep. LaKeshia Myers (Assemb. District

12)). Because the PMC's proposed assembly map proposed only

two, she strongly encouraged her colleagues to vote against it.

¶104 Representative Marisabel Carbrera, a Latina Democrat

from Milwaukee County, voiced similar concerns:

Mr. Speaker, you said a few moments ago the following
about the People's Maps Commission's Maps. Its
process might have violated Wisconsin's open meetings
19
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laws, it violates the Voting Rights Act, more
elections are paired, more Wisconsinites will not be
able to vote for senators, and more counties are
split. I have to say Mr. Speaker, this time I happen
to agree with you.
Id. at 2:53:11 (statement of Rep. Marisabel Carbrera (Assemb.

District 9)). She concluded, "I believe the PMC did not

accomplish its stated mission. . . . Fair maps would not

sacrifice the voting rights of Black and Latino voters." Id. at

2:53:37 (emphasis added).

¶105 Following these speeches, the assembly voted down the

PMC's maps by a vote of 77-21.19 For context, according to the

official assembly profile, the assembly had 60 Republicans, 38

Democrats, and one vacant seat.20 A substantial portion of

Governor Evers' fellow Democrats voted against his maps.

Executive Order 66's time had not come. It would not be done.21

¶106 The concerns of Democratic representatives had been

voiced by Democratic senators just three days earlier. Senator

Lena C. Taylor, a Black Democrat from Milwaukee County, declared

the PMC's maps were the worst of all options because of their

19 The senate also voted down the PMC's maps on a bipartisan
vote of 22-11.
20 Louisa Kamps, Profile of the 2021 Wisconsin Legislature 2
(2021),
https://docs.legis.wisconsin.gov/misc/lrb/lrb_reports/2021_wisco
nsin_legislature_profile_5_3.pdf.
21 DARTH SIDIOUS: The time has come. Execute
Order Sixty-Six.

CLONE COMMANDER BACARA: It will be done, My Lord.

Star Wars: Episode III – Revenge of the Sith (Lucasfilm Ltd.
2005).

20
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utter disregard for minority communities, which she noted likely

violated the VRA. Wisconsin Senate Floor Session, at 1:12:04

(Nov. 8, 2021) (statement of Sen. Lena Taylor (Sen. District

4)), https://wiseye.org/2021/11/08/wisconsin-state-senate-floor-

session-34/. Similar to Rep. Ortiz-Velez's comments a few days

later, Senator Taylor explained the voters in Black majority

districts cannot be reasonably expected to elect Black-preferred

candidates unless the Black voting-age population (BVAP) is well

above 50%. Id. at 1:04:30, 1:14:00.

¶107 Despite the turbulent history of the PMC, Governor

Evers told this court his creation of the PMC supported his

intervention in this case:

[T]he Governor has ongoing involvement with the
redistricting process. That is embodied in the
Governor's Executive Order #66 that creates the
nonpartisan People's Maps Commission, which is tasked
with seeking input and drawing impartial maps for the
Legislature and Governor to consider. The Commission,
and the relevance its plan would have to the remedy
stage of a redistricting lawsuit, provides
a . . . reason for the Governor's intervention.
He concluded, "[t]he Commission's maps would be highly relevant

to a court's task in a reapportionment action. The legal and

factual considerations used by the Commission when drawing its

maps will parallel the considerations before the court when

addressing redistricting."

¶108 At some point after this court granted Governor Evers'

intervention motion, he changed his mind about the PMC. If his

commission had followed his direction to "whenever
possible . . . [r]etain the core populations in each district"

it might have produced maps that could plausibly be labelled
21
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least-change. Exec. Order No. 66, at 2. Although the PMC's

maps did not do so, much of Governor Evers' "new" plan consisted

of materials recycled from the PMC's plan. Governor Evers,

however, abandoned the PMC's proposal for only two Black

majority assembly districts and only one Black majority senate

district. In contrast, Black Leaders Organizing for Communities

(BLOC) proposed seven Black assembly districts and two Black

senate districts. As the United States Supreme Court noted in

its decision summarily reversing this court's selection of

Governor Evers' state legislative districts, BLOC argued, based

on its expert's analysis, Governor Evers' proposal violated the

VRA. See Wis. Legislature, slip op., at 6 n.2 (citations

omitted); see also Johnson v. Wis. Elections Comm'n (Johnson

II), 2022 WI 14, ¶¶91, 112, 400 Wis. 2d 626, __ N.W.2d __

(Ziegler, C.J., dissenting), summarily rev'd sub. nom. Wis.

Legislature, slip. op. ("The only support presented in an

attempt to justify race-based districts was submitted by a party

who contends the Governor's maps violate the VRA:
BLOC. . . . No party except BLOC presented any details on the

state and condition of minority communities in the districts at

issue, and even that evidence is deeply

flawed. . . . Strikingly, under BLOC's analysis, the Governor's

maps do not satisfy the VRA, and are thus unconstitutional. The

majority not only lacks evidence to support the maps it adopts,

but the only party who even attempted to prove a VRA need

determined those maps were illegal.").

22
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¶109 Governor Evers' "new" approach to the VRA was similar

to BLOC's: both maximized the number of majority-minority

districts by drawing them at just above 50% BVAP primarily by

arbitrarily adding White people as "filler[.]"22 Johnson II, 400

Wis. 2d 626, ¶72.

Wisconsin State Legislative BVAP in Governor Evers'
Districts Proposed Maps
Senate District 4 50.62%

Senate District 6 50.33%

Assembly District 10 51.39%

Assembly District 11 50.21%

Assembly District 12 50.24%

Assembly District 14 50.85%

Assembly District 16 50.09%

Assembly District 17 50.29%

Assembly District 18 50.63%

As Chief Justice Ziegler wrote in her March 3 dissent:

[I]t is striking how explicitly the Governor——and the
majority——divided up Wisconsin districts solely by
race. While in 2011 the Legislature drew six assembly
districts that have a majority of black voting-age
populations ("BVAP"), ranging from 51% to 62%, the
Governor carves seven districts by race with the
exactness of only the most gifted social scientists.
According to the Governor himself, he drew seven
districts with BVAP ranging from 50.1% to 51.4%. At

Counsel for the Citizen Mathematicians & Scientists
22

warned this court at oral argument that in his many years of
redistricting experience, he had seldom seen such a heavy focus
on race in a judicial proceeding. He used the phrase "White
filler" to describe a redistricting practice of certain other
parties, and candidly acknowledged the Legislature's Black
opportunity districts would perform.

23
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oral argument and in briefing, it was clear that race
imbued the decisions of the Governor in drawing
districts. Explaining his district boundaries, he
stated the intent was "to produce seven majority Black
districts in the Assembly."
Id., ¶87. Governor Evers' approach stands in sharp contrast to

the Legislature's, which used race neutral criteria, as the

majority opinion explains.

¶110 To achieve what Governor Evers deemed the right racial

balance in each district, he disregarded redistricting

principles enshrined in the Wisconsin Constitution. Even

assuming the Gingles preconditions are satisfied (they are not),

he cannot subordinate these principles unless it is "reasonably

necessary"——which it is not. See Bush v. Vera, 517 U.S. 952,

979 (1996) (lead op.) ("[T]he district drawn in order to satisfy

§ 2 must not subordinate traditional districting principles to

race substantially more than is 'reasonably necessary' to avoid

§ 2 liability.").

¶111 Governor Evers' oddly shaped districts are numerous——

and many of the odd shapes in his plan are analogous to the

PMC's. For example, Governor Evers redrew Senate District 4,

currently represented by Sen. Taylor, to extend into Waukesha

and Ozaukee Counties.23 The result was a substantial decrease in

BVAP. Under his plan, Assembly District 11 would extend to

Mequon. In critiquing a similar feature of the PMC's map, Rep.

Myers rhetorically asked, "[w]hy? That's going to cross the

"By comparison, the Legislature's Senate District 4 ends
23

at the Milwaukee County line and does not move a single
individual to a new senate district." Legislature's Resp. Br.
at 11.

24
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county line. Doesn't make sense. Doesn't make sense at

all. . . . That's not going to stick when it comes to people's

interest. That's not going to stick when it comes to thinking

you're going to elect people that look like me." Wisconsin

Assembly Floor Session, at 2:47:55 (statement of Rep. LaKeshia

Myers). Without any VRA-grounded justification, Governor Evers

violated Article IV, Section 4 the Wisconsin Construction, which

requires assembly districts "to be bounded by

county, . . . town, or ward lines[.]"

¶112 Governor Evers' plan also would have harmed the Black

community by forcing it to bear the brunt of disruption stemming

from redistricting. While demonstrating high overall core

retention, Governor Evers concentrated major changes in

Milwaukee County, proposing what the Legislature fairly labelled

a "most-change Milwaukee" map. According to the Legislature,

Governor Evers' plan would have retained merely 72.6% of

Milwaukee-area voters in their current district. In accordance

with the principles expounded in our November 30 opinion, this
court rightly rejects a "most-change Milwaukee," as the

Legislature did with a bipartisan vote months ago. "State

authorities" should not "localize the burdens of race

reassignment" on a particular community. United Jewish Orgs.,

430 U.S. at 174–75 (Brennan, J., concurring in part). It leaves

"the impression of unfairness" when a discrete and insular

minority "disproportionately bears the adverse consequences of a

race-assignment policy." Id. at 175.

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 No. 2021AP1450-OA.rgb

¶113 In contrast to Governor Evers' plan, the Legislature's

plan does not engage in the systematic and discriminatory

dismantling of districts in Milwaukee. Governor Evers would

sever Black voters' existing constituent-representative

relationships and undermine existing voter coalitions, while

largely preserving them for White voters. Whether maximizing

majority Black voting districts would actually benefit the Black

community remains highly suspect. Had it survived the scrutiny

of the United States Supreme Court, Governor Evers' plan

arguably would have limited Black communities' political power.

Senator Taylor wrote an amicus brief to the United States

Supreme Court explaining how Governor Evers' maps "dilute[] the

voting strength of Black voters in Wisconsin." Motion for Leave

to File and Brief for Senator Lena C. Taylor as Amicus Curiae

in Support of Neither Party, at 2, Wis. Legislature v. Wis.

Elections Comm'n, 595 U.S. __ (2022) (No. 21A471). She

continued, "the [Wisconsin] supreme court's conclusion——with no

analysis whatsoever——that the Governor's map complies with the
Voting Rights Act is clearly erroneous. . . . It made no

determination of whether the Governor's map——or any other——

contains seven Assembly districts with an effective Black

majority." Id. at 2, 11–12.

¶114 Senator Taylor expressed concern that Governor Evers

had drawn "bare-majority-minority-Black districts," which, as a

practical matter, "would not be able to nominate their preferred

candidates[.]" Id. at 2. She noted, "this Court has repeatedly
explained that even majority-minority districts can violate the

26
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Voting Rights Act if they do not contain a sufficiently large

majority to provide minority voters with a realistic opportunity

to elect candidates of their choice." Id. at 12 (citations

omitted). She cited, among other decisions, Baldus v. Members

of the Wisconsin Government Accountability Board, in which a

three-judge panel in the Eastern District of Wisconsin concluded

60.52% HVAP did not create "a functioning majority-minority

district for Milwaukee's Latino community." 849

F. Supp. 2d 840, 858 (E.D. Wis. 2012) (per curiam).

¶115 While the dissent decries denying the parties another

opportunity to develop new evidence to support a different

outcome, the dissent cannot plausibly contend the parties were

not fully afforded the opportunity to conduct discovery when the

case commenced. Senator Taylor criticized Governor Evers'

evidence, noting the governor's expert "did not perform a racial

bloc voting analysis or a performance analysis of the Governor's

map or any other." Motion for Leave to File and Brief for

Senator Lena C. Taylor as Amicus Curiae in Support of Neither
Party, at 5. Absent such analysis, "there is no evidence

whatsoever that the Governor's map contains seven opportunity

districts." Id. at 12.

¶116 Ultimately, Senator Taylor maintained the result, if

not the goal, of Governor Evers' maps was something other than

ensuring opportunity for Black voters. Similar to the comments

of Rep. Ortiz-Velez on the assembly floor regarding the PMC,

Senator Taylor noted Governor Evers' plan would create seven
"reliable Democratic district[s], but it would not provide Black

27
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voters with the opportunity that the Voting Rights Act

requires." Id. at 2. That is to say, Governor Evers' concept

of what made a Black vote effective was whatever advantaged his

political party.

¶117 Governor Evers' color-emphasizing approach is

remarkably different than the Legislature's color-blind

approach. The Legislature did not consider race as a criterion

in drawing its maps. In Speaker Robin J. Vos's written

testimony on the Legislature's redistricting bill (which

contained the maps the Legislature ultimately submitted to this

court), he explained:

Republican Legislative employees crafted these maps
within the confines of the state capitol and completed
this work on their own without the involvement of
outside counsel or redistricting experts. These
employees were instructed not to consider race when
drafting the legislative maps, instead, relying on
classic redistricting principles, adjusting for
population changes.24
During his oral testimony, Speaker Vos reaffirmed the maps' race

neutrality in response to questions from committee members.25

Senator Devin LeMahieu, the senate majority leader, also

24Written Testimony of Speaker Robin J. Vos, Joint Public
Hearing of the Senate Committee on Government Operations, Legal
Review, and Consumer Protection and the Assembly Committee on
State Affairs, at 4 (Oct. 28, 2021),
https://docs.legis.wisconsin.gov/misc/lc/hearing_testimony_and_m
aterials/2021/sb621/sb0621_2021_10_28.pdf (emphasis added).
25 Joint Public Hearing of the Senate Committee on
Government Operations, Legal Review, and Consumer Protection and
the Assembly Committee on State Affairs, at 1:44:35 (Oct. 28,
2021) (testimony of Speaker Robin J. Vos),
https://wiseye.org/2021/10/28/joint-committee-on-government-
operations-and-state-affairs/.

28
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testified the maps are race neutral: "[W]e reached out to

minority groups seeking feedback on Wisconsin's current

majority-minority districts to ensure maps that fully comply

with state and federal law. The Fourteenth Amendment prohibits

us from passing a law that discriminates on the basis of race.

Therefore, the new maps were drafted without the use of race

data at any point in the process to ensure compliance with the

Fourteenth Amendment." (emphasis added).26

¶118 The Legislature has repeatedly told this court its

maps are race neutral. No party presented any evidence to this

court calling into question the Legislature's attorneys'

compliance with their duty of candor, but the dissent

nevertheless lodges the accusation. See SCR 20:3.3 (a)(1) ("A

lawyer shall not knowingly: (1) make a false statement of fact

or law to a tribunal or fail to correct a false statement of

material fact or law previously made to the tribunal by the

lawyer[.]").

¶119 The dissent again betrays its misunderstanding of the
Equal Protection Clause by proclaiming a violation based on "the

Legislature boast[ing] that its Milwaukee-area core retention

numbers exceeded their statewide core retention numbers."27 As

the majority opinion makes clear, "[h]igh core retention, for

instance, can be readily explained by the fact that the

Milwaukee-area districts were underpopulated and, of course, a

larger portion of the core would be retained."28 Therefore, the

26 Id. at 8:50 (testimony of Senator Devin LeMahieu (SD 9)).
27 Dissent, ¶190.
28 Majority op., ¶51 n.10.
29
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districts are not "unexplainable on grounds other than race."29

Under a least-change approach, as a general rule, people should

be moved from overpopulated districts to underpopulated

districts. Moving people out of an underpopulated district

(thereby reducing core retention) rarely achieves any legitimate

redistricting goal under a least-change paradigm.

¶120 The dissent continues

to misunderstand Cooper v.

Harris, 581 U.S. __, 137

S. Ct. 1455 (2017), despite

invoking that case in misplaced

support for the dissent's

conclusion that the

Legislature's maps violate the

Equal Protection Clause. Two

pictures illustrate the issue in

Cooper better than two thousand

words could.30

29Id. (quoting Miller v. Johnson, 515 U.S. 900, 913
(1995)).
30 These images are taken from the opinion in Cooper.

30
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¶121 The United States Supreme Court described

Congressional District 1 as "anchored in the northeastern part

of the State, with appendages stretching both south and west[.]"

Id. at 1456. It described District 12 as "zig-zagging much of
the way to the State's northern border." Id. District 1 had a

BVAP of 52.7% and District 12 a BVAP of 50.7%. Id. at 1466.

Based on direct statements from a North Carolina Senate debate,

the Court noted the map drawers had purposefully designed

District 1 to hit "the 50%-plus target," which "had a direct and

significant impact" on the district's configuration. Id. at

1469 (citation omitted). This change was not necessary because,

notwithstanding a lower BVAP, for twenty years District 1 had

31
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been "an extraordinarily safe district for African-American

preferred candidates." Id. at 1470 (citation omitted).

¶122 District 12 (in its fifth appearance before the United

States Supreme Court) was highly suspect. Id. at 1472. The

defense of the district was based on it being drawn for partisan

advantage rather than in consideration of race. Id. at 1472–73.

The United States Supreme Court upheld the district court's

finding that race predominated. Notably, the finding was based

in part on public statements from relevant officials "that

racial considerations lay behind District 12's augmented BVAP."

Id. at 1475. Discovery disclosed the VRA was largely used as a

shield to justify a racial gerrymander. Id. One congressman

testified he had been told by leaders that they "ramp[ed] the

minority percentage in [District 12] up to over 50 percent to

comply with the Voting Rights Act." Id. at 1476 (second

modification in the original). Needless to say, in light of the

district court's findings, the United States Supreme Court

disdained such attempts to use racial gerrymanders for partisan
advantage.

III. USING THE VRA AS A GUISE FOR PARTISAN GERRYMANDERING

¶123 Governor Evers' maps reflect a longstanding practice

of using the VRA as a shield to justify partisan gerrymandering.

As a proper reading of Cooper confirms, the Constitution

prohibits this. Contrary to the dissent's misreading of Cooper,

the case establishes why Governor Evers' maps raise serious

equal protection problems while the Legislature's maps do not.
Although this court does not consider partisan fairness in

32
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redistricting, it should be skeptical of VRA claims presented by

partisan actors who do not even try to provide evidence

sufficient to survive strict scrutiny. See Johnson I, 399

Wis. 2d 623, ¶8 ("[T]he partisan makeup of districts does not

implicate any justiciable or cognizable right."). Because

Governor Evers "intentionally creates . . . majority-minority

district[s], race is necessarily [his] predominant motivation

and strict scrutiny is therefore triggered." League of United

Latin American Citizens v. Perry, 548 U.S. 399, 517 (2006)

(Scalia, J., concurring in judgment and dissenting in part); see

Wis. Legislature, slip op., at 3 ("[W]e 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." (citing Cooper, 137 S. Ct. at 1463–64)).

¶124 The Equal Protection Clause may tolerate affirmative

action to the extent it can be proven necessary to provide equal

opportunity to a racial minority; however, our color-blind
Constitution will permit a race-based remedy only if the state

actor has strong evidence of this necessity. "In the absence of

strong evidence demonstrating a VRA violation will

result . . . [without the consideration of race], this court

should 'unerringly and unapologetically . . . exalt[] the ideal

of individual equality without regard to race.'" Johnson II,

400 Wis. 2d 626, ¶240 (Rebecca Grassl Bradley, J., dissenting)

(quoting Robert Redwine, Comment, Constitutional Law: Racial

33
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and Political Gerrymandering——Different Problems Require

Different Solutions, 51 Okla. L. Rev. 373, 399 (1996)).

¶125 The United States Supreme Court requires strong

evidence of voting rights violations before race-conscious

remedies may be imposed because "[c]lassifications of citizens

solely on the basis of race 'are by their very nature odious to

a free people whose institutions are founded upon the doctrine

of equality.'" Shaw v. Reno, 509 U.S. 630, 643 (1993) (quoting

Hirabayashi v. United States, 320 U.S. 81, 100 (1943)). "They

threaten to stigmatize individuals by reason of their membership

in the racial group and to incite racial hostility." Id.

(citing J.A. Croson Co., 488 U.S. at 493 (plurality)). Race-

based redistricting "reinforces the perception that members of

the same racial group——regardless of their age, education,

economic status, or the community in which they live——think

alike, share the same political interests, and will prefer the

same candidates at the polls." Id. at 647. For this reason,

race-based redistricting is antithetical to individual dignity,
treating people as nothing more than members of a homogenous

group by birth rather than by choice. "[E]ven in the pursuit of

remedial objectives, an explicit policy of assignment by race

may serve to stimulate our society's latent race consciousness,

suggesting the utility and propriety of basing decisions on a

factor that ideally bears no relationship to an individual's

worth or needs." Id. at 643 (quoting United Jewish Orgs., 430

U.S. at 173). Our national ethos rejects such a practice.

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¶126 On March 3, when a majority of this court adopted a

racial gerrymander based solely on a misapplication of the

concept of proportional representation,31 it endorsed "[t]he use

of a mathematical formula" that "tends to sustain the existence

of ghettos by promoting the notion that political clout is to be

gained or maintained by marshaling particular racial, ethnic, or

religious groups in enclaves." See United Jewish Orgs., 430

U.S. at 186 (Burger, C.J., dissenting). "It suggest[ed] to the

voter that only a candidate of the same race, religion, or

ethnic origin can properly represent that voter's interests, and

that such candidate can be elected only from a district with a

sufficient minority concentration." Id. That premise reflects

a foundational error; equal protection rejects racially

proportional representation, which is based on nothing more than

stereotypes about how people of a particular race vote.

¶127 Another harm, acknowledged in precedent, is "[t]he

message that such districting sends to elected

representatives[.]" Shaw, 509 U.S. at 648. "When a district
obviously is created solely to effectuate the perceived common

interests of one racial group, elected officials are more likely

31Governor Evers sought to maximize the number of majority-
minority districts, not to achieve proportional representation.
Nevertheless, the March 3 order ignored basic mathematics and
pretended proportionality had been achieved. Johnson II, 400
Wis. 2d 626, ¶238 (Rebecca Grassl Bradley, J., dissenting) ("The
Black voting-age population is between 6.1% and 6.5%, as Chief
Justice Ziegler explains in her dissent. Wisconsin has 99
assembly seats——not 100——so, even taking the high estimate of
6.5%, the proportional share of Black assembly districts,
rounded to the nearest whole number, would be six, not seven (99
× 0.065 = 6.4).").

35
 No. 2021AP1450-OA.rgb

to believe that their primary obligation is to represent only

the members of that group, rather than their constituency as a

whole. This is altogether antithetical to our system of

representative democracy." Id.; see also Holder, 512 U.S. at

908 (noting the solicitor general had reasoned (improperly),

"the Hispanic legislators elected from Hispanic districts in

Dade County would represent, not just the interests of the Dade

County Hispanics, but the interests of all the Hispanics in the

State" (citation omitted)). "The 'black representative's'

function" is not "to represent the 'black interest'" but to

represent her entire constituency. Holder, 512 U.S. at 907

(citing Shaw, 509 U.S. at 650).

¶128 Race-based redistricting places people in a political

echo chamber of sorts, encouraging them to see themselves and

their circumstances as little more than the product of race and

inhibiting their interaction with other races. "Racial

gerrymandering strikes at the heart of our democratic process,

undermining the electorate's confidence in its government as
representative of a cohesive body politic in which all citizens

are equal before the law." Ala. Legis. Black Caucus v. Alabama,

575 U.S. 254, 283 (2015) (Scalia, J., dissenting). As Justice

Douglas wrote in a famous dissent:

When racial or religious lines are drawn by the State,
the multiracial, multireligious communities that our
Constitution seeks to weld together as one become
separatist; antagonisms that relate to race or to
religion rather than to political issues are
generated; communities seek not the best
representative but the best racial or religious
partisan. Since that system is at war with the
democratic ideal, it should find no footing here.
36
 No. 2021AP1450-OA.rgb

Wright v. Rockefeller, 376 U.S. 52, 67 (1964) (Douglas, J.,

dissenting). "[S]eparate but better off" is as legally and

morally flawed as "[s]eparate but equal." Id.

¶129 Another problem underlying race-based redistricting

sometimes draws little attention: "[A] purportedly preferential

race assignment may in fact disguise a policy that perpetuates

disadvantageous treatment of the plan's supposed beneficiaries."

Shaw, 509 U.S. at 643 (quoting United Jewish Orgs., 430 U.S. at

172 (Brennan, J., concurring in part)). In this case, prominent

members of minority communities warned that Governor Evers'

maps, regardless of intent, would harm their communities. "At a

minimum," this court must give "careful consideration" to the

"operation of any racial device, even one cloaked in

preferential garb." United Jewish Orgs., 430 U.S. at 173.

"[I]f any judicial detection of truly benign policies proves

impossible or excessively crude, that alone might warrant

invalidating any race-drawn lines." Id.

¶130 Had Governor Evers' assembly map stood, Black voter
influence likely would have suffered. Spreading Black voters

across seven districts each with almost exactly 50% BVAP would

have reduced "black influence" in numerous other districts.

Johnson II, 400 Wis. 2d 626, ¶237 n.44 ("[I]f the number of

minority-majority districts is maximized, then it necessarily

follows that black influence is elsewhere minimized, which

reduces the number of districts in which blacks, fully

participating in an integrated process, can hold the balance of
power." (quoting In re Apportionment of the State Legislature——

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1992, 486 N.W.2d 639, 654 n.66 (1992)). For example, if two

districts both have 100 people of voting age, including 40 Black

people, and are able to elect Black-preferred candidates, taking

half the BVAP from one (20 Black people) and swapping them for

an equal number of White people of voting age in the other (20

White people) would create a 60% BVAP in one district and a 20%

BVAP in the other. Because the two districts were already

electing Black-preferred candidates, the swap just diminishes

Black influence in one district, thereby obstructing the Black

community in that district from electing candidates of its

choice going forward. The change produces a net loss for the

Black community.

¶131 Even if the VRA would actually require drawing seven

Black majority districts with almost exactly 50% BVAP each,

Governor Evers' maps were not a proper remedy. The entire

premise of the VRA is that past and present racism suppresses

minority voting, producing low voter turnout. For this reason,

federal courts always draw remedial majority-minority districts
well above 50%——often in excess of 60%. See, e.g., Comm. for a

Fair & Balanced Map v. Ill. State Bd. of Elections, 835

F. Supp. 2d 563, 582 (N.D. Ill. 2011) ("60 percent of voting-age

population is reasonably required to ensure minorities a fair

opportunity to elect a candidate of their choice."); Hastert v.

State Bd. of Elections, 777 F. Supp. 634, 647 (N.D. Ill. 1991)

(noting that a "65% minority population [or 60% minority voting-

age population] concentration [is] generally regarded as
necessary to ensure minorities a reasonable opportunity to

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control a district"); Baumgart, 2002 WL 34127471, at *5

(recognizing expert testimony that "a minority district requires

an African–American voting age population of at least 60% to

guarantee the election of candidates of choice"). With BVAP

hovering just above 50% in each district, if the districts were

not already performing, Governor Evers' maps would not have

resulted in Black people electing candidates of their choice.

¶132 Governor Evers' "maps actually reduce the percentage

of African-American voters in the relevant districts from their

existing levels." Johnson II, 400 Wis. 2d 626, ¶107 (Ziegler,

C.J., dissenting). That is an odd way of counteracting an

"allegedly overpowered . . . white majority[.]" Id. "The

remedy is to cure the suppressed voter effect by giving minority

voters greater voice, not reducing their voice." Id. In other

words, if the districts were not performing, reducing their BVAP

would exacerbate the disparity.

¶133 The VRA has a long history of being misused in the

exact way Governor Evers would apply it. In 2011, Republicans
in North Carolina, purportedly under the guise of VRA

compliance, drew maps in much the same manner Governor Evers

did. Michael Kent Curtis, Using the Voting Rights Act to

Discriminate: North Carolina's Use of Racial Gerrymanders, Two

Racial Quotas, Safe Harbors, Shields, and Inoculations to

Undermine Multiracial Coalitions and Black Political Power, 51

Wake Forest L. Rev. 421, 421 (2016). First, they determined the

BVAP on a statewide basis. Id. Then, they drew majority-
minority districts with just enough Black people to ensure

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proportional representation. Id. As one example, one

congressional district had a mere 50.7% BVAP. Id. at 423.

Critics accused the Republicans of "creatively reading the

statutory command of the VRA to require more needless and

wasteful (for black voters) majority-black districts and more

blacks packed into black district[s.]" Id. at 425. Because

"the candidate[s] preferred by black voters [were] already

winning by whopping majorities," the creation of majority-

minority districts became a tool for partisan gerrymandering

instead of VRA compliance. Id. Cooper demonstrates the

illegitimacy of this tactic.

¶134 Because political parties may chip away at minority

voting power by the packing and cracking of minority

communities, all in the name of the VRA, courts must be

vigilant. Both packing and cracking demonstrate "how the

creation of majority-minority districts might dilute minority

influence in surrounding areas and can lead to an overall

decrease in support for minority-sponsored legislation[.]" See
Damion Waymer & Robert L. Heath, Black Voter Dilution, American

Exceptionalism, and Racial Gerrymandering: The Paradox of the

Positive in Political Public Relations, 47 J. Black Studs. 635,

644 (2016).

¶135 Before this court endorses a particular form of

affirmative action, it should have an idea of whether that

remedy will help or harm the intended beneficiary community.

The dissent errs by making assumptions unsupported by the
record. For all we know, adopting any particular number of

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majority-minority districts could dilute the Black vote. In

fact, we have good reason to believe Governor Evers' maps would

do exactly that because a plethora of data suggests White voters

are not inhibiting the success of Black-preferred candidates.

Johnson II, 400 Wis. 2d 626, ¶186 (Roggensack, J., dissenting)

("Milwaukee's history for at least the last ten years is that of

crossover voting where white voters help black voters elect

candidates of their choice.").32 If we were to draw additional

Black majority districts, what BVAP should we set? What BVAP

will assure Black voters sufficient success without wasting

their votes? The dissent does not say because it cannot say.

IV. THE DISSENT'S NEWFOUND DESIRE TO TAKE ADDITIONAL EVIDENCE

¶136 To hear their harangues on the eve of the
election, one would suppose that the fable of Chicken
Little was about to become a truth, and that the sky
was actually falling[.]
Peleg W. Chandler, The Morals of Freedom 29 (1844).

¶137 The United States Supreme Court summarily reversed

this court's March 3 decision adopting Governor Evers' state

legislative maps. Wis. Legislature, slip op. Our duty on

The dissent acknowledges "Cavalier Johnson just became
32

the first Black person elected to be Mayor of Milwaukee . . . .
In 2020, David Crowley became the first Black person elected to
be Milwaukee County Executive." Dissent, ¶207. The dissent
dismisses these elections——like others discarded by the dissent—
—as somehow "different." Although inconveniently undercutting
the dissent's theory, this evidence is highly probative. Mayor
Johnson won by an overwhelming margin, obviously attracting
numerous White voters. Latest Election Results, Elections
Comm'n (Apr. 5, 2022),
https://city.milwaukee.gov/election/ElectionInformation/Election
Results (reporting unofficially Johnson won with 71.51% of the
vote)

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remand is to apply the Court's per curiam opinion. Although we

should give the opinion of the United States Supreme Court the

same respect we expect lower courts in Wisconsin to give our own

opinions, the dissent instead launches an indignant attack on

this nation's highest court.33

¶138 The summary reversal occurred for a particular reason.

As the United States Supreme Court explained, "[s]ummarily

correcting the error gives the [Wisconsin Supreme Court]

sufficient time to adopt maps consistent with the timetable for

Wisconsin's August 9th primary election." Id. at 2. Wisconsin

law authorizes candidates to begin circulating nomination papers

for that primary on April 15. Wis. Stat. § 8.15(1). The per

curiam opinion, undoubtedly by design, facilitates an

33Rather than admitting its error, the dissent complains
the United States Supreme Court created a new legal standard
despite the Court's straightforward explanation of longstanding
law. Dissent, ¶181 ("Could this court simply explain ourselves
further to satisfy the Court's newly voiced standard?"
(emphasis added)); id., ¶201 ("The U.S. Supreme Court's decision
appeared to set out a new standard for courts to follow in
implementing remedial maps, but neither this court nor the
parties knew that standard at the time of briefing." (emphasis
added)). Of course, the United States Supreme Court does not
summarily reverse a state supreme court on the basis of anything
other than well-established law, which has been applied
correctly by many other courts. The dissent also accuses the
United States Supreme Court of creating "further fog[]" in an
area of the law the dissent finds "hazy," citing Justice
Sotomayor's dissent from the per curiam opinion as support.
Id., ¶177 (quoting Wis. Legislature, slip op., at 1 (Sotomayor,
J., dissenting)). The dissent rephrases other arguments from
Justice Sotomayor's dissent, illustrating its own analysis is
not based on the per curiam opinion or the law on which it is
grounded.

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expeditious resolution of this case so as not to cause

unnecessary election chaos or confusion.

¶139 Contrary to the dissent's suggestion, this court

cannot take more evidence at this point: maps are needed

immediately. Also contrary to the dissent's ad hominem

criticisms of the majority, this court has not taken any

"shortcuts"34 nor has the majority "willfully shut[] its eyes and

ears to critical information."35 As the majority opinion

explains, this court has spent an extraordinary amount of

resources on this case. The dissent's suggestion to reopen the

record to let Governor Evers present new evidence, followed by

each party submitting its own (and perhaps competing) evidence,

followed by even more briefing, would send this court on an

"odyssey" even more lamentable than the one the dissent

decries.36 Unlike Odysseus, however, this court simply cannot

Id., ¶161 ("Throughout that first stage in this epic
34

journey, we took what some thought to be a shortcut by foregoing
a full-blown adversarial fact-finding trial to test whether
race-based bloc voting would trigger the Voting Rights Act of
1965 (VRA)."). The dissent does not disclose the identity of
"some who thought" this. As the majority opinion notes, the
parties stipulated that no discovery "beyond the exchange of
maps, expert disclosures, and any documents or data that a party
intends to rely upon or an expert has relied on" was
anticipated. Majority op., ¶9. The parties undertook no
further discovery. Id. Nor did any party at any point prior to
oral argument formally request or move to permit additional
discovery. Id., ¶10.
35 Dissent, ¶182.
36 Id., ¶157.

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take 10 years to complete its journey. To quote a more modern

source, "[t]he clock's run out, time's up, over, blaow."37

¶140 The dissent's suggestion that after receiving the

United States Supreme Court's decision on March 23, this court

could receive a substantial amount of new evidence, correctly

analyze it (after failing to understand the evidence on March

3), and then correctly apply the law to the facts (after failing

to understand the law on March 3), all by April 15 is, well,

incredible. It took the better part of a year to get to this

point, and any rushed attempt to create a race-based remedy

would be inappropriate.

¶141 The dissent's desired path is not only inconsistent

with the United States Supreme Court's per curiam opinion but

with the dissenters' prior positions in this litigation. The

three members of the dissent have maintained the view during

this case (over the objection of their colleagues) that each

party "has one shot or one opportunity[.]"38 Each party had one

shot to engage in discovery.39 Each party was instructed it had
only one opportunity to submit a map. Simultaneously with the

release of this decision, the dissenters vote to deny all

parties an opportunity to submit new congressional maps

maximizing core retention——as they did in January. (The present

dissenters did allow Governor Evers, however, to submit new maps

with substantive changes.) Johnson, 400 Wis. 2d 626, ¶218

37 Eminem, Lose Yourself (2002).
38 Id.
39 Majority op., ¶9.

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(Rebecca Grassl Bradley, J., dissenting) ("The Congressmen asked

to submit a modified map, but the same majority that now adopts

the Governor's modified maps denied the Congressmen this

opportunity.").

¶142 The dissenters now seem to project their own actions

onto the majority, claiming "the majority of this court

continues to bar the submission of any additional evidence from

the parties."40 Respectfully, it was not this majority that

established the one shot rule but a majority that included all

three dissenters——over the objection of three members of this

majority. We "continue[]" to bar nothing.

¶143 As a matter of due process, "[t]he Governor's request

for special dispensation should fare no better than that of the

other parties who have tried to evade the Court's scheduling

order with out-of-time submissions."41 "Permitting the Governor

to submit new evidence is prejudicial to other parties and the

Wisconsin voters. It imposes costs on those other parties and

unnecessarily prolongs these proceedings."42
¶144 The chance that Governor Evers could even present new

evidence sufficient to justify his racial gerrymander is

questionable——despite summary reversal, lessons do not appear to

have been learned. In his unsolicited motion to supplement the

record, Governor Evers indicated his new expert relied on

truncated data, just like other experts in this case.

40 Dissent, ¶189 n.23 (emphasis added).
41 Legislature's Response Letter Br. at 5.
42 Id. at 6.

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Specifically, he said his expert excluded races that were

"either not competitive or were uncontested or did not feature

white candidates running against Black candidates."43 Such

selectivity is problematic because a performing majority-

minority district will have an incumbent who inevitably runs in

reelections that are not competitive or are uncontested or do

not feature White candidates. To a degree, that is exactly what

a VRA remedy is designed to achieve.44 See Johnson, 400

Wis. 2d 626, ¶¶189–93 (Roggensack, J., dissenting) (summarizing

many elections arbitrarily excluded in expert reports).

¶145 In other cases involving elections, the dissenters

demurred to taking any action that had the potential to disrupt

an election. Any procedural off-ramp is the winning argument.

It happened just a few weeks ago. See Teigen v. Wis. Elections

Comm'n, No. 2022AP91, unpublished order (Wis. Jan. 28, 2022).

And it happened many times before then. Trump v. Biden, 2020 WI

43 Governor Tony Evers' Motion to Supplement the Record at
5.

Governor Evers also told this court in his motion not to
44

consider the election of Earnell Lucas, a Black man, as
Milwaukee County Sheriff. Id. at 7. He cites an earlier brief
by BLOC as justification, which stated, "this contest was unique
because of the abnormal level of white crossover voting due to
the association of the white candidate, Schmidt, with
controversial former sheriff David Clarke." BLOC's Br. at 29.
Sheriff Clarke, also a Black man, was elected four times before
retiring from the position. There is no logical explanation for
why this court would disregard a data point related to White
crossover voting on the theory that the level of White crossover
voting was abnormally high. Again, this selectivity serves only
to skew the evidence. Of course when numerous counterexamples
are discarded, Milwaukee appears to have racial bloc voting, but
pseudo-scientific data manipulation cannot survive strict
scrutiny.

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91, ¶3, 394 Wis. 2d 629, 951 N.W.2d 568 (applying laches to

dispose of 3 of 4 election challenges); id., ¶140 (Rebecca

Grassl Bradley, J., dissenting) ("Once again, the majority of

the Wisconsin Supreme Court wields the discretionary doctrine of

laches as a mechanism to avoid answering questions of law the

people of Wisconsin elected us to decide. Although nothing in

the law compels its application, this majority routinely hides

behind laches in election law cases no matter when a party

asserts its claims."); Hawkins v. Wis. Elections Comm'n, 2020 WI

75, ¶10, 393 Wis. 2d 629, 948 N.W.2d 877 (per curiam) ("Even if

we would ultimately determine that the petitioners' claims are

meritorious, given their delay in asserting their rights, we

would be unable to provide meaningful relief without completely

upsetting the election."); id., ¶85 (Rebecca Grassl Bradley, J.,

dissenting) ("Ironically, the majority in this case adopts the

mantra of the Wisconsin Elections Commission, caving to its

fearmongering invocation of 'chaos' should the court dare to

right this wrong."). This time, the dissenters would readily
invite chaos and disrupt an election, the per curiam opinion of

the United States Supreme Court notwithstanding. One wonders

why.

V. CONCLUSION

¶146 [T]here is good reason for state and federal
officials with responsibilities related to
redistricting, as well as reviewing courts, to
recognize that explicit race-based districting embarks
us on a most dangerous course. It is necessary to
bear in mind that redistricting must comply with the
overriding demands of the Equal Protection Clause.
De Grandy, 512 U.S. at 1031.
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¶147 The dissent fails to understand the dangerous voyage

on which it would embark. As a California judge recently wrote,

"[w]hen faced with a problem, the immediate temptation is to

employ the most obvious and direct solution. In most cases, it

isn't even fair to call this impulse a 'temptation.' It's just

a normal and sound approach to life." Crest v. Padilla, No. 20

STCV 37513, unpublished slip op., at 1 (L.A. Cnty. Superior

Ct. Apr. 1, 2022). Although the dissent acknowledges a lack of

evidence sufficient to justify affirmative action,45 it still

senses the problem exists, and it deeply wants to address this

uneasy feeling head-on. In many other contexts, a head-on

approach would be ideal, "[b]ut sometimes there are constraints

which call for additional care. This is one of those times."

Id.; see also id. at 2 ("The difficulty is that the Legislature

is thinking in group terms. But the California Constitution

protects the right of individuals to equal treatment. Before

the Legislature may require that members of one group be given

certain board seats, it must first try to create neutral
conditions under which qualified individuals from any group may

succeed.").

¶148 "There's always a siren, singing you to shipwreck."

Caitlin R. Kieran, The Drowning Girl 101 (2012). In this case,

the dissent responds to the smooth-sounding siren of racial

classifications, a siren whose danger often becomes apparent

only upon close examination. "[I]f we're lucky we're Odysseus

Dissent, ¶196 ("[W]e cannot definitively say the Gingles
45

preconditions are satisfied.").

48
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tied up to the ship's mast, hearing the song with perfect

clarity, but ferried to safety by a crew whose ears have been

plugged with beeswax. If we're not at all lucky, we're another

sort of sailor stepping off the deck to drown in the sea." Id.

At least for now, this court safely tethers its opinion to the

constitutional command of color-blindness.

¶149 Based on the record before this court, we have an

obligation to proceed in a color-blind manner. The Constitution

compels it. See generally Michael B. Rappaport, Originalism and

the Colorblind Constitution, 89 Notre Dame L. Rev. 71 (2013);

see also Appendix to the Pennsylvania Legislative Record XCIX

(1867) (statement of Rep. John Mann), as quoted in Randy E.

Barnett & Evan D. Bernick, The Original Meaning of the

Fourteenth Amendment 333 (2021) ("I do not see how it is

possible for human wisdom to frame a more perfect amendment to

the Constitution of the United States than this

section. . . . [I]t aims to make every court in the United

States what justice is represented to be, blind to the personal
standing of those who come before it. Its adoption will

prohibit any judge in any State from looking at . . . the color

of the skin, of any person coming before him." (emphasis

added)). The only race neutral maps are the Legislature's. I

therefore join the majority opinion in adopting them.

¶150 I am authorized to state that Chief Justice ANNETTE

KINGSLAND ZIEGLER and Justice PATIENCE DRAKE ROGGENSACK join

this concurrence.

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¶151 BRIAN HAGEDORN, J. (concurring). The United States

Supreme Court has determined that in adopting remedial maps,

this court needed to conduct a detailed, fact-specific Voting

Rights Act (VRA) analysis——in effect, requiring a full

adjudication of a VRA claim. We are obligated, the Court said,

to examine the record and determine "whether a race-neutral

alternative that did not add a seventh majority-black district

would deny black voters equal political opportunity." Wis.

Legislature v. Wis. Elections Comm'n, 142 S. Ct 1245, , 2022

WL 851720, at *4 (2022) (per curiam). Absent such evidence, the

Court held, a race-conscious remedy may not be employed.1 Id.

¶152 As our previous opinion expressed, a majority of this

court did not understand itself to be adjudicating a VRA claim.

Johnson v. Wis. Elections Comm'n, 2022 WI 14, ¶41 n.24, 400

1Members of the United States Supreme Court have commented
that understanding and applying the requirements of the VRA to
redistricting is a challenging and confusing enterprise.
Merrill v. Milligan, 142 S. Ct. 879, 882 (2022) (Kavanaugh, J.,
concurring) (order granting stay) (stating "the Court's case law
in this area is notoriously unclear and confusing"); id. at 883
(Roberts, C.J., dissenting) (noting "considerable disagreement
and uncertainty regarding the nature and contours of a vote
dilution claim"). This is made doubly difficult because dangers
abound no matter which direction one turns. The Fourteenth
Amendment's Equal Protection Clause prohibits race-motivated
actions in most circumstances. Maps where voters are sorted on
the basis of race "are by their very nature odious." Shaw v.
Reno, 509 U.S. 630, 643 (1993) (quoting another source). Yet
the VRA——justified under § 2 of the Fifteenth Amendment——has
been held to require race-motivated district drawing under
certain circumstances. South Carolina v. Katzenbach, 383
U.S. 301, 308 (1966); Cooper v. Harris, 137 S. Ct. 1455, 1470
(2017). Applying these standards is made more problematic when,
following the failure of the political process, a court is the
map-drawer in the first instance (as is the case here). The
briefing in this case reflected this considerable confusion.

1
 No. 2021AP1450-OA.bh

Wis. 2d 626, 971 N.W.2d 402. Had we understood our task this

way, this court likely would have taken a different approach to

this litigation. Our process of choosing from among a discrete

group of proposals——a method recommended by several parties——was

a poor vehicle for conducting the kind of VRA analysis the

Supreme Court indicates we should have done. We did not

approach record-development with an eye toward resolving factual

disputes, making intensely localized factual findings, or

receiving an adversarial, district-by-district analysis of every

proposal. In other words, we did not conduct the sort of fact-

specific inquiry and analysis that one sees in federal VRA cases

because we did not view our role as adjudicating a full-blown

VRA claim. To be sure, we attempted to comply with all relevant

laws——much as a legislature drawing maps in the first instance

would——and therefore sought input and briefing. But we

anticipated further litigation involving a fully developed Equal

Protection or VRA claim could, and likely would, follow.2

2 Our opinion explained:

To be clear, this case does not involve a claim under
the Equal Protection Clause or VRA. Rather, as
remedial map-drawers, we strive to act in compliance
with the Constitution and applicable federal laws
necessarily relying on the more limited record before
us. A standard VRA claim is brought after the
adoption of new districts. Such a claim would proceed
much differently, requiring a fully developed factual
record and detailed findings regarding the performance
of specific districts.

Johnson v. Wis. Elections Comm'n, 2022 WI 14, ¶41 n.24, 400
Wis. 2d 626, 971 N.W.2d 402.

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¶153 With this in view, complying with the directive of the

United States Supreme Court at this stage of the proceedings

raises some difficult challenges. Most notably, our record is,

at best, incomplete. One solution could be to develop a fuller

record, make factual findings, and adjudicate a VRA claim with a

firmer factual foundation. But the timing does not work. It

would undoubtedly require delaying statutory deadlines and

otherwise disrupting the administration of the fall elections.

The window of opportunity to conduct a fresh trial with new

evidence, new briefing, and potentially new arguments is well

past. Supplementing the record would pose the same logistical

challenges. For better or worse, the only reasonable course I

see is selecting a map based on the record we have.

¶154 An additional difficulty with the path the Supreme

Court tells us to pursue is determining what "race-neutral

alternative" should serve as the baseline from which to evaluate

whether the VRA requires a race-conscious remedial alteration.

We cannot use the 2011 maps enacted into law. Those are now
unconstitutionally malapportioned and contained at least some

race-conscious districts. See Baldus v. Members of Wis. Gov.

Accountability Bd., 849 F. Supp. 2d 840, 854-58 (E.D. Wis.

2012). We could construct one ourselves or with the assistance

of an expert, but time and our institutional limitations make

that unrealistic at this juncture. The remaining option is to

choose one of the proposed maps we received as the baseline.

Only one proposal was represented as race-neutral in its
construction: the maps submitted by the Legislature.

3
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¶155 Therefore, as I understand our charge, the United

States Supreme Court asks us to start with a baseline race-

neutral map——the Legislature's proposal constituting our only

feasible option. Then we must determine whether that map

contains a VRA violation. If a violation exists, a race-

conscious remedy may be crafted. If no violation is

established, race-conscious alterations to district lines are

impermissible. As the majority explains, the record, such as it

is, does not sufficiently support the conclusion that the

Legislature's maps violate the VRA. Perhaps a court deciding a

VRA challenge on a more complete record would reach a different

result. But I cannot conclude a violation is established based

on the record we have before us. That means that in light of

the Supreme Court's clarified instructions, the Legislature's

state senate and state assembly maps are the only legally

compliant maps we received.

¶156 For these reasons, I join the majority opinion.

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¶157 JILL J. KAROFSKY, J. (dissenting). This case has

been nothing short of an odyssey——a long wandering marked by

many changes in fortune. Like all odysseys, the travelers (this

court) have had to make several navigational decisions along the

way; unfortunately, we have taken numerous wrong turns. The sum

total of all that misdirection now leads us to the legally

unacceptable maps submitted by the Legislature.

¶158 Our initial miscalculation was embarking on this

journey in the first place, when a majority of this court

granted the petitioners' original action petition. I joined the

dissent from that grant because of the numerous "reasons for

preferring a federal forum," not least of which was that this

court had "no experience in drawing district maps." Johnson v.

Wis. Elections Comm'n, No. 2021AP1450-OA, unpublished order

at 16, 18 (Wis. Sept. 22, 2021, amended Sept. 24, 2021) (Dallet,

J., dissenting).

¶159 Once the political process reached an impasse——the

legislature failing to override the governor's veto of its
proposed maps——the court wandered astray following the sirens'

call of "least change." Although rhetorically appealing, this

"least change" approach served only to entrench the prior——and

blatantly partisan——district maps. I once again joined the

dissent as "least change" had "potentially devastating

consequences for representative government in Wisconsin."

Johnson v. Wis. Elections Comm'n, 2021 WI 87, ¶88, 399

Wis. 2d 623, 967 N.W.2d 469 (Dallet, J., dissenting).

1
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¶160 The anticipated pitfalls of "least change" came to

fruition throughout this long trip as it became apparent that it

was "unmoored from any legal requirement for redistricting" and

"could not offer an explanation for the tradeoffs and

discretionary decisions that are intrinsic to map-drawing."

Johnson v. Wis. Elections Comm'n, 2022 WI 14, ¶58-59,

400 Wis. 2d 626, ___ N.W.2d ___ (Ann Walsh Bradley, J.,

concurring). Although "least change" set our sails in the wrong

direction, in our sojourn to adopt maps acceptable for a non-

political court, we eventually made landfall on the Governor's

maps, which adhered best to that metric.

¶161 Throughout that first stage in this epic journey, we

took what some thought to be a shortcut by foregoing a full-

blown adversarial fact-finding trial to test whether race-based

bloc voting would trigger the Voting Rights Act of 1965 (VRA).1

But rather than take us to the oasis and end our odyssey, the

supposed shortcut only led us to more peril: a collision at the

shores of the U.S. Supreme Court's emergency docket. Following
an unprecedented summary reversal we find ourselves again

adrift.

¶162 In the wake of the Court's reversal, we face another

choice of diverging courses forward: (1) invite further

briefing and fact finding on the unsettled VRA questions;

(2) invite an expert or the parties to submit redrawn, race-

neutral maps for the Milwaukee area as Milwaukee includes the

only race-based districts; (3) invite an expert or the parties

1 52 U.S.C. § 10101(a).

2
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to submit a whole new, reliably-race-neutral map; or (4) choose

another map created by the same flawed process as the Governor's

maps. A majority of this court sets sail along option 4——the

Legislature's maps——sending us careening over the waterfall.

¶163 We are careening over the waterfall because the

Legislature's maps fare no better than the Governor's under the

U.S. Supreme Court's rationale. If, according to the U.S.

Supreme Court, the Governor's addition of a Milwaukee-area

majority-minority district evinces a disqualifying consideration

of race, then the Legislature's removal of a Milwaukee-area

majority-minority district reveals an equally suspect, if not

more egregious, sign of race-based line drawing. In addition,

if a further-developed record is required to definitively

determine whether the Governor's seventh majority Black district

is required then a further-developed record is also required to

definitively determine that the Legislature's removal of a

majority-minority district does not violate federal law. The

Court indicated that in a case like this where the court sits as
the map-drawer in the first instance, the court, rather than the

parties, are responsible for showing that the number of

majority-minority districts required by the VRA constitutes the

narrowly tailored remedy allowed under the Fourteenth

Amendment's Equal Protection Clause.2 In choosing the

Legislature's maps the majority repeats this court's reversible

mistake by again failing to implement fact-finding procedures

U.S. Const. art. XIV, § 1 ("No State shall . . . deny to
2

any person within its jurisdiction the equal protection of the
laws.").

3
 No. 2021AP1450-OA.jjk

conducive to addressing the relevant issues under both the VRA

and the Equal Protection Clause.

¶164 The majority's reversible error begins with its

willful silence on Milwaukee's history of segregation and racial

disparity. I start with that history because it is vital to

appreciating why both the Equal Protection Clause and the VRA

drive this controversy. I then turn from how that history of

segregation and racial disparity interacts with federal anti-

discrimination law to how that interaction should inform our

response to the U.S. Supreme Court's decision. Namely, that

response must include a process to develop the record so we can

say with certainty how many majority-minority districts the VRA

requires. Yet that is not the majority's response at all, and

so I conclude by explaining how, without that process, the

Legislature's maps must also fail.

I. MILWAUKEE'S HISTORY OF RACIAL SEGREGATION AND DISPARITY AND
FEDERAL ANTI-DISCRIMINATION LAW

A. A History of Racial Segregation and Disparities

¶165 From the outset, the crux of this redistricting

controversy has been the long history of racial discrimination

in and around Milwaukee that perpetuates the current racial

disparities affecting Milwaukee's minority communities——

particularly its Black communities.3 The 2020 census data shows

The statistics and claims set out in this discussion were
3

presented in University of Wisconsin (and former Duke
University) Professor David Canon's expert report. See App. to
Merits Br. of Intervenor-Pet'rs Black Leaders Organizing for
Communities et al. (BLOC) (Dec. 15, 2021).

4
 No. 2021AP1450-OA.jjk

that people who identify as Black or African American, either

alone or in combination with other races or ethnicities, make up

7.7 percent of Wisconsin's population. See U.S. Census Bureau,

Wisconsin State Profile, https://www.census.gov/library/stories/

state-by-state/wisconsin-population-change-between-census-

decade.html. Milwaukee County contains by far the highest

concentration of Black residents at 28.7 percent. Id.

Shamefully, Wisconsin routinely ranks as one of the most

racially disparate states in terms of housing, incarceration,

education, income, and even infant mortality rates between Black

and White residents.

¶166 Those disparities result, in part, from Milwaukee's

egregious history of race-based housing discrimination. Dating

back to at least the 1930s, the Home Owners' Loan Corporation

(HOLC) created color-coded "residential security" maps that

identified neighborhoods by their investment risk level.4 A

neighborhood coded "red" denoted the highest risk category,

meaning residents in red neighborhoods could almost never obtain
mortgages. This practice, referred to as "redlining," was

explicitly tied to race. The HOLC would give higher rankings to

neighborhoods that excluded racial minorities through

restrictive covenants——private contractual agreements that ran

with the land and prohibited future property owners from selling

4 See Leah Foltman & Malia Jones, Univ. of Wis. Applied
Population Lab, How Redlining Continues to Shape Racial
Segregation in Milwaukee, WisContext (Feb. 28, 2019),
https://www.wiscontext.org/how-redlining-continues-shape-racial-
segregation-milwaukee.

5
 No. 2021AP1450-OA.jjk

or leasing property to non-Caucasian people. HOLC coded

neighborhoods with racial minorities "red" and therefore members

of those neighborhoods were blocked from financing necessary for

homeownership. By the 1940s, 16 of the 18 Milwaukee County

suburbs used racially restrictive covenants to exclude Black

residents which segregated Milwaukee's Black population in

concentrated geographic areas.5 Though in 1948 Shelley v.

Kraemer6 declared racially restrictive covenants

unconstitutional, they continued to be used and recorded until

further banned by the 1968 Fair Housing Act.7

¶167 The effects of this abhorrent history persist;

Milwaukee remains the most racially segregated city in the

nation and has the seventh-lowest rate of Black homeownership.8

As recently as 2015, the U.S. Department of Housing and Urban

Development settled a case of racial redlining in Milwaukee

against Associated Bank (the largest such settlement to that

date).

5 See Lois M. Quinn, Racially Restrictive Covenants: The
Making of All-White Suburbs in Milwaukee County (1979).
6 334 U.S. 1 (1948).
7 Although banned, many restrictive covenants remained on
the books as an obvious signal to minority populations that they
were not welcome in White neighborhoods, thus perpetuating the
history of segregation. See Quinn, supra note 5. Some racially
restrictive covenants remain on the books today. Debbi Conrad,
Do You Have a Racist Deed?, Wis. Real Est. Mag., Mar. 2021,
at 7, https://www.wra.org/WREM/Mar21/RacistDeed/.
8 Elissa Suh, Black Homeownership in the U.S., Policygenius
(Dec. 1, 2020), https://www.policygenius.com/mortgages/black-
homeownership-rates/#black-homeownership-stats-by-metro-area.

6
 No. 2021AP1450-OA.jjk

¶168 Racial disparities in education also persist. Many of

Milwaukee's schools are "hypersegregated," meaning students of

color make up at least 90 percent of enrollment. In fact, the

number of Black students in Milwaukee County that attend a

hypersegregated school has been increasing in recent years,

culminating in an almost identical percentage currently

attending hypersegregated schools as did in 1965.9 This

contributes to Wisconsin's high racial disparities in education.

We have the largest gap between high school graduation rates for

Black students (71.4 percent) and White students (93.8 percent)

of any state.10

¶169 As can be expected, such disparities in education lead

to disparities in employment. The unemployment rate for Black

Wisconsinites in 2020 was almost three times that of White

Wisconsinites.11 Wisconsin has the largest gap in median

household income and the highest disparity in the poverty rate

between Black and White residents in the entire country. Black

9 Marc V. Levine, Univ. of Wis.-Milwaukee Ctr. for Econ.
Dev., The State of Black Milwaukee in National Perspective:
Racial Inequality in the Nation's 50 Largest Metropolitan Areas.
In 65 Charts and Tables 72 (2020). Milwaukee has the highest
percentage of Black students attending hypersegregated schools
of any major metropolitan area at over 70 percent.
10National Center for Education Statistics, Common Core of
Data, Table 1: Public High School 4-Year Adjusted Cohort
Graduation Rate (ACGR), by Race/Ethnicity and Selected
Demographic Characteristics: School Year 2018-19, https://nces.e
d.gov/ccd/tables/ACGR_RE_and_characteristics_2018-19.asp.
11U.S. Bureau of Labor Statistics: Employment status of
the civilian noninstitutional population by sex, race, Hispanic
or Latino ethnicity, and intermediate age, 2020 annual averages,
https://www.bls.gov/lau/ex14tables.htm.

7
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residents see disproportionately high eviction rates which are

tied to a higher homeless population.

¶170 Relatedly, Milwaukee's Black residents also experience

discrepancies in healthcare and life expectancy. Wisconsin has

the highest infant mortality rate in the country for Black

infants while the White infant mortality rate hovers just below

the national average.12 Milwaukee County also showed racial

disparities in the impact of COVID-19 with minorities seeing

higher rates of infection, hospitalization and death.13

¶171 Racial disparities in our criminal justice system are

similarly abominable. Wisconsin incarcerates Black residents at

the highest rate in the nation——2,742 per 100,000 Black

residents are in prison versus the national average of 1,240 per

100,000 Black residents. Our incarceration rate of Black

residents is 11.9 times that of White residents. And while 7.7

percent of Wisconsin's population identifies as Black, Black

residents make up an egregiously disproportionate 42 percent of

our prison population. 14

12Colin Gordon, Univ. of Iowa & Iowa Pol'y Project, Race in
the Heartland: Equity, Opportunity, and Public Policy in the
Midwest 14 (2019) https://files.epi.org/uploads/Race-in-the-
Midwest-FINAL-Interactive-1.pdf.

Wis. Dep't of Health Servs., COVID-19: Racial and Ethnic
13

Disparities, https://www.dhs.wisconsin.gov/covid-19/disparities.
htm (last updated Jan. 20, 2022).

See Ashley Nellis, The Sent'g Project, The Color of
14

Justice: Racial and Ethnic Disparity in State Prisons 6-7, 10,
20 (Oct. 13, 2021), https://www.sentencingproject.org/publicatio
ns/the-color-of-justice-2016-report/.

8
 No. 2021AP1450-OA.jjk

¶172 This history of segregation and racial disparity in

Milwaukee restricts Black communities from the opportunity to

fully participate in the political process. In the

redistricting context, racial gerrymandering is discussed in

terms of packing and cracking voters. Packing occurs when the

map lines place large numbers of one racial minority into few

districts so that they might have as few representatives as

possible. Cracking occurs when the map lines spread small

numbers of the remaining minority population across many

districts so that their influence within those districts is

minimal. This is often achieved by drawing districts in funny

shapes that wind between neighborhoods to pick up the high

number of minority people required to pack districts. In

Milwaukee, however, such obvious racial gerrymandering is not

needed; historical racial segregation already packs Black

communities into concentrated neighborhoods that require little

in the way of creative lines to dilute their influence at the

voting booth. I will refer to this as a "historical racial
gerrymander."

B. Federal Anti-Discrimination Law

¶173 The VRA's application in redistricting is designed to

remedy precisely these kinds of historical wrongs——those that

create current barriers to democratic participation. Instead of

allowing the past unconstitutional practices of redlining and

racially restrictive covenanting to continue limiting Black
people's opportunity to participate in our democracy, the VRA

establishes that it is a sufficiently compelling government
9
 No. 2021AP1450-OA.jjk

interest to draw districts that counteract the historical racial

gerrymander. Wis. Legislature v. Wis. Elections Comm'n, 595

U.S. ___, 142 S. Ct 1245, 1248 (2022) (per curiam).

¶174 We must, of course, also consider the Fourteenth

Amendment's Equal Protection Clause. And in doing so, it is

impossible to ignore the 180-degree turn from that clause's

purpose to how it has been wielded in this case. Ratified

in 1868 after the Civil War, the Fourteenth Amendment demands

that no state shall "deny to any person within its jurisdiction

the equal protection of the laws." Since Brown v. Board of

Education,15 the Equal Protection Clause has been invoked to

desegregate this country, protect the voting rights of its

citizens, and fight discrimination in its many forms.

¶175 More recently, the Equal Protection Clause has been

turned on its head and used, not to fight against the constant

pull of our collective historical failing toward the promise of

a better future, but to bar our government's ability to remedy

past mistakes. See, e.g., Parents Involved in Cmty. Sch. v.
Seattle Sch. Dist. No. 1, 551 U.S. 701 (2007). The majority

opinion perfectly captures this reversal by relying on cases

pontificating that "[r]acial gerrymandering, even for remedial

purposes, may balkanize us into competing racial factions," and

that "[r]ace-based assignments . . . embody stereotypes that

treat individuals as the product of their race[.]" Majority

op., ¶24 (quoting Shaw v. Reno, 509 U.S. 630, 657 (1993), and

Miller v. Johnson, 515 U.S. 900, 911-12 (1995)). This argument

15 347 U.S. 483 (1954).

10
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is nothing short of gaslighting, seemingly denying Milwaukee's

history of purposeful racial segregation. It was unrelenting

overt racial discrimination that balkanized Milwaukee into

"competing racial factions" and reduced Black individuals to a

"product of their race." The fault and responsibility to remedy

this systemic segregation lies not with Milwaukee's residents

but instead with the government and the society that perpetuated

racial redlining and restrictive covenants. Those practices

shaped Milwaukee and that history of discrimination cannot be

undone by force of will alone.

¶176 The Milwaukee area perfectly demonstrates why the

VRA's race-conscious remedy is often needed. Segregation of

minority communities does not happen accidentally. If this

country were anywhere close to living up to the "goal of a

political system in which race no longer matters," then maybe we

could apply the promise of Equal Protection in a race-blind

manner. See Shaw, 509 U.S. at 657. But the overwhelming

evidence shows that we have not lived up to that goal. As such,
a race-blind and effects-blind application of the Equal

Protection Clause has become a sword against progress wielded by

majority groups who fear giving away too much of their

accumulated power. I fervently hope it will regain its place as

a shield against harmful discriminatory action.

II. THE CORRECT RESPONSE: DEVELOP THE RECORD

¶177 According to the U.S. Supreme Court, we erred in our
prior decision by misapplying the test in Cooper v. Harris that

calls for a "strong basis in evidence" in order to determine
11
 No. 2021AP1450-OA.jjk

whether "good reason" existed to believe the VRA required seven

Black majority districts. Wis. Legislature v. Wis. Elections

Comm'n, 142 S Ct at 1249–50 (citing Cooper v. Harris, 581

U.S. ___, 136 S. Ct. 2512 (2017)). The Court directs that we

are to ask "whether a race-neutral alternative that did not add

a seventh majority-black district would deny black voters equal

political opportunity." Id. at 1250-51. Yet in attempting to

correct our course through a "hazy at best" sea of federal law,

id. at 1251 (Sotomayor, J., dissenting), the Court has only

further fogged how a court in this posture (drawing the map in

the first instance) should balance the VRA and the Equal

Protection Clause.

¶178 Prior to the Court's decision, an Equal Protection

analysis began with whether "race was the predominant factor

motivating the [map-drawer]'s decision to place a significant

number of voters within or without a particular district. That

entails demonstrating that the [map-drawer] 'subordinated' other

factors——compactness, respect for political subdivisions,
partisan advantage, what have you——to 'racial considerations.'"

Cooper, 137 S. Ct. at 1463-64. Yet, the Court's opinion did not

first analyze whether race was the "predominant factor"

motivating this court's districting decisions. Instead, it

appeared that the Court took this court's limited analysis

regarding the VRA, meant only to ensure the least-change map did

not violate that law, as evidence that race——not least change——

predominated our choice of maps. Our March 3 opinion never
professed as much.

12
 No. 2021AP1450-OA.jjk

¶179 While the U.S. Supreme Court's opinion said it was

unclear whether this court viewed itself or the Governor as the

map-drawer, we plainly stated that the court itself was the map-

drawer. See Johnson, 400 Wis. 2d 626, ¶10 ("As a map-drawer, we

understand our duty is to determine whether there are 'good

reasons' to believe the VRA requires a seven-district

configuration.").16 The lack of clarity the Court points to

actually relates to an unsettled point of Equal Protection

jurisprudence: when a court adopts a party-submitted map, whose

motivation is being analyzed under the Equal Protection Clause,

the court's or the party's?

¶180 Despite our clear declaration that "least change"

predominated our choice of maps, and despite the purported

purpose of "least change" as a neutral criterion to shed

ourselves of the political baggage that would be inherent in

party-drawn maps, the Court nonetheless transposed the

Governor's motivations onto this court. We are left to conclude

that the motivations of the party submitting the map are the
relevant motivations we must analyze going forward. This court

can no longer hide behind a "least change" gloss to ignore a

party's ulterior motives.

16Additionally, as the map-drawer we considered all
information and analysis from the record collectively and were
not limited to the Governor's admittedly scant VRA analysis.
Thus, when analyzing the Gingles preconditions and Senate
factors, we relied largely on the BLOC interveners' more
thorough expert analyses——analyses the Governor explicitly
adopted in most respects.

13
 No. 2021AP1450-OA.jjk

¶181 The U.S. Supreme Court left us with other unanswered

questions:

 Is the court required to fully address a VRA challenge when

selecting a purportedly race-neutral map or have we been

given carte blanche to ignore federal law?

 Which race-neutral configuration was the court to use when

analyzing the Governor’s maps given the myriad potential

"race-neutral" district configurations in Milwaukee?

 How do we proceed if the process we adopted prevented the

parties from sufficiently testing the evidence necessary

for a VRA determination?

 Could this court simply explain ourselves further to

satisfy the Court's newly voiced standard?

In light of these uncertainties, and in order to avoid further

reversible error, I believe we must implement one of the first

three options set out above: (1) invite further briefing and

fact finding on the unsettled VRA questions; (2) invite an

expert or the parties to submit redrawn, race-neutral maps for
the Milwaukee area; or (3) invite an expert or the parties to

submit a whole new, reliably-race-neutral map.

¶182 The second and third options appear to be non-starters

at this stage as this court has not commissioned a neutral map-

drawer or allowed the parties to submit new maps in accordance

with the U.S. Supreme Court's decision. As for the first

option, which the U.S. Supreme Court explicitly invited, a

majority of this court continues to refuse procedures to develop
the record, willfully shutting its eyes and ears to critical

14
 No. 2021AP1450-OA.jjk

information. See Wis. Legislature v. Wis. Elections Comm'n, 142

S. Ct at 1251 ("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."). Conveniently,

that same majority now points to the very insufficiency of

information it perpetuates as a party's failure to carry its

burden of proof.17 However, it is not the parties'

responsibility to implement fair, legal remedial maps——it's

ours.

¶183 The majority opinion attempts to shift the blame by

noting that the parties stipulated through their joint discovery

plan that they did not anticipate discovery "beyond the exchange

of maps, expert disclosures, and any documents or data that a

party intends to rely upon or an expert has relied upon." But

we had the authority, indeed the responsibility, to direct

further discovery or examination of expert witnesses. This

court's initial reliance on the joint discovery plan was guided

by the court's "least change" directive, which failed to account
for the full and definitive Equal Protection or VRA inquiry the

U.S. Supreme Court now demands. This persistent imprudence in

See majority op., ¶32 ("[T]he Governor failed to present
17

evidence that a race-based remedy was necessary under the
VRA."); id., ¶57 ("On this record, we cannot agree with the
Governor and BLOC that the Legislature's race-neutral proposal
would violate the VRA."); id., ¶58 n.11 ("Under the record as it
currently exists, we cannot conclude the Gingles prerequisites
are satisfied."); id., ¶48 ("No party argued and no evidence was
provided demonstrating that the Legislature's maps were, in
fact, not race neutral."); id., ¶73 ("[W]e conclude that
insufficient evidence is presented to justify drawing state
legislative districts on the basis of race.").

15
 No. 2021AP1450-OA.jjk

developing a record has now led us to a legally untenable

outcome at odds with the Court's directive. The Equal

Protection and VRA claims usually litigated after the

implementation of a remedial map must now be fully adjudicated

as part of this decision——an impossible task on this record.

¶184 Building that record requires work because remedial

redistricting is complicated. It requires a wealth of facts

collected through discovery, sworn affidavits, and examination

and cross-examination of witnesses and experts. Fairness

requires that we test every major change made in a districting

map to verify that its motivations comport with those

appropriate for a non-partisan court to adopt.18 This is why

most remedial redistricting courts hold multi-day trials and

implement court-drawn maps rather than maps selected from party

submissions. See, e.g., Baldus v. Members of Wis. Gov't

Accountability Bd., 849 F. Supp. 2d 840 (E.D. Wis. 2012);

Baumgart v. Wendelberger, No. 01-C-0121, 2002 WL 34127471 (E.D.

Wis. May 30, 2002) (per curiam). This court, in its hubris and
desire to short-circuit a complicated process, thought it knew

Although this court has disclaimed a "fair maps"
18

requirement as it relates to partisan gerrymandering by the
legislature, it should be beyond dispute that we, as a non-
partisan court, cannot implement a map with blatantly partisan
motivations. See Johnson v. Wis. Elections Comm'n, 2022 WI 14,
¶93, 400 Wis. 2d 626, ___ N.W.2d ___ (Dallet, J., dissenting).
A non-partisan judiciary goes to the very core of democracy and
to established principles of separation of powers. Now that the
U.S. Supreme Court has declared that the motivations of the
party whose map we adopt——partisan or otherwise——are
superimposed onto this court, maintaining impartiality in
selecting a party-drawn maps requires heightened attention to
the reason behind every change in a district's boundaries.

16
 No. 2021AP1450-OA.jjk

better. By both adopting a process that aimed to adopt a party-

submitted map despite glaring partisan motivations and limiting

the arguments to appellate-style briefs, written expert reports,

and oral presentation to this court, we received too thin a

record on which to make determinations with absolute certainty.

¶185 But we did not have to do it this way, as dissenters

made clear at every point in our voyage. This court could have

arranged for proper fact finding and examination of expert

witnesses, either in front of all of the Justices or through a

referee (sometimes referred to as a Special Master) under Wis.

Stat. § 751.09. Now, following the U.S Supreme Court's

reasoning in reversing our prior decision, one would think that

we have no choice but to actually correct course and develop an

appropriate record. Yet the majority is content to make the

same two procedural mistakes. It bars proper fact finding and

limits itself to our current pool of party-submitted, partisan-

motivated maps rather than adopting a process by which we could

create a judicially appropriate map.19 The result, as the next

19 Without "least change" to shield the court from party
motives, all party maps——with the possible exception of the
Citizen Mathematicians and Scientists' maps——fail to meet a
standard that requires both race-neutrality (as is required
under the majority's reasoning) and partisan-neutrality (as is
required by the non-partisan nature of this court). But the
majority continues to limit itself to the parties' previously
submitted maps, concluding that "the Legislature's maps are
superior to the available alternatives." Majority op., ¶21. It
should go without saying, however, that a less illegal map is
still illegal. This posture also ignores that other
alternatives could have been made available to this court (for
example, through a new round of party submitted maps adhering to
the U.S. Supreme Court's decision) but were barred from
consideration.

17
 No. 2021AP1450-OA.jjk

section explains, are maps wholly unsuited for any serious

court's approval.

III. THE LEGISLATURE'S MAPS

¶186 The Legislature's maps fail for two reasons: first,

we are not to act as a gubernatorial veto override body; and

second, the Legislature's maps show evidence of racially

motivated packing and cracking that could violate both the Equal

Protection Clause and the VRA.

A. Failed Political Process

¶187 The Legislature's maps derive from a failed political

process. In Wisconsin, the redistricting process follows the

same process as the enactment of any law. Both houses of the

legislature must pass a bill containing new maps, which is then

presented to the governor who may approve or veto the bill, the

latter of which the legislature may override with a

supermajority vote. See Wis. Const. art. IV, § 17 & art. V,

§ 10. Here, the Legislature, having failed to override the
gubernatorial veto, submitted the very same proposal to us. By

now implementing that failed bill, this court judicially

overrides the Governor's veto, thus nullifying the will of the

Wisconsin voters who elected that governor into office. But our

constitution provides only one avenue to override such a veto;

no judicial override textually exists. See Wis. Const. art. V,

§ 10. Nor, historically, has this court ever exercised such a

supreme power. By judicially enacting the very bill that failed
the political process, a bare majority of this court, rather

18
 No. 2021AP1450-OA.jjk

than a supermajority of the legislature, has taken the

unprecedented step of removing the process of lawmaking from its

constitutional confines and overriding a governor's veto

ourselves.

B. Signs of an Equal Protection Violation

¶188 In addition to being derived from a failed political

process, the Legislature's maps show signs of violating the

Equal Protection Clause. If, as the U.S. Supreme Court

explained, the Governor's addition of a majority-minority

district sufficed to show that race predominated its proposal,

then equally, if not more, suspect is the Legislature's removal

of a majority-minority district. Despite the majority opinion's

assertions, the Legislature's maps do not appear to be race-

neutral and calling the claim "indisputable" does not make it

so. The Legislature's claim that it drew its maps without

considering race, quite frankly, flies in the face of its

transfiguration of Milwaukee's six current districts with a

Black voting age population (BVAP) majority.20 In Milwaukee, the
BVAP increased 5.5 percent while the White voting age population

decreased 9.5 percent over the last decade. Those demographic

changes make the Legislature's draw down of BVAP percentage in

five out of six VRA districts——one by over 12 percent——with the

The voting age population, rather than the general
20

population, is the preferred number to review when dealing with
voting districts. See, e.g., Cooper v. Harris, 581 U.S. ___,
136 S. Ct. 2512 (2017) (analyzing a VRA claim using BVAP data).

19
 No. 2021AP1450-OA.jjk

remaining VRA district packed at 73.3 percent BVAP highly

suspicious.21

¶189 This suspicion is not assuaged by the Legislature's

expert report. That report sets out how none of the Milwaukee

area's Black population was removed from existing VRA districts22

(there was movement between existing VRA districts) and only

2,046 Black people were added to any VRA district from outside

existing VRA districts——1,625 Black individuals were moved from

AD24 to AD10 and AD12, and 421 Black individuals were moved from

AD13 to AD18. See Wis. Legislature's Br., Expert Report of

21The Legislature's Assembly District (AD) 10 dropped from
59.4 percent BVAP in 2011 Wis. Act 43 to 47.2 percent; AD12
dropped from 60.6 percent to 57 percent; AD16 dropped from 55.6
percent to 54.1 percent; AD17 dropped from 68.4 percent to 61.8
percent; AD18 dropped from 60.7 percent to 52.6 percent; and,
finally, AD11 increased from an already high 65.5 percent to
73.3 percent. See BLOC Resp. Br. 9.
22Evidence indicates that when drawing the 2011 district
maps the legislature considered race for the purpose of creating
six majority-Black districts that would "perform" under the
VRA's standards. For example, in briefing for Gill v. Whitford,
the State, which was defending the legislatively enacted maps in
2011 Wisconsin Act 43, affirmed that "[t]o comply with the VRA,
the staffers paid special attention to Milwaukee's Assembly
districts. After [the expert] and the lawyers had signed off on
the Milwaukee districts, the staffers 'locked these districts'
and then worked on maps of other areas of the State." (internal
citations omitted). Br. For Appellants at 14, Gill v. Whitford,
585 U.S. ___, 138 S. Ct. 1916 (2018) (No. 16-1161) (Jul. 28,
2017). Likewise, in briefing for Baldus v. Members of Wis.
Gov't Accountability Bd., 849 F. Supp. 2d 840 (E.D. Wis. 2012),
defendants represented that "Act 43 shifted the lines of
assembly district 12 to encompass additional African American
voters, thereby creating a sixth African American Assembly
District." Defs.' Br. Supp. Mot. for Summ. J. at 22, Baldus v.
Members of Wis. Gov't Accountability Bd., 849 F. Supp. 2d 840
(E.D. Wis. 2012), 2012 WL 7682784 (Feb. 10, 2012).

20
 No. 2021AP1450-OA.jjk

Dr. John Alford 6-7 (Dec. 15, 2021). Collectively, Milwaukee's

VRA districts needed to gain approximately 31,921 people to meet

the ideal population after the 2020 census. See App. of the

Wis. Legislature 18 (Aug. 23, 2021). This means that in adding

the required population, approximately 6.4 percent of the people

moved into the VRA districts were Black. While this number is

reasonably consistent with Wisconsin's Black population

percentage as a whole, it is low when compared to the Milwaukee

area's percentage Black population. For example, the

Legislature's AD23 is above 10 percent Black, AD19 is 7 percent

Black, and AD7 is 7.9 percent Black (not including those who

identify as more than one race). See Wis. Legislature's Resp.

Br., Resp. Expert Report of Dr. John Alford 11 (Dec. 30, 2021).

Both AD23 and AD19 were overpopulated and bordered existing VRA

districts, but not one person was moved from either of those

districts into underpopulated VRA districts. See Wis.

Legislature's Br., Expert Report of Thomas M. Bryan 57 (Dec. 15,

2021). Over 7,500 people were swapped between AD7 and other
districts (7,622 people were moved from AD7 to AD9 and 7,843

people were moved from AD 13 to AD7) but, likewise, not one

person was moved into existing VRA districts. All of this could

indicate that the Legislature targeted a certain quota of Black

people to move into current VRA districts to keep those

districts at "performing" VRA levels, just as they did with the

2011 maps.23 Importantly, this is precisely the same type of

23No direct examination of this kind of circumstantial
evidence exists in the record because the procedural posture of
this case and the court's "least change" approach did not lend
21
 No. 2021AP1450-OA.jjk

racial consideration that the U.S. Supreme Court found violated

the Equal Protection Clause when done in the Governor's map.

¶190 Moreover, the Legislature boasted that its Milwaukee-

area core retention numbers exceeded their statewide core

retention numbers. See Wis. Legislature's Reply Br. 11. Rather

than bolstering its core retention claims, the fact that

Milwaukee contains the highest concentration of minority

populations24 turns this admission into circumstantial evidence

that the Legislature impermissibly considered race when deciding

who to move between districts. Indeed, upon closer inspection,

16 of the Legislature's assembly districts show a discrepancy of

over 10 percent between the district's overall core retention

number and the Black-only core retention. And three of those

districts (AD22, AD40, and AD92) exhibit a whopping discrepancy

of over 35 percent.25 See Wis. Legislature's Br., Expert Report

of Thomas M. Bryan 56-64 (Dec. 15, 2021). Circumstantial

evidence such as this can show an Equal Protection Clause

violation, despite legislative professions of race-neutrality.

itself to a full adjudication of the merits of any Equal
Protection or VRA claims. Even after the U.S. Supreme Court
reversed because of this type of missing factual development,
the majority of this court continues to bar the submission of
any additional evidence from the parties.

See
24 U.S. Census Bureau, Wisconsin State Profile,
https://www.census.gov/library/stories/state-by-state/wisconsin-
population-change-between-census-decade.html.

Expert analysis is needed to decipher what inferences, if
25

any, can be drawn from these statistics, but the discrepancies
certainly offer facially substantial reasons to analyze the
Legislature's maps and their underlying motivations more fully.

22
 No. 2021AP1450-OA.jjk

See Cooper, 136 S. Ct. 2512 (affirming the district court's

findings that racial considerations predominated the drawing of

District 12 despite the State's profession that the subject

district was drawn based on political data and that racial data

was not even viewed by the map-drawer). With such evidence

contradicting the Legislature's unsupported professions of race-

neutrality, we are duty bound to investigate the actual focus

race played in its proposed lines.

¶191 Self-serving professions of race-neutrality should

also be ignored because the Legislature offered no alternative

reasons for making decisions regarding Milwaukee's districts.

The Legislature's "least change" pretext fails when it openly

admits its Milwaukee-area changes substantially differed from

its treatment of the rest of the state. Nor can the Legislature

justify its unique redrawing of Milwaukee districts on a desire

to keep municipalities whole; it split at least one relevant

village, Brown Deer, by dividing its Black population between

two districts. Respecting "communities of interest" also fails
to justify the Legislature's actions because no party submitted

evidence establishing such communities. That leaves the more

nefarious partisan advantage reasoning——a reliable pretext for

racial motivations. But a neutral judicial body cannot adopt a

map on such a justification, especially now that the party's

23
 No. 2021AP1450-OA.jjk

motives are imputed onto the court.26 The Legislature also has

not, and could not, claim such a justification as this court

barred consideration of partisanship in our redistricting

process. As such, no judicially acceptable justification for

the Legislature's Milwaukee-area redistricting decisions exists.

¶192 Finally, the majority fails to address how Milwaukee's

two majority-Hispanic districts——ADs 8 and 9——play into their

"race-neutral" approach. According to the Legislature, its

"plan keeps intact 100 percent of existing Assembly District 8,

more than 90 percent of existing Assembly District 9, and adds

new Hispanic population to both Assembly District 8 and 9."

Wis. Legislature's Br. 36 (Dec. 15, 2021). No VRA analysis as

to those districts established that either would require race-

based distribution of the population. Although under this

court's original approach, all parties conceded that those

districts were appropriate, the U.S. Supreme Court's decision

made clear that relying on the parties' concessions cannot

support a finding that the VRA required race-based decisions.
Furthermore, while the 2012 Baldus decision set out the borders

of those districts based on VRA analysis, that analysis was

The majority opinion conflates a political-gerrymandering
26

claim with the uncontroversial concept that a neutral, non-
partisan court cannot act in support of purely political
interests. See majority op., ¶51 n.10. As explained before,
Rucho is not at issue in this case. Rucho v. Common Cause, 588
U.S. ___, 139 S. Ct. 2484 (2019) (holding that claims of
partisan gerrymandering stemming from legislatively enacted maps
are nonjusticiable). We, as a court of law, cannot implement
blatantly partisan maps.

24
 No. 2021AP1450-OA.jjk

based on the previous decade's information and cannot be carried

over wholesale. See Baldus, 849 F. Supp. 2d 840.

C. Signs of a VRA Violation

¶193 A majority of this court has already expressed that a

plan containing only six majority-BVAP districts "could prove

problematic under the VRA." Johnson, 400 Wis. 2d 626, ¶49. The

Legislature's map contains only five majority-BVAP districts,

which should give any court pause. The Legislature's plan

leaves a significant number of Black voters dispersed into

surrounding majority-White districts where their voting power is

thus diluted. For example, as mentioned above, the

Legislature's plan unnecessarily swaps population between AD23

and AD24, cracking Brown Deer's Black voters in the process.

Additionally, the evidence above shows that only limited numbers

of Black individuals were moved into existing VRA districts to

keep them at "performing" levels while the remaining Black

individuals were spread into surrounding, non-VRA districts such

as AD7, AD19, AD23, and AD24 in insufficient numbers to be
considered influential. This may violate the VRA even if that

distribution was not intentionally race-based.

¶194 The VRA's applicability here turns, first, on the

three Gingles preconditions, and second, on whether the totality

of the circumstances shows the Legislature's lines deny minority

voters the equal opportunity to participate in our democracy.

Although members of this court have claimed that the three
Gingles preconditions are not met in Milwaukee, the bulk of the

evidence presented to this court supports the opposite
25
 No. 2021AP1450-OA.jjk

conclusion. The Legislature itself argued that its proposed map

did not violate the VRA because it contained five majority-Black

districts and one Black-influence district. See Wis.

Legislature's Br. 33 (Dec. 15, 2021) ("The Milwaukee area has

always been an area of concern for the Voting Rights Act. The

Legislature's plans for the Milwaukee area comply with the

Voting Rights Act, both for Milwaukee's Black and Hispanic

populations.").

¶195 Examining the record we do have, the three Gingles

preconditions are likely met in Milwaukee. And the totality of

the circumstances in Milwaukee show that Black voters do not

have an equal opportunity to participate in the political

process. Although this court's procedural decisions have barred

the kind of tested expert testimony required to make definitive

VRA determinations, that lack of evidence cuts both ways. If we

cannot say that seven VRA districts are required, we equally

cannot say, based on the evidence before us, that six are

required, or that none are required. The majority nakedly
proclaims that "on this record" no VRA violation can be proven,

but this proclamation misunderstands our duty here. A majority

of this court failed to adopt procedures that would have allowed

the balancing of relevant facts required under the VRA and the

Equal Protection Clause. Because of this failure, the majority

opinion cannot fulfill its responsibility and determine what, as

a matter of law, is the narrowly tailored remedy required under

the VRA.

1. The Gingles Preconditions
26
 No. 2021AP1450-OA.jjk

¶196 In approaching the Gingles preconditions, only one

expert provided the bulk of the past-election analyses required.

And those analyses indicate that the Gingles preconditions are

met in Milwaukee. However, members of this court, myself

included, conclude that the evidence has not been sufficiently

tested through a proper adversarial fact-finding process.

Consequently, we cannot definitively say the Gingles

preconditions are satisfied. This is an act of judicial

restraint based on the deficiency of process, not a finding that

other facts or expert analysis outweigh the facts and analysis

as set out here.

¶197 The first Gingles precondition requires that there be

a sufficiently large and compact minority population to

constitute a district. See League of United Latin Am. Citizens

v. Perry, 548 U.S. 399, 400-01 (2006). The U.S. Supreme Court

criticized this court's March 3 analysis on the first

precondition because this court deferred to the undisputed

nature of the claim. In doing so, the Court failed to
acknowledge that the Governor's maps necessarily proved that

there is a sufficiently large and compact minority population to

constitute seven districts by proposing maps that contain seven

contiguous and compact districts, each with over 50 percent

BVAP. The Governor's maps, in and of themselves, demonstrate a

sufficiently large and compact Black population to constitute

seven majority-Black districts. Satisfying the first

precondition comes as no surprise given the reality that

27
 No. 2021AP1450-OA.jjk

Milwaukee is one of the most geographically segregated, and

therefore racially compact, cities in the country.

¶198 The second and third Gingles preconditions, often

discussed together as the need to show "racially polarized

voting," were evidenced through an expert analysis of relevant

elections. See id. (setting out that the second and third

threshold conditions require that "the group must be

'politically cohesive'" and "the white majority must 'vote

sufficiently as a bloc to enable it . . . usually to defeat the

minority's preferred candidate.'"). While one dissent to our

March 3 opinion took it upon itself to formulate the only

significant alternative analysis of previous elections, the

races cited lacked probative value as to the presence of

racially polarized voting. The vast majority of the alternative

elections involved incumbent candidates running entirely

unopposed or involved major party candidates who did not face a

major-party opponent in a general election.27 These types of

races are not relevant or informative regarding the question of

27 The record of candidates running for election comes from
state public records and is therefore "capable of accurate and
ready determination by resort to sources whose accuracy cannot
reasonably be questioned." Wis. Stat. § 902.01. Gwen Moore was
an established incumbent in her 2016 race and ran against only
libertarian and independent candidates; Lena Taylor was an
established incumbent in her 2012 race and ran against only an
independent candidate; Lena Taylor ran unopposed in her 2016
general election and in 2020; La Tonya Johnson ran unopposed in
2016; and Justice Roggensack's dissent acknowledges that both
Leon Young and Jason Fields ran unopposed in their respective
races.

28
 No. 2021AP1450-OA.jjk

racially polarized voting.28 Similarly, the majority opinion

points to BLOC's lack of analysis of November general elections

as a fatal flaw in its analysis of racially polarized voting,

but VRA experts often exclude partisan general election data

because it is probative only of partisan motives that mask

underlying racial discrepancies. Thus, as one expert explained,

in a strongly Democratic-voting district like those in the

Milwaukee area, only non-partisan elections and Democratic

primaries have the potential to reveal the presence of racially

polarized voting. See BLOC's Br. App. 15 (Dec. 15, 2021).

¶199 That same expert relied on several methods to analyze

the raw data surrounding eight such elections. The analyses all

led to the conclusion that racially polarized voting occurred in

seven of the eight elections.29 Id. at 16. The single election

of the bunch that showed substantial White cross-over voting was

the Milwaukee County Sheriff Democratic Primary which featured a

candidate, Schmidt, who had served as the second in command to

former Sheriff Clarke, a conservative and polarizing political
figure. It is likely that attitudes toward former Sheriff

This highly technical analysis is generally performed by
28

an expert subject to cross-examination for the very reason that
it is difficult to sift through statistical noise. Careful
selection of relevant and informative past races is key to a
reliable "racially polarized voting" analysis. Again, the
majority of this court barred the process needed to ensure such
an analysis.

Dr. Collingwood states he used ecological regression,
29

ecological inference, and homogeneous precinct analysis to
analyze ward-level vote returns to infer individual-level voting
behavior. He also explains the various programs used to analyze
the data.

29
 No. 2021AP1450-OA.jjk

Clarke lessened support for Schmidt, one of two White

candidates, and increased cross-over support for the Black-

preferred candidate, Lucas. These distorting features mean that

race may not be as probative of racially polarized voting as the

other seven races. Those remaining races showed BVAP to Black

preferred candidate correlation coefficients between .80 and

.95, and White voting age population to White preferred

candidate correlation coefficients between .55 and .89.30 These

numbers show reliably high correlations between a voter's race

and preferred candidate.31

¶200 The third Gingles precondition also requires that

White bloc voting usually blocks Black voters from electing

candidates of choice. This is, undoubtedly, the most difficult

part of the analysis in our posture because, under a normal VRA

challenge, it would usually require district-specific numbers.

In some circumstances, it may not make sense to analyze

majority-BVAP districts under this precondition because White

voters cannot defeat a Black-preferred candidate so long as

The race with the lowest correlation coefficient, the
30

State Superintendent primary with Jill Underly at .55, was low
in part due to a split between support for three White
candidates. The next lowest correlation coefficient is .68.

Although all of the races analyzed included Black
31

candidates as the Black-preferred candidate and White candidates
as the White-preferred candidate, this is not necessarily always
the case. A candidate's race does not need to reflect the same
race as the minority voting population that prefers them.

30
 No. 2021AP1450-OA.jjk

voters come out in force.32 More specific analysis of racially

polarized voting in those districts may be relevant, but the

outcomes of races in these districts do not indicate whether

there is sufficient White-crossover voting to remove the need

for race-conscious districting. This is why Dr. Collingwood did

not analyze the AD12 Democratic primary election as part of his

bloc voting analysis. AD12 is already a majority-BVAP district

and so a minority-preferred candidate cannot be blocked by a

White majority. Dr. Collingwood did separately find the

existence of racially polarized voting in that election.

Instead, Dr. Collingwood analyzed elections that cover the

Milwaukee area and found that White bloc voting defeats the

Black-preferred candidate in four out of seven races for a block

rate of 57.14 percent. If the aberrant Milwaukee County

Sheriff's election is removed from consideration, that block

rate rises to 66.66 percent. This indicates that, in the

Milwaukee area as a whole, White bloc voting does usually defeat

the Black-preferred candidate.
¶201 The majority opinion points to the lack of "district

specific" analysis as another fatal flaw, but, because this case

was not a challenge to existing districts, there were no

districts to specifically analyze. Thus, the experts worked

with what they had and analyzed the Milwaukee area as a whole.

The U.S. Supreme Court's decision appeared to set out a new

This is not a universal rule as other factors, such as
32

high levels of non-citizen immigrant populations,
disenfranchised populations, or populations facing other hurdles
to voting could lower a district's minority voting force.

31
 No. 2021AP1450-OA.jjk

standard for courts to follow in implementing remedial maps, but

neither this court nor the parties knew that standard at the

time of briefing. Yet since the Court voiced that standard, the

majority of this court has barred all parties from submitting

the necessary additional district-specific analysis of

theoretical "race-neutral" maps.33 That forced ignorance,

though, does not erase the evidence we do have, all of which

evinces each Gingles precondition.

2. Totality of the Circumstances

¶202 Professor David Canon set out a compelling totality-

of-the-circumstances analysis showing that Milwaukee's Black

voters lack an equal opportunity to participate in the political

process. Some of the relevant circumstances, called "Senate

Factors," include:

(1) the history of official voting-related discrimination

in the state or political subdivision;

(2) the extent to which voting in the elections of the

political subdivision is racially polarized;

BLOC did analyze the Legislature's proposed AD10.
33

Looking to what Dr. Collingwood described as the "most probative
election," the 2018 Democratic gubernatorial primary, the Black-
preferred candidate, Mahlon Mitchell, garnered 39.3 percent of
the vote while Governor Evers, one of multiple White candidates,
received 29.3 percent. The combined vote total of Governor
Evers and the next most popular candidate, Kelda Roys, would
have defeated Mahlon Mitchell's plurality of votes. This
evidence does not appear sufficient to say that AD10 would or
would not reliably perform for Black preferred candidates. As
explained previously, the Legislature's map is not reliably
race-neutral and thus even a full analysis of that map's
performance would not satisfy the U.S. Supreme Court's directive
to review a race-neutral option.

32
 No. 2021AP1450-OA.jjk

(3) the extent to which the political subdivision has used

voting practices or procedures that tend to enhance the

opportunity for discrimination against the minority group;

(4) the exclusion of members of the minority group from

candidate slating processes;

(5) the extent to which minority group members bear the

effects of discrimination in areas such as education,

employment, and health, which hinder their ability to

participate effectively in the political process;

(6) the use of overt or subtle racial appeals in political

campaigns; and

(7) the extent to which members of the minority group have

been elected to public office in the jurisdiction.

According to Professor Canon's unrefuted analysis, all Senate

Factors except factor (4) show that Black voters have less of an

opportunity to participate in the political process than White

voters.

¶203 Wisconsin has a history of both official voting
discrimination and voting practices that enhance the opportunity

for discrimination (Senate Factors 1 and 3). While history of

these practices is no doubt long, relatively recent instances of

such practices paint a sufficient picture. First, in 2012, the

Baldus court held that the Legislature's redistricting maps

unlawfully diluted the voting strength of minority voters in the

Milwaukee area. See Baldus, 849 F. Supp. 2d 840. Second,

recent attempts to purge voter rolls of "inactive" voters would
have disproportionately affected minority communities. See

33
 No. 2021AP1450-OA.jjk

Zignego v. Wis. Elections Comm'n, 2021 WI 32, ¶¶9-10, 396

Wis. 2d 391, 957 N.W.2d 208. In 2019 a circuit court ordered

the "inactive" voters removed from registration lists before the

effort was stopped on appeal. Notices were sent to individuals

informing them that they would be removed from voter rolls if

they failed to respond. Significantly, over one-third of those

notices were sent to individuals in Milwaukee County and Dane

County——those with the highest minority populations.

Additionally, minority voters were almost twice as likely to be

incorrectly flagged as having moved as White individuals.34

¶204 Third, during the April 2020 election, the early surge

of the COVID-19 pandemic caused a state-wide poll worker

shortage that necessitated polling places be consolidated.

Milwaukee, which has the largest minority population in the

state, was hit hardest by these consolidations. Only 5 out of a

usual 182 polling sites for the entire city, or 1 polling place

for every 103,000 registered voters, remained open to this large

minority population. By contrast, Washington County, Ozaukee
County, and Waukesha County each had 1 polling place for every

7,000 registered voters.35 Reports indicate that these

disproportionate measures greatly affected voter turnout. One

study found that approximately 16 percent of registered

Milwaukee voters voted in the April 2020 primary compared to 42

34Subcomm. on Elections, 117th Cong., Voting in America:
Ensuring Free and Fair Access to the Ballot 31-33 (Jul. 2021).
35Kevin Morris & Peter Miller, Voting in a Pandemic:
COVID-19 and Primary Turnout in Milwaukee, Wisconsin, 58 Urb.
Aff. Rev. 597, 598 (2021).

34
 No. 2021AP1450-OA.jjk

percent of registered voters who turned out in the surrounding

Washington, Ozaukee, and Waukesha Counties. Another study

indicated that poll closures depressed voter turnout in

Milwaukee by 8.6 percentage points with a disproportionate

effect on Black voters.36 Within Milwaukee County, more polls

were closed in the areas with the highest percentage of non-

White voters.37 Fourth, Wisconsin has required IDs to vote

since 2011. While voter ID laws have been upheld under the

federal constitution as lawful, voting data shows such laws

disproportionately deter racial minorities from voting.38

¶205 Disparities in other socioeconomic categories between

Wisconsin's White population and Milwaukee's minority

populations, driven by racial discrimination, also hinder the

ability of minority populations to effectively participate in

the political process (Senate Factor 5). This dissent opened by

acknowledging Milwaukee's history of racial discrimination and

the lasting racial disparities that history engendered. To

reiterate, Milwaukee's history of forced segregation created a
historical racial gerrymander, limiting minority populations

from the opportunity to exert influence outside of a limited

geographic area. Additionally, the low rates of Black

36 Id.

John A. Curiel & Jesse T. Clark, Disparities in Poll
37

Closures in the Age of COVID-19: A Case Study of Wisconsin, 20
Election L. J. 345 (2021).

Michael G. DeCrescenzo & Kenneth R. Mayer, Voter
38

Identification and Nonvoting in Wisconsin——Evidence from the
2016 Election, 18 Election L. J. 342 (2019).

35
 No. 2021AP1450-OA.jjk

homeownership and high rates of evictions in Black communities

result in more transient populations that change addresses

frequently. These populations may face difficulties staying

registered under the proper address and providing necessary

proof of address under voter ID laws. Homeless people face

barriers that result in as few as 10 percent of the homeless

population showing up to the polls.39

¶206 Wisconsin's high disparity between Black and White

incarceration rates (the Black incarceration rate is 11.9 times

greater than the White incarceration rate) directly affects

opportunities to participate in the political process. Felons

are disallowed from voting until they have completed their

entire sentence, which includes release from probation, parole,

or extended supervision. See Wis. Stat. §§ 6.03(1)(b) &

304.078. In 2020, 22,371 Black Wisconsinites were

disenfranchised because they were incarcerated or on probation,

parole, or extended supervision.40 Even after an ex-felon's

Dora Kingsley Vertenten, As Few As 1 in 10 Homeless
39

People Vote in Elections——Here's Why, U.S. News (Oct. 15. 2020,
10:41 AM), https://www.usnews.com/news/cities/articles/2020-10-
15/as-few-as-1-in-10-homeless-people-vote-in-elections-heres-
why.

Chris Uggen et al., The Sent'g Project Locked Out 2020:
40

Estimates of People Denied Voting Rights Due to a Felony
Conviction 17 (Oct. 30, 2020), https://www.sentencingproject.org
/publications/locked-out-2020-estimates-of-people-denied-voting-
rights-due-to-a-felony-conviction/.

36
 No. 2021AP1450-OA.jjk

voting rights are restored, evidence shows most will vote at

much lower rates than the general public.41

¶207 The myriad of other examples of racial disparity in

Wisconsin may also account, in part, for the historically

limited success minority candidates have had in city- and

county-wide elections (Senate Factor 7). Cavalier Johnson just

became the first Black person elected to be Mayor of Milwaukee

and only the second Black person elected to be mayor anywhere in

Wisconsin.42 In 2020, David Crowley became the first Black

person elected to be Milwaukee County Executive. At the time of

briefing, no Black office holder held a state representative,

alderperson, or supervisor seat in any Milwaukee-area districts

outside majority-Black districts. While we can hope that the

very recent successes of some city and county-wide candidates is

an indication of long-needed change, history and common sense

tell us that one successful minority candidate does not erase a

long history of discrimination and racial disparity.

¶208 The procedural posture of this remedial redistricting
case (specifically that no Equal Protection or VRA challenge was

before this court) coupled with the lack of rigorous expert

analysis of past elections by any party other than BLOC and the

lack of expert cross-examination, hampered this court's ability

41Jeff Manza & Christopher Uggen, Punishment and Democracy:
Disenfranchisement of Nonincarcerated Felons in the United
States, 2 Persps. on Pol. 491 (Sept. 2004).
42Marvin Pratt became the first Black mayor of Milwaukee in
2004, but only as acting mayor following Mayor Norquist's
resignation.

37
 No. 2021AP1450-OA.jjk

to definitively decide the VRA issues in our March 3 decision.

That said, the evidence and expert analysis before us certainly

indicates that minorities in the Milwaukee area continue to bear

the effects of discrimination in ways that limit their

opportunity to participate in the democratic process.

IV. LESSONS TO BE LEARNED

¶209 This has been a profoundly disheartening odyssey. The

unavoidable political nature of remedial redistricting plagued

us every step of the way. Too rarely did this process present

true questions of law——this court's only area of expertise. At

every change in the tide, this court seemed to choose what it

hoped to be a short-cut to streamline our voyage, only to find

ourselves lost and unable to do our work as a non-partisan court

of law. But the redistricting process is likely to stalemate

and come before this court again in the future. And when it

does, I hope that we have learned our lesson. I hope that we

will permit a politically insulated federal court to manage the

task. Federal courts are better able to conduct extensive fact-
finding through trial-style litigation, a task for which we

proved ill equipped.

¶210 If this court does, however, cast off upon this

odyssey again in the future, we cannot shy away from the demands

of the process. We must hear and test the facts. We must

acknowledge our responsibility to implement the best, judicially

appropriate maps possible and to fully justify our decisions
rather than pawning that responsibility off to party

participants. We can and should do so much better.
38
 No. 2021AP1450-OA.jjk

¶211 The majority does not rise to that challenge; instead

it locks our sails on a direct course to another set of maps we

cannot call lawful. I dissent.

¶212 I am authorized to state that Justices ANN WALSH

BRADLEY and REBECCA FRANK DALLET join this dissent.

39