Billie Johnson v. Wisconsin Elections Commission

2022 WI 14

• Court: Wisconsin Supreme Court
• Decided: March 3, 2022
• Docket: 2021AP001450-OA
• Status: Published

Opinion

2022 WI 14

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

OPINION FILED: March 1, 2022 SUBMITTED ON BRIEFS: ORAL ARGUMENT: January 19, 2022

SOURCE OF APPEAL: COURT: COUNTY: JUDGE:

JUSTICES:

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.

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. 2 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.

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. 3 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.

4 2022 WI 14 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, MAR 3, 2022 v. Sheila T. Reiff Clerk of Supreme Court 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.

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

ORIGINAL ACTION. Relief granted.

¶1 BRIAN HAGEDORN, J. Every ten years, states are

required to redraw the boundaries for congressional and

legislative districts to account for population changes. This

means the maps enacted into law in 2011 cannot constitutionally serve as the basis for future elections. The responsibility to

adopt new district boundaries is not ours in the first instance,

but that of the legislature and governor via the legislative

process.

¶2 Shortly after the completion of the 2020 decennial

census, a group of voters petitioned this court to declare the

2011 maps unconstitutional and remedy the malapportionment. We

granted the petition, and subsequently granted intervention to all parties that sought it, mindful that relief from this court

2 No. 2021AP1450-OA

would be necessary only if the legislative process failed.1 We

have given the political branches a fair opportunity to carry

out their constitutional responsibilities. They have not done

so. Both this court and the United States Supreme Court have

held that this failure implicates the constitutional rights of

voters. State ex rel. Reynolds v. Zimmermann, 22 Wis. 2d 544,

562, 126 N.W.2d 551 (1964); Reynolds v. Sims, 377 U.S. 533, 566

(1964). We are therefore left with the unwelcome task of

filling the gap.

¶3 The members of this court were not of one mind

regarding how——or even whether——to approach this undertaking.

But having taken this case, we sought input from the parties on

the law that governs, as well as the process by which we should

fashion a remedy.

¶4 In an order issued on November 17, 2021, and an

opinion issued on November 30, 2021, we set out the basic

process and criteria we would use to guide our decision.

Johnson v. Wis. Elections Comm'n, 2021 WI 87, 399 Wis. 2d 623, 967 N.W.2d 469. Rather than craft our own map, we invited all

parties to this litigation to submit one proposed map for each

set of districts where new district boundaries are required:

congress, state senate, and state assembly. We said we would

choose maps that minimize changes from current law and evaluate

maps for compliance with state and federal law. Id., ¶¶38, 72.

1For a summary of this case's prior procedural history, see Johnson v. Wis. Elections Comm'n, 2021 WI 87, ¶¶5-6, 399 Wis. 2d 623, 967 N.W.2d 469.

3 No. 2021AP1450-OA

In so concluding, we rejected an approach that involved this

court making significant policy decisions or weighing competing

policy criteria. We also rejected invitations to consider the

partisan makeup of proposed districts. By focusing on legal

requirements and using the maps currently reflected in Wisconsin

law as a reference point, we sought to minimize our involvement

in the numerous policy and political decisions inherent in map-

drawing.

¶5 Following our November 30 opinion, parties submitted

proposed maps, briefs, and expert reports. And we heard over

five hours of argument regarding which proposed maps best comply

with the parameters we established.

¶6 Although not bound by any map proposal, we approached

this task hoping to select submissions from the parties that

best satisfied the criteria we set forth. We did so both at the

suggestion of the parties and in recognition of our limitations.

While we appreciate the hard work of the parties, we must

acknowledge that each proposal makes changes that appear unnecessary to account for population changes or to otherwise

comply with the law. But rather than modify submissions we

received, we determine that the best approach is to choose the

maps that best conform with our directives, imperfect though

they may be.

¶7 Congressional maps. We received proposed

congressional maps from four parties: the Citizen

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Mathematicians and Scientists,2 the Congressmen,3 Governor Tony

Evers, and the Hunter intervenors-petitioners.4 The first

question is which map most complies with our least-change

directive. With only eight districts, core retention——a measure

of voters who remain in their prior districts——is the best

metric of least change, and the map submitted by Governor Evers

easily scores highest. His map moves 5.5% of the population to

new districts, leaving 94.5% in their current districts. In raw

numbers, the Governor's proposal to move 324,415 people to new

districts is 60,041 fewer people than the next best proposal.

In addition, Governor Evers' submission complies with the

federal Constitution and all other applicable laws. We

therefore adopt Governor Evers' proposed congressional map.

¶8 State legislative maps. We received six state

legislative map proposals from: the BLOC intervenors-

2The Citizen Mathematicians and Scientists include Gary Krenz, Sarah J. Hamilton, Stephen Joseph Wright, Jean-Luc Thiffeault, and Somesh Jha. 3The Congressmen include Congressmen Glenn Grothman, Mike Gallagher, Bryan Steil, Tom Tiffany, and Scott Fitzgerald.

The Wisconsin Legislature endorsed the Congressmen's proposed congressional map, but did not advance any arguments on the merits of this proposed map. 4The Hunter intervenors-petitioners include Lisa Hunter, Jacob Zabel, Jennifer Oh, John Persa, Geraldine Schertz, and Kathleen Qualheim.

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petitioners,5 the Citizen Mathematicians and Scientists, Governor

Evers, the Hunter intervenors-petitioners, Senator Janet Bewley,6

and the Wisconsin Legislature. The proposed senate and assembly

maps making the least changes from current law are once again

those of Governor Evers. In their senate proposals, both

Governor Evers and the Legislature move a nearly identical 7.8%

of voters to different districts (92.2% core retention), with a

slight edge to the Legislature for moving 1,958 fewer people.

However, in their assembly map proposals, Governor Evers moves

14.2% of voters to new districts, while the Legislature moves

15.8% (85.8% vs. 84.2% core retention), a difference that

affects 96,178 people. No other proposal comes close. And

beyond core retention, no other measure of least change alters

the picture. The Governor's proposed senate and assembly maps

produce less overall change than other submissions.

¶9 We also conclude that Governor Evers' proposals

satisfy the requirements of the state and federal constitutions.

Under the Wisconsin Constitution, all districts are contiguous, sufficiently equal in population, sufficiently compact,

appropriately nested, and pay due respect to local boundaries.

Governor Evers' proposed maps also comply with the federal

constitution's population equality requirement.

5 The BLOC interventors-petitioners included the organizations Black Leaders Organizing for Communities, Voces de la Frontera, and League of Women Voters of Wisconsin, in addition to Cindy Fallona, Lauren Stephenson, and Rebecca Alwin. 6 Senate Minority Leader Janet Bewley intervened as a respondent on behalf of the Senate Democratic Caucus.

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¶10 Regarding the Voting Rights Act (VRA), the 2011 maps

enacted into law include six majority-Black assembly voting

districts in the Milwaukee area. Governor Evers, along with

several other parties, argues the VRA now requires a seventh

majority-Black assembly district in the Milwaukee area. As a

map-drawer, we understand that our duty is to determine whether

there are "good reasons" to believe the VRA requires a seven-

district configuration. In assessing the information presented

by the parties, we conclude there are good reasons to believe a

seventh majority-Black district is needed to satisfy the VRA.

Governor Evers' assembly map accomplishes this. For these

reasons, we adopt Governor Evers' proposed remedial state senate

and state assembly maps.

I. FRAMEWORK FOR OUR DECISION

¶11 In our prior opinion in this case, we laid out more

fully the analytical framework for our final decision. For

completeness, we briefly summarize our approach here. Before our November 30 opinion, the parties offered a variety of

arguments regarding which factors we could or should consider in

providing remedial maps. See Johnson, 399 Wis. 2d 623, ¶7. We

concluded we would minimize judicial policymaking by starting

with the 2011 maps previously enacted into law, and change only

what is "necessary to resolve constitutional or statutory

7 No. 2021AP1450-OA

deficiencies."7 Id., ¶72. We further concluded that the

partisan makeup of districts would not play a role in our

decision. Id., ¶39. We were not unanimous in these

conclusions, but it is how we as a court decided to proceed.8 So

we invited parties to submit maps that minimize deviations from

existing district boundaries and abide by all relevant laws.

¶12 With this framework in mind, we begin our analysis by

probing which maps make the least change from current district

boundaries. From there, we examine the relevant law to ensure

that the map producing the least change also comports with all

state and federal legal requirements.

7 The concurrence agreed with this approach and added that if there were equally compelling arguments on least change, we could look to traditional redistricting criteria to assist our decision-making. Johnson, 399 Wis. 2d 623, ¶83 (Hagedorn, J., concurring). Our selection of remedial maps in this case is driven solely by the relevant legal requirements and the least change directive the majority adopted in the November 30 order—— not a balancing of traditional redistricting criteria. 8 The dissent argued that "[t]rue neutrality could be achieved by instead adhering to the neutral factors supplied by the state and federal constitutions, the Voting Rights Act, and traditional redistricting criteria." Johnson, 399 Wis. 2d 623, ¶94 (Dallet, J., dissenting). Thus, the dissent proposed conducting a more open balancing of various policy interests, including population equality, compactness, and respect for political subdivision boundaries. Id. It also viewed partisanship as "one of the many factors a court must balance when enacting remedial maps." Id., ¶110.

8 No. 2021AP1450-OA

II. CONGRESSIONAL MAP

A. Least Change

¶13 Wisconsin has eight congressional districts, so

evaluating which maps changed the least is far simpler than for

legislative maps, where modifications are necessarily more

numerous and granular. The core retention figures are therefore

especially helpful. Core retention represents the percentage of

people on average that remain in the same district they were in

previously. It is thus a spot-on indicator of least change

statewide, aggregating the many district-by-district choices a

mapmaker has to make. Core retention is, as multiple parties

contended from the beginning of this litigation, central to a

least change review.9

¶14 The parties' submissions rate as follows on core

retention:

9 Three parties asked us to adopt a least change approach, and each made it abundantly clear that core retention is central to that inquiry. In briefing advocating a least change approach (before our November 30 opinion), the Legislature explained that a least change approach is one that "maximizes core retention." The Congressmen agreed, arguing that a "'least-change' approach would simultaneously 'minimize voter confusion,' and maximize 'core retention' by limiting the number of people placed in different congressional districts." The Johnson petitioners were in full accord: "Preserving the cores of prior districts is the foundation of 'least change' review." While core retention is not the only relevant metric, every party understood that our adoption of a least change approach would place core retention at the center of the analysis.

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Total People Moved Average Core Retention

Governor Evers 324,415 94.5%

Congressmen 384,456 93.5%

Hunter 411,777 93.0%

MathSci10 500,785 91.5%

¶15 As these numbers reveal, the Governor's map moves the

fewest number of people into new districts. It is not a close

call. The Governor's proposal moves 60,041 fewer people than

the next closest submission, that of the Congressmen.11 The

parties do not offer any other measures of least change that

counterbalance the Governor's superior core retention.

¶16 The most significant counterargument on least change

comes from the Congressmen. They argue that the Governor's

proposal makes what they call "gratuitous changes" that are

unexplained. For example, they point to the swapping of

communities between congressional districts 4 and 1. These

changes are unnecessary, the Congressmen maintain, because district 4 is already substantially underpopulated. In other

10 In briefing, the Citizen Mathematicians and Scientists helpfully employed the "MathSci" moniker to refer to their maps. 11 Before oral argument, the Congressmen sought leave to submit a second map for consideration in addition to their initial proposal. We granted motions by two other parties to modify their proposals, but we denied the Congressmen's motion because our November 17 order limited parties to a single congressional map. Granting the Congressmen's motion would have allowed them to present two congressional maps, while everyone else was permitted only one.

10 No. 2021AP1450-OA

words, they argue that the unstated and unexplained motives

behind these changes should doom the Governor's proposal. We

see two problems with this argument.

¶17 First, nothing in our prior orders or opinion required

an explanation of changes at any level of granularity. In fact,

the November 30 opinion did not give the parties any specific

instructions beyond our rubric for deciding the case generally.

The concurrence encouraged parties to explain "why their maps

comply with the law, and how their maps are the most consistent

with existing boundaries." Johnson, 399 Wis. 2d 623, ¶87

(Hagedorn, J., concurring). But neither that concurrence nor

any order of the court asked for an explanation for every change

or provided guidance regarding what level of specificity would

satisfy the court.12

¶18 Second, the Congressmen's argument elevates form over

substance. In their submission, the Congressmen propose

significant changes to congressional districts 3 and 7. They

explain these changes by referencing population changes in district 2. But the districts most in need of change are

district 2 in and around Dane County (which needs to shrink),

and district 4 in Milwaukee County (which needs to grow).

Applying a least change approach, the more logical place to

adjust district boundaries to account for these population

changes would be the districts both adjacent to and in between

Moreover, rejecting every map with unexplained changes 12

would require us to exclude every proposed state legislative map. All of them contain numerous unexplained changes.

11 No. 2021AP1450-OA

congressional districts 2 and 4——not district 3 on Wisconsin's

western border and district 7 in the north and northwest. So

while the Congressmen offer an explanation for the change, it

does not appear to be a particularly good one. Perhaps, as the

Congressmen posited, the Governor has other motives; perhaps so

do the Congressmen. But rather than weigh motives and pick and

choose which changes we approve of and which we don't, we look

to which maps actually produce the least change, not which

explained their changes the most comprehensively.

¶19 The most principled way to address least change for

congressional maps is to choose the map that, in the aggregate,

moves the fewest number of people into new districts. In this

regard, the Governor's proposed map is superior to every other

proposal. It is the map with the least change.

B. Compliance with the Law

¶20 Having concluded the Governor's proposal best complies

with our directive to minimize deviations from current district boundaries, we next consider whether it complies with all

relevant laws. The Wisconsin Constitution contains no explicit

requirements related to congressional redistricting. And no

party develops an argument that the Wisconsin Constitution

requires something for congressional districts not already

12 No. 2021AP1450-OA

necessary under the United States Constitution.13 Further, no

one argues that any congressional submission we received runs

afoul of the VRA. The only legal question that remains concerns

population equality under the United States Constitution.

¶21 The Governor's map comes close to perfect equality.

The mathematically ideal district contains 736,714.75 persons,

and the Governor's districts have either 736,714 people, 736,715

people, or 736,716 people. Thus, the total deviation between

the most and least populated districts is two persons. Several

parties argue——mostly at oral argument——that the Governor's two-

person deviation violates the United States Constitution. This

is, at best, a strained reading of the law.

¶22 To be sure, the Supreme Court has explained that there

is "no excuse for the failure to meet the objective of equal

representation for equal numbers of people in congressional

districting other than the practical impossibility of drawing

equal districts with mathematical precision." Mahan v. Howell,

410 U.S. 315, 322 (1973). On the other hand, the Supreme Court has been willing to accept "small differences in the population

of congressional districts" "so long as they are consistent with

constitutional norms." Karcher v. Daggett, 462 U.S. 725, 740

(1983). As the Court explained, "Any number of consistently

13 As we noted in our prior opinion, the parties previously disputed whether the Wisconsin Constitution imposes requirements consistent with the Equal Protection Clause of the federal Constitution. But that issue would not have any substantive impact on our decision, so we did not (and here do not) address it. See Johnson, 399 Wis. 2d 623, ¶13 n.4.

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applied legislative policies might justify some variance,

including, for instance, making districts compact, respecting

municipal boundaries, preserving the cores of prior districts,

and avoiding contests between incumbent Representatives." Id.

In Tennant v. Jefferson County Commission, the Supreme Court

upheld a 4,871-person deviation in West Virginia's congressional

districts, noting the deviation advanced the state's interests

in maximizing core retention and maintaining whole counties.

567 U.S. 758, 762, 764-65 (2012) (per curium).

¶23 Moreover, many states have adopted districts with

minor variations. According to one source cited in briefing,

following the 2010 census, 14 states implemented maps with

greater than single-person deviations: Arkansas (428), Georgia

(2), Hawaii (691), Idaho (682), Iowa (76), Kansas (15), Kentucky

(334), Louisiana (249), Mississippi (134), New Hampshire (4),

Oregon (2), Texas (32), Washington (19), and West Virginia

(4,871).14 If the law is clear that a two-person deviation (or

more) is unacceptable, then nearly a third of states with more than one congressional district have apparently not gotten the

message. We know of no case in which a court has struck down a

map based on a two-person deviation.

¶24 In addition, this minor population deviation is

justified under Supreme Court precedent by our least change

objective. In this very proceeding, we have determined that the

https://www.ncsl.org/research/redistricting/2010-ncsl- 14

redistricting-deviation-table.aspx

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least change approach should guide our decision. Core retention

is central to this analysis, and as our prior discussion

reveals, the Governor's map does far better on this metric than

any other map. Selecting a map from among those submitted to us

with a maximum deviation of one person would require us to adopt

a map that does substantially worse on core retention. The

United States Supreme Court held that maximizing core retention

was an acceptable justification for a far greater deviation in

Tennant. We see no reason why that rationale would not apply

with equal force here. We conclude the two-person deviation

between the most- and least-populated districts in the

Governor's proposed map does not violate the United States

Constitution.

¶25 In sum, we adopt Governor Evers' proposed

congressional map because it best follows our directive to make

the least changes from existing congressional district

boundaries while complying with all relevant state and federal

laws.

III. STATE LEGISLATIVE MAPS

¶26 Our least change inquiry for state legislative maps is

a bit more complicated. This is due in part to the sheer number

of districts involved. In addition, the Wisconsin Constitution

requires that three assembly districts be nested within each

senate district, meaning we need to analyze assembly and senate maps jointly. Wis. Const. art. IV, § 5. Nevertheless, we again 15 No. 2021AP1450-OA

begin our least change inquiry by comparing core retention

scores for each senate and assembly map we received.

¶27 The parties' senate map submissions rate as follows on

core retention, in order from least to most change:

Legislature 459,061 92.2%

Governor Evers 461,019 92.2%

Senator Bewley 576,321 90.2%

BLOC 610,568 89.6%

Hunter 1,128,878 80.8%

MathSci 1,513,824 74.3%

¶28 The parties' assembly map submissions rate as follows

on core retention, again in order from least to most change:

Governor Evers 837,426 85.8%

Legislature 933,604 84.2%

BLOC 939,513 84.1%

Senator Bewley 984,336 83.3%

Hunter 1,586,059 73.1%

MathSci 2,299,629 61.0%

¶29 Taken together, the Governor's maps score best on core retention. Although the Legislature's senate map moves 1,958

16 No. 2021AP1450-OA

fewer people than the Governor's senate map, that slightly

better performance is outstripped by the Governor's vastly

superior core retention in the assembly, where the Governor

moves 96,178 fewer people than the Legislature. No maps from

any other party perform nearly as well as the Governor's on core

retention.

¶30 Other metrics of least change are helpful, but only

minimally so in this case. Both the Legislature and the

Governor do comparably well minimizing the number of voters who

would have to wait six years between senate elections.15 The

Legislature's senate map has this effect on 138,753 people,

whereas the Governor's does so for 139,606 people. On

geographic core retention, the Governor's senate map moves 5.0%

of the state's geography from one district to another, versus

the Legislature's 7.1%. And the Governor's assembly map moves

11.3% of the state's geography from district to district,

against the Legislature's 16.5%. Finally, both the Governor and

the Legislature pair three incumbents——one pair of senators and two pairs of representatives for the Governor, and three pairs

of representatives for the Legislature.16 Ultimately, none of

these considerations outweigh the Governor's superior

performance on core retention.

15 See Johnson, 399 Wis. 2d 623, ¶83 n.9 (Hagedorn, J., concurring); id., ¶94 n.5 (Dallet, J., dissenting). 16 Some parties argue that considering incumbency is improper. As a standalone value, that may be true. But as an indicator of least change from existing districts, it could constitute a helpful data point.

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¶31 Two other least-change approaches offered by the

parties are worth further discussion. First, the Legislature

argues that the Governor's maps are not acceptable because they

change Milwaukee-area districts more than other submissions.

Looking to the degree of change region-by-region has merit, but

we see little benefit to its application here. Some of the

changes to the Governor's maps in the Milwaukee area are driven

by modifications arguably required by the VRA (more on this

below). This necessarily creates a cascading effect on nearby

districts. But even if the Legislature's Milwaukee-specific

complaints have merit, its conclusion does not. Although the

Legislature's proposed maps may move fewer voters in some

Milwaukee-area districts, the Governor's proposed maps move

fewer voters throughout the rest of the state, leaving 13

assembly districts outside Milwaukee entirely unchanged from

their prior configurations. The Legislature does not explain

why we should reject the Governor's map for its changes to

Milwaukee, while accepting the Legislature's proposal to change districts even more elsewhere.

¶32 Second, the Legislature argues that we should weigh as

a measure of least change the total number of counties and

municipalities split under each proposal. We fail to see why

this is a relevant least-change metric, however. If a

municipality was split under the maps adopted in 2011, reuniting

that municipality now——laudable though it may be——would produce

more change, not less. Particularized data about how many counties or municipalities remain unified or split may be a 18 No. 2021AP1450-OA

useful indicator of least change. But no party saw fit to

provide that data.17 What we did receive was raw counts of the

total county and municipal splits under each proposal, and that

information provides no insight into which map makes the least

change to existing district boundaries.18

¶33 Viewing various least change metrics as a whole, and

relying most heavily on the preeminent core retention metric, we

conclude the Governor's legislative maps produce the least

change from current law.

¶34 Next we consider whether the Governor's legislative

maps adhere to all relevant laws, starting with the Wisconsin

Constitution. As we explained in our prior opinion, the

Wisconsin Constitution requires that districts be compact,

17The Legislature provided an accounting of county and municipal splits in the proposed legislative maps, but no one submitted data documenting how many of those splits were present in the 2011 maps, or how many previously split municipalities were unified. The Legislature highlighted a handful of new municipal splits in the Governor's map, but those examples were limited to Waukesha County and Dane County. Without statewide data, these geographically-limited data points do not allow for a meaningful comparison of each proposal's overall performance on this metric. 18Similarly, population deviation is not an indicator of least change. Quite the opposite. Given the malapportionment here, maximizing population equality requires more change to current districts, not less. That is why, recognizing the tension between these two goals, our instructions to the parties were to redistrict according to population while minimizing change to existing districts.

19 No. 2021AP1450-OA

contiguous, and proportionally populated; they must respect

certain local political boundaries; and the districts must

"nest" three assembly districts within each senate district.

Johnson, 399 Wis. 2d 623, ¶¶28-38; Wis. Const. art. IV, §§ 3-5.

Our cases have long recognized these requirements operate as a

floor with space for mapmaker discretion. Zimmerman, 22

Wis. 2d at 566 ("[T]here are choices which can validly be made

within constitutional limits.").

¶35 Therefore, in analyzing compliance with the Wisconsin

Constitution, we look to whether the maps meet constitutional

standards, not whether they perform comparatively better or

worse on these metrics than other maps we received. We do not,

for example, scrutinize proposed maps to determine which are

more compact or which contain the smallest population

deviations. Our concern is simply whether districts are

sufficiently compact and sufficiently equal in population to

comply with the constitution. Proposed maps are either lawful

or they are not; no constitutional map is more constitutional than another. For our purposes, so long as a map complies with

constitutional requirements, better performance on these metrics

becomes commendable, but not constitutionally required. In

other words, they become policy choices——maybe good ones, but

policy choices nonetheless. And we have already stated our aim

to avoid deciding between competing policies. Johnson, 399

Wis. 2d 623, ¶3.

¶36 The Governor's proposed maps fall comfortably within the relevant constitutional requirements as laid out in our 20 No. 2021AP1450-OA

cases. The districts are contiguous and properly nested. See

Wis. Const. art. IV, §§ 4-5. And with respect to the other

requirements, the Governor's maps are consistent with historical

practice and court-sanctioned requirements for compactness,

respect for local boundaries,19 and population equality.

Regarding population equality in particular, the 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.20 See Wis.

Stat. § 4.001(1) (1971-72) (noting that under the 1972 maps "no

district deviates from the state-wide average for districts of

its type by more than one per cent" (for an absolute population

19 As explained in our prior opinion, the geographic limitations in the Wisconsin Constitution can no longer be fully enforced given the United States Supreme Court's directives on population equality. Johnson, 399 Wis. 2d 623, ¶35. 20 The Legislature's expert in this case agreed, explaining that the "conventional maximum[]" for population deviation is "+/- 5.0%," for an absolute deviation of 10%. The Governor's maps are far below this.

If the Wisconsin Constitution requires better performance than this on population deviation, we have never said so. Nor have we understood State ex rel. Attorney General v. Cunningham, 81 Wis. 440, 51 N.W. 724 (1892), and State ex rel. Lamb v. Cunningham, 83 Wis. 90, 53 N.W. 35 (1892), to afford mapmakers no leeway on population deviation. To the contrary, in State ex rel. Bowman v. Dammann, we declined to strike down maps despite our conclusion that "fairer results with respect to equality of representation" could have been accomplished. 209 Wis. 21, 30, 243 N.W. 481 (1932). We explained that only a "wide and bold departure" from population equality was beyond the mapmaker's discretion. Id. Were it otherwise, every map submitted would violate the constitution, since better performance on population deviation is certainly possible.

21 No. 2021AP1450-OA

deviation of 2%)); State ex rel. Reynolds v. Zimmerman, 23

Wis. 2d 606, 618-25, 128 N.W.2d 16 (1964) (adopting legislative

districts after legislative impasse with substantially larger

population deviations than those proposed here). They are also

well within the population equality requirements of the Equal

Protection Clause, which are more relaxed for state legislative

districts than for congressional districts.21 Harris v. Az.

Indep. Redistricting Comm'n, 578 U.S. 253, 259 (2016) ("[W]e

have refused to require States to justify deviations of 9.9% and

8%." (citations omitted)); Wis. St. AFL-CIO v. Elections Bd.,

543 F. Supp. 630, 634 (E.D. Wis. 1982) ("We believe that a

constitutionally acceptable plan . . . should, if possible, be

kept below 2%.").

¶37 We next examine whether the Governor's proposed maps

comply with the Equal Protection Clause's limits on race-based

districting and the VRA.

¶38 Under the Equal Protection Clause, "strict scrutiny

applies when race is the predominate 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. 899, 907 (1996)

(cleaned up). If racial considerations predominate in a map's

configuration, the state must "prove that its race-based sorting

In the last decennial redistricting cycle, dozens of 21

states enacted legislative maps with population deviations exceeding those in the Governor's maps——most by a wide margin. https://www.ncsl.org/research/redistricting/2010-ncsl- redistricting-deviation-table.aspx

22 No. 2021AP1450-OA

of voters serves a 'compelling interest' and is 'narrowly

tailored' to that end." Cooper v. Harris, 137 S. Ct. 1455, 1464

(2017) (quoting another source). The Supreme Court "has long

assumed that one compelling interest is complying with operative

provisions of the Voting Rights Act." Id.

¶39 "Section 2 [of the VRA] prohibits any 'standard,

practice, or procedure' that 'results in a denial or abridgement

of the right . . . to vote on account of race.'" Id. (quoting

52 U.S.C. § 10301(a)). The Supreme Court has "construed that

ban to extend to vote dilution——brought about, most relevantly

here, by the dispersal of a group's members into districts in

which they constitute an ineffective minority of voters." Id.

(cleaned up). This means the VRA, when triggered, may require

the race-conscious drawing of majority-minority districts. Id.

at 1470.

¶40 Our VRA inquiry comes in an unusual procedural

posture. Often cases under the VRA present as a challenge to

particular districts in legislatively drawn maps. But our task is to produce districts in the first instance without the

benefit of a trial and a fully-developed factual record

regarding the performance of specific districts. Sitting in

this posture, we follow the instructions provided by the Supreme

Court in Cooper:

When a State invokes the VRA to justify race-based districting, it must show (to meet the "narrow tailoring" requirement) that it had "a strong basis in evidence" for concluding that the statute required its action. Or said otherwise, the State must establish that it had "good reasons" to think that it would

23 No. 2021AP1450-OA

transgress the Act if it did not draw race-based district lines. That "strong basis" (or "good reasons") standard gives States "breathing room" to adopt reasonable compliance measures that may prove, in perfect hindsight, not to have been needed. Id. at 1464 (citations omitted). Under this precedent, a

mapmaker may draw districts with racial considerations in mind

provided "a strong basis in evidence," or "good reasons,"

suggest the VRA requires the mapmaker to do so.

¶41 A typical § 2 challenge is analyzed under a two-step

framework, beginning first with the so-called Gingles22 preconditions, then proceeding to whether minority voting power

is diluted under the totality of the circumstances. See

Rodriguez v. Bexar County, 385 F.3d 853, 859 (5th Cir. 2004).

Here, the Governor argues——as do several other parties——that

seven majority-Black assembly districts are required by the

VRA.23 Applying Cooper, we analyze whether a strong basis in

evidence suggests the Gingles preconditions are satisfied, and

if so, whether there are good reasons to think minority voting

power would be diluted under the totality of the circumstances

with fewer majority-Black districts. We see our inquiry as

limited to determining whether the Governor's proposal is within

the "leeway" states have "to take race-based actions reasonably

22 Thornburg v. Gingles, 478 U.S. 30, 50-51 (1986).

No one suggests the Governor's senate map violates either 23

the Equal Protection Clause or the VRA.

24 No. 2021AP1450-OA

judged necessary under a proper interpretation of the VRA."24

Cooper, 137 S. Ct. at 1472.

¶42 Beginning with step one, we first determine whether

there are "good reasons" to think the three Gingles

preconditions are met for the Black voting age population in the

Milwaukee area. In Cooper, the Court explained the

preconditions as follows:

First, a minority group must be sufficiently large and geographically compact to constitute a majority in some reasonably configured legislative district. Second, the minority group must be politically cohesive. And third, a district's white majority must vote sufficiently as a bloc to usually defeat the minority's preferred candidate. . . . If a State has good reason to think that all the Gingles preconditions are met, then so too it has good reason to believe that § 2 requires drawing a majority- minority district. But if not, then not. Id. at 1470 (cleaned up).

¶43 First, it is undisputed that the Black voting age

population in the Milwaukee area is "sufficiently large and

geographically compact" to form a majority in seven "reasonably configured legislative district[s]."25 Id. (quoting another

24 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. 25 Several parties, including the Governor, calculate Black voting age population by including "multi-race subcategories" in addition to "non-Hispanic Black" and "non-Hispanic (Black + 25 No. 2021AP1450-OA

source). Six such districts were created by the 2011 maps, and

the parties' submissions demonstrate that it is now possible to

draw a seventh sufficiently large and compact majority-Black

district.

¶44 Second, it is also undisputed that Black voters in the

Milwaukee area are politically cohesive. Experts from multiple

parties analyzed voting trends and concluded political cohesion

existed; no party disagreed.

¶45 Finally, turning to the third Gingles precondition,

the parties offered a strong evidentiary basis to believe white

voters in the Milwaukee area vote "sufficiently as a bloc to

usually defeat the minority's preferred candidate." Id.

(quotation marks omitted). Experts from multiple parties argued

this requirement was satisfied by looking at various election

contests, with the most comprehensive expert analysis

calculating that white voters in the Milwaukee area defeat the

preferred candidate of Black voters 57.14% of the time when

relevant elections are analyzed.26 We received little in the way

White)" categories. The Legislature excludes "multi-race subcategories" from its calculations but raises no objection to the inclusion of those categories. See Georgia v. Ashcroft, 539 U.S. 461, 473 n.1 (2003) ("[W]e believe it is proper to look at all individuals who identify themselves as black."), superseded by statute on other grounds, Ala. Legis. Black Caucus v. Alabama, 575 U.S. 254, 276-77 (2015).

BLOC's expert "analyzed eight elections between Black and 26

white candidates in nonpartisan or Democratic primaries and Spring generals in jurisdictions that cover either Milwaukee County, Milwaukee City, or both." In a subsequent report, the expert explained that he omitted the 2018 lieutenant governor primary from his analysis because "it [did] not simulate an 26 No. 2021AP1450-OA

of alternative data or analysis to counter this. To the

contrary, throughout briefing, all parties appeared to assume

the VRA requires at least some majority-Black districts in the

Milwaukee area. This can only be true if racially polarized

voting that usually defeats the minority's preferred candidate

exists. It was not until oral argument that anyone meaningfully

contended the third Gingles precondition was not met. To the

extent it was suggested in the substantial briefing we received,

it was virtually unsupported by expert analysis or argument.27

It is telling that no party saw fit to develop an argument

supported with data suggesting the VRA preconditions are not

satisfied with respect to the Black voting age population in and

around Milwaukee. We further observe that the federal court

drawing maps in 1992 assumed racially polarized voting in

Milwaukee and drew majority-Black districts to comply with the

VRA. Prosser v. Elections Bd., 793 F. Supp. 859, 868-71 (W.D.

Wis. 1992). No court has concluded otherwise since then. Based

on the data we were provided, historical practice, and the

election in which white bloc voting might defeat the choice of Black voters." The Legislature's expert critiqued the omission, and noted that supplementing BLOC's election data with it could alter the analysis. The Legislature's expert did not argue that any other additional elections besides the 2018 lieutenant governor primary should have been included in BLOC's analysis.

Before oral argument, the strongest suggestion that the 27

Gingles preconditions might not be satisfied was a comment in one of the Legislature's expert reports suggesting "serious doubts about whether the Gingles threshold standard is currently met in Milwaukee County." But an alternative analysis was not conducted, nor did the Legislature's briefing advance or develop this in any meaningful way.

27 No. 2021AP1450-OA

absence of any sufficiently developed counterargument, we

conclude there are good reasons to think all three Gingles

preconditions are satisfied.

¶46 Moving to the second step, § 2 of the VRA requires

consideration of the totality of the circumstances to determine

whether members of a racial group "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). The Supreme Court has pointed to various

factors that might be relevant to this determination, including

those listed in a Senate Report from the 1982 amendments to the

VRA, and most pertinently here, "whether the number of districts

in which the minority group forms an effective majority is

roughly proportional to its share of the population in the

relevant area."28 League of United Latin Am. Citizens v. Perry,

28 The Senate Report factors include:

the history of voting-related discrimination in the State or political subdivision; the extent to which voting in the elections of the State or political subdivision is racially polarized; the extent to which the State or political subdivision has used voting practices or procedures that tend to enhance the opportunity for discrimination against the minority group . . .; the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; the use of overt or subtle racial appeals in political campaigns; and the extent to which members of the minority group have been elected to public office in the jurisdiction. The Report notes also that evidence demonstrating that elected officials are unresponsive to the particularized needs of the members of the minority group and that the 28 No. 2021AP1450-OA

548 U.S. 399, 426 (2006). In Johnson v. De Grandy, the Court

explained that proportionality is highly relevant, but not the

exclusive measure of minority voting strength. 512 U.S. 997,

1020-21 (1994). The Court added that § 2 does not require a

mapmaker to maximize minority representation. Id. at 1017. In

all of this, we keep in mind that "States retain broad

discretion in drawing districts to comply with the mandate of

§ 2." Shaw, 517 U.S. at 917 n.9.

¶47 Here, we cannot say for certain on this record that

seven majority-Black assembly districts are required by the VRA.

But based on our assessment of the totality of the circumstances

and given the discretion afforded states implementing the Act,

we conclude the Governor's configuration is permissible.

¶48 The 2011 maps enacted into law created six majority-

Black districts in the Milwaukee area. Over the last decade,

policy underlying the State's or the political subdivision's use of the contested practice or structure is tenuous may have probative value.

League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 426 (2006) (quoting Gingles, 478 U.S. at 44-45).

Like other courts in this posture, we find these factors less helpful in the context of this case. In Prosser, for example, the federal court that provided new maps for Wisconsin in 1992 did not even mention the Senate Report factors, focusing instead other relevant considerations. See Prosser, 793 F. Supp. at 869-71. Similarly, when the U.S. Supreme Court has faced VRA challenges regarding the number of majority-minority districts drawn, it has focused much of its attention on considerations not mentioned in the Senate Report, such as proportionality. See Johnson v. De Grandy, 512 U.S. 997, 1017- 21 (1994); Perry, 548 U.S. at 436-42.

29 No. 2021AP1450-OA

the Black population in Wisconsin grew by 4.8% statewide, while

the white population fell by 3.4%. Based on the current census,

the Black voting age population statewide is between 6.1% and

6.5%, although the precise number is subject to some dispute.

Proportionality would therefore suggest somewhere between six

and seven majority-Black assembly districts are appropriate.

Looking a bit deeper, a significant proportion of Wisconsin's

Black population lives in Milwaukee County where the subject

districts are principally located. And there, the Black voting

age population increased 5.5%, while the white voting age

population decreased 9.5%. The baseline of six districts ten

years ago, combined with population trends since then and

statewide population numbers now, suggest a seventh majority-

Black district may be required.

¶49 In addition, we have some concern that a six-district

configuration could prove problematic under the VRA. The

Legislature, for example, submitted a configuration with five

majority-Black districts, and a sixth just under a majority. One of its proposed districts has a Black voting age population

of 73.28%, a level some courts have found to be unlawful

"packing" under the VRA. Ketchum v. Byrne, 740 F.2d 1398, 1418

(7th Cir. 1984). Packing occurs when a mapmaker draws district

lines that pack minority voters "into one or a small number of

districts to minimize their influence in the districts next

door." De Grandy, 512 U.S. at 1007. The risk of packing Black

voters under a six-district configuration further suggests

30 No. 2021AP1450-OA

drawing seven majority-Black districts is appropriate to avoid

minority vote dilution.

¶50 Viewing the totality of the circumstances, we see good

reasons to conclude a seventh majority-Black assembly district

may be required. To be clear, the VRA does not require drawing

maps to maximize the number of majority-minority districts, and

we do not seek to do so here. See De Grandy, 512 U.S. at 1016-

17. Rather, on this record, we conclude selecting a map with

seven districts is within the leeway states have to take

"actions reasonably judged necessary" to prevent vote dilution

under the VRA. Cooper, 137 S. Ct. at 1472.

¶51 Based on the foregoing, we conclude the Governor's

legislative maps comply with all relevant legal requirements.

Because they are also the maps that produce the least change

from the previously enacted maps, we adopt them.

IV. CONCLUSION

¶52 To remedy the unconstitutional malapportionment of the 2011 congressional and state legislative maps, we adopt the

Governor's proposed congressional and state legislative maps.

Beginning with the August 2022 primary elections, the Wisconsin

Elections Commission is enjoined from conducting elections under

the 2011 maps and is ordered to implement the congressional and

legislative maps submitted by Governor Evers for all upcoming

elections. This order shall remain in effect until new maps are

enacted into law or a court otherwise directs. By the Court.——Relief granted. 31 No. 2021AP1450-OA.awb

¶53 ANN WALSH BRADLEY, J. (concurring). I join the

majority opinion, which selects the Governor's congressional and

state legislative maps, not because I approve of the "least

change" approach. I do not.

¶54 Having previously voiced my dissent to the adoption of

that approach, a majority of the court in a prior order

nevertheless embraced "least change" as the framework that would

govern the proceedings in this case. Circumscribed by that

decision and the parties' reliance upon it when crafting their

submissions, I join today's majority opinion because the

Governor's maps adhere most closely to the court's earlier

directive. Accordingly, I respectfully concur.

I

¶55 This case came to us as an original action petition

filed before the legislature and Governor had even acted on any

redistricting legislation. I joined the dissent from the order

granting the petition due to the myriad "reasons for preferring

a federal forum" and because 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) (Dallet, J., dissenting).

¶56 The court then solicited briefing from the parties on

several topics, ranging from procedure to substance to timing.

Specifically, the court sought the parties' input on how it

should conduct these proceedings, what criteria it should

consider, and when final maps should be in place.

1 No. 2021AP1450-OA.awb

¶57 After redistricting legislation was passed by the

legislature and vetoed by the Governor, thus failing the

political process, a majority of the court advised that it would

apply the "least change" approach to reapportion Wisconsin's

congressional and state legislative districts in light of the

2020 census. That is, the existing maps would serve as a

template and this court would implement "only those remedies

necessary to resolve constitutional or statutory deficiencies."

Johnson v. Wis. Elections Comm'n, 2021 WI 87, ¶72, 399 Wis. 2d

623, 967 N.W.2d 469; see also id., ¶85 (Hagedorn, J.,

concurring). I again joined the dissent from this decision

because it had "potentially devastating consequences for

representative government in Wisconsin." Id., ¶88 (Dallet, J.,

dissenting). We then received initial map submissions followed

by additional rounds of briefing, culminating in over five hours

of oral argument.

II

¶58 The shortcomings of "least change" were on display throughout these proceedings. For example, "least change," as

set forth in the court's prior order, is unmoored from any legal

requirement for redistricting. The parties struggled with

reconciling it with the United States Constitution, Wisconsin

Constitution, and Voting Rights Act.

¶59 Further, beyond core retention, it was unclear if some

metrics would carry more weight than others. Throughout

briefing and oral argument, the "least change" approach did not and could not offer an explanation for the tradeoffs and

2 No. 2021AP1450-OA.awb

discretionary decisions that are intrinsic to map-drawing. If

this process has shown us anything, it is that the court should

depart from the "least change" approach if and when

redistricting arrives before it in the decades to come.

¶60 Although some advance that "least change" is an

apolitical approach, this court recognized that redistricting is

"inherently political" when it previously (and wisely) refrained

from jumping into the fray. Jensen v. Wis. Elections Bd., 2002

WI 13, ¶10, 249 Wis. 2d 706, 639 N.W.2d 537. It dictates where

candidates can run for office and for whom voters can cast their

vote. The process affords the chance to "restore the core

principle of republican government, namely, that voters should

choose their representatives, not the other way around." Ariz.

State Legislature v. Ariz. Indep. Redistricting Comm'n, 576 U.S.

787, 824 (2015) (internal citation omitted).

¶61 The people of Wisconsin deserve both a fair process

and fair maps. We have cautioned that "[j]udges should not

select a plan that seeks partisan advantage." Jensen, 249 Wis. 2d 706, ¶12 (quoting Prosser v. Elections Bd., 793 F. Supp. 859,

867 (W.D. Wis. 1992)). Here, the "least change" approach

necessarily enshrines the partisan advantage adopted by the

political branches ten years ago. Its application undermines,

rather than fulfills, the promise of a truly representative

government.

¶62 That being said, I am bound by the court's earlier

determination in this case. Although I disapprove of the "least

3 No. 2021AP1450-OA.awb

change" approach, I am limited by that prior determination and

obligated to apply it here.

¶63 Indeed, a majority of the court previously placed

limitations on the parties' submissions by setting forth general

criteria to be employed. The parties relied on those

limitations when preparing their maps and arguments. Because

they were directed to use a "least change" approach, the parties

did not sufficiently argue any other standard for distinguishing

between the submitted maps. Furthermore, the submitted maps may

have been far different had the parties known this court would

entertain criteria other than "least change" as preeminent.

Thus, as the majority opinion well explains, the Governor's maps

adhere most closely to the court's prior order.

¶64 I therefore join the majority opinion in its entirety

and respectfully concur.

¶65 I am authorized to state that Justices REBECCA FRANK

DALLET and JILL J. KAROFSKY join this concurrence.

4 No. 2021AP1450-OA.akz

¶66 ANNETTE KINGSLAND ZIEGLER, C.J. (dissenting). The

majority opinion demonstrates a complete lack of regard for the

Wisconsin Constitution and the Equal Protection Clause. Short

on legal analysis and long on ipse dixit, the majority opinion

amounts to nothing more than an imposition of judicial will.

The majority deems the language of the Wisconsin and United

States Constitutions to be mere policy. I dissent because here,

the majority's decision to select Governor Tony Evers' maps is

an exercise of judicial activism, untethered to evidence,

precedent, the Wisconsin Constitution, and basic principles of

equal protection. Even those in the majority recognize that

that there exists a "struggle[]" to reconcile the least change

approach they adopt with the United States Constitution,

Wisconsin Constitution, and the Voting Rights Act ("VRA").1

Concurrence, ¶58.

1 Three of the four justices in the majority would have preferred the federal courts to have drawn the maps for Wisconsin. See Johnson v. Wis. Elections Comm'n, No. 2021AP1450-OA, unpublished order (granting petition for leave to commence original action), at 15-18 (Wis. Sep. 22, 2021) (Dallet, J., dissenting) (explaining the advantages of federal court litigation and concluding that the court should not have accepted this original action). They clearly disagree with the least change approach, and the concurrence is far from a wholesale endorsement of the analysis in the majority opinion, which adopts its own version of least change. See concurrence, ¶¶53-64. Those three justices assert there was a "struggle[]" the parties were forced to confront when attempting to reconcile least change with the United States Constitution, the Wisconsin Constitution, and the VRA. Id., ¶58. Yet the majority opinion neither recognizes nor resolves any "struggle[]" that exists between its version of least change and the law. This calls into question whether the majority opinion is really a lead opinion with only Justice Hagedorn fully adopting the reasoning therein. Id.

1 No. 2021AP1450-OA.akz

¶67 Lacking in substantive legal analysis, the majority is

imbued with personal preference. The majority disrespects the

VRA and instead cabins voters for purportedly "good reasons" in

districts based solely on race, which is nothing short of a

violation of the Equal Protection Clause. But to the majority,

the Equal Protection Clause is a mere box to check, a speedbump

on the path to dividing Wisconsin into racial categories. Not

one case cited by the majority supports its race-based

determination.2 Moreover, the majority implements a previously

unknown, judicial test: "core retention." Because the

majority's adoption of the Governor's maps is unconstitutional,

and conflicts with the record and well-established

jurisprudence, I must dissent. ¶68 For the reasons explained below, I conclude that the

court should have adopted the maps submitted by the Wisconsin

Legislature ("the Legislature") and Congressmen Glenn Grothman,

Mike Gallagher, Bryan Steil, Tom Tiffany, and Scott Fitzgerald

("the Congressmen"), or in the alternative, the maps submitted by the Citizen Mathematicians and Scientists ("CMS"). The court

could have also drawn its own maps or directed the parties to

submit new maps that had record support and complied with the

law. The maps submitted by the Governor are unconstitutional

and fatally flawed.

See Cooper v. Harris, 581 U.S. ___, 137 S. Ct. 1455 2

(2017); Shaw v. Hunt, 517 U.S. 899 (1996); League of United Latin Am. Citizens v. Perry, 548 U.S. 399 (2006) ("LULAC"); Johnson v. De Grandy, 512 U.S. 997 (1994). VRA caselaw, including these precedents, are discussed in greater detail in Section II.A, infra.

2 No. 2021AP1450-OA.akz

I. SUMMARY

A. No Support For Drawing Districts On The Basis Of Race.

¶69 Because the Governor has not demonstrated a VRA

violation, there can be no race-based remedy, let alone one

constructing a new district and changing six others in Milwaukee

to include exactly 51% black populations. It is undisputed that

the Legislature's maps and the maps submitted by CMS are the

only race-neutral maps submitted. Either performs better than

the Governor's maps under the constitution and the law.

Alternatively, we could design or draw our own maps, or combine

positive characteristics of several maps. Further, we could

have requested additional briefing to direct the parties, or the

Legislature or Governor specifically, to improve their maps and

provide greater record justification for their decisions. We

now are the map drawers, we are the government actors, and we

are the ones that must satisfy strict scrutiny by using racial

classifications. It is our duty to be responsible to the law.

¶70 The majority adopts the Governor's maps, which unambiguously divided districts in the Milwaukee area on the

basis of race alone. The only valid justification for doing

this is if a VRA violation were shown, requiring a race-based

remedy. Completely absent, however, is any demonstration of a

VRA violation. Without a violation, there can be no remedy

because to take race-based action would violate the Equal

Protection Clause. In other words, a VRA remedy is

constitutionally permissible only as required to remedy a VRA violation. Stated even differently, specific evidence must

3 No. 2021AP1450-OA.akz

demonstrate that white voters block a minority group's vote, and

due to a variety of local conditions the minority group does not

have the opportunity to effectively participate in democratic

elections, inside a district or area where a minority could be

made into an effective electoral majority. District-specific

evidence must demonstrate that the majority-minority group is

unable to elect the candidate of its choice in a specific

district. We have exactly zero evidence of any such thing

happening in these districts in Milwaukee. There is zero

evidence on the conditions and environment of local communities

warranting a race-based remedy. Yet, the majority incorrectly

surmises that there is "good reason" to nonetheless invent this

remedy.

¶71 The parties were free to engage in discovery, depose

experts, and gather the requisite information to advocate for

their positions. The Governor completely failed to evidence any

factual support for his race-based designs. The only party that

even attempted to provide the evidence sufficient to justify a race-based remedy, the Black Leaders Organizing for Communities

("BLOC"), agrees that when examining the existing record, the

Governor's maps do not comply with the VRA, and are thus

unconstitutional.

¶72 Nonetheless, the majority places its imprimatur on the

Governor's maps, which carve seven Assembly districts with

populations that are curiously at almost exactly 51% African-

American populations. His maps reduce, not increase, the minority percentage in most majority-minority districts. His

maps add what was referred to in VRA parlance as "white filler,"3

to these districts. The majority cites no support for its VRA

remedy that adds white voters and reduces black voter

percentage.

¶73 The majority fails to follow VRA jurisprudence and

instead the majority invents a new, heretofore unknown standard,

evolved from its own creation of the law and relying heavily on

alleged party concessions, not evidence. So says the majority,

if there are "good reasons" to create race-based districts, the

court is endowed with the authority to do as it wishes,

regardless of the complete lack of evidence to support any VRA

violation. Tellingly, the majority engages in no substantive

strict scrutiny analysis of the racial assignment of Milwaukee

voters, even though such scrutiny is required as a part of the

legal analysis.

B. Least Change Is Not Core Retention.

¶74 In our November 30, 2021 opinion in this case, we

concluded that our "judicial remedy should reflect the least change necessary for the maps to comport with relevant legal

requirements." Johnson v. Wis. Elections Comm'n, 2021 WI 87,

¶¶24-63, 72, 399 Wis. 2d 623, 967 N.W.2d 469. Nowhere in that

opinion did we use the phrase "core retention". Not only were

the parties not advised that core retention would be the

decisive factor in the court's decision, but the parties were

explicitly "invited" by the concurrence to consider factors

3Counsel from CMS at oral argument explained how map drawers construct majority-minority districts when considering race.

5 No. 2021AP1450-OA.akz

wholly unrelated to least change.4 Johnson, 399 Wis. 2d 623,

¶¶83, 87 (Hagedorn, J., concurring) (noting that "traditional

redistricting criteria" would assist in the selection of maps).

The concurrence, which received no votes in support, was

perfectly free to include core retention in its analysis. It

did not, and for a very simple reason: no one, neither among

the parties nor the court, understood core retention was the

sole factor for determining least change and further, for

selecting maps. The core retention analysis in the majority is

an invention, made after-the-fact to justify a policy

preference.

¶75 The law instructs us to consider more than one number:

population deviation and local government divisions,

fundamentally underlie the validity of any core retention

number. Even so, the Governor's core retention numbers are

worse than the Legislature's in the Wisconsin Senate. While the

Governor's maps move fewer individuals overall, those same maps

have inordinately high population deviations among districts, far greater than the deviations in the Legislature's maps. The

Governor's maps also divide an extraordinary number of local

communities, orders of magnitude more than the Legislature's

maps. We are constitutionally required to minimize population

deviations and local government splits. Given this significant

constitutional interest, we should adopt either the

Sitting as a court of seven, the concurrence had no 4

authority to alone direct the court's business. For further explanation on the November 30 concurrence, see footnote 19, infra.

6 No. 2021AP1450-OA.akz

Legislature's or CMS's maps, which score the best out of all the

submitted maps, or the court should create a map out of the best

of each.

¶76 We were tasked with selecting legislative and

congressional maps that best conform with the law while also

making as little change as possible to existing district lines.

We accepted another round of briefing and expert reports, and we

held over five hours of oral argument. Despite this extensive

opportunity to prepare, Governor Tony Evers presented maps that

had marked population deviation and divided dozens and dozens of

local municipalities.

C. The Governor's Congressional Maps Are Unconstitutional.

¶77 Knowing that the Legislature and the Congressmen

intended to submit legislative and congressional maps that were

already passed by the Wisconsin Legislature in 2021, the

Governor simply designed maps that met his own partisan ends,

which appear to be based solely on core retention. In so doing,

the Governor substantially increased population deviation and local government splits and engaged in an unsubstantiated racial

gerrymander. In other words, the Governor inflated the core

retention number at the expense of the Wisconsin public.

Inexplicably, the majority now adopts the Governor's maps in

full, resting entirely on "core retention" as determinative.

¶78 The court refused to allow the Congressmen to submit

amended maps, conflicting with our duty to consider all

available information and the fact that other parties, including the Governor, were permitted to amend their maps. Nonetheless,

7 No. 2021AP1450-OA.akz

the Governor has a greater population deviation, and under well-

established constitutional law, there is no de minimus deviation

for congressional districts. The Governor explained that his

deviation was caused by his lack of understanding that a lower

deviation was required. But carelessness is not a valid

justification for excessive deviation. The Governor's (and now

Wisconsin's) congressional maps are unconstitutional. The court

should have adopted the Congressmen's map, or in the alternative

CMS's map, which includes the lowest deviation available, and

are both least change.

II. STATE LEGISLATIVE MAPS

¶79 In our November 30 opinion, we indicated that any map

would need to comply with federal and state legal requirements

and be the least change possible to existing legislative

districts. Six parties submitted maps for the Wisconsin Senate

and Assembly: the Legislature, CMS, the Hunter Intervenor-

Petitioners ("Hunter"), Senator Janet Bewley, the Governor, and

BLOC. The maps submitted by the Legislature and CMS achieve minimal changes to existing district lines while best complying

with the demands of the Wisconsin Constitution and federal law.

For the most part, the parties argued for the adoption of either

the Legislature's or the Governor's maps.

A. The Equal Protection Clause And The VRA

¶80 The maps adopted by the majority are nothing short of

a racial gerrymander, and the Governor failed to present any

material evidence warranting this substantial departure from the principles of equal protection.

8 No. 2021AP1450-OA.akz

¶81 Fatally, the majority provides at most a cursory

analysis on the VRA and the Equal Protection Clause, mustering a

mere five pages to apply an incredibly important and complex

area of law. See Ipse Dixit, Oxford English Dictionary (2022)

("An unproved assertion resting on the bare authority of some

speaker."). Just as BLOC warned, the majority's VRA analysis is

woefully inadequate at best. Its use of an aggressive race-

based remedy for no showing of a VRA violation, simply because

it can, is untenable and legal error.

¶82 The majority's use of race to draw seven bare-

majority-minority districts undermines that which the VRA was

properly meant to correct. It utilizes racial categories to

move minority voters into newly created districts, with newly

defined constituencies, which could not have been reasonably

created using traditional race-neutral redistricting methods.

Notably, the majority cites broad quotes taken from United

States Supreme Court precedent, but it conspicuously omits any

detailed description of the facts and outcomes of those cases, i.e., what those cases actually stand for.5 No real attempt at

grappling with the vast nuances of VRA caselaw, from lower

courts to the United States Supreme Court, was given. By

5 For instance, the majority cites Cooper, 137 S. Ct. 1455, Shaw v. Hunt, 517 U.S. 899, LULAC, 548 U.S. 399, De Grandy, 512 U.S. 997. In Cooper and Shaw, the Court struck down race-based district maps under the Equal Protection Clause due to the lack of support for VRA compliance. In LULAC, the Court found that maps drawn in Texas lacked support under the VRA, and in De Grandy, the Court held that the VRA did not apply at all, where a plaintiff sought maximization of majority-minority districts. A more complete analysis on the VRA is provided below.

9 No. 2021AP1450-OA.akz

adopting the Governor's maps, the majority is now bringing to

the fore the incendiary and constitutionally suspect category of

race. The majority has a legal responsibility to more fully and

thoroughly explain itself. Below, I attempt to fill the void in

substance the majority leaves for future courts and the public.

¶83 What's next? Perhaps a federal court challenge before

the United States Supreme Court.6 Although braving a face of

finality, the majority opinion practically begs that the adopted

maps be subject to further litigation.

¶84 I first discuss the legal background of the Equal

Protection Clause, and then turn to a discussion on the VRA and

its application to this case.

1. The Equal Protection Clause

6 The parties to this lawsuit were given the opportunity to present evidence, advance support for their favored maps, and critique and oppose the maps ultimately adopted. The next step for the case is appeal to the United States Supreme Court. See Coleman v. Thompson, 501 U.S. 722, 730 (1991) (explaining that the Supreme Court "reviews a state court decision on direct review pursuant to 28 U.S.C. § 1257"). The parties are precluded from relitigating this case in a separate federal lawsuit. Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984) (explaining that "a federal court must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was rendered"); Wickenhauser v. Lehtinen, 2007 WI 82, ¶22, 302 Wis. 2d 41, 734 N.W.2d 855 (stating the elements of claim preclusion). "Congress had empowered only [the United States Supreme] Court to exercise appellate authority to reverse or modify a state-court judgment." Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005). Further, under the "Rooker-Feldman" doctrine, "cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments" fall outside federal district courts' subject matter jurisdiction. Lance v. Dennis, 546 U.S. 459, 464 (2006).

10 No. 2021AP1450-OA.akz

¶85 Recognizing the deeply American value that individuals

should be equally protected under the law, the United States

Supreme Court has repeatedly held that government cannot sort or

distinguish individuals on the basis of race without

extraordinary justifications. "Distinctions 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). The Court has recognized that government-sanctioned

distinctions "threaten to stigmatize individuals by reason of

their membership in a racial group and to incite racial

hostility." Shaw v. Reno, 509 U.S. 630, 643 (1993). "Because

racial characteristics so seldom provide a relevant basis for

disparate treatment, the Equal Protection Clause demands that

racial classifications be subjected to the most rigid scrutiny."

Fisher, 570 U.S. at 309-10 (cleaned up). Classifications based

on race "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 Community Schools v. Seattle Sch. Dist. No. 1, 551

U.S. 701, 720 (2007) (quotations removed).

¶86 The Supreme Court has understood the pernicious nature

of dividing up individuals into legislative districts based on

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race, and has applied the Equal Protection Clause to

redistricting. The Court is exacting in its scrutiny:

The idea is a simple one: At the heart of the Constitution's guarantee of equal protection lies the simple command that the Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class. When the State assigns voters on the basis of race, it engages in the offensive and demeaning assumption that voters of a particular race, because of their race, think alike, share the same political interests, and will prefer the same candidates at the polls. Race-based assignments 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. They also cause society serious harm. . . .

Racial classifications with respect to voting carry particular dangers. Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it 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 Amendments embody, and to which the Nation continues to aspire. Miller v. Johnson, 515 U.S. 900, 911-12 (1995) (cleaned up).

¶87 With this is mind, it is striking how explicitly the

Governor——and the majority——divide 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 oral argument and in briefing, it was clear that race imbued the

decisions of the Governor in drawing districts. Explaining his 12 No. 2021AP1450-OA.akz

district boundaries, he stated the intent was "to produce seven

majority Black districts in the Assembly." There is simply no

way to deny that the Governor created "[d]istinctions between

citizens solely because of their ancestry," and if his maps are

adopted, they must overcome strict scrutiny. Fisher, 570 U.S.

at 309; Grutter, 539 U.S. at 326.

¶88 On the other hand, it is undisputed that the

Legislature drew race-neutral maps. The Legislature sought to

retain districts that have high percentages of black individuals

to as close to the same as they were drawn in 2011, i.e., "least

change." See Johnson, 399 Wis. 2d 623, ¶72. The core retention

statistics from high BVAP districts differ dramatically between

the Legislature and the Governor. For the Legislature, the core

retention numbers for those districts were 87.7%, 85.4%, 88.1%,

100.0%, 94.3%, and 86.4%. By contrast, high BVAP districts for

the Governor had core retention percentages of 85.8%, 56.1%,

58.7%, 91.3%, 58.5%, 75.9%, and 12.7%. It is clear from the

data that the Legislature emphasized as little disruption as possible for districts representing high percentages of African-

American citizens, as it did for all citizens, regardless of

race. By contrast, the Governor's driving motivation was race.

The Legislature confirmed at oral argument that the drawing of

its districts was driven by race-neutral constitutional criteria

and least change, not race.

¶89 Core retention numbers for high BVAP districts were

not available for CMS. However, the varying percentages of BVAP in the maps presented help satisfy any concern that their

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district choices were "motivated by a racial purpose or object."

Miller, 515 U.S. at 913. CMS has seven districts varying from

35.2% to 83.2% BVAP.7 The Legislature similarly has six

districts ranging from 45.8% to 71.5%. By comparison, the

Governor has seven districts with pinpoint accuracy of 50% to

51% BVAP. While the Governor has the hallmarks of an

unconstitutional racial gerrymander in violation of the Equal

Protection Clause, the Legislature and CMS do not.

2. The VRA

¶90 The Governor contends that his maps would survive

strict scrutiny because his seven districts are required under

§ 2 of the VRA. Through argument, it was made clear that the

Governor believed seven majority-minority districts with exactly

51% BVAP must be drawn because it is mathematically possible to

do so. That has never been the law. Fundamentally, drawing a

map based on race, to create another district because it can be

created, is a clear violation of equal protection. No VRA

violation has been demonstrated by district-specific evidence. Despite the opportunity to engage in discovery, the Governor

presents no evidence on Wisconsin election history at all, no

evidence on the unique and specific history and socio-economic

experiences of minorities in the districts they seek to

manufacture. At most, BLOC (not the Governor) submitted

7 At oral argument, CMS also noted the striking degree to which race infused the court's consideration and discussions, along with the Governor's and others' race-based proposals. Unlike the Governor, CMS affirmed that race should not and cannot be the motivating factor behind drawing districts.

14 No. 2021AP1450-OA.akz

argument (not evidence) about Milwaukee as a county. Absent the

requisite showing, no district can be reconfigured based upon

race without violating the constitutional prohibition against

race-based action. Because there is no such evidence, the

Governor's maps fail and do not withstand constitutional

scrutiny.

¶91 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. The majority does not

explain this but cites to BLOC's VRA record evidence to support

its choice of the Governor's map. See majority op., ¶45

(restating BLOC's number that African-American preferred

candidates are blocked "57.14%" of the time). Even BLOC offers

only broad assertions that are county specific, and a dearth of

district-specific race vote blocking. 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. ¶92 The United States 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.

Parents Involved in Community Schools, 551 U.S. at 720; Bush v.

Vera, 517 U.S. 952, 978 (1996) ("Strict scrutiny remains,

nonetheless, strict."). There must be a "strong basis in evidence" that the VRA requires the drawing of districts on race

15 No. 2021AP1450-OA.akz

to ameliorate harm and lack of access experienced by a minority

community. Miller, 515 U.S. at 922; accord Shaw v. Reno, 509

U.S. at 653 ("[R]acial bloc voting and minority-group political

cohesion [the requirements of a VRA redistricting violation]

never can be assumed, but specifically must be proved in each

case in order to establish that a redistricting plan dilutes

minority voting strength in violation of § 2."). "Strong" in

the context of evidence is defined as "convincing; hard to

refute, ignore, or deny." Strong, Oxford English Dictionary

(2022). This is not, as the majority appears to take it, a

minor procedural speedbump on the way toward racialized district

lines. See, e.g., Cooper v. Harris, 581 U.S. ___, 137

S. Ct. 1455, 1464 (2017) (holding that the State of North

Carolina lacked evidence to support race-based district

boundaries after examining in detail electoral history in the

districts at issue); Vera, 517 U.S. at 965-83 (examining in

detail the record justifying the district lines in Texas,

concluding that race motivated the district boundaries, and reasoning that the districts at issue were insufficiently

compact to justify application of the VRA); Miller, 515 U.S. at

920-27 (reviewing in the context of § 5 of the VRA that the

record of the case, the justifications underlying district lines

in Georgia, and communications between the state and federal

government, and concluding that race-based district lines were

not justified under the VRA); Shaw v. Hunt, 517 U.S. at 916

(concluding, even assuming the existence of "strong evidence" to support the use of race under the VRA, simply creating majority-

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minority districts where racially polarized voting occurs absent

a targeted remedy for the geographically compact voters harmed

fails to satisfy strict scrutiny).8

¶93 The operative language in § 2 of the VRA is that

election procedures and practices cannot, in the "totality of

the circumstances," create

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

8 The majority contends that a complete record to support racially motivated district lines can be produced in a lawsuit after the maps are enacted. Majority op., ¶41 n.24 (distinguishing a "VRA claim brought [] after the adoption of new districts" from the review provided by the majority, reliant upon a "limited record"). Under the majority's theory, VRA requirements apply only when a government is brought to court. However, state actors must consider whether there is a "strong basis" to support race-based distinctions prior to engaging in remedial action. See Shaw v. Hunt, 517 U.S. at 910 ("[T]he 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."); see, e.g., Cooper, 137 S. Ct. at 1469-72 (examining the motivation and support for applying a race-based remedy under the VRA at the time of redistricting); Miller v. Johnson, 515 U.S. at 920-27 (reviewing the justifications for a state's use of race in redistricting at the time of adoption of the maps); Bethune-Hill v. Vir. State Bd. of Elections, 580 U.S. ___, 137 S. Ct. 788, 801-02 (2017) (examining the evidence and justifications for a race-based distinctions at the time legislative districts were drawn). As a court, the majority should be considering the law when it selects its maps; the VRA is the law.

17 No. 2021AP1450-OA.akz

participate in the political process and to elect representatives of their choice.[9] 52 U.S.C. § 10301(b). The United States Supreme Court has

recognized that a violation of the statute is not dependent on

an "intent to discriminate against minority voters." Thornburg

v. Gingles, 478 U.S. 30, 44 (1986). Instead, courts must look

at effects to determine if the votes of a minority group have

been "diluted" to impair the ability of those minorities "to

elect representatives of their choice." 52 U.S.C. § 10301(b).

"[T]he 'essence' of a [VRA] § 2 vote dilution claim is that a

certain electoral law, practice, or structure causes an

inequality in the opportunities enjoyed by black and white

voters to elect their preferred representatives." Georgia v.

Ashcroft, 539 U.S. 461, 478 (2003).

¶94 Recognizing the broad remedial goals of § 2 of the VRA

and its more generalized application, untied to discriminatory

intent, the Supreme Court has held that the drawing of districts

could constitute an illegal impairment of minority voting rights

by permitting a white majority to override the minority's choice

in candidate. "[I]nteracting with social and historical

conditions," district lines that prevent a cohesive minority

from electing their preferred candidate "impairs the ability of

9The statute also states that "nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population." 52 U.S.C. § 10301(b). The United States Supreme Court has made clear that there is a difference between minority-preferred candidates and minority candidates. "[T]he ultimate right of § 2 is equality of opportunity, not a guarantee of electoral success for minority-preferred candidates of whatever race." De Grandy, 512 U.S. at 1014 n.11.

18 No. 2021AP1450-OA.akz

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

with other voters." Johnson v. De Grandy, 512 U.S. 997, 1007

(1994). If certain conditions are met, a map may require the

"drawing of majority-minority district[s]." Cooper, 137 S. Ct.

¶95 The Supreme Court has demanded that three specific

elements be met before it finds that the creation of additional

majority-minority districts are 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 votes

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) (cleaned

up) ("LULAC").

¶96 These three elements of the so-called "Gingles test"

are necessary prerequisites for the creation of majority-

minority districts. They do not necessarily prove that an election scheme fits the standard of "imped[ing] the ability of

minority voters to elect representatives of their choice" under

§ 2 of the VRA. Gingles, 478 U.S. at 48. To meet the standard,

there must be a proven record of discriminatory effects. Taken

from a 1982 report from the United States Senate, courts have

recognized as potentially significant:

the history of voting-related discrimination in the State or political subdivision; the extent to which voting in the elections of the State or political subdivision is racially polarized; the extent to which the State or political subdivision has used voting

19 No. 2021AP1450-OA.akz

practices or procedures that tend to enhance the opportunity for discrimination against the minority group . . . ; the extent to which minority group members bear the effects of past discrimination in areas such as education, employment, and health, which hinder their ability to participate effectively in the political process; the use of overt or subtle racial appeals in political campaigns; and the extent to which members of the minority group have been elected to public office in the jurisdiction. The Report notes also that evidence demonstrating that elected officials are unresponsive to the particularized needs of the members of the minority group and that the policy underlying the State's or the political subdivision's use of the contested practice or structure is tenuous may have probative value. LULAC, 548 U.S. at 426 (citing Gingles, 478 U.S. at 44-45).

¶97 None of the factors above are dispositive; however,

the three Gingles factors must be met before a court considers

whether the totality of the circumstances justifies a race-based

remedy. Courts consider the "totality of the circumstances" as

a second step to determine if the minority opportunities to

participate in the electoral process have been impeded. This is

an intensively fact-based analysis; it requires submission of

testimony and detailed expert reports on the state and

conditions of a localities' minority community, the extent they face discrimination, the extent past discrimination still

impairs their ability to participate, current election rules,

and how those rules impact minorities. De Grandy, 512 U.S. at

1011 ("[E]quality or inequality of opportunity were intended by

Congress to be judgments resting on comprehensive, not limited,

canvassing of relevant facts"); Gingles, 478 U.S. at 45 ("[T]he

question whether the political processes are 'equally open' depends upon a searching practical evaluation of the 'past and

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present reality,' and on a 'functional' view of the political

process.").

¶98 To show that a district map is in violation of the VRA

and requires the creation of additional majority-minority

districts, there must be thorough factual findings. The Supreme

Court has repeatedly refused to apply a VRA remedy without

detailed factual evidence demonstrating the existence of the

Gingles factors, even prior to engaging in the more fact-

intensive "totality of the circumstances," i.e., the

characteristics of the minority community and their voter

behavior. See, e.g., Cooper, 137 S. Ct. at 1471-72 (concluding

that a majority-minority district created for VRA compliance was

unconstitutional because past election data showed super-

majority vote percentages by the candidate preferred by African-

Americans and effective white-bloc voting, the third Gingles

factor, was not proven, despite the possibility that new white

voters were added who could change the voting results); Bartlett

v. Strickland, 556 U.S. 1, 19-20 (2009) (plurality) (concluding that § 2 of the VRA does not apply where the parties did not

prove a change in district lines would create a majority

African-American district, reasoning that the first Gingles

factor was not met); LULAC, 548 U.S. at 432 (holding that a

majority-Hispanic district was required but an existing map

creating a majority-Hispanic district failed to satisfy the VRA

because different Hispanics in different areas had "differences

in socio-economic status, education, employment, health, and other characteristics," and there was insufficient evidence of

21 No. 2021AP1450-OA.akz

"compactness" under the first Gingles factor); Gonzalez v. City

of Aurora, 535 F.3d 594, 600 (7th Cir. 2008) (concluding that no

evidence was provided that voting opportunities for Hispanics in

a municipality were impaired, the plaintiff did not

"build . . . a factual record," and no VRA claim lay despite

Hispanics being dramatically less represented as a portion of

their population); Clarke v. City of Cincinnati, 40 F.3d 807,

812-13 (6th Cir. 1994) (noting that the electoral 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).

¶99 Furthermore, well-established Supreme Court precedent

states that § 2 violations are determined by examining

individual districts and specific voting groups. Cooper, 137

S. Ct. at 1471-72, 1471 n.5 ("[G]eneralized conclusion[s]" of

state-wide racial polarization in voting "fails 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." (cleaned up)); LULAC, 548 U.S. at 432, 437 (explaining

that VRA analysis requires "an intensely local appraisal" of the

relevant district); Shaw v. Hunt, 517 U.S. at 917 ("For example,

if a geographically compact, cohesive minority population lives

in south-central to southeastern North Carolina, as the Justice Department's objection letter suggested, District 12 that spans

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the Piedmont Crescent would not address that § 2 violation.");

Abbott v. Perez, 585 U.S. ___, 138 S. Ct. 2305, 2333-34 (2018)

(noting, despite evidence of a "long history of discrimination"

in Texas, a "pattern of disadvantage" for minorities, and

racially polarized voting in the region, there was insufficient

evidence of "present local conditions" to support a VRA remedy);

United States v. City of Euclid, 580 F. Supp. 2d 584, 604-12

(N.D. Ohio 2008) (examining in detail the need for a race-based

VRA remedy by considering the conditions and experiences of

specific African-American communities in a town of 50,000);

Comm. for a Fair & Balanced Map v. Ill. State of Bd. of

Elections, 835 F. Supp. 2d 563, 583 (N.D. Ill. 2011) (noting

that "northern and southern enclaves" of a Hispanic district had

"a common heritage and share[d] common core value[s]").

¶100 The inquiry is emphatically not to create "the maximum

number of majority-minority districts," regardless of the on-

the-ground characteristics of the minority neighborhoods and

communities at issue. 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); Gonzalez,

535 F.3d at 598 ("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, 556 U.S. at 15

("Nothing in § 2 grants special protection to a minority group's

right to form political coalitions.").

¶101 Thus, from these legal principles a picture of narrow VRA compliance for this court emerges. Legislative boundaries

23 No. 2021AP1450-OA.akz

must be drawn to create effective majority-minority districts

only where proof is offered, and accepted by a court, that

existing districts or districts drawn using race-neutral

criteria would result in white voters, as a bloc, preventing

minorities from electing candidates that they support and that

represent them. In addition, evidence must be offered and

accepted that the minority needs representation from their

choice candidate due to depressed socio-economic statistics as a

result of current and historical discrimination, election

practices and procedures that encourage or facilitate racial

discrimination, and the lack of non-choice candidates to respond

to the "particularized needs of the members of the minority

group," among other factors. LULAC, 548 U.S. at 426, 440.

¶102 Further, there must be available the creation of

districts with majority-minority composition. Id. (stating the

first Gingles factor of "the racial group is sufficiently large

and geographically compact to constitute a majority in a single-

member district" (emphasis added)); Bartlett, 556 U.S. at 19 (holding that § 2 does not require the creation of below-

majority "opportunity districts," reasoning that "a party

asserting § 2 liability must show by a preponderance of the

evidence that the minority population in the potential election

district is greater than 50 percent."). As the United States

Supreme Court explained in Cooper, when voters outside the

minority group act as sufficient "crossover" to "help [the]

minority to elect its candidate of choice," "it is difficult to see how the majority-bloc-voting requirement could be met" under

24 No. 2021AP1450-OA.akz

Gingles. Cooper, 137 S. Ct. at 1471. If there is not

substantial proof that a majority-minority district can be

created, that minority voters are barred from effective

participation, or that minorities are blocked by white voters

from having representation, any consideration of race during

redistricting would violate the constitution. Id. at 1464-65.

Without the need to draw districts under the VRA, race-neutral

"traditional districting principles such as compactness,

contiguity, and respect for political subdivisions" must control

this court's decision. Shaw v. Reno, 509 U.S. at 647.

i. Gingles Factors and Bloc Voting

¶103 Despite the high demands of the VRA, coupled with the

need to meet VRA standards to justify the use of race to create

government policy under the Equal Protection Clause, it is

striking how insubstantial a record the Governor has provided to

support his racially driven maps. Courts have made it very

clear that substantial evidence must be produced of all three

Gingles factors to permit racial motivations in district boundaries. Cooper, 137 S. Ct. at 1471-72; Bartlett, 556 U.S.

at 19-20; LULAC, 548 U.S. at 425; Gonzalez, 535 F.3d at 600;

Clarke, 40 F.3d at 812-13. However, unlike the leading cases on

the VRA, only BLOC engages in any detailed analysis on electoral

history. See LULAC, 548 U.S. at 423-29 (describing in detail

the electoral history, by race, of an at issue congressional

district to find a VRA violation); Cooper, 137 S. Ct. at 1470-72

(explaining the electoral history of an area to determine that a

25 No. 2021AP1450-OA.akz

majority-minority district fell outside the VRA and was thus

unconstitutional).

¶104 The Governor presents, and the majority opinion

accepts, zero evidence of election history to support the

application of the Gingles factors to the current maps, the

Legislature's maps, or other race-neutral alternatives to

support his division of districts by race. Further, the

Governor presents no electoral history evidence to prove the

existence of the Gingles factors in any of the specific

districts he drew. Such evidence is also lacking to show the

Governor's maps comply with the VRA, as compared to BLOC's maps,

which also include seven black-majority districts. In a twist

of fate, this leaves open the possibility that VRA compliance is

not met for the Governor's maps, even if the VRA is triggered

and requires raced-based districts.

¶105 The only thing the Governor does do that approaches

objective or scientific argument is cite population percentages

of African-Americans in Wisconsin. The Governor thereby concludes that seven districts of a bare 51% BVAP can be drawn,

and must be drawn. This notwithstanding that the United States

Supreme Court has explicitly rejected the same logic on numerous

occasions. De Grandy, 512 U.S. at 1016 (rejecting a claim that

§ 2 requires states to create "the maximum number of majority-

minority districts"); Bartlett, 556 U.S. at 15 ("Nothing in § 2

grants special protection to a minority group's right to form

political coalitions."); Gonzalez, 535 F.3d at 598 ("But neither § 2 nor Gingles nor any later decision of the Supreme Court

26 No. 2021AP1450-OA.akz

speaks of maximizing the influence of any racial or ethnic

group."). Stopping here, the Governor has failed to provide any

evidence specific to his proposed districts warranting a finding

of white bloc voting that can effectively overcome a

politically-cohesive black voting bloc, let alone strong and

convincing evidence sufficient to overcome strict scrutiny. See

Miller, 515 U.S. at 922. This alone should counsel the court to

reject the Governor's map and adopt the race-neutral maps

presented by either the Legislature or the CMS.

¶106 This is exactly the form of analysis that the Michigan

Supreme Court recently applied. Detroit Caucus v. Indep.

Citizens Redistricting Comm'n, ___ N.W.2d ___, 2022 WL 329915

(Mem) (Mich. Feb. 3, 2022). The court found that "a conclusory

expert affidavit with no accompanying bloc-voting analysis" was

insufficient to support the use of race to create additional

majority-minority districts which the state could have drawn,

but did not. Id. at *2. The Governor in this case has

presented little more evidence than the inadequate VRA showing made in Detroit Caucus. Notably, when a full and complete

election history analysis was performed in Michigan,

"significant white crossover voting for Black-preferred

candidates" was found. Id.

¶107 Furthermore, the Governor's maps actually reduce the

percentage of African-American voters in the relevant districts

from their existing levels. The VRA is invoked only when

minorities, due to a mobilized and oppositional majority, cannot effectively participate and elect preferred candidates.

27 No. 2021AP1450-OA.akz

Gingles, 478 U.S. at 48; De Grandy, 512 U.S. at 1007. The maps

adopted by the majority reduce this population allegedly

overpowered by a white majority, instead of giving it a greater

voice within the aggrieved districts. Of course then, the

districts cannot be so aggrieved, and no evidence exists so to

invoke the VRA. In other words, before a change is to be made

under the VRA, there must be a violation of the VRA so to invoke

its remedy. The remedy is to cure the suppressed voter effect

by giving minority voters greater voice, not reducing their

voice. Alone, this statistic puts a dagger in the Governor's

map.

¶108 Lacking any support in the record, one might turn to

the presentations made by BLOC, the only other party that

supported racially-motivated district lines but also provided

electoral evidence. In fact, the majority's sole citation to

electoral history evidence relied on BLOC's expert report. See

majority op., ¶45 (restating BLOC's statistics on the rate in

which African-American preferred candidates are blocked). Yet even that evidence is flawed. BLOC selects eight oddly

identified races from Milwaukee County (two comptroller races,

and one race each for sheriff, democratic gubernatorial primary,

state assembly, mayor, Milwaukee county executive, and state

superintendent) to evidence the region's electoral history.

Only one election was examined that involved the public offices

at issue in this case: assembly, senate, and congressional

elections. This is markedly at odds with traditional VRA analysis. See, e.g., Cooper, 137 S. Ct. at 1471-72 (examining

28 No. 2021AP1450-OA.akz

the electoral history of a congressional district at issue in

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

history in the congressional district at issue); City of Euclid,

580 F. Supp. 2d at 598-600 (describing non-applicable elections

in the context of a detailed review of city council 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

electoral history of specific city commissioner offices at

issue).

¶109 While some elections may be of more probative value

than others, the provision of only eight elections, and only one

of which involving the elected offices at issue, can hardly

demonstrate the extent to which black people, under existing and

race-neutral maps, lack the same "opportunity . . . to

participate in the political process and to elect

representatives of their choice" as do white people. 52 U.S.C.

§ 10301(b); see 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").10 Undoubtedly, dozens of elections

have occurred in the Milwaukee-area state assembly, senate, and

10 If this were otherwise, it is highly likely that governments would simply cite state-wide general election results (white versus minority percentages) to justify racially motivated district lines, in almost every state in almost every region of the country. This would be a dramatic expansion of the permissible use of race in American election practices.

29 No. 2021AP1450-OA.akz

congressional districts at issue in the past 10 years alone.11

The court's focus is on the "totality of the circumstances" and

whether as a whole African Americans are denied the opportunity

to effectively participate in electoral democracy. 52 U.S.C.

§ 10301(b). The consistent election of candidates of choice for

the African-American community into public office in the

districts at issue would be highly probative. Yet the record is

completely devoid of any evidence that the voters in these

districts were blocked from voting in the candidates of their

choice in a way that would invoke the VRA.

¶110 Even under BLOC's selective analysis, white voters

engaged in bloc voting to prevent the candidate of choice for

African-Americans four times. That is around a 50% rate——hardly

the kind of strong evidence needed to overcome strict scrutiny.

Compare Clarke, 40 F.3d at 812-13 (even when considering

applicable electoral history, concluding that minority-preferred

candidates were not "usually" defeated when the minority-

preferred candidate was selected in 47% of elections). BLOC disaggregated allegedly polarized election results for each

individual district it drew for only three races (a Democratic

gubernatorial primary, a Milwaukee county executive race, and a

state superintendent race). But how can the court effectively

perform an "intensely local appraisal" of district-specific

evidence when election results for these districts are provided

for a mere three races, none of which were for the elected

The dissent of Justice Roggensack, which follows this 11

dissent, identifies many such elections of black-preferred candidates in districts that are predominantly white.

30 No. 2021AP1450-OA.akz

offices at issue? LULAC, 548 U.S. at 437. Of the three races

selected for district-specific treatment, only one of them had a

head-to-head race where voters did not split votes between

several candidates (thus preventing a more complete picture of

voter preferences).

¶111 The district-specific evidence of two races BLOC

provided was limited only to BLOC's proposed assembly districts.

BLOC did not provide detailed district analyses of the current

maps, an alternative race-neutral map, nor any other party's

maps outside one Democratic gubernatorial primary in 2018. In

the process of this litigation, the court has not been made

aware of a single case that found the existence of a strong

evidentiary record, applied the VRA, and satisfied strict

scrutiny through use of one election result, let alone a result

from an exogenous election (from a partisan primary between

candidates with strong support from the African-American

community).12 Compare LULAC, 548 U.S. at 427-28 (examining

partisan general election results); Cooper, 137 S. Ct. at 1470- 71 (reviewing partisan general election results); City of

Euclid, 580 F. Supp. 2d at 598-99 (explaining electoral history

for non-partisan general election results); Harper, 824 F. Supp.

See 12 Wisconsin Governor Exit Polls, CNN, https://www.cnn.com/election/2018/results/wisconsin/governor (last visited Feb. 10, 2022) (explaining how the Governor was elected statewide on the support of 85% of the African-American population).

31 No. 2021AP1450-OA.akz

at 790 (reviewing non-partisan general election results).13 To

understate the point, this substantially limits the ability of

the court to effectively judge if African-American voters are

having their candidates blocked and their voices unlawfully

stifled, therefore justifying race-based redistricting. See,

e.g., Comm. for Fair & Balanced Map, 835 F. Supp. 2d at 587

13 Of course, considering the wide-sweeping scope of VRA review, primary elections may be valid considerations when determining if a racial group has equal opportunity to participate in elections. See Thornburg v. Gingles, 478 U.S. 30, 59 (1986) (reviewing both general and primary election results). However, party makeups can change dramatically over time. At some points in history, a party may contain voters with markedly different views on the treatment of minorities. See, e.g., Glenn T. Eskew, George C. Wallace, Encyclopedia of Alabama, (Jun. 10, 2021) (describing the political history of George Wallace, an outspoken supporter of racial segregation and a lifelong Democrat). BLOC's analysis presents serious questions of whether current Democratic primary elections in Wisconsin, standing alone, are substantially probative on the ability of African-Americans to have effective opportunities, voices, and representation in democratic government.

32 No. 2021AP1450-OA.akz

(concluding that white bloc voting was not met where an expert

failed to provide evidence on specific districts at issue).14

14Furthermore, race-based redistricting under § 2 of the VRA applies only where voting is polarized to such an extent that a white majority blocks African-American-supported candidates so that the only way African-American individuals can effectively participate in democracy is to create majority- minority districts. See Bartlett v. Strickland, 556 U.S. 1, 19 (2009) (plurality) (holding that § 2 does not require the creation of below-majority "opportunity districts"); Cooper, 137 S. Ct. at 1464-65. A bare majority of African-American voters is unlikely, absent extraordinary polarization, to prevent white bloc-voting (if it exists) from stopping effective African- American representation. Along these lines, courts attempting to ensure VRA compliance have accepted the need to create VRA districts with BVAP percentages materially greater than a bare 51% majority. 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, at 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, No. 01-C-0121, 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 60% to guarantee the election of candidates of choice"); United States v. City of Euclid, 580 F. Supp. 2d 584, 594 n.11 (N.D. Ohio 2008) (explaining that the efficacy of a "narrow" majority-minority district is subject to question and this is remedied by majority-minority districts in excess of "60%"); Baldus v. Members of Wis. Gov't Accountability Bd., 849 F. Supp. 2d 840, 851 (E.D. Wis. 2012) (creating a majority-minority Hispanic district, effective at 67.7% voting- age population); African American Voting Rights Legal Defense Fund, Inc. v. Villa, 54 F.3d 1345, 1348 n.4 (8th Cir. 1995) ("[A] guideline of 65% of total population (or its equivalent) has achieved general acceptance in redistricting jurisprudence."); Ketchum v. Byrne, 740 F.2d 1398, 1403 (7th Cir. 1984) ("A guideline of 65% of total population has been adopted and maintained for years by the Department of Justice and by reapportionment experts and has been specifically approved by the Supreme Court."). When commenting on total voter population percentage, the court in Prosser explained that 33 No. 2021AP1450-OA.akz

¶112 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.15

ii. Totality of the Circumstances

¶113 The Gingles factors are only "necessary

prerequisites," they are not "sufficient" to justify a race-

effective majority-minority districts require 65% minority populations "(50 percent plus 5 percent to reflect the lower average age of blacks and hence lower voting population, 5 percent to reflect a lower fraction of registered voters, and 5 percent to reflect a lower turnout)." Prosser v. Elections Bd., 793 F. Supp. 859, 869 (W.D. Wis. 1992). Even if evidence supported the race-based remedy offered by the Governor, his bare-majority districts fall outside the mainstream of accepted VRA redistricting measures.

Even if, due to specific electoral statistics and 15

community-based evidence in Milwaukee, a seventh high-BVAP district were required, that in no way explains why the remaining six high-BVAP districts must be drawn with a scalpel to reach exactly 51% BVAP. Racially motivated government action must be "narrowly tailored" to satisfy strict scrutiny. Grutter v. Bollinger, 539 U.S. 306, 326 (2003); see, e.g., Shaw v. Hunt, 517 U.S. at 916-18 (concluding that districts drawn on the basis of race were not "narrowly tailored" because the government drew district lines from scattered minority communities which may have different VRA needs and were thus not sufficiently compact). The VRA must be tied to individuals and their specific communities, not general categories of race. Shaw v. Hunt, 517 U.S. at 917 (affirming that the VRA protects "individual[s]" not "the minority as a group"); LULAC, 548 U.S. at 437 ("A local appraisal is necessary because the right to an undiluted vote does not belong to the minority as a group, but rather to its individual members."); De Grandy, 512 U.S. at 1016 (explaining that, even when the Gingles factors and the totality of the circumstances require race-based redistricting, the VRA does not support creating "the maximum number of majority- minority districts").

34 No. 2021AP1450-OA.akz

based remedy under the VRA. Gingles, 478 U.S. at 50; De Grandy,

512 U.S. at 1011. In addition to the Gingles factors, the VRA

requires proof that the "totality of the circumstances" supports

the drawing of districts on the basis of race. Gingles, 478

U.S. at 50; De Grandy, 512 U.S. at 1011; LULAC, 548 U.S. at 436;

Bartlett, 556 U.S. at 24. Totality of the circumstances is an

independent, separate requirement; to apply a race-based remedy

a totality of the circumstances analysis must be provided. The

majority's description of the totality of the circumstances is

shockingly insubstantial.

¶114 Proportionality of majority-minority districts to the

"citizen voting-age population" can be relevant to the totality

of the circumstances analysis. LULAC, 548 U.S. at 436. The

Legislature's expert notes that various data files show an

African-American citizen voting-age population ("CVAP") of

either 6.1% of 6.4% (taken from two different U.S. Census data

files). The Governor fails to present evidence on the issue.

While BLOC strenuously opposes the Legislature's numbers, their expert suggests an African-American CVAP of 6.5%. Even if

BLOC's number were accepted, a proportionality analysis would

not support seven assembly districts. There are 99 assembly

districts, 6.5% of 99 is 6.4, which rounding to the nearest

whole number would be 6. At the very least, a proportionality

analysis does not provide strong support for a seventh district.

¶115 The majority notes that the African-American CVAP in

Wisconsin falls between 6.1% and 6.5%, but it fails to complete the final step of a proportionality inquiry: multiplying the

35 No. 2021AP1450-OA.akz

CVAP by the relevant number of seats, here 99. Majority op.,

¶48. It thus states a misleading statistic of 6.5% and hopes

the reader confuses it for a complete proportionality analysis.

Further, the majority relies heavily on population trends among

black and white individuals, as well as demographic statistics

in Milwaukee County. See majority op., ¶48 ("[A] significant

proportion of Wisconsin's Black population lives in Milwaukee

County where the subject districts are principally located.").

Yet the United States Supreme Court in League of United Latin

American Citizens v. Perry explicitly rejected the use of

"regional" as opposed to "statewide" proportionality analysis

for statewide districting plans. 548 U.S. at 436-38. And

proportionality refers to the percentage of a given race in a

state. Id. at 436 (explaining that the proportionality of a

race is determined by comparing the number of minority districts

to "the [minority] share of the citizen voting-age population").

Proportionality does not encompass an increase or decrease of

anything, i.e., population trends amongst the African-American population. The majority both twists the natural meaning of

English and refuses to comply with explicit Supreme Court

directives.

¶116 Beyond proportionality, the majority fails to discuss

any of the 1982 Senate Report factors relied upon by courts to

determine if the VRA applies. Gingles, 478 U.S. at 43-45;

LULAC, 548 U.S. at 426; see, e.g., City of Euclid, 580 F. Supp.

2d at 604-12 (providing a totality of the circumstances analysis). Those factors lay at the heart of a totality of the

36 No. 2021AP1450-OA.akz

circumstances analysis; they are the reason why racially

motivated maps may satisfy strict scrutiny. Gingles, 478 U.S.

at 50; De Grandy, 512 U.S. at 1011; LULAC, 548 U.S. at 426;

Bartlett, 556 U.S. at 24. Nonetheless, the factors are

completely ignored.

¶117 The majority shortcuts the required analysis and

instead relies on the flawed belief that proportionality is the

preeminent consideration for totality of the circumstances.

Majority op., ¶46 n.28, ¶¶47-50 (stating that courts

"focus[] . . . [their] attention on considerations not mentioned

in the Senate Report, such as proportionality," and examining

only proportionality in a totality of the circumstances

analysis). That is flatly contradicted by established United

States Supreme Court precedent. De Grandy, 512 U.S. at 1011-12

(rejecting the argument that proportionality is determinative of

VRA compliance and noting that "[n]o single statistic provides

courts with a shortcut"); Gingles, 478 U.S. at 47 ("The essence

of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to

cause an inequality in the opportunities enjoyed by black and

white voters to elect their preferred representatives."); LULAC,

548 U.S. at 426, 436-42 (laying out the Senate Factors as

considerations for totality of the circumstances analyses and

examining both proportionality and several Senate Factors when

determining the VRA required redrawing of certain districts in

Texas). By statute, the VRA requires examination of the "totality of the circumstances," 52 U.S.C. § 10301; nowhere in

37 No. 2021AP1450-OA.akz

the statute does it state or imply that proportionality should

be the primary "focus[] . . . of [the court's] attention."

Majority op., ¶46 n.28.

¶118 There is a simple reason no real support is provided

by the majority for the totality of the circumstances: there is

none. The only party who even attempted to argue for VRA

application under the totality of the circumstances was BLOC.

The Governor presented no totality of the circumstance support

for his districts. Either the majority does not rely on BLOC,

and thus zero evidence is available to support the application

of the VRA, or, in the alternative, the majority must rely

solely on BLOC's analysis. In either case, there is no

justification for use of race in drawing the Governor's maps.

¶119 BLOC's totality of the circumstances analysis is

deeply flawed and is in the form of an expert opinion alone.

This lone source of evidence is highly debatable, and strikes an

unmistakable tone of partisanship, attacking political opponents

and disfavored policies. Such conclusory opinion evidence does not amount to the kind of factual district-specific evidence

that could support a conclusion that a VRA violation has

occurred and the remedy must be creation of seven bare-majority

districts. Cooper, 137 S. Ct. at 1471-72; LULAC, 548 U.S. at

432; Shaw v. Hunt, 517 U.S. at 917; City of Euclid, 580

F. Supp. 2d at 604-12; Comm. for Fair & Balanced Map, 835

F. Supp. 2d at 583.

¶120 For instance, BLOC claims Milwaukee's choice to close polling locations during the COVID-19 Pandemic and voter ID laws

38 No. 2021AP1450-OA.akz

demonstrate the existence of racially discriminatory election

practices. No evidence or explanation is provided as to how

these basic administrative and perfectly legitimate election

practices "tend to enhance the opportunity for discrimination

against the minority group." Gingles, 478 U.S. at 44-45. This

is far cry from the "poll tax, an all-white primary system, and

restrictive voter registration time periods," used in the past

in parts of the country to mask disenfranchisement of African-

American voters. LULAC, 548 U.S. at 439-40; see also De Grandy,

512 U.S. at 1018 ("In a substantial number of voting

jurisdictions, that past reality has included such reprehensible

practices as ballot box stuffing, outright violence,

discretionary registration, property requirements, the poll tax,

and the white primary; and other practices censurable when the

object of their use is discriminatory, such as at-large

elections, runoff requirements, anti-single-shot devices,

gerrymandering, the impeachment of office-holders, the

annexation or deannexation of territory, and the creation or elimination of elective offices.").

¶121 The State of Wisconsin must strive to eliminate any

voting practice that facilitates unjust discrimination.

According to BLOC, must the state control election

administration in Milwaukee to prevent consolidation of polling

locations and covert discriminatory practices? Must the state

revoke its Voter-ID laws? See Frank v. Walker, 768 F.3d 744,

753-54 (7th Cir. 2014) (upholding a direct § 2 VRA challenge against Wisconsin's Voter-ID law, noting "[s]ection 2(b) tells

39 No. 2021AP1450-OA.akz

us that § 2(a) does not condemn a voting practice just because

it has a disparate effect on minorities," there was no finding

"blacks . . . have less 'opportunity' than whites to get photo

IDs," and black individuals had equal if not higher voter

registration and turnout in the 2012 election as compared to

white individuals); Brnovich, 141 S. Ct. at 2345 (noting that "a

distorted picture can be created" by the manipulative use of

statistics, such as "[i]f 99.9% of whites had photo IDs, and

99.7% of blacks did, it could be said that blacks are three

times as likely as whites to lack qualifying ID (0.3 ÷ 0.1 = 3)"

(quotations omitted)); Crawford v. Marion Cnty. Elections Bd.,

553 U.S. 181, 204 (2008) ("The application of [Indiana's Voter-

ID law] to the vast majority of Indiana voters is amply

justified by the valid interest in protecting the integrity and

reliability of the electoral process.").

¶122 BLOC also looks at general socio-economic correlations

between white and African-American individuals in Wisconsin,

including the lower rates of African-American homeownership and lower average incomes, and concludes, without any substantial

analysis on the extraordinary complexities of causation, that

this is the result of current and past discrimination. The

accepted fact that African-American individuals experienced

despicable forms of discrimination, specifically racial housing

covenants in the Milwaukee-area, is certainly a factor impacting

VRA analyses, but mere conclusions of discriminatory effects for

all African-American individuals in Milwaukee from race-based correlations is not substantial evidence of discriminatory

40 No. 2021AP1450-OA.akz

hindrances on the ability of African-American individuals "to

participate effectively in the political process." Gingles, 478

U.S. at 44-45. It is the burden of those seeking to use race in

district boundaries to prove the need for such practices. Mere

inferences and assumptions cannot be sufficient.

¶123 Further, BLOC asserts proof of race baiting and

racially motivated campaigning by pointing to statements from

Republicans and conservatives critiquing the Black Lives Matter

organization, taking knees during national anthems, and

defunding the police. Notably, despite the fact that BLOC

relies heavily on Democratic primary data to demonstrate bloc-

voting and the need for race-drawn districts, the racial animus

directed toward African-American individuals in campaigns and

public messages all allegedly come from conservative

Republicans. There is no evidence offered by BLOC that the

Democratic public officials who at times defeat African-American

preferred candidates, such as the Governor in his Democratic

primary, are "unresponsive to the particularized needs of the members of" the African-American community. Gingles, 478 U.S.

at 44-45; see LULAC, 548 U.S. at 426, 440 (explaining in detail

that a current representative for a district subject to VRA

scrutiny was "unresponsive" to the needs of the minority

community). Shockingly, BLOC contends that African-American

candidates have only had "mixed success" in the districts at

issue. Relying on exogenous and state-wide elections, BLOC

ignores the fact that the current assembly, senate, and

41 No. 2021AP1450-OA.akz

congressional districts have elected African-American office

holders in the vast majority of elections.

¶124 The evidence offered by BLOC of the totality of the

circumstances is hardly localized to the historical, societal,

and economic experiences of specific neighborhoods in Milwaukee.

Underlying BLOC's analysis is the assumption that all African-

American individuals in Wisconsin have the same history,

experiences, and effects of discrimination, and there is no need

to go further than broad strokes of correlations, debatable

assumptions, and talking-points. See LULAC, 548 U.S. at 432

(examining in a VRA analysis that different Hispanics in

different parts of Texas had "differences in socio-economic

status, education, employment, health, and other

characteristics"); Comm. for Fair & Balanced Map, 835

F. Supp. 2d at 583 (noting that "northern and southern enclaves"

of a Hispanic district had "a common heritage and share[d]

common core value[s]"); City of Euclid, 580 F. Supp. 2d at 605-

07 (explaining in detail, with numerous experts reports, record evidence, and testimony, forms of official discrimination

against a discrete African-American community in Euclid, Ohio).

Individuals, communities, and societal groups differ, even if

they are the same race. In fact, the maps offered by the

Legislature and CMS recognize that many of the African-Americans

moved under the Governor's maps are located in discrete and

compact neighborhoods. Following traditional redistricting

criteria, and putting together those with shared communities, interests, and experience, the Legislature's and CMS's districts

42 No. 2021AP1450-OA.akz

fluctuate in BVAP to recognize this geographical reality.16 By

comparison, for their purported benefit, the majority chooses to

displace many African Americans and move them into districts

with little societal, cultural, and economic similarities.17

iii. The Majority Opinion and Party Concessions

¶125 Despite all its faults, BLOC at least provided some

evidence supporting their VRA claims. The Governor presented

nothing, let alone district-specific evidence. This flies in

the face of well-accepted precedent on overcoming strict

scrutiny and proving VRA needs. See Vera, 517 U.S. at 965-83;

Miller, 515 U.S. at 920-27; Shaw, 517 U.S. at 916; Cooper, 137

S. Ct. at 1471-72; Bartlett, 556 U.S. at 19-20; Perry, 548 U.S.

at 432; Gonzalez, 535 F.3d at 600; Clarke, 40 F.3d at 812-13;

City of Euclid, 580 F. Supp. 2d at 604-12; Committee for a Fair

and Balanced Map, 835 F. Supp. 2d at 583; Harper, 824 F. Supp.

See John Johnson, Neighborhoods Where Milwaukee Isn't 16

Segregated, Marquette University Law School (Feb. 9, 2022), https://law.marquette.edu/facultyblog/2022/02/neighborhoods- where-milwaukee-isnt-segregated/ (describing the demographic makeup of the many unique neighborhoods in Milwaukee).

In the process, to obtain his 51% BVAP districts, the 17

Governor shifted white voters (referred to as "filler" voters at oral arguments) into new districts to achieve targeted racial proportions. The VRA by its text does not apply solely to any one race, and both the Equal Protection Clause and the Fifteenth Amendment's prohibition on racial discrimination in voting practices apply to all races. See 52 U.S.C. § 10301; U.S. Const. amend. XIV; U.S. Const. amend. XV; Shaw v. Reno, 509 U.S. 630, 657 (1993) ("Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions; it 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 Amendments embody, and to which the Nation continues to aspire.").

43 No. 2021AP1450-OA.akz

At 790, 799-800. Yet that does not seem to bother the majority

as they walk blindfolded into a buzz saw of Equal Protection

law. Given that, under BLOC's analysis, the Governor's maps

violate the VRA, the majority's maps may bear the usual stigma

of violating the Equal Protection Clause and the VRA at the same

time.

¶126 Counterintuitively, a linchpin of the majority's VRA

analysis is an alleged lack of evidence and argument. The

majority opinion may leave the reader with the misperception

that all litigants at this court agreed that a racial

gerrymander under the VRA was necessary. See majority op., ¶45

(noting "little . . . alternative data or analysis" to counter

BLOC's election history and indicating that the "parties

appeared to assume the VRA requires" race-based district lines).

That is patently inaccurate. In briefing, the Legislature was

clear that its maps both provided African-Americans equal

opportunity "to participate in the political process and to

elect representatives of their choice" (thus satisfying the VRA), 52 U.S.C. § 10301(b), and was not motivated by race (thus

satisfying the Equal Protection Clause), Miller, 515 U.S. at

911-12. The Legislature asserted that the Governor's maps

"reveal a policy of prioritizing mechanical racial targets above

all other districting criteria (save one-person, one-vote),

meaning there is ample evidence that race motivated the drawing

of particular lines." Further, the Legislature claimed,

correctly, that the Governor "offered zero evidence that the existing districts do not give all voters equal opportunity to

44 No. 2021AP1450-OA.akz

elect their candidate of choice." In the Legislature's reply

brief, it argued the Governor presented "novel and likely

unconstitutional" arguments in support of seven bare majority-

minority districts, labeled by the Legislature as an

"unconstitutional racial gerrymander." The Legislature

reaffirmed in the same brief that its "redistricting plan was

drawn without regard to race." Further, the Legislature's

expert, John Alford, described in many pages of detail the

computational and data concerns with the evidence submitted by

BLOC to support application of the VRA. He stated explicitly,

"[T]he election patterns detailed by [BLOC] raise serious doubts

about whether the Gingles threshold standard is currently met in

Milwaukee County." Finally, Mr. Alford observed that, even using

BLOC's election data, the black-preferred candidate was blocked

in less than 50% of elections.

¶127 The central goal of the Legislature's proposed maps

was to conserve existing boundaries for districts with high

BVAP, not draw districts to maximize majority-minority

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districts. The Legislature's race-neutral intentions were

confirmed at oral argument.18

¶128 But, even so, why is the majority attached to party

briefing? They have a responsibility to read the law,

understand available evidence, and come to the correct

18 The majority adds in an argument that the Legislature's districts in some way "pack" African-American voters into a district with above 70% BVAP. Majority op., ¶49. The Legislature has one district at 71.5% BVAP. As the majority notes, it is well established that the VRA requires the creation of race-based districts where minorities are "fragment[ed] . . . among several districts where a bloc-voting majority can routinely outvote them," or where minorities 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; see majority op., ¶49. But the United States Supreme Court has clarified that the VRA applies only to the creation of majority-minority districts; it does not require splitting up high minority-percentage districts to more effectively spread the minority's political influence. Bartlett, 556 U.S. at 19; Cooper 137 S. Ct. at 1471 (explaining that without the need for a majority-minority district sufficient white crossover would undermine the satisfaction of the Gingles factors). Thus, the inquiry is whether there has been presented evidence of effective white bloc voting to prevent minorities in a specific area and district from successfully electing candidates they support. Even if the Legislature drew a higher BVAP district following race-neutral redistricting criteria such as preserving continuity of interests, geographic compactness, and local government lines, without the requisite evidence of a VRA violation in a separate, neighboring district where a majority-minority district could be created, no race-based remedy under the VRA can be used. Here, there is no such district-specific evidence. The majority does not cite a single case holding that merely having a high BVAP district, without the need to prove the Gingles factors or the need for a race-based remedy under the totality of the circumstances, violates the VRA. See Ketchum, 740 F.2d at 1403- 06, 1418 (case cited by the majority, noting the commonly accepted target of 65-70% minority population percentages in applying a VRA remedy, after a VRA violation in relevant districts has been established).

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conclusion. See State v. Hunt, 2014 WI 102, ¶42 n.11, 360

Wis. 2d 576, 851 N.W.2d 434 ("Because it is our constitutional

duty to say what the law is, we are not bound by a party's

concessions of law."). They, not the litigants, are the

government actors. U.S. Const. amend. XIV sec. 1 ("No State

shall . . . deny to any person within its jurisdiction the equal

protection of the laws." (Emphasis added.)); Brentwood Academy

v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001)

(noting that only those "outside formally governmental

organizations" fall outside the coverage of the Fourteenth

Amendment); Johnson v. California, 543 U.S. 499, 505 (2005)

("Under strict scrutiny, the government has the burden of

proving that racial classifications are narrowly tailored

measures that further compelling governmental interests."

(Emphasis added.)). They are the ones choosing a map for the

State of Wisconsin, endorsing district boundaries unambiguously

motivated by race. See, e.g., De Grandy, 512 U.S. 997

(reviewing under traditional Equal Protection and VRA standards maps approved by the Florida Supreme Court). The court, acting

on behalf of the State of Wisconsin, not the parties, must

overcome strict scrutiny. See Grutter, 539 U.S. at 326

(describing strict scrutiny demands when the government treats

individuals differently on the basis of race); Vera, 517 U.S. at

978 ("Strict scrutiny remains, nonetheless, strict."); see,

e.g., Cooper, 137 S. Ct. at 1464; Miller, 515 U.S. at 920-27;

Shaw v. Hunt, 517 U.S. at 916.

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¶129 Ultimately, the majority's focus on the parties'

positions is a tactic of distraction. The majority may

understand that it lacks sufficient evidence to support race-

driven maps proposed by the Governor, so to compensate, it turns

around and reasons that the Governor's maps cannot be rejected

with what it views as inadequate argument on the part of the

Legislature and other parties. But this merely begs the

question: why is the court adopting a racially motivated map

without support in the record? The majority does not cite a

single case standing for the proposition that a state action can

survive strict scrutiny by pointing to the fact that other

private, non-state actors did not present evidence or arguments

in favor of a constitutional course of action. Under the

majority's logic, could the Legislature, when it passes maps at

the next redistricting cycle, draw districts on the basis of

race, without evidence supporting the application of the VRA, by

simply allowing third-party stakeholders an opportunity to

object? The majority's reasoning is foreign to constitutional jurisprudence.

¶130 The majority also cites a prior Wisconsin federal

court decision that adopted districts in the 1990s with majority

BVAP. Prosser v. Elections Bd., 793 F. Supp. 859 (W.D. Wis.

1992); see majority op., ¶45. That decision did not analyze the

Gingles factors, the history of electoral success for African-

American preferred candidates, or the totality of the

circumstances, as is required to prove the need for a VRA remedy. Cooper, 137 S. Ct. at 1471-72; Bartlett, 556 U.S. at

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19-20; LULAC, 548 U.S. at 432; Gonzalez, 535 F.3d at 600;

Clarke, 40 F.3d at 812-13. It was also issued prior to almost

every major United States Supreme Court precedent on the VRA,

for example: Shaw v. Reno, Shaw v. Hunt, Johnson v. De Grandy,

Miller v. Johnson, Bush v. Vera, League of United Latin American

Citizens v. Perry, Bartlett v. Strickland, and Cooper v. Harris.

Nonetheless, the contention that a decision from the 1990s on

conditions warranting a race-based remedy supports the same

remedy today is similar to asserting that a race-based remedy in

Michigan warrants the same in Wisconsin. Both theories are

antithetical to a proper VRA analysis. The circumstances of the

actual individuals on the ground today, in their specific

communities, is what drives a VRA review, not assumptions

derived from how other individuals of the same race were treated

at different times, in different places, and under different

circumstances. Cooper, 137 S. Ct. at 1471-72; LULAC, 548 U.S.

at 432; Shaw v. Hunt, 517 U.S. at 917; City of Euclid, 580 F.

Supp. 2d at 604-12; Comm. for Fair & Balanced Map, 835 F. Supp. 2d at 583. No caselaw is cited for the proposition that

"historical practice," relied upon by the majority, can either

support race-based district lines or satisfy strict scrutiny.

Majority op., ¶45. Surely, many governments in the past would

have relied on such an argument to support racially motivated

policies and practices.

¶131 History is littered with racial animus, hostility,

discrimination, and desperate treatment. The Equal Protection Clause demands that governments in the United States rise above

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the human temptation of dividing by race and treat individuals

how basic dignity demands they be treated: as individuals.

Only in specific cases, with exacting and quantifiable

information, and with narrowly targeted remedies, may government

discard equal protection guarantees. Fisher, 570 U.S. at 309-

10; Miller, 515 U.S. at 911-12, 922; Shaw v. Reno, 509 U.S. at

653. Lowering the bar for equal protection and allowing it to

be ignored without extraordinary evidence, and relying primarily

on conclusory analysis and a court's subjective observations,

would mark a material turn for equal protection jurisprudence

and an unwelcome departure from foundational American

principles. See majority op., ¶¶43-49 (relying heavily on party

concessions, incomplete evidence, and an out of context standard

of "good reasons" to justify unambiguous racial

classifications). If that path is followed, a Pandora's box of

racial grouping, jealousy, division, and animosity may open more

fully. And we all may look back in regret at the day equal

protection was made into an insubstantial and secondary interest.

¶132 Given the serious lack of evidence supporting the need

to draw districts as explicitly based on race as is done by the

Governor, this court should abide by its constitutional duty to

treat all Wisconsinites the same regardless of race. Vera, 517

U.S. at 965-83; Miller, 515 U.S. at 922; Shaw v. Reno, 509 U.S.

at 653; Cooper, 137 S. Ct. at 1464; Fisher, 570 U.S. at 309-10.

The court has no lawful, constitutional basis to adopt any other

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maps than the race-neutral, constitutional, least change maps

submitted by the Legislature or, in the alternative, CMS.

B. Least Change Is More Than One Core Retention Number.

¶133 Core retention is the percentage of individuals that

are retained in the same legislative districts as the maps in

existence prior to this lawsuit. Never before oral argument did

we conclude that the core retention number alone was the sole

factor to be considered. In our November 30 opinion, we stated

that "our judicial remedy should reflect the least change

necessary for the maps to comport with relevant legal

requirements." Johnson, 399 Wis. 2d 623, ¶72. We did not limit

the factors and considerations that can be taken into account

when determining whether a map made as little changes as

possible while complying with the law. Certainly, we did not

hold that the map that moves the lowest number of people will be

selected, regardless of any other change or constitutional

consideration. Our majority opinion on November 30 simply never

mentioned that phrase, "core retention." A majority of this court nonetheless takes a myopic approach and refuses to look

beyond core retention or even evaluate the underpinnings of how

those numbers were achieved. See majority op., ¶24 ("[L]east

change approach should guide our decision" and "[c]ore retention

is central to analysis.").

¶134 Fundamental jurisprudence instructs that the data that

underlies the core retention numbers may be considered, but in

conjunction with other valid considerations such as county and municipality division and population deviation. Such routine

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considerations are valid, as is discussed in caselaw, and more

importantly, they are constitutionally required. The author of

the majority opinion now distances himself from these basic

principles and even his own writing, which explicitly indicated

"traditional redistricting criteria" would be considered.

Johnson, 399 Wis. 2d 623, ¶83 (Hagedorn, J., concurring).19

The majority opinion's author refused to sign onto small 19

parts of the November 30 opinion and wrote a separate concurrence because, in that Justice's view, the November 30 opinion unduly limited the court's discretion in selecting a new map. "Legal standards establish the need for a remedy and constrain the remedies we may impose, but they are not the only permissible judicial considerations when constructing a proper remedy," the November 30 concurrence declared triumphantly. Johnson v. Wis. Elections Comm'n, 2021 WI 87, ¶83, 399 Wis. 2d 623, 967 N.W.2d 469 (Hagedorn, J., concurring). In fact, there was a specific factor the concurrence gave special favor to: "one universally recognized redistricting criterion is communities of interest," i.e., local communities and governments. Id. (Hagedorn, J., concurring). The concurrence contemplated reliance on this factor when multiple maps were comparable on the issue of least change:

Suppose we receive multiple proposed maps that comply with all relevant legal requirements, and that have equally compelling arguments for why the proposed map most aligns with current district boundaries. In that circumstance, we still must exercise judgment to choose the best alternative. Considering communities of interest (or other traditional redistricting criteria) may assist us in doing so.

Id. (Hagedorn, J., concurring).

Despite the urge to make this apparently principled opinion known in a concurrence, the same logic is absent in the majority opinion. Not only does the opinion cast as insignificant basic constitutional interests in maintaining local government boundaries, but it also adopts maps with substantially greater divisions of communities of interests, all the while having immaterial differences on the (now controlling) least-change metric of core retention. Time changes all things, but presumably not that quickly.

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¶135 Now, four of my colleagues inexplicably adopt core

retention as the sole factor even though the phrase cannot be

found in the November 30 majority or concurring opinions. This

comes out of thin air and much to the surprise of three members

of the court. While the Governor retains 85.8% of individuals

in their existing districts, the Legislature retains 84.2%, a

1.6% difference. However, the Legislature scores better than

the Governor in the senate, moving several thousand less

individuals.20 The Governor moves around 95,000 less people in

the assembly. Thus, overall, combining the figures for the

senate and assembly, the Governor moves less people than the

Legislature, although they are fairly close in measure. By

comparison, CMS has a 61% core retention in the assembly and a

74.3% core retention in the senate.

¶136 One is left to wonder: If the Legislature knew that

core retention was the only criteria to be used, might it have

submitted different maps if given the chance? Recall, all

parties had the benefit of knowing the Legislature's maps before submitting their own. The Legislature advanced support for maps

The parties in this lawsuit submitted maps under guidance on what they viewed as the deciding factors for the author of the November 30 concurrence. It was not an unreasonable inference that that Justice's vote may decide the outcome of this case. Yet now that Justice, writing the majority opinion, claims soft, non-legal factors such as communities of interest are not of material importance when the court can identify a map with the lowest core retention. This is a classic example of shifted standards.

I recognize that the percentages in the senate are very 20

close; with rounding the Governor and the Legislature have a 92.2% core retention in the senate.

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passed by the Assembly and Senate in 2021, which all parties

could examine in advance. No such privilege was afforded to the

Legislature vis-a-vis the Governor's maps.

¶137 To be clear, core retention is a useful statistic for

evaluating the amount of changes in a given map, but it cannot

be the only consideration for the court. Our November 30

opinion made clear that any map must not only consider

statistics reflecting the amount of change, but it must do so

while comporting best with other legal interests such as per

capita representation and retaining local communities. Johnson,

399 Wis. 2d 623, ¶¶24-38, 72 (describing legal considerations in

detail). The November 30 opinion made clear that the

constitutional requirements must be met. Id., ¶38 ("In

determining a judicial remedy for malapportionment, we will

ensure preservation of these justiciable and cognizable rights

explicitly protected under the United States Constitution, the

VRA, or Article IV, Sections 3, 4, or 5 of the Wisconsin

Constitution."). We made clear that in remedying any malapportionment in the existing maps we must not "inadvertently

choose a remedy that solves one constitutional harm while

creating another." Id., ¶34. As explained below, while the

Governor has higher core retention numbers than the Legislature

and CMS, he did so by sacrificing other constitutional

considerations. As we stated in our November 30 opinion, the

law does not countenance such a result.

C. One-Person-One-Vote

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¶138 The United States Supreme Court has continuously and

unambiguously reminded us that, in apportioning state

legislative districts, "the overriding objective must be

substantial equality of population among the various districts,

so that the vote of any citizen is approximately equal in weight

to that of any other citizen in the State." Reynolds v. Sims,

377 U.S. 533, 579 (1964); see also Baumgart, 2002 WL 34127471,

at *2 (quoting Connor v. Finch, 431 U.S. 407, 409 (1977)) ("With

respect to reapportionment, population equality is the 'most

elemental requirement of the Equal Protection Clause.'"). The

Constitution "does not permit a State to relegate considerations

of equality to secondary status and reserve as the primary goal

of apportionment the service of some other state interest."

Mahan v. Howell, 410 U.S. 315, 340, modified, 411 U.S. 922

(1973) (Brennan, J., concurring in part).

¶139 The United States Supreme Court, recognizing the

interests of federalism and respect for state sovereignty, has

acknowledged that "some leeway in the equal-population requirement should be afforded States in devising their

legislative reapportionment plans . . . [and that] when state

legislative districts are at issue we have held that minor

population deviations do not establish a prima facie

constitutional violation." Chapman v. Meier, 420 U.S. 1, 23

(1975). Likewise, the Court has explained that "the

Constitution permits 'such minor deviations only as may occur in

recognizing certain factors that are free from any taint of arbitrariness or discrimination.'" Swann v. Adams, 385 U.S.

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440, 444 (1967) (quoting Roman v. Sincock, 377 U.S. 695, 710

(1964)). The State of Wisconsin has an independent requirement

of population equality. Article IV, Section 3 of the Wisconsin

Constitution states that new maps must be

"apportion[ed] . . . according to the number of inhabitants."

¶140 In analyzing the deviation and the extent to which

minor deviations are acceptable under the United States

Constitution, courts follow a two-step process. The first step

is to calculate the ideal population. 81A C.J.S. States § 140.

This is done through simple math: population of the state

divided by the number of applicable districts. Once the ideal

population is calculated, it is then possible to determine the

extent to which a given district population deviates from the

ideal. Id. There is not a mathematical formula extracted from

the Equal Protection Clause establishing "what range of

percentage deviations is permissible, and what is not." Mahan,

410 U.S. at 329.

¶141 While we do know that "[c]ourt-enacted maps are held to a higher standard . . . the Supreme Court has not explained

how much higher." Essex v. Kobach, 874 F. Supp. 2d 1069, 1082

(D. Kan. 2012) (citing Connor, 431 U.S. at 414). District

courts around the country have generally sought to adopt maps

that, at most, include a 2% deviation. See, e.g., Colleton

Cnty. Council v. McConnell, 201 F. Supp. 2d 618, 655 (D.S.C.

2002).

¶142 However, while courts have attempted to reach at most 2% population deviation when drawing maps, this does not mean

56 No. 2021AP1450-OA.akz

that courts reach it and then quit. The continual goal of courts

when drawing maps is minimizing population disparities. In

Smith v. Cobb Cnty. Bd. of Elections & Registrations, the United

States District Court for the Northern District of Georgia was

tasked with drawing the maps for Cobb County, Georgia. 314

F. Supp. 2d 1274 (N.D. Ga. 2002). Like other courts, it

declared that the "most important goal in fashioning this

remedial plan was to minimize the population deviations among

the four districts . . . ." Id. at 1300. Among the plans

presented to it by the parties was a plan that kept population

deviation at 1.77%. Id. However, in following its declared

goal, the court still redrew the maps itself and ended with a

population deviation of 1.51%. Id. at 1302.

¶143 Further, the State of Wisconsin has an independent

requirement of population equality. Article IV, Section 3 of

the Wisconsin Constitution states that new maps must be

"apportion[ed] . . . according to the number of inhabitants."

Federal courts, respecting the independent sovereignty of states, have permitted greater deviations than what would be

permitted for congressional districts. But that does not imply

that the Wisconsin Constitution does not place independent

demands on Wisconsin's own legislative districts. Chapman, 420

U.S. at 23. Notably, while the demands of population equality

under the United States Constitution are based on the Equal

Protection Clause, the demands under the Wisconsin Constitution

are derived from Article IV, Section 3 on the apportionment of districts, not equal protection. See Evenwel v. Abbott, 578

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U.S. 54, 58-61 (2016) (describing the different legal standards

for state and federal districts under the United States

Constitution). When the federal government interprets and

applies its own apportionment clause in Article I, Section 2 of

the United States Constitution, it demands "as close to perfect

equality as possible," with little leniency for excess

deviation. Id.

¶144 In line with these principles, the November 30 opinion

stated that the population deviation should be "as close an

approximation to exactness as possible" under the Wisconsin

Constitution. Johnson, 399 Wis. 2d 623, ¶28 (quotations

omitted). Minimizing population deviation as much as

practicable has been established for over a century in Wisconsin

and at least since State ex rel. Attorney General v. Cunningham,

81 Wis. 440, 484, 51 N.W. 724 (1892).

¶145 In Wisconsin, federal courts have played a role in

drawing the legislative maps for the past three redistricting

cycles. The federal courts' determinations came only after the Wisconsin Supreme Court chose not to take up the issue. The

federal courts recognize redistricting is our responsibility, if

the legislative and executive branches fail. Nonetheless, each

time, the federal panel has stated that population equality

remained its chief goal and adopted plans as consummate with

that goal as practicable. See Wis. State AFL-CIO v. Elections

Bd., 543 F. Supp. 630, 637 (E.D. Wis. 1982) (describing that

their plan with a population deviation of 1.74% exemplifies the "condition that, in a representative form of government, the

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vote of each person be, to the extent reasonably possible, equal

in weight to the vote of another"); Prosser, 793 F. Supp. at 866

(stating that "[b]elow 1 percent, there are no legally or

politically relevant degrees of perfection," and adopting a map

with deviation of 0.52 percent); Baumgart, 2002 WL 34127471, at

*7 (detailing that the court's "attempt to keep population

deviation between districts as low as possible" yielded a

deviation of 1.48%). Last cycle, in 2011, the Legislature

enacted a map with a "maximum deviation for assembly districts

[of] 0.76% and 0.62% for senate districts." Baldus v. Members

of Wis. Gov't Accountability Bd., 849 F. Supp. 2d 840, 851 (E.D.

Wis. 2012). The existing levels of deviation, by surviving the

constitutional and political processes, are a useful basis for

comparison when evaluating the deviations proposed in the

respective maps. Our November 30 opinion stated that the

population deviation should be "as close an approximation to

exactness as possible" under the Wisconsin Constitution.

Johnson, 399 Wis. 2d 623, ¶28 (quotations omitted); see also Cunningham, 81 Wis. at 484.

¶146 With this law in hand, the Governor's maps that have

been adopted by a majority of this court are highly concerning.

They contain some of the largest deviations from one-person-one-

vote that were presented to us: 1.883% for the assembly

districts and 1.179% for the senate districts, over double the

deviations adopted in the prior maps. Apparently, to the

majority, this dramatic departure from the existing maps is not relevant to the least change inquiry. Meanwhile, the

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Legislature (0.759% for the assembly districts and 0.574 for the

senate districts) and CMS (0.736% for the assembly districts and

0.501% for the senate districts) have substantially lower

population deviations.

¶147 It is clear from the comparisons between the 2011

maps, historically adopted maps, and the maps proposed by the

parties, the Governor failed to heed the instructions this court

gave in Cunningham and repeated in its November 30 opinion.

While the Governor keeps population deviations below a largely

arbitrary line of 2 percent, this is by no means the end of the

analysis. See Cunningham, 81 Wis. at 484; Cobb Cnty., 314

F. Supp. 2d at 1300-02. The Governor fails to provide any

explanation for why his maps have over double the magnitude in

population distortions compared to the 2011 maps other than

vaguely asserting compliance with "least change." Notably, the

Legislature was able to design maps with almost the same core

retention, while also keeping deviation orders of magnitude

lower. The Legislature's effort is proof positive that the Governor's population deviations among districts were entirely

unnecessary. Given advanced software, there is little doubt

that if the Governor were not striving for other goals, based at

least in part on race and likely in large part on politics, his

core retention could have remained the same while lowering

population deviations. But while political considerations are

not included in the constitution, population equality is. See

Johnson, 399 Wis. 2d 623, ¶53 (explaining that partisanship is

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not a legally recognized interest found in the Wisconsin or

United States Constitutions).

¶148 The court's interest is in making populations "as

nearly as [equal] as possible," and thus, the court should adopt

either the Legislature's map or CMS's map. Abrams v. Johnson,

521 U.S. 74, 98-99 (1997); Johnson, 399 Wis. 2d 623, ¶28. The

population deviations included in the Governor's maps allow him

to inflate his core retention numbers, undercut the

Legislature's numbers, and assert he has provided the least

change maps. In the process, however, he ignored interests

recognized in both the United States and Wisconsin Constitutions

that individuals should have as close to equal influence in

elections as possible. We should embrace this foundational

democratic value, not just explain it away.21

D. Dividing Local Communities

¶149 Under Article IV, Section 4 of the Wisconsin

Constitution, assembly districts must be drawn "to be bounded by

county, precinct, town or ward lines." As we explained in our November 30 opinion:

Applying the one person, one vote principle may make bounding districts by county lines nearly impossible. See Wis. State AFL-CIO v. Elec. Bd., 543 F. Supp. 630, 635 (E.D. Wis. 1982) (stating the maintenance of county lines is "incompatib[le] with population equality"); see also 58 Wis. Att'y Gen. Op. 88, 91 (1969) ("[T]he Wisconsin Constitution no longer may be

21Particularly if we adopted the approach endorsed by the November 30 concurrence, whereby the court may consider "traditional redistricting criteria" when selecting between two least-change maps. Johnson, 399 Wis. 2d 623, ¶83 (Hagedorn, J., concurring).

61 No. 2021AP1450-OA.akz

considered as prohibiting assembly districts from crossing county lines, in view of the emphasis the United States Supreme Court has placed upon population equality in electoral districts."). Nonetheless, the smaller the political subdivision, the easier it may be to preserve its boundaries. See Baumgart v. Wendelberger, No. 01-C-0121, 2002 WL 34127471, at *3 (E.D. Wis. May 30, 2002) ("Although avoiding the division of counties is no longer an inviolable principle, respect for the prerogatives of the Wisconsin Constitution dictate that wards and municipalities be kept whole where possible."). Johnson, 399 Wis. 2d 623, ¶35.

¶150 Courts have recognized for many years that this

provision serves to protect local communities, which are central

features of individual identity for voters and are the building

blocks of Wisconsin's democracy. State ex rel. Reynolds v.

Zimmerman, 22 Wis. 2d 544, 555, 126 N.W.2d 551 (1964)

(explaining that the primary goal of "per capita equality of

representation" must still comply with the Wisconsin

Constitution's "geographical limitations" under Article IV,

Section 4); Jensen v. Wis. Elections Bd., 2002 WI 13, ¶6 n.3,

249 Wis. 2d 706, 639 N.W.2d 537 (explaining that the Wisconsin

Constitution demands "respect for municipal boundaries"); Baumgart, 2002 WL 34127471, at *3 (stating that in redistricting

after the 1980 and 1990 censuses, conducted in federal court,

the courts "did not divide any wards in their respective

reapportionment plans, and the 1992 panel rejected a proposed

plan that achieved 0% population deviation by splitting wards");

Prosser, 793 F. Supp. at 863 ("To be an effective

representative, a legislator must represent a district that has a reasonable homogeneity of needs and interests; otherwise the

62 No. 2021AP1450-OA.akz

policies he supports will not represent the preferences of most

of his constituents.").

¶151 Given this constitutional interest in preserving

communities of interest and local governments, it is not

surprising that the Legislature, when it drew the existing maps

in 2011, sought to limit the amount of county and municipal

splits. The Legislature in 2011 permitted 46 county splits in

its senate map and 58 county splits in its assembly map. It

created 48 municipal splits in the senate and 78 municipal

splits in the assembly. Although the number of municipal splits

increased over time as local governments changed size and

annexed new areas, it is clear from past practice that the state

has strived to minimize divisions of local communities.

¶152 The Governor, and the majority who adopted his maps,

do not seem to care. Without detailed explanation, they divide

an inordinate number of local communities. In the adopted map,

they included 42 county splits in the senate and 53 in the

assembly. There were 117 municipal splits in the senate and 175 in the assembly, and they split 179 wards in the senate and 258

in the assembly. See Prosser, 793 F. Supp. at 866 (explaining

that wards are "the basic unit of Wisconsin state government for

voting purposes . . . [y]ou vote by ward"). On January 10,

2022, we permitted the Governor to amend his map, and he used

the opportunity to reduce local government divisions. However,

according to the Governor's own numbers, he still retained 76

municipal splits in the senate and 115 in the assembly. Like population deviation, the Governor's stark departure from

63 No. 2021AP1450-OA.akz

standards for local government divisions used to draw the

existing maps is of little concern to the majority's least

change analysis. Only core retention is considered by the

majority.

¶153 My colleagues on the other side devalue these

extraordinary divisions concluding that they are of no

consequence. I disagree because local changes at polling places

are of great significance to those affected and are deserving of

consideration. For people living in Brookfield, Glendale, and

De Pere, their communities are now divided. Their neighbors

sharing common interests, government, and organizations must

seek representation from different officials representing

different constituencies across unique geographies. Many

Wisconsinites may no longer engage in the most fundamental form

of democratic engagement: discussing and deliberating shared

election choices with those having similar interests and

identities. Although division of local governments may appear

to be simply a number, it most assuredly is not. It is a constitutional requirement, not some policy choice. Wis. Const.

art. IV, § 4.

¶154 With the adoption of the Governor's maps, local

communities are the losers. The majority finds this of no

consequence, yet Wisconsin is made up of few large cities and

many local municipalities. Dividing a town or a county in

localities of hundreds of thousands of inhabitants may not be

noticeable by all those residents; however, that is not true for the many, many small communities around the state. In accepting

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the Governor's maps, the majority opinion chooses to favor the

big city interests over more rural identities.

¶155 By contrast, the maps offered by the Legislature and

CMS keep divisions of local communities to a minimum. The

Legislature has comparable county splits to the Governor, with

42 county splits in the senate and 53 splits in the assembly.

CMS outperforms all parties in this metric by including 28

county splits in the senate and 40 in the assembly. Where the

parties diverge substantially is in municipalities. The

Legislature includes a striking low number of municipal splits

with 28 in the senate and 48 in the assembly.22 CMS, by

comparison, has 31 municipal splits in the senate and 70 in the

assembly. Finally, while the Governor demonstrated little to no

concern for ward lines, both the Legislature and CMS divided

zero current ward boundaries. Given the minimal difference in

core retention between the Legislature and the Governor, and the

obvious technical ability to limit local government divisions,

the Legislature's and CMS's maps provides powerful evidence that the drastic number of local government splits made by the

Governor's maps were entirely unnecessary and represented

significant change. If those drawing the Governor's maps were

not so motivated by race and politics, perhaps they may have

considered the Wisconsin Constitution.

¶156 Further, if my colleagues would consider

constitutional mandates as more than a policy choice, they would

Among municipalities, the Governor split 50 towns. 22 The Legislature, by contrast, split only 16. At the time the 2011 maps were passed, they contained 30 town splits.

65 No. 2021AP1450-OA.akz

be required to conclude that the Governor's maps are not

constitutionally compliant. In addition, they would be forced

to recognize that the core retention figures of their preferred

maps are artificially inflated at the expense of the people and

their local communities. Nonetheless, the majority proceeds to

adopt the Governor's maps, carving up Wisconsin communities for

the stated and unstated interests of the Governor.

¶157 Both the Legislature and CMS demonstrated that

mapmakers could have minimized the changes to existing maps

while still respecting in large respect the boundaries by which

Wisconsinites organize themselves at the local level. While,

under existing one-person-one-vote jurisprudence from the United

States Supreme Court, local government boundaries cannot be

retained in full, that in no way implies that local government

divisions are of no concern to this court, as the majority

appears to believe. Johnson, 399 Wis. 2d 623, ¶35. In our

November 30 opinion, we reaffirmed decades of caselaw that the

citizens of Wisconsin have a constitutionally protected interest in "preserv[ing] [local government] boundaries." Johnson, 399

Wis. 2d 623, ¶35 (noting "respect for the prerogatives of the

Wisconsin Constitution dictate that wards and municipalities be

kept whole where possible"); Reynolds, 22 Wis. 2d at 555;

Jensen, 249 Wis. 2d 706, ¶6 n.3; Baumgart, 2002 WL 34127471, at

*3; Prosser, 793 F. Supp. at 863.

¶158 The Legislature and CMS took our directives and

constitutional demands seriously. The Governor did not. In adopting the Governor's maps through its fixation on core

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retention, the majority turns a blind eye to the constitution's

clear call to consider these boundary line changes.

III. CONGRESSIONAL MAPS

¶159 Only four parties submitted congressional maps: the

Congressmen; the Governor; Hunter; and CMS. The Governor's map

is unconstitutional under the Equal Protection Clause, and the

court should adopt the Congressmen's map, or in the alternative,

CMS's map.

¶160 As explained in the analysis on state maps, least

change is not defined by a single statistic. Johnson, 399

Wis. 2d 623, ¶72. Nowhere in the November 30, 2021 opinion did

we hold that core retention is the sole determinant of a least

change inquiry. Id.

¶161 Among other factors and considerations, core retention

can be a useful statistic to consider. Here, the Governor has

the highest core retention with 94.5%. The Congressmen come in

second with 93.5%, followed by Hunter at 93% and CMS at 91.5%. Thus, the Governor moves around 50,000 fewer people than the

Congressmen.

¶162 Of note, however, the Congressmen attempted to

introduce an amended map, which would have had the lowest core

retention of any maps. Given the extraordinary importance of

this case, and the need to fairly consider all positions and

evidence presented by the parties, the court should have no

issue accepting such requests. Our duty is to consider how best to redistrict, and more information is better than less.

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¶163 The Congressmen's amended map moved almost 100,000

fewer people than the Governor's map. Furthermore, both the

Governor and BLOC were permitted to amend their maps, mostly to

reduce their local government splits and make their maps more

attractive for the court to adopt. Nonetheless, the court, in a

January 10, 2022 order, chose not to consider the second map

submitted by the Congressmen. Johnson v. Wis. Elections Comm'n,

No. 2021AP1450-OA, unpublished order (Wis. Jan. 10, 2022). Due

to this ruling, only the first map submitted by the Congressmen

is reviewed. However, the majority is not relegated to adopting

only one party's map. It is endowed with the authority to draw

the best map, yet it failed to do so.

¶164 Even though the majority is purportedly driven by the

single statistic of core retention, it apparently is not

concerned enough to seek out or adopt the map that scored best

on that metric. The court, post argument, regularly allows

supplemental submissions. We did in this case. If there ever

was a case to ensure that we have the best possible information at our disposal, this is it. Curiously, a majority of the court

does not want it.

B. One-Person-One-Vote

¶165 The Governor's map cannot be accepted because he has

an unnecessary and unexplained deviation from perfect population

equality. Population equality for congressional districts is

governed by Article I, Section 2 of the United States

Constitution, not the Equal Protection Clause. Evenwel, 578 U.S. at 58-61.

68 No. 2021AP1450-OA.akz

¶166 In our November 30 opinion, we quoted the United

States Supreme Court in declaring that, "[There is] no excuse

for the failure to meet the objective of equal representation

for equal numbers of people in congressional districting other

than the practical impossibility of drawing equal districts with

mathematical precision." Johnson, 399 Wis. 2d 623, ¶25 (quoting

Mahan, 410 U.S. at 322). "[P]opulation alone" is the "sole

criterion of constitutionality in congressional redistricting

under Art. I, § 2[.]" Id. CMS aptly argues that the Governor's

congressional map should not pass scrutiny because it "fail[s]

to satisfy even this fundamental requirement [by exhibiting]

more than the mathematical minimum population deviation between

districts."

¶167 The Supreme Court, in recognizing that a zero

deviation will not always be possible, gave the following

instructions for evaluating a plan that varies from the

precision of mathematical equality:

First, the court must consider whether the population differences among districts could have been reduced or eliminated altogether by a good-faith effort to draw districts of equal population. Parties challenging apportionment legislation must bear the burden of proof on this issue, and if they fail to show that the differences could have been avoided the apportionment scheme must be upheld. If, however, the plaintiffs can establish that the population differences were not the result of a good-faith effort to achieve equality, the State must bear the burden of proving that each significant variance between districts was necessary to achieve some legitimate goal. Karcher v. Daggett, 462 U.S. 725, 730–31 (1983). The court further reaffirmed that "there are no de minimis population

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variations," so long as those variations can "practicably be

avoided." Id. at 734.

¶168 A useful example of this burden shifting mechanism can

be found in Larios v. Cox, 300 F. Supp. 2d 1320 (N.D. Ga.),

aff'd, 542 U.S. 947 (2004). In Larios, a three-judge panel

heard several challenges to the congressional and state

legislative reapportionment plans enacted by the Georgia General

Assembly in 2001 and 2002. Id. at 1321. In the relevant

portion of the opinion, the panel examined whether the

plaintiff's challenge to the congressional maps enacted by the

state legislature complied with the United States Constitution's

one-person-one-vote requirement. "[T]he total population

deviation for the [legislature's] final Congressional Plan was

only seventy-two people." Larios, 300 F. Supp. 2d at 1354. At

the trial, expert testimony concluded that:

[I]t would be possible to draw a congressional map for the State of Georgia with a population deviation of plus or minus one person that (1) complied with the Voting Rights Act; (2) split fewer counties than the present plan; (3) is more compact than the present plan; and (4) divides fewer voting precincts than the present plan. Id. at 1354.

¶169 Under the Karcher framework, the panel reasoned that

"[t]he fact that such a plan could have been produced all but

invalidates any argument that the [legislature] made a good

faith effort to achieve a zero deviation." Larios, 300

F. Supp. 2d at 1354 (citing Karcher, 462 U.S. at 736). On this

basis, the panel determined that the plaintiffs had met their burden and that the burden was now put on the Legislature to 70 No. 2021AP1450-OA.akz

show that a "consistently applied legislative policy" justified

the deviation. Id. The State of Georgia contended that

it did not further reduce the population deviation because to do so would have required either splitting more precincts [which Georgia has a history of not doing] or further splitting existing split precincts along something other than an easily recognizable boundary [as doing so would make it hard for voters and election officials to accurately ascertain which voting district they reside]. Id. Additionally, the court found that, although the plaintiffs

showed that the population deviation could be remedied, they did not prove that it could be done without splitting precincts

along something other than recognizable boundary lines. Id. at

1355. Therefore, the panel found that "[g]iven the relatively

small total deviation of only seventy-two people and the

importance of the state's interest in avoiding voter confusion,

we find that the congressional districts do not violate

plaintiffs' rights under the one-person, one-vote principles of

Art. I, § 2." Id.

¶170 In this case, the Legislature and CMS can point to the

fact that their maps have a mathematically precise population

deviation as a means of invalidating any argument that the

Governor made a good-faith effort to achieve zero deviation.

Therefore, the burden of explaining what "consistently applied"

state policy justifies the larger than minimum population

deviation falls on the Governor.

¶171 Rather than address this deviation, the Governor

denies that it exists. The Governor's population deviation is two. Population deviation (taken as a range of deviation) is

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determined by taking the Governor's maximum deviation above the

ideal (one person) and adding it to the Governor's minimum

deviation below the ideal (one person). See Evenwel, 578 U.S.

at 59 (explaining that population deviation, when conducting a

population equality analysis, is calculated by a comparison

"between the largest and smallest district"). 1 + 1 = 2.

However, the Governor, in his briefs, asserts that his deviation

is the same as the Congressmen's: one person. This assertion

stems from the incorrect, semantic wordplay of his expert who,

in her initial report, calculated that "[t]he largest deviation

is 1 person, with all districts ranging from 1 person below to 1

person above the ideal population." The "largest" difference

between the average population may be one person, but that is

not the relevant statistic. Population deviation is the

difference between the smallest and largest district.

Importantly, this range of deviation is later acknowledged in

the Governor's expert report. ¶172 Despite this burden and the need to explain why his districts have greater than necessary population inequality, the

Governor at oral argument stated a population deviation of two

was included because the Governor did not believe a lower

population deviation was required under law. No explanation or

details were provided as to why the deviation was necessary,

applying reasonable priorities such as "making districts

compact, respecting municipal boundaries, preserving the cores

of prior districts, and avoiding contests between incumbent Representatives." Karcher, 462 U.S. at 740. As explained

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above, the United States Constitution requires exactness of

population absent the "practical impossibility of drawing equal

districts with mathematical precision." Johnson, 399

Wis. 2d 623, ¶25. Both CMS and the Congressmen showed a lower

population deviation could be done, and they too achieved high

core retention.

¶173 Given advanced software technology and the immense

financial resources put to use in this litigation, it was

abundantly possible for the Governor to achieve a deviation of

one while retaining the same least change characteristics, such

as core retention. Due to a misunderstanding of law, and

misstatement of the definition of population deviation, the

Governor overlooked the driving consideration of drawing

congressional districts "with populations as close to perfect

equality as possible." Evenwel, 578 U.S. at 59. But

carelessness cannot satisfy the Governor's burden of proving

"with some specificity that the population differences were

necessary to achieve some legitimate state objective." Tennant v. Jefferson Cnty. Comm'n, 567 U.S. 758, 760, 763-65 (2012) (per

curium) (quotations omitted) (holding that a congressional map

in West Virginia was legal where the state justified its

deviations by pointing to protection of local communities,

limiting incumbent pairings, and reducing change in district

lines). By contrast, the Governor's deviation was not the

result of "a good-faith effort to achieve absolute equality" and

is thus insufficient. Id. (quoting Karcher, 462 U.S. at 730).

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¶174 The majority picks sides and litigates for the

Governor, claiming that the two person deviation was necessary

for least change. See majority op., ¶24 ("[The Governor's]

minor population deviation is justified under Supreme Court

precedent by our least change objective.") This is a whitewash:

the Governor admitted that a lower deviation could be done

without issue, but permitted a deviation of two because he did

not believe a lower deviation was necessary. Neither the

Governor nor any other party argued that a deviation of two

individuals was required to ensure a least change map.

Furthermore, it is facially preposterous: with advanced

computer technology, the Governor could have readily reduced his

population deviation while maintaining his core retention.

Simply put, the Governor failed to present a "legitimate state

objective" for his unnecessary deviation. Tennant, 567 U.S. at

760; see also Karcher, 462 U.S. at 730–31 ("[T]here are no de

minimis population variations.") ¶175 Only the Congressmen's map and CMS's map should be considered by this court. The Congressmen have higher core

retention than CMS and should be adopted. Nonetheless, CMS

offers a reasonable alternative. The Governor's maps are

fatally and constitutionally flawed. The majority errs in

adopting them.

¶176 For the foregoing reasons, I respectfully dissent.

¶177 I am authorized to state that Justices PATIENCE DRAKE ROGGENSACK and REBECCA GRASSL BRADLEY join this dissent.

74 No. 2021AP1450-OA.pdr

¶178 PATIENCE DRAKE ROGGENSACK, J. (dissenting). The

2020 census shows that Wisconsin's growth in population requires

reapportionment of its congressional and state legislative

districts. Reapportionment presents a three dimensional puzzle,

each piece of which has statutory and constitutional

requirements. I write to address one error of Governor Evers's

map reapportioning Wisconsin's Assembly Districts, which four

members of this court have adopted. In Wisconsin's single

member districts, the Assembly map conflicts with the Voting

Rights Act of 1965, formerly set out in 42 U.S.C. § 1973, now

within 52 U.S.C. § 10301. In adopting the Governor's map, a

majority of this court engages in racial gerrymandering contrary

to the Equal Protection Clause of the Fourteenth Amendment of

the United States Constitution, which prohibits separating

voters into different voting districts based on the race of the

voter. Bethune-Hill v. Virginia State Bd. of Elections, 580

U.S. __, __, 137 S. Ct. 788, 797 (2017). It is my hope that the

United States Supreme Court will be asked to review Wisconsin's unwarranted racial gerrymander, which clearly does not survive

strict scrutiny.

¶179 The United States Constitution requires that

apportionment be as equal as practicable because population

disparity in voting districts for the same legislative body

dilutes the power of some voters. Concerns about voter

inequality have been the foundation of the Supreme Court's one-

person-one-vote decisions. Reynolds v. Sims, 377 U.S. 533, 558

1 No. 2021AP1450-OA.pdr

(1964) (explaining that the concept of voter equality "can mean

only one thing——one person, one vote").

¶180 The Supreme Court has required near mathematical

equality for congressional maps. Abrams v. Johnson, 521 U.S.

74, 98 (1997). Somewhat more leeway is given when drawing

boundaries for state legislative districts. Evenwel v. Abbott,

578 U.S. 54, 59 (2016). However, court-drawn maps are held to a

more exacting standard of population equality than are

legislatively drawn maps. Abrams, 521 U.S. at 98.

¶181 The Voting Rights Act prohibits any standard, practice

or procedure that results in denial or abridgement of the right

to vote on account of race. 52 U.S.C. § 10301(a); Cooper v.

Harris, 137 S. Ct. 1455, 1464 (2017).1 Subsection (b) provides

the required examination for assessing whether race is

precluding equal opportunity for a protected class:

A violation of subsection (a) is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) 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. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, [t]hat nothing in this section establishes a right to have members of a protected

The provisions of 52 U.S.C. § 10301 have been referred to 1

as Section 2 of the Voting Rights Act of 1965 subsequent to the 1982 amendment. See Johnson v. De Grandy, 512 U.S. 997, 1009-10 (1994).

2 No. 2021AP1450-OA.pdr

class elected in numbers equal to their proportion in the population. § 10301(b).

¶182 Over the years, the Supreme Court has addressed the

Voting Rights Act in decisions that explain how it is to be

applied in various contexts. Thornburg v. Gingles, 478 U.S. 30

(1986), is the seminal Supreme Court case that sets the

analytical framework that is required when the Voting Rights Act

is addressed.2 Gingles establishes all three threshold

"prerequisites" that must be affirmatively proved before further

consideration of a claim of, or potential remedy for, a

violation of § 2 of the Voting Rights Act can be addressed in

reapportionment. First, there must be proof that a minority

group is "sufficiently large and geographically compact to

constitute a majority [in a single-member district];" second,

the minority group must be "politically cohesive"; and third,

the "white majority [] vote[ed] sufficiently as a bloc to

[enable it] usually [to] defeat the minority's preferred

candidate." Cooper, 137 S. Ct. at 1470 (citing Gingles, 478

U.S. at 51); Johnson v. De Grandy, 512 U.S. 997, 1009-10 (1994)

(also citing Gingles, 478 U.S. at 51).

¶183 Cooper is particularly helpful in its instructions

about how to employ the Gingles "prerequisites." Cooper sets

out the "three threshold conditions" for proving voter dilution3

2Thornburg v. Gingles, 478 U.S. 30 (1986) arose in a challenge to multi-member districts. Its analysis has been applied to single-member district challenges as well. De Grandy, 512 U.S. at 1000.

Voter dilution, a violation of § 2 of the Voting Rights 3

Act, may occur when a cohesive minority group is fragmented 3 No. 2021AP1450-OA.pdr

and then explains that these showings are needed to establish

that racially polarized voting prevents the minority group's

choice in the district as actually drawn because the minority

group is submerged in a larger white voting population. Cooper,

137 S. Ct. at 1470.

¶184 In determining whether the third Gingles

"prerequisite" was met, the Court reviewed the success of black

candidates in past elections. Id. It noted that in North

Carolina, where Cooper arose, "electoral history provided no

evidence that a § 2 plaintiff could demonstrate the third

Gingles prerequisite——effective white bloc-voting." Id. The

Supreme Court in Cooper concluded that when an elective district

"functioned, election year in and election year out, as a

'crossover' district, in which members of the majority help a

'large enough' minority to elect its candidate of

choice . . . it is difficult to see how the majority-bloc-voting

requirement could be met——and hence how § 2 liability could be

established." Id. (citing Bartlett v. Strickland, 556 U.S. 1, 13, 16 (2009)).

¶185 The three Gingles prerequisites are factual conditions

that must be proved in order to establish the first step of a

claim under § 2 of the Voting Rights Act. All three

preconditions must be met before considerations of race could

lawfully affect drawing district boundaries. As the Supreme

Court has explained, "In a § 2 case, only when a party has

among several districts or packed into too few districts. Id. at 1002.

4 No. 2021AP1450-OA.pdr

established the Gingles requirements does a court proceed to

analyze whether a violation has occurred based on the totality

of the circumstances." Bartlett, 556 U.S. at 11-12. However,

to escape the parties' failure to establish the Gingles

requirements, the majority resorts to protesting that "no party

saw fit to develop an argument" that the Gingles requirements

were not satisfied.4 Nevertheless, if we permit this abdication

to form the basis of the law of the State of Wisconsin, the

results in this case will effect an unconstitutional, racially

gerrymandered map. Our judgments are precedents, and the proper

interpretation of the law as it relates to these judgments

cannot simply be left to the parties. Young v. United States,

315 U.S. 257, 259 (1942). Instead, as this state's highest

court, it is our duty to ensure the proper interpretation of the

law.

¶186 Milwaukee is Wisconsin's only county that has a

sufficiently large and geographically compact black population

of voters that could meet the Gingles preconditions. The black voters of Milwaukee do vote cohesively for candidates of their

choice. However, 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.

¶187 Notwithstanding the Supreme Court's clear

instructions, the majority opinion ignores the historical record

of black voters choosing candidates of their choice and assigns

voters based solely on their race to create seven majority-

4 Majority op., ¶45.

5 No. 2021AP1450-OA.pdr

minority voting assembly districts in Milwaukee County. The

Supreme Court "has made clear that unless each of the three

Gingles prerequisites is established, 'there neither has been a

wrong nor can be a remedy.'" Cooper, 137 S. Ct. at 1472

(quoting Growe v. Emison, 507 U.S. 25, 41 (1993) (emphasis in

Cooper)). The Supreme Court in Cooper struck down North

Carolina's racial gerrymander "whose necessity is supported by

no evidence and whose raison d'etre is a legal mistake."

¶188 The map adopted by the majority opinion violates the

Voting Rights Act for the same reason as North Carolina's choice

did in Cooper. Factually, Wisconsin has had significant

experience with electing black candidates through white

crossover voting.

¶189 For example, in 2016, Gwen Moore, a black

congresswoman, was elected to Congressional District 4, which

has only 33.3% black residents. However, she received 76.74% of

the vote.5 She was reelected in 2018 with 75.61% of the vote; and reelected in 2020 for a third time with 74.65%. That her

vote totals exceed the percentage of black residents in her

district evidences that white voters have crossed over to

support her elections.

The record of votes achieved by black candidates comes 5

from state public records of election outcomes and are therefore "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Wis. Stat. § 902.01.

6 No. 2021AP1450-OA.pdr

¶190 Mandela Barnes, a black state-wide candidate, is

another example of white crossover voting. In 2018, Mandela

Barnes was elected over a white primary opponent for Lieutenant

Governor with 67.86% of the vote.6

¶191 David Clarke, a black county-wide candidate, provides

repetitive examples of white crossover voting. Clarke was

elected Milwaukee County Sheriff in 2006 with 77.85% of the

vote; reelected in 2010 with 80.42% and reelected again in 2014

with 79.12% of the vote. Each time he was elected with the

assistance of white crossover voting, as shown by his percentage

victories that are well above the black resident percentage of

Milwaukee County.7 White crossover voting also helped elect

David Crowley, a black candidate, as the Milwaukee County

Executive in 2020. He formerly held a position in Wisconsin's

Assembly.

¶192 Since 2012, Lena Taylor, a black state senator, has

been elected repeatedly to Senate District 4 with vote totals

showing white voter support. For example, in 2012, Lena Taylor obtained 86.6% of the vote; in 2016 she obtained 98.33% of the

vote; and in 2020, she obtained 98.34% of the vote. 61.7% of

the residents of Senate District 4 are black.

¶193 La Tonya Johnson, a black state senator, has been

elected repeatedly to public office with vote totals showing

6 Wisconsin's black population of voting age is approximately 6.4%. 7 Approximately 26% of Milwaukee County's residents are black.

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support from white voters. For example, in 2014, she was

elected to Assembly District 17 with 87.25% of the vote, and in

2016 she was elected to Senate District 6 with 98.89% of the

vote. 65.4% of the residents of Assembly district 17 are black

and 62.1% of Senate District 6 are black residents. Leon Young,

a black assemblyman was elected to Assembly District 16 in 2014,

unopposed.8 In 2014, Jason Fields, a black assemblyman, was

elected to Assembly District 11, unopposed.9

¶194 The majority opinion ignores Milwaukee County's

historical record of white crossover voting that has provided

repeated support for black candidates during at least the last

ten years. The majority opinion does so in order to create

seven majority-minority districts in Milwaukee County. In so

doing, the majority opinion comes squarely within the

prohibition that assigning voters to voting districts by race

violates the Equal Protection Clause of the Fourteenth

Amendment.

¶195 The majority opinion says that it relies on Cooper for the racial gerrymander that it creates in Milwaukee County. The

majority opinion clearly misunderstands Cooper, which overturned

racial gerrymandering that occurred in North Carolina. Let's

look at Cooper and why the majority opinion fails to follow it.

¶196 Justice Kagan begins her discussion in Cooper with the

Equal Protection Clause of the Fourteenth Amendment, which she

explains, "limits racial gerrymanders in legislative districting

8 61.5% of the residents of Assembly District 16 are black. 9 63.7% of the residents of Assembly District 11 are black.

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plans." Id. at 1463. As Justice Kagan explained, the Equal

Protection Clause "prevents a State, in the absence of

'sufficient justification,' from 'separating its citizens into

different voting districts on the basis of race.'" Id. (quoting

Bethune–Hill, 137 S. Ct. at 797). When allocation of voters by

race has occurred, that allocation must withstand strict

scrutiny such that the State must prove "its race-based sorting

of voters serves a 'compelling interest' and is 'narrowly

tailored' to that end." Id. at 1464.

¶197 In order to meet the narrow tailoring for the racial

assignment of voters, the State must establish by factual proofs

that it had "good reasons" to believe that the Voting Rights Act

would be violated if voters were not assigned based on their

race. Id. Cooper explained what it means by "good reasons"

sufficient to satisfy strict scrutiny. First, Cooper emphasized

that the "good reason" to which it referred was factual proof of

"good reason to think that all the 'Gingles preconditions' are

met, then so too it has good reason to believe that § 2 requires drawing a majority-minority district. . . . But if not, then

not." Id. at 1470. Second, as the Supreme Court said as it

examined factual evidence, "[h]ere, electoral history provided

no evidence that a § 2 plaintiff could demonstrate the third

Gingles prerequisite——effective white bloc-voting." Id.

¶198 It is Cooper's "good reason" phrase that the majority

opinion picked up as its foundation for assigning voters to

districts based on race. The majority said, "we conclude there are good reasons to believe a seventh majority-Black district is

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needed to satisfy the VRA."10 It did so without understanding

that factual proofs of the Gingles preconditions are necessary

before it could satisfy "good reason" for assigning voters by

race in districting.

¶199 The majority showed how limited its understanding of

Cooper is by its dismissive treatment of Cooper's requirement to

factually prove the three Gingles preconditions.11 Factual proof

is exactly what "good reasons" requires and what the majority

lacks as it contravenes the Equal Protection Clause by assigning

voters to districts based on their race. As Cooper carefully

explained, there must be proof of effective white bloc-voting

that prevents the minority's ability to elect the candidate of

its choice before a § 2 violation can arise. Id.

¶200 As the factual evidence above showed, black voters in

Milwaukee are able to elect candidates of their choice, election

year in and election year out, for congresswoman, state

senators, state assembly persons, sheriff and Milwaukee County

Executive to name only a few. Just as in North Carolina in Cooper, proof of the third Gingles precondition to § 2 liability

is absent from the majority opinion. The Voting Rights Act is

violated by the majority opinion just as it was by the State of

North Carolina in Cooper.

¶201 It is beyond dispute that the Governor's districting

plan adopted by a majority of this court assigns voters to

districts based on race. "Racial classifications are

10 Majority op., ¶10. 11 Id., ¶45.

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antithetical to the Fourteenth Amendment, whose 'central

purpose' was 'to eliminate racial discrimination emanating from

official sources in the States.'" Shaw v. Hunt, 517 U.S. 899,

907 (1996). Such an assignment violates the Equal Protection

Clause of the Fourteenth Amendment unless the racial assignment

serves a compelling state interest and is narrowly tailored to

meet that interest. Cooper, 137 S. Ct. at 1464.

¶202 Just as it ignores the lack of factual proof for the

three Gingles preconditions, the majority opinion identifies no

compelling state interest to which its racial gerrymander is

narrowly tailored. Instead, it asserts that if a seventh black

majority district were not drawn, a § 2 violation may occur, but

it "cannot say for certain on this record."12

¶203 To justify its weak position, the majority cites to

the black population of Wisconsin increasing and the white

state-wide population decreasing in the last ten years, both by

less than five percent.13 However, the majority does not

identify whether any of that population change occurred in Milwaukee County; or whether if it occurred in Milwaukee County,

it occurred in the area of Milwaukee County where the majority

opinion creates a seventh black majority district.

¶204 This is not a small error because the means chosen to

accomplish a race-based purpose "must be specifically and

narrowly framed to accomplish that purpose." Shaw, 517 U.S. at

908. To meet that standard, the racial assignment of voters

12 Id., ¶47. 13 Id., ¶48.

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must be remedial to the specific location of the compelling

state interest identified. Id. at 915.

¶205 However, just as in Shaw, the seventh district that

the majority creates is not remedial to correcting an identified

compelling state interest. Stated otherwise, creation of a

seventh district in one area of Milwaukee County is not a

narrowly tailored remedy for a population change for the entire

State of Wisconsin, which the majority asserts as justification

for creating the seventh district. The creation of the seventh

black majority district in Milwaukee County cannot survive

¶206 Accordingly, because proof of meeting the third

Gingles precondition has not been provided, as is required

before voters may be assigned to voting district by race, and

because the seventh black majority district does not survive a

strict scrutiny inquiry, the majority errs, and I respectfully

dissent.

¶207 I am authorized to state that Chief Justice ANNETTE KINGSLAND ZIEGLER and Justice REBECCA GRASSL BRADLEY join this

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¶208 REBECCA GRASSL BRADLEY, J. (dissenting).

[H]e who would place the supreme power in mind, would place it in God and the laws; but he who entrusts man with it, gives it to a wild beast, for such his appetites sometimes make him; for passion influences those who are in power, even the very best of men: for which reason law is reason without desire. Aristotle, A Treatise on Government Bk. III, ch. XVI (William

Ellis trans., 1912) (circa 384–22 B.C.),

https://www.gutenberg.org/files/6762/6762-h/6762-

h.htm#link2H_INTR.

¶209 Just three months ago, we said this court "will

confine any judicial remedy to making the minimum changes

necessary in order to conform the existing congressional and

state legislative redistricting plans to constitutional and

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statutory requirements."1 Johnson v. Wis. Elections Comm'n, 2021

WI 87, ¶8, 399 Wis. 2d 623, 967 N.W.2d 469. Now, the majority

overrides the United States Constitution, the Wisconsin

Constitution, and federal statutory law in favor of a policy

1 In a deceptive caricature of our November 30, 2021 opinion, Justice Ann Walsh Bradley (joined by two other justices) claims "'least change,' as set forth in the court's prior order, is unmoored from any legal requirement for redistricting. The parties struggled with reconciling it with the United States Constitution, Wisconsin Constitution, and Voting Rights Act." Concurrence, ¶58. Although in this opinion the new majority indeed untethers the least-change approach from the law, in this court's November 30 opinion (not an "order"), we consistently defined "least change" to mean "making only those changes necessary for the maps to comport with the one person, one vote principle while satisfying other constitutional and statutory mandates." Johnson v. Wis. Elections Comm'n, 2021 WI 87, ¶8, 399 Wis. 2d 623, 967 N.W.2d 469; see also id., ¶¶4, 8, 64, 72, 81. Although the majority corrupts the least-change approach by "unmoor[ing]" it from the law——treating a single measure of least change, core retention, as an extra-legal criterion taking precedence over the law——that is not the way we described it three months ago. Any "struggle[]" to "reconcil[e]" the least-change approach with the law stems not from our "prior order" but from a misapplication of the least- change approach that allows core retention (an extra-legal criterion) to override the United States Constitution, the Wisconsin Constitution, and the VRA. Contrary to the concurrence's disingenuous description, we never said core retention was a "metric" that would carry any weight, let alone "more weight than others." Concurrence, ¶59. We never told the parties that core retention was "preeminent," id., ¶63; we told them to submit maps that made only those changes necessary to comply with the law. Although three justices in the majority believe core retention plays far too great a role in the majority's analysis, they join it anyway, then lament about it in a separate writing. Despite six justices agreeing core retention should not be the sole governing criterion in this case, a majority nevertheless selects the Governor's maps ostensibly on this basis. Contrary to the concurrence, nothing in our November 30 opinion compels this; properly applied, our November 30 opinion stands in opposition to the majority's decision.

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goal it deems "commendable"2——"core retention"3——a phrase

appearing nowhere in either our November 30, 2021 opinion nor

even in Justice Hagedorn's concurrence to that opinion (which no

one joined). Elevating their subjective policy preferences over

the law, members of the majority abandon a remedy for

malapportionment grounded in the law and instead entangle

themselves in legislative (and therefore blatantly political)

policymaking by choosing maps based upon what the majority deems

"best,"4 justified by what the majority determines are "good

reasons,"5 and using criteria the majority deems "helpful."6

¶210 In doing so, the majority flouts not only this court's

precedent but the constitutional separation of powers. "Because

the judiciary lacks the lawmaking power constitutionally

conferred on the legislature" we promised to "limit our remedy

to achieving compliance with the law rather than imposing policy

choices." Id. The majority now reneges on that promise,

relegating constitutional mandates to "policy choices" that may

be protected or disregarded at the whim of the majority of this court.7 The majority's decision represents a startling departure

2 Majority op., ¶35. 3 Id., ¶¶7–8, 13 & n.9, 14–15, 22, 24, 26–30, 33. 4 Id., ¶6. 5 Id., ¶45.

Id., ¶13. 6 The majority is most transparent about its "involvement" in making "numerous policy and political decisions," see id., ¶4, thereby abandoning its neutral role.

7 Id., ¶35.

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from the rule of law and an alarming affront to the people of

Wisconsin who elected us to uphold the constitutions.

¶211 The majority's dispositive guidepost——core retention——

exists nowhere in the United States Constitution, the Wisconsin

Constitution or any statutory law. Absent from the law, it does

not appear in our November 30 opinion among the purely legal

criteria we directed the parties to employ in proposing maps.

Nevertheless, the majority belatedly invokes core retention as

justification for its preferred maps, allowing an extra-legal

criterion to take precedence over the Equal Protection Clause,

the Voting Rights Act (VRA), and Article IV——the "exclusive

repository" of "the standards under the Wisconsin Constitution

that govern redistricting." Id., ¶63. "It is 'the province and

duty of the judicial department to say what the law is[,]' and

not what we think it should be." Town of Wilson v. City of

Sheboygan, 2020 WI 16, ¶51, 390 Wis. 2d 266, 938 N.W.2d 493

(Rebecca Grassl Bradley, J., concurring) (quoting Marbury v.

Madison, 5 U.S. (Cranch) 137, 177 (1803)) (modification in the original). Instead of following the law this court declared

just three months ago, the majority instead adopts maps based on

its subjective policy preferences, fulfilling the fears of many

citizens concerned about a judicially-partisan outcome.

¶212 Remedying unconstitutional malapportionment——

inequality in the number of citizens in each legislative or

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congressional district——was this court's sole task in this case,8

and would not have been a particularly challenging one, if the

majority had confined itself to applying the law. The majority

flunks every constitutional test by adopting maps that are not

even remedial, exhibiting avoidable population inequality (in

violation of Article IV, Section 3 of the Wisconsin

Constitution, Article 1, Section 2 of the United States

Constitution, and the Equal Protection Clause) and excessive

county, town, and ward splits (in violation of Article IV,

Section 4 of the Wisconsin Constitution).

¶213 For over a century, this court has required "as close

an approximation to exactness as possible" in apportioning

population by legislative districts under the Wisconsin

Constitution. State ex rel. Attorney General v. Cunningham, 81

Wis. 440, 484, 51 N.W. 724 (1892). The only justification for

deviating from exactness is compliance with other constitutional

requirements (mainly, Section 4). State ex rel. Lamb v.

Cunningham, 83 Wis. 90, 150, 53 N.W. 35 (1892). Similarly, nearly fifty years ago the United States Supreme Court declared

there is "no excuse for the failure to meet the objective of

equal representation for equal numbers of people in

congressional districting other than the practical impossibility

8 The entire point of this proceeding was to "remedy . . . malapportionment, while ensuring the maps satisfy all other constitutional and statutory requirements." Johnson, 399 Wis. 2d 623, ¶4. Instead, the majority overrides the constitutional command of one person, one vote because "population deviation is not an indicator of least change." Majority op., ¶32 n.18. The constitution is not expendable at the majority's caprice.

5 No. 2021AP1450-OA.rgb

of drawing equal districts with mathematical precision." Mahan

v. Howell, 410 U.S. 315, 322 (1973) (emphasis added). The

majority conveniently does not address these precedents other

than to pay lip service to them.

¶214 Irrefutably, the majority could have adopted maps with

practically perfect population equality; the Citizen

Mathematicians and Scientists drew such maps. Not only does the

majority adopt an assembly map and a congressional map with

unconstitutional population deviations, it also inflicts a

constitutional harm not present in the 2011 maps by severing the

boundaries of numerous local communities with no lawful

justification for doing so. The Governor did not sacrifice

population equality to preserve local communities, so his

population deviation is unjustifiable and therefore

¶215 If all of these constitutional failings weren't enough

to disqualify the Governor's maps, their constitutionally

impermissible dilution of the Black vote in Milwaukee County should be. In Johnson v. De Grandy, the United States Supreme

Court rejected the "rule of thumb apparently adopted by the

District Court" in that case (and by the majority in this case)

"that anything short of the maximum number of majority-minority

districts consistent with the Gingles conditions would violate

§ 2 [of the VRA]" as "caus[ing] its own dangers, and they are

not to be courted." 512 U.S. 997, 1016 (1994). Expanding the

number of Black opportunity districts to seven may on the surface appear to augment Black voting strength, but in reality

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it jeopardizes the effectiveness of each district by spreading

the population too thin,9 with each of the Governor's opportunity

districts hovering just above or just below 50%.10

¶216 I also write to address an issue with recurring

significance beyond redistricting. Justice Hagedorn's November

30 concurring opinion——which no one joined——is not the

"controlling" opinion of this court.11 Setting aside Justice

Hagedorn's departure from his November 30 position in announcing

new views as the majority author at this late stage of the case,

his November 30 concurrence was simply that and the majority

opinion controls the issues presented. The apparent confusion

9 Some elected officials characterized plans to reduce the Black voting-age population percentages in Milwaukee as part of "a national effort to dilute minority communities to create more Democratic seats." See, e.g., Assembly Floor Session, at 2:18:05 (Nov. 11, 2021) (statement of Rep. Sylvia Ortiz-Velez (AD8)), https://wiseye.org/2021/11/11/wisconsin-state-assembly- floor-session-42. 10 The parties present slightly different ways of measuring Black voting-age population. According to the Legislature, this population includes "non-Hispanic Black" and "non-Hispanic (Black + White)." Legislature's Resp. Br., at 22. The Legislature omits other "multi-race subcategories[.]" Id. In contrast, other parties, including BLOC, ask that these subcategories be included. BLOC's Reply Br., at 8 n.1. If the goal is to draw seven majority-minority districts (which the majority suggests is the case), this definitional dispute is critical. In fact, according to the Legislature's definition, none of the Governor's seven supposedly VRA-mandated Black opportunity districts are above 50.0% (although one is exactly 50.0%). Legislature's Resp. Br., at 22. 11 The Hunter Intervenor-Petitioners expressly labelled Justice Hagedorn's concurrence "controlling[.]" Hunter Intervenor-Petitioners' Resp. Br., at 6. A number of other parties treated it as controlling without giving it that label.

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caused by his concurrence derailed the case presentations of

several parties.

¶217 To prevent the court's policy-driven mapmaking in the

future, the next time this court resolves a redistricting

dispute it should consider withdrawing language from State ex

rel. Reynolds v. Zimmerman, which prohibited the Legislature

from implementing state legislative redistricting plans by joint

resolution. 22 Wis. 2d 544, 569–70, 126 N.W.2d 551 (1964).

That precedent should be revisited because it does not comport

with the constitutional text, which assigns the Legislature

alone the responsibility of redistricting. The Legislature

suggested this court may need to revisit Zimmerman, depending on

how it decided to proceed in this case.12 This issue is worthy

of the court's attention.

¶218 As a final matter, in the interest of ensuring

procedural due process, this court should have allowed all

parties to submit substantive modifications to their proposed

remedial maps. The majority disingenuously states, "we invited all parties to this litigation to submit one proposed map for

each set of districts[.]"13 True, we asked each party to submit

only "one" set of proposed remedial maps; however, we permitted

the Governor and BLOC to make critical changes that went well

beyond correcting drafting errors. For example, the Governor

Legislature's 10/26/21 Br., at 20-22 ("Zimmerman is on 12

shaky ground in light of the language of . . . Article IV, § 3 and historical context."). 13 Majority op., ¶4 (emphasis added).

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originally proposed a remedial assembly map that split 80 towns,

but his modified map splits 50, a reduction of nearly 40%.14 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.15 Instead, the majority

inexplicably rushes to select the Governor's unlawful maps,

eschewing reasoned law for its own desires. I dissent.

I. THE MAJORITY'S REMEDY VIOLATES THE CONSTITUTIONS

¶219 The majority guts state constitutional mandates. In

our November 30th opinion, we outlined the "discrete

requirements" of Article IV, Sections 3 and 4. Johnson, 399

Wis. 2d 623, ¶63. Section 3 requires state legislative

districts to be drawn "according to the number of inhabitants."

Section 4 requires assembly districts "to be bounded by county,

precinct, town, or ward lines[.]"16 We declared these sections

"explicitly protect[] . . . justiciable and cognizable rights,"17

14Johnson v. WEC, No. 2021AP1450-OA, unpublished order, at 3 (Wis. Jan. 10, 2022) (Roggensack, J., dissenting). 15 Id. 16 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. State ex rel. Attorney General v. Cunningham, 81 Wis. 440, 520, 51 N.W. 724 (1892) (Lyon, C.J., concurring) ("[T]he precinct of the constitution disappeared when the uniform system of town and county government prescribed, by the constitution (art. 4, sec. 23) became fully operative. We have now no civil subdivisions, other than towns and wards, which are the equivalent of the precinct of territorial times."). Under Article IV, "precinct" does not mean election precinct. 17 Johnson, 399 Wis. 2d 623, ¶38.

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dedicated eleven paragraphs to expounding how these sections are

satisfied,18 and repeatedly promised Wisconsinites we would

uphold these sections when selecting remedial state legislative

maps.19 The majority in this opinion reverses course, treating

Sections 3 and 4 as mere hortative statements with no operative

effect. The majority goes so far as to suggest Section 4 may

not even be a commendable policy goal——at least, not as

commendable as core retention.20 Despite the constitutional

command, the majority actually frowns upon minimizing the number

of county, town, and ward splits to the extent such an effort

produces more change from prior maps than the majority deems

acceptable.21 Least change is an approach designed to minimize

changes to predecessor maps, but it should go without saying

that the court must in all respects comply with the law. The

Wisconsin Constitution is the supreme law of this state, which

all members of this court swore an oath to uphold. The people

of Wisconsin should be alarmed at the majority's dismissiveness

toward the constitution.

18 Id., ¶¶28–38. 19 Id., ¶¶8, 34, 38, 81. Justice Hagedorn agreed without reservation, writing in his solo concurrence, "remedial maps must comply with . . . Article IV, Sections 3, 4, and 5 of the Wisconsin Constitution[.]" Id., ¶82 n.4 (Hagedorn, J., concurring).

Majority op., ¶32 ("[T]he Legislature argues that we 20

should weigh as a measure of least change the number of counties and municipalities split under each proposal. We fail to see why this is a relevant least-change metric, however.").

Id. ("If a municipality was split under the maps adopted 21

in 2011, reuniting that municipality now——laudable though it may be——would produce more change, not less."). 10 No. 2021AP1450-OA.rgb

¶220 In 1892, this court rejected the majority's current

construction of Article IV, Sections 3 and 4 as mere

recommendations for being a "dangerous doctrine," which "should

not be encouraged even to the extent of discussing the question"

because "[t]he convention, in making the constitution, had a

higher duty to perform than to give . . . advice." Cunningham,

81 Wis. at 485. It expressly held, "the restrictions on the

power . . . to make an apportionment, found in sections 3[]

[and] 4 . . . are mandatory and imperative, and are not subject

to . . . discretion[.]" Id. at 486. Later that same year, this

court declared the requirements of these sections are

"absolutely binding" and even the Legislature has "no

power . . . to dispense with any one of them." Lamb, 83 Wis. at

148. The majority now endorses this "dangerous doctrine,"

effectively overruling the Wisconsin Constitution. The majority

barely mentions Cunningham or Lamb, despite implicitly

withdrawing language from both seminal decisions.

¶221 The majority's departure from precedent is, indeed, dangerous. Wisconsin's founders knew political actors would act

politically.22 They did not impose a partisan fairness

requirement on the redistricting process, Johnson, 399

Wis. 2d 623, ¶¶53–63, because telling partisans in the

Legislature not to act for partisan advantage would have been

like ordering water to be dry. Cf. The Law and Policy of

Redistricting Reform, Fed. Soc'y, at 1:06:20 (Apr. 26, 2019),

Gerrymandering was a common practice by 1840. 22 Rucho v. Common Cause, 588 U.S. __, 139 S. Ct. 2484, 2495 (2019) (citation omitted).

11 No. 2021AP1450-OA.rgb

https://www.youtube.com/watch?v=nOi-BEo8ZFc&t=1618s (statement

of Larry Obhof). The founders did, however, impose the

requirements of Article IV, Sections 3 and 4 to limit the extent

to which one party could take control of the state by

gerrymandering.23 Cunningham, 81 Wis. at 486.

¶222 The majority assures future political actors they can

adopt state legislative redistricting plans with population

deviation nearing 2% that cannot be justified by a good-faith

attempt to preserve political boundaries. For comparison, the

assembly map passed by the Legislature and signed by the

Governor in 2011 had a population deviation of 0.76%. Baldus v.

Members of Wis. Government Accountability Bd., 849 F. Supp.

2d 840, 851 (E.D. Wis. 2012). Instead of mentioning this

feature of the 2011 map, the majority resorts to a

legislatively-drawn map from the 1970s that purportedly had a 2%

population deviation.24 Every assembly map drawn by a federal

court in the history of Wisconsin has had a lower population

deviation than the map the majority adopts. Baumgart v. Wendelberger, No. 01-C-0121, 2002 WL 34127471, at *7 (E.D. Wis.

May 30, 2002) (1.48%); Prosser v. Elections Bd., 793 F. Supp.

859, 866 (W.D. Wis. 1992) (0.52%); Wis. State AFL-CIO v.

They also adopted Article IV, Section 5, which states, in 23

relevant part, "no assembly district shall be divided in the formation of a senate district." No one has ever treated Section 5 as anything less than an absolute constitutional requirement. Not a single assembly district is divided in the formation of any senate district in any proposed remedial plan submitted to this court. 24 Majority op., ¶36.

Elections Bd., 543 F. Supp. 630, 637 (E.D. Wis. 1982) (1.74%).

The majority's assurances that "the Governor's maps are

consistent with . . . court-sanctioned requirements

for . . . population equality"25 is simply false. This court has

never recognized a safe harbor for population deviation——until

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

Legislative and Congressional Apportionment in Wisconsin, in

Wisconsin Blue Book 71, 72 (1970) ("The Wisconsin

Constitution has, since 1848, required districts 'according to

the number of inhabitants', and it does not recognize a 'minimal

deviation' which could be disregarded.").26

¶223 A 2% automatic safe harbor is quite the gift to

political actors, affording them unprecedented map-drawing

discretion. Although all but one member of the current majority

25 Id.

According to the majority, this court has never required 26

less population deviation than is present in the maps it adopts. Id., ¶36 n.20. However, this court has not decided a redistricting case since the rise of the one person, one vote principle. Even before the United States Supreme Court established the primacy of this principle in the 1960s, this court never recognized any sort of safe harbor, below which maps are per se constitutional. Instead, it has always examined whether other constitutional criteria (not extra-legal criteria such as core retention) justify the population deviation. Neither the Governor nor the majority has pointed to any such criteria as justification. The question is not whether "better performance on population deviation is . . . possible." Id. As the majority acknowledges, it "certainly" is. Id. The question is whether any legal rationale supports the deviation the majority asserts is permissible——not just for the Governor's maps but for any map. There isn't any. Under controlling precedent, population deviation cannot be judged in isolation, without consideration of all other constitutional criteria.

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decried the 2011 maps as "sharply partisan,"27 they now embrace a

tool for promoting partisan gerrymanders.28 When a partisan

gerrymander coexists with population inequality, a subset of the

people become more politically powerful than the rest of the

population, raising serious concerns that the people, as a

whole, have lost control over their own government. Minimizing

population deviation is the key limitation on partisan

gerrymandering, as evidenced by England's "infamous rotten

boroughs." Johnson, 399 Wis. 2d 623, ¶30 (citing The Federalist

No. 56, at 349 (James Madison) (Clinton Rossiter ed., 1961)).

¶224 The constraints on the Legislature's redistricting

power are "very simple and brief;" undermining any one of them

grants the body significantly more leeway than the constitution

permits. Id., ¶58 (quoting Cunningham, 81 Wis. at 511 (Pinney,

J., concurring)). While this court is bound by the least-change

approach, the Legislature is not. At any time, the Legislature

and the Governor may implement redistricting plans through the

political process, which would supplant this court's remedy.29 Id., ¶19 (majority opinion) (quoting State ex rel. Reynolds v.

Zimmerman, 23 Wis. 2d 606, 606, 128 N.W.2d 16 (1964) (per

27Johnson, 399 Wis. 2d 623, ¶¶88, 106 (Dallet, J., dissenting) (citations omitted).

Of course, notwithstanding a partisan gerrymander, when 28

map drawers comply with the constitutional command to achieve population equality, "[v]oters retain their freedom to choose among candidates irrespective of how district lines are drawn." Id., ¶55 (majority opinion) (citation omitted).

Majority op., ¶52 ("This order shall remain in effect 29

until new maps are enacted into law or a court otherwise directs.").

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curiam)). Under the majority's new redistricting paradigm, one

side of the political aisle may be politically obliterated, much

like the words "according to the number of inhabitants" under

the majority's atextual interpretation. The majority's opinion

is a wolf that does not even try to masquerade as a sheep. See

Morrison v. Olson, 487 U.S. 654, 699 (1988) (Scalia, J.,

dissenting).

¶225 The majority rationalizes constitutionally

impermissible population inequality by declaring "the Governor's

maps are consistent with historical practice and court-

sanctioned requirements for compactness, respect for local

boundaries, and population equality."30 So much for the

constitution. The majority points to maps this court approved

long ago, with substantial population inequality, which the

majority proclaims constitutes a baseline by which to measure

proposed remedial maps in this case. The majority's reliance on

cases predating the primacy placed by the United States Supreme

Court on population equality undermines its analysis entirely. ¶226 In Cunningham and Lamb, this court explained that

Article IV, Sections 3 and 4 exist in tension. While Section 3

requires population equality, Section 4 renders political

boundary lines inviolable——specifically, the lines dividing

counties, towns, and wards. Grouping people into perfectly

equal districts while respecting political boundaries, in which

unequal populations live, is challenging. In Cunningham and

Lamb, this court gave Sections 3 and 4 near equal weight: "[I]t

30 Id., ¶36.

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is impossible to secure exact and equal representation, by

reason of the constitutional hindrances mentioned [mainly,

Section 4]; and it is because of such hindrances, and only

because of such hindrances, that the legislature, under the

constitution, are at liberty to depart from equality of

representation." Lamb, 83 Wis. at 150 (emphasis added); see

also id. at 155 ("It follows that the constitution requires the

legislature to apportion the state into senate and assembly

districts 'according to the number of inhabitants,' as nearly as

can be done consistently with other provisions of the

constitution mentioned."). In particular, this court prohibited

county splits, at the expense of population equality. Id. at

148 ("It was determined in the former case [Cunningham], and is

now conceded, that no county line is to be broken in the

formation of any assembly district.").

¶227 This court twice reaffirmed Cunningham and Lamb. In

1932, this court declared the Legislature "bound by

constitutional mandate to avoid unnecessary inequalities in representation;" however, it also noted "it was recognized in

[Cunningham and Lamb] that the Constitution contains other

provisions which militate against absolute equality . . . . For

example, the requirement that the districts be bounded by

county, . . . town, or ward lines[.]" State ex rel. Bownman v.

Dammann, 209 Wis. 21, 27, 243 N.W. 481 (1932).

¶228 A few decades later, this court reiterated that "the

constitution itself commits the state to the principle of per capita equality of representation subject only to some

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geographic limitations in the execution and administration of

this principle." Zimmerman, 22 Wis. 2d at 556 (emphasis added).

That statement was not a passing remark. This court emphasized

the importance of population equality multiple times:

It is assumed by all parties and understood by this court that a mathematical equality of population in each senate and assembly district is impossible to achieve, given the requirement that the boundaries of local political units must be considered in the execution of the standard of per capita equality of representation.

It is equally clear, however, that a valid reapportionment 'should be as close an approximation to exactness as possible, and [that] this is the utmost limit for the exercise of legislative discretion.'

. . . .

[T]he legislature must apportion in direct ratio to population, subject only to (1) practical limitations in execution of this principle, and (2) precise constitutional restrictions about observance of governmental boundaries in drawing district lines. Id. at 563–66. Until the United States Supreme Court ruled

otherwise, substantial population inequality was permissible, but it had to be justified almost entirely by the preservation

of political boundaries. Our November 30 opinion stressed the

importance of the principle articulated in Zimmerman, although

we also recognized federal constitutional law uprooted the

balance this court had struck between Article IV, Sections 3 and

4, rendering population equality of paramount importance in

redistricting. Johnson, 399 Wis. 2d 623, ¶¶35, 38 (citations

omitted).

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¶229 Post-Zimmerman, federal constitutional law changed.

No longer may Article IV, Sections 3 and 4 be given

approximately equal weight. In 1964, the United States Supreme

Court held, "the Equal Protection Clause requires that a State

make an honest and good faith effort to construct districts, in

both houses of its legislature, as nearly of equal population as

practicable." Reynolds v. Sims, 377 U.S. 533, 577 (1964). That

same year, the Court confirmed even state senate districts had

to comply with the one person, one vote principle. Maryland

Comm. for Fair Representation v. Tawes, 377 U.S. 656, 674–75

(1964). On the eve of Wisconsin's next redistricting cycle, the

assembly requested an opinion from the attorney general

regarding the application of Sections 3 and 4 in light of these

binding precedents. 58 Wis. Att'y Gen. Op. 88 (1969). The

attorney general responded, "[i]n 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." Id. at 91. In another

opinion two years later, the attorney general explained town and

ward lines still needed to be followed but only "insofar as may

be consistent with population equality[.]" 60 Wis. Att'y Gen.

Op. 101, 106 (1971); see also Michael Gallagher, Joseph Kreye &

Staci Duros, Redistricting in Wisconsin 2020 17 (2020),

https://docs.legis.wisconsin.gov/misc/lrb/wisconsin_elections_pr

oject/redistricting_wisconsin_2020_1_2.pdf (explaining respect for the unity of political subdivisions is "by no means

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obsolete" but that these boundaries were followed "much more

meticulously in Wisconsin, and elsewhere, before the advent of

one person, one vote"); Theobald, A Study of Legislative and

Congressional Apportionment in Wisconsin, at 72 ("As long as

they do not conflict with the equal population requirements, all

other apportionment provisions of the Wisconsin Constitution

must be given full effect." (emphasis added)). Accordingly,

every proposed remedial map in this case splits substantially

more counties, towns, and wards than would have been permissible

under Cunningham and Lamb.

¶230 Under the original understanding of Article IV,

Section 3, population inequality was permissible only if a

"constitutional hindrance[]," i.e., compliance with another

constitutional requirement, compelled it. Lamb, 83 Wis. at 150.

In Reynolds, the United States Supreme Court changed the

calculation, but the majority nevertheless chooses maps in

accordance with a bad interpretation of bad law, embracing both

population inequality and fractured political boundaries. ¶231 While the truth may be inconvenient for the majority,

pretending Zimmerman sanctions the Governor's maps because the

maps approved in Zimmerman had "substantially larger population

deviations"31 ignores binding precedent of the United States

Supreme Court. The majority relegates the United States Supreme

Court's directive on population equality to a single footnote,

acknowledging "the geographic limitations in the Wisconsin

31 Id.

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Constitution can no longer be fully enforced"32 as a result. The

majority neglects to acknowledge that those "geographic

limitations" in Article IV, Section 4 can no longer justify the

extent of population inequality approved in Zimmerman.

¶232 While federal constitutional law precludes us from

giving perfect effect to Article IV's original meaning, we could

nonetheless achieve population equality while preserving

political boundaries, something the majority makes no attempt to

do. The remedial maps proposed by the Governor, which the

majority adopts as its own, have both greater population

deviation and more splits than the Legislature's proposed

remedial maps. The Governor offers no explanation for his

population deviation other than a passing reference to least

change, despite this court's direction to the parties to be

mindful of both Sections 3 and 4. Specifically, the Governor's

assembly map has more than twice the population deviation of the

Legislature's map (1.88% compared to the Legislature's 0.76%),33

and double the municipal splits (115 compared to the Legislature's 52),34 and hundreds more ward splits (the

Legislature split zero wards).35 The ward splits are

particularly difficult to justify because "the smaller the

32 Id., n.19 (citing Johnson, 399 Wis. 2d 623, ¶35). 33 Resp. Expert R. Thomas M. Bryan, at 3.

Suppl. R. Supp. Governor Evers's Proposed Corrected State 34

Legislative District Plans, at 5; Expert R. Thomas M. Bryan, at 18.

The Governor and the Legislature split the same number of 35

counties.

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political subdivision, the easier it may be to preserve its

boundaries." Johnson, 399 Wis. 2d 623, ¶35 (citing Baumgart,

2002 WL 34127471, at *3). While one person, one vote

necessitates breaking up counties (large units of people), it

does not necessitate dividing the smallest political units

recognized in the state.

¶233 The Governor argues town splits are relevant but not

village and city splits based on the language of Article IV,

Section 4. His interpretation is consistent with Lamb, 83

Wis. at 148. Even so, he asks this court to split 50 towns by

adopting his proposed remedial assembly map——and the majority

obliges.36 In comparison, the Legislature's map has 52 total

municipal splits, of which only 16 are town splits (the rest are

village and city splits).37 At the time of adoption, the 2011

assembly map split 30 towns.38 A 67% increase in town splits

hardly reflects "least change."

¶234 The majority mischaracterizes the record to justify

the high number of splits. It states:

Particularized data about how many counties or municipalities remain unified or split may be a useful indicator of least change. But no party saw fit to provide that data. What we did receive was raw counts of total county and municipal slits under each

Suppl. R. Supp. Governor Evers's Proposed Corrected State 36

Legislative District Plans, at 5. 37 Expert R. Thomas M. Bryan, at 18.

See Legislature's Reply Br., at 13 ("How many towns were 38

split by Act 43 is ascertainable by reading the statute, identifying in text every town split. There were 30[.]" (citing Wis. Stat. § 4.001, et seq.)).

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proposal, and that information provides no insight into which map makes the least change to existing district boundaries.[39] Problematically, the majority seems to sanction an illegal map——

containing an unlawful number of splits——because the map

performs well on a single extra-legal criterion, core retention.

The majority's approach violates its duty to uphold the

Wisconsin Constitution.40

¶235 Contrary to the majority's assertion, the Legislature

did provide detailed split analyses,41 which it discussed at

length in its response brief. Its expert provided a breakdown

of every county and municipal split in every proposed remedial

map (except for the Governor's modified maps).42 To determine

whether a proposed map retained an existing split or added one

may be tedious, but it is not particularly difficult to

ascertain. The current statutes explicitly state when a split

39 Majority op., ¶32 (second emphasis added). 40Adding together the number of county, town, and ward splits, the assembly map the majority adopts likely has more splits than any map ever implemented in this state. While the majority compares population deviation in its maps with past maps, it does not endeavor to make analogous comparisons for splits. 41 Resp. Expert R. Thomas M. Bryan, at App. 2.

This expert report was submitted before the Governor was 42

allowed to modify his maps to reduce the number of splits. The fact that this court allowed the Governor to modify his maps while denying other parties the opportunity illustrates the serious due process problems triggered by the majority's acceptance of the Governor's modified maps. They have not been subjected to the same level of adversarial scrutiny as other maps. The Governor's motion to file modified maps was filed on January 6, 2022——conveniently, two days after the deadline for submitting reply briefs and reply expert reports.

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occurs. For example, Wis. Stat. § 4.44(1) declares the 44th

Assembly District includes "[t]hat part of the town of Harmony

comprising U.S. census tract 1202, blocks 3004 and 3095," while

Wis. Stat. § 4.45(1)(a) declares the 45th Assembly District

includes "[t]he towns of Albany, Decatur, Jefferson, Spring

Grove, and Sylvester." By comparing the split analyses to the

existing statutes, the Legislature explained in its response

brief "[t]he Governor would split 7 new municipalities in

Waukesha County's Assembly District 99, including Oconomow[o]c

and Pewaukee. Similarly, the Governor would add 8 municipal

splits in Dane County, including Stoughton and Sue Prairie, even

though not previously split[.]"43

¶236 Adding to its infirmities under the law, the

majority's map effectuates a racial gerrymander. The Governor

admits he drew his proposed remedial assembly map with the

express purpose of creating seven Black majority-minority

assembly districts. Such race-driven redistricting must survive

strict scrutiny. The United States Supreme Court has assumed compliance with the VRA can be a compelling state interest.

Abbott v. Perez, 138 S. Ct. 2305, 2315 (2018). However, VRA

violations "never can be assumed, but specifically must be

proved in each case in order to establish a redistricting plan

dilutes minority voting strength in violation of § 2 [of the

VRA]." Shaw v. Reno, 509 U.S. 630, 653 (1993). A state must

have "a strong basis in evidence" demonstrating that without

explicit consideration of race, a redistricting plan would

43 Legislature's Resp. Br., at 16.

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transgress the VRA. Cooper v. Harris, 137 S. Ct. 1455, 1464

(2017) (quoting Alabama Legislative Black Caucus v. Alabama, 135

S. Ct. 1257, 1274 (2015)).

¶237 The majority assumes a remedial assembly map with

fewer than seven Black majority-minority districts would violate

the VRA. This assumption is inappropriate, and the Governor has

failed to establish "a strong basis in evidence" for a seventh

district. The majority suggests the VRA requires the drawing of

a seventh Black majority-minority district because Wisconsin's

Black voting-age population approaches seven percent. However,

Section 2 of the VRA declares "That nothing in this section

establishes a right to have members of a protected class elected

in numbers equal to their proportion in the population." 52

U.S.C. § 10301(b). In De Grandy, the United States Supreme

Court held the failure to maximize the number of opportunity

districts is not a VRA violation.44 512 U.S. at 1017.

Opportunity is generally measured, the Court said, against

44 Maximization has been rejected because it carries a heavy price: "if 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." In re Apportionment of the State Legislature—1992, 486 N.W.2d 639, 654 n.66 (1992) (citation omitted)). In turn, even if Black voters collectively perform better, a portion of the Black voting population is "relegate[d]" to the status of "second class . . . wards of the political/electoral system." Id. Many Black voters object to their votes being diluted "within . . . their district merely to secure the chance that . . . their allies in other districts . . . [are] able to vote more like-minded partisans to the legislature." Cf. Larry Alexander & Saikrishna B. Prakash, Tempest in an Empty Teapot: Why the Constitution Does Not Regulate Gerrymandering, 50 Wm. & Mary L. Rev. 1, 27 (2008).

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"rough" proportionality. See id. at 1000, 1023. The author of

the majority opinion in De Grandy, writing in dissent in another

VRA case, explained:

Several baselines can be imagined; one could, for example, compare a minority's voting strength under a particular districting plan with the maximum strength possible under any alternative. Not surprisingly, we have conclusively rejected this approach; the VRA was passed to guarantee minority voters a fair game, not a killing. See Johnson v. De Grandy, 512 U.S. 997, 1016–1017, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994). We have held that the better baseline for measuring opportunity to elect under § 2, although not dispositive, is the minority's rough proportion of the relevant population. Id., at 1013–1023, 114 S.Ct. 2647. Bartlett v. Strictland, 556 U.S. 1, 29 (2009) (Scouter, J.,

dissenting) (citation omitted). The majority skims over De

Grandy.45

¶238 The Black voting-age population is between 6.1% and

6.5%, as Chief Justice Ziegler explains in her dissent.46

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). Accordingly, even if the Gingles

45Some United States Supreme Court justices have been quite critical of the emphasis placed on proportionality; nonetheless, it is the law we are bound to follow. Holder v. Hall, 512 U.S. 874, 943–44 (1994) (Thomas, J., concurring) ("Few words would be too strong to describe the dissembling that pervades the application of the 'totality of the circumstances' test under our interpretation of § 2. It is an empty incantation——a mere conjurer's trick that serves to hide the drive for proportionality that animates our decisions."). 46 Chief Justice Ziegler's dissent, ¶114.

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preconditions were satisfied, six districts is sufficient to

constitute rough proportionality. See, e.g., Bodker v. Taylor,

No. Civ.A.1:02-CV-999ODE, 2002 WL 32587312, at *8–9 (N.D. Ga.

June 5, 2002) (noting Black people constituted 45.2% of the

population and had only 42.35% of the seats but nonetheless

finding "the court's map conforms with Section 2 of the Voting

Rights Act" because rough "proportional representation" was

achieved and while not "dispositive," proportionality is "strong

evidence" that "minorities have an equal opportunity to

participate" particularly "where there is simply no evidence

before the court about social, historical or other circumstances

that might impact whether minorities in Fulton County are denied

equal opportunity for political participation").47 Justice

Roggensack provides many "good reasons" to believe the

majority's conclusory analysis of the third Gingles precondition

is wanting.

¶239 Rough proportionality is not a safe harbor, but it is

"obviously an indication that minority voters have an equal opportunity, in spite of racial polarization, 'to participate in

the political process and to elect representatives of their

choice,' 42 U.S.C. § 1973(b)[.]" De Grandy, 512 U.S. at 1020.

47BLOC referred to Bodker in its brief and included a copy of the opinion in its appendix. It also referred to and provided a copy of Stenger v. Kellett, No. 4:11CV2230, 2012 WL 601017, at *12 (E.D. Mo. Feb. 23, 2012) ("[B]ecause the African American 'effective minority' districts are in approximate proportion to their population of St. Louis County, the plan would likely not violate the Voting Rights Act even if the Gingles factors were met, given the totality of the circumstances in this case.").

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Just like least change is not reflected by a single number, a

proper VRA analysis is not governed by a "single statistic[.]"

Id. Nevertheless, the "central teaching" of De Grandy is clear:

"[P]roportionality . . . is always relevant evidence in

determining vote dilution . . . . Thus, in evaluating . . . the

totality of the circumstances a court must always consider the

relationship between the number of majority-minority voting

districts and the minority group's share of the population."

Id. at 1025 (O'Connor, J., concurring) (citing Thornburg v.

Gingles, 478 U.S. 30, 99 (1986) (O'Connor, J., concurring in

judgment)). The requisite proportionality analysis is missing

from the majority opinion.

¶240 "[E]xplicit race-based districting embarks us on a

most dangerous course." Id. at 1031 (Kennedy, J., concurring in

part and concurring in the judgment). "[R]acial classifications

violate the very essence of the lofty ideals of individual

equality for which this country strives. The concept of racial

classification ought to be repugnant to all Americans." Robert Redwine, Comment, Constitutional Law: Racial and Political

Gerrymandering——Different Problems Require Different Solutions,

51 Okla. L. Rev. 373, 399 (1996). In the absence of strong

evidence demonstrating a VRA violation will result from the lack

of a seventh district, this court should "unerringly and

unapologetically . . . exalt[] the ideal of individual equality

without regard to race." Id. Exhibiting highly suspect racial

classifications, the majority's remedy violates the Equal Protection Clause.

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II. JUSTICE HAGEDORN'S SOLO CONCURRENCE ¶241 Justice Hagedorn wrote a solo concurrence to our

November 30 opinion, which many parties treated as the

controlling opinion. No justice joined it, and it does not

constitute binding precedent. In Wisconsin, a solo concurrence

can never be controlling. A point of law is the opinion of this

court only if a majority of justices both agree on the point and

join the mandate. State v. Dowe, 120 Wis. 2d 192, 194 352

N.W.2d 660 (1984) (per curiam) (citations omitted); Piper v.

Jones Dairy Farm, 2020 WI 28, ¶22, 390 Wis. 2d 762, 940

N.W.2d 701 (citations omitted). Justice Hagedorn joined all but

six of the 81 paragraphs comprising our November 30 opinion.

The 75 paragraphs joined by four justices in the majority

constitute the majority opinion of the court.

¶242 Perhaps the parties mistakenly assumed the position of

the United States Supreme Court on this issue applies to

Wisconsin Supreme Court cases. The United States Supreme Court

will consider and count concurring opinions in cases lacking an

opinion joined by a majority. In Marks v. United States, the Court held, "[w]hen a fragmented Court decides a case and no

single rationale explaining the result enjoys the assent of five

justices, 'the holding of the Court may be viewed as that

position taken by those Members who concurred in the judgment on

the narrowest grounds[.]'" 430 U.S. 188, 193 (1977) (quoting

Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (plurality)).

Federal courts understand the so-called Marks Rule differently. Some give precedential effect to the narrowest opinion that

joined the mandate; others search for a "common denominator" 28 No. 2021AP1450-OA.rgb

that "must embody a position implicitly approved by at least [a

majority] of Justices who support the judgment." See United

States v. Epps, 707 F.3d 337, 348 (D.C. 2013) (quoting King v.

Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc)).

¶243 The Marks Rule does not apply to this case, but even

if it did, Justice Hagedorn's solo concurrence would not be

controlling. This court has never applied the Marks Rule to

interpret its own precedent, but only to interpret federal

precedent. See State v. Griep, 2015 WI 40, ¶36, 361

Wis. 2d 657, 863 N.W.2d 567. Even if this court had adopted the

Marks Rule (which has been the subject of substantial scholarly

criticism),48 it would not apply. On many points, Justice

Hagedorn's concurrence is broader than the majority opinion, and

some of its conclusions lack any common rationale with the

majority. For example, Justice Hagedorn said extra-legal

criteria could be considered in selecting a map——but only those

extra-legal criteria he deemed important in his subjective

judgment.49 Three justices in the majority would have stuck to

The 48 parties' reliance on Justice Hagedorn's solo concurrence illustrates one problem with the Marks Rule. Justice Hagedorn represents one-seventh of this court, yet his opinion has nonetheless been treated as controlling by most of the parties in this case. The "least popular view[s]" of a single justice do not reflect the law. See Richard M. Re, Beyond the Marks Rule, 132 Harv. L. Rev. 1943, 1944 (2019).

Although Justice Hagedorn believes this court can define 49

what constitutes a community of interest and then protect that community in selecting a map, he acknowledges, "[i]t is not a legal requirement[.]" Johnson, 399 Wis. 2d 623, ¶83 (Hagedorn, J., concurring). In contrast, Justice Hagedorn was unwilling to consider another extra-legal criterion: partisan fairness. Id., ¶87. This inconsistency has never been explained. Justice Hagedorn agrees this court lacks the institutional competency to 29 No. 2021AP1450-OA.rgb

the law alone, showing an unbridgeable philosophical divide

regarding the propriety of extra-legal criteria advanced by the

concurrence.

¶244 In fairness to the parties who mistook Justice

Hagedorn's solo concurrence for the opinion of this court,

perhaps their confusion stemmed from Justice Hagedorn's own

words. In his concurrence, he "invited" the parties to submit

proposed remedial maps and briefing in conformity with his

idiosyncratic views50——never mind that only this court, acting

through a majority of participating justices, can "invite"

parties to do anything. Justice Hagedorn may have cast the

deciding vote in this case, but he does not have the power to

act as a supreme court of one.

¶245 Justice Hagedorn's solo concurrence is also

inconsistent with the views he now expresses as the majority

author. Never once did he mention "core retention" in his

concurrence——nor did the majority, and the dissent used the

phrase only once, in passing.51 In contrast, today's rather

define what constitutes partisan fairness and which political communities deserve special consideration. For the same reasons, "it is not for the Court to define what a community of interest is and where its boundaries are, and it is not for the Court to determine which regions deserve special consideration." Id., ¶71 n.7 (majority opinion) (quoting In re Legislative Districting of the State, 805 A.2d 292, 298 (Md. 2002)). 50 Id., ¶63 (Hagedorn, J., concurring). 51 Id., ¶97 (Dallet, J., dissenting) (citation omitted).

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short majority opinion52 uses the phrase a striking 27 times.53

Justice Hagedorn now says, as the majority author, core

retention is the "preeminent . . . metric"54 and "especially

helpful."55 We never determined "core retention is . . . central

to least change review,"56 despite some parties stating in

briefing before our November 30 opinion that it might be

important to consider, nor did we determine that it is a

"preeminent . . . metric" or "especially helpful." We never

mentioned it at all, until now.

¶246 While we determined that the least-change approach

should guide this court's decision, no one thought that meant

maximizing core retention——not even Justice Hagedorn. There is

a reason the majority does not direct the reader to any portion

of our November 30 opinion to support the proposition that core

retention is dispositive: this majority made it up.

¶247 Justice Hagedorn's concurrence contemplates a

situation that should (as a statistical matter) never occur if

The majority opinion addresses several issues but spans a 52

mere 32 pages. In contrast, the three-judge federal district court opinion in Singleton v. Merrill, one of the most recent successful VRA challenges in the context of redistricting, is 225 pages. __ F. Supp. 3d __, 2022 WL 265001 (N.D. Ala. Jan. 24) (per curiam), stayed sub nom. pending cert. review, Merrill v. Milligan, 142 S. Ct. 879 (Mem). In this case, the only full- fledged VRA analyses come from the three dissents. 53 Majority op., ¶¶7–8, 13 & n.9, 14–15, 22, 24, 26–30, 33. 54 Id., ¶33. 55 Id., ¶13. 56 Id.

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core retention is the "preeminent . . . metric" in selecting

maps——a tie:

Suppose we receive multiple proposed maps that comply with all relevant legal requirements, and that have equally compelling arguments for why their proposed map most aligns with current district boundaries. In that circumstance, we still must exercise judgment to choose the best alternative. Considering communities of interest (or other traditional redistricting criteria) may assist us in doing so. Johnson, 399 Wis. 2d 623, ¶83 (Hagedorn, J., concurring).

Justice Hagedorn envisioned parties presenting "equally compelling arguments" regarding least change, which is an odd

turn of phrase if he really meant, "I will vote for whichever

maps have the best core retention." The chance of two proposed

remedial maps having the same core retention probably approaches

the chance of winning the lottery. No reasonable person would

read Justice Hagedorn's concurrence and think a slight

difference in core retention would be dispositive, yet that is

exactly what the majority now holds.

¶248 Justice Hagedorn's misunderstanding of the least-

change approach, first displayed in his concurrence, infects the

majority opinion in a more fundamentally erroneous way than

equating least change with core retention. The majority spends

substantial time discussing Tennant v. Jefferson County

Commission, 567 U.S. 758, 764–65 (2012) (per curiam).

Specifically, the majority states:

In Tennant[,] . . . the Supreme Court upheld a 4,871- person deviation in West Virginia's congressional districts, noting the deviation advanced the state's interests in maximizing core retention and maintaining whole counties. . . .

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The United States Supreme Court held that maximizing core retention was an acceptable justification for far greater deviation in Tennant.[57] There are multiple problems with the majority's reliance on

Tennant.

¶249 First, our November 30 opinion did not recognize least

change, let alone core retention, as a "state interest." The

least-change approach reflects this court's limited power to

remedy violations of law, which does not include the power to

write statutes out of whole cloth. Johnson, 399 Wis. 2d 623, ¶8

(majority opinion) ("Because the judiciary lacks the lawmaking

power constitutionally conferred on the legislature, we will

limit our remedy to achieving compliance with the law rather

than imposing policy choices."). "A least-change approach is

nothing more than a convenient way to describe the judiciary's

properly limited role in redistricting." Id., ¶72.

¶250 The majority errs by treating core retention as a

state interest of critical importance, at the expense of

applying the text of the Wisconsin Constitution. At most, core retention may indicate whether this court has exceeded its

jurisdiction by delving into political decision-making. In

choosing the Governor's maps, the majority does not limit itself

to "making only those changes necessary for the maps to comport

with the one person, one vote principle while satisfying other

constitutional and statutory mandates (a 'least-change'

approach)," id., ¶5, but instead implements Justice Hagedorn's

57 Id., ¶¶22, 24.

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previously articulated view, which permits tipping the scales

with concededly extra-legal criteria. Id., ¶83 (Hagedorn, J.,

concurring).58

¶251 Second, the West Virginia State Legislature drew the

map under review in Tennant. 567 U.S. at 760–61. Courts have

long been held to higher standards than legislative bodies when

drawing maps precisely because courts do not get to determine,

in the first instance, what constitutes a state interest (at

least not normally).59 The majority's reliance on Tennant is

misplaced.

¶252 That Justice Hagedorn's majority opinion is a

perversion of least change is self-evident from the opinion's

very structure. The majority "begin[s] [its] analysis by

probing which map makes the least change from current district

boundaries. From there, [it] examine[s] the relevant law[.]"60

As in any case, the court is supposed to begin with the law.

Without first knowing what the law requires, there is no way for

the court to "mak[e] only those changes necessary for the maps to comport with the [law]." Johnson, 399 Wis. 2d 623, ¶5

(majority opinion). The majority's fundamentally flawed

analysis produces an illegitimate remedy.

58Justice Ann Walsh Bradley confirms the majority privileged policy over the law in her concurrence, which is joined by all members of the majority except Justice Hagedorn. 59 Chief Justice Ziegler's Dissent, ¶141. 60 Majority op., ¶12.

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III. ZIMMERMAN

¶253 Nearly sixty years have passed since this court last

resolved redistricting litigation. In that case, this court

declared a redistricting plan cannot be implemented by joint

resolution. Zimmerman, 22 Wis. 2d at 559. While Zimmerman has

been precedent for many years, it is the only case to address

that issue, and this court has never had the opportunity to

revisit it because every redistricting case that followed was

heard exclusively in federal court. Unlike a fine wine,

precedent does not necessarily get better with age.61

¶254 With respect to state legislative redistricting

plans,62 the foundation for Zimmerman is weak. The text of

Article IV, Section 3 does not contemplate a role for the

Governor in the drawing of assembly and senate maps. Compare

Wis. Const. art. IV, § 3 ("[T]he legislature shall apportion and

district anew the members of the senate and assembly[.]"), with

e.g., id. art. I, § 21(1) ("Writs of error . . . shall be issued

by such courts as the legislature designates by law." (emphasis

61 See Montejo v. Louisiana, 129 S. Ct. 2079, 2093 (2009) (Alito, J., concurring) ("The dissent, finally, invokes Jackson's antiquity, stating that 'the 23–year existence of a simple bright-line rule' should weigh in favor of its retention. Post, at 2098. But in Gant, the Court had no compunction about casting aside a 28–year–old bright-line rule. I can only assume that the dissent thinks that our constitutional precedents are like certain wines, which are most treasured when they are neither too young nor too old, and that Jackson, supra at 23, is in its prime, whereas Belton, supra at 28, had turned brownish and vinegary."). 62Article IV, Section 3 governs assembly and senate districts, not congressional districts.

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added)). While the Legislature's prerogative to enact laws is

subject to a gubernatorial veto, the constitution does not

describe the Legislature's duty to redistrict as lawmaking,

suggesting the constitution denies the Governor a role in the

process.63

¶255 In contrast, at the time the Wisconsin Constitution

was adopted, Article XIV, Section 11 expressly provided

congressional redistricting would involve both the Legislature

and the Governor. Wis. Const. Art. XIV, § 11 (1848), repealed

1982 (declaring the state's two congressional districts, and

saying they shall be in force "until otherwise provided by law"

(emphasis added)). Differences in language typically signal

differences in meaning, particularly when two provisions of the

same document use different language to describe analogous

concepts. See Parsons v. Associated Banc-Corp., 2017 WI 37,

¶26, 374 Wis. 2d 513, 893 N.W.2d 212 (quoting Antonin Scalia &

Bryan A. Garner, Reading Law 170 (2012)) ("'A word or phrase is

presumed to bear the same meaning throughout a text; a material variation in terms suggests a variation in meaning.' . . . The

fact that the same section of the state constitution refers

generally to a matter being 'prescribed by law' and specifically

to the legislature 'provid[ing]' something 'by statute' strongly

Legislature's 10/26/21 Br., at 21 ("The Legislature's 63

power to reapportion its districts is specifically enumerated in the state constitution, distinct from its lawmaking power. . . . [The text of Article IV, Section 3] does not provide that 'the legislature should enact legislation to apportion anew' or 'the legislature shall by law apportion anew.'").

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suggests that 'law' in that section has a broader meaning than

simply 'statutory law.'" (modification in the original)).

¶256 The difference between the text of Article IV, Section

3 and the now repealed Article XIV, Section 11 is particularly

telling in light of early Wisconsin history. Under territorial

law, the Governor had an explicit role in reapportionment.

Although he did not draw districts, the Governor was responsible

for assigning a number of representatives to each district. The

law provided, in relevant part:

As soon as practicable after having been furnished with the enumeration of the inhabitants of the Territory, . . . the Governor of the Territory shall apportion the thirteen members of the Council, and twenty-six members of the House of Representatives, among the several electoral districts as organized by law, according to their population, as near as may be, as shown by the census taken by virtue of this act. 1842 Laws Wis. Terr. 50. Wisconsin's founders did not preserve

this particular gubernatorial role, and we should be skeptical

of the idea they gave him an entirely different role——the power

of vetoing redistricting plans——without using language even

nearly as explicit.64 See generally James T. Austin, The Life of

The Legislature did not try to enact redistricting plans 64

by joint resolution until the 1960s, despite gubernatorial vetoes of redistricting legislation. State ex rel. Reynolds v. Zimmerman, 22 Wis. 2d 544, 553, 126 N.W.2d 551 (1964). To some extent, this customary practice may inform original meaning, but it is evidence of lesser value and of course secondary to the plain meaning of the words, as illuminated by historical context surrounding their adoption. See, e.g., SEIU v. Vos, 2020 WI 67, ¶28, 393 Wis. 2d 38, 946 N.W.2d 35 (Hagedorn, J., majority op.) ("The text of the constitution reflects the policy choices of the people, and therefore constitutional interpretation similarly focuses primarily on the language of the constitution." (citation omitted)); Coulee Catholic Schs. v. LIRC, 2009 WI 88, ¶57, 320 Wis. 2d 275, 768 N.W.2d 868 ("The 37 No. 2021AP1450-OA.rgb

Elbridge Gerry 347 (1829) (explaining Governor Elbridge Gerry

signed the first so-called "gerrymander" into law because, in

light of "precedents," he doubted whether he could veto the

legislation).

¶257 The Legislature alone has the constitutionally-

prescribed duty to enact a state legislative redistricting plan

each decade. Johnson, 399 Wis. 2d 623, ¶13. While a veto may

frustrate the Legislature's policy agenda, it does not normally

hinder the Legislature from fulfilling an obligation assigned to

it by the supreme law. Whether the Governor actually has the

power to inhibit a co-equal branch's ability to perform its

duty, absent express constitutional authorization, is

questionable.

¶258 The Legislature's duty was critical to an argument

advanced by several "legal scholars"65 in an amicus brief. They

claimed, "the whole reason for this litigation is that the

authoritative, and usually final, indicator of the meaning of a provision [of the Wisconsin Constitution] is the text——actual words used." (citation omitted)); Jacobs v. Major, 139 Wis. 2d 492, 504, 407 N.W.2d 832 (1987) ("We need go no further than holding that Art. I, sec. 3 has [a] plain, unambiguous meaning[.]"); Black v. City of Milwaukee, 2016 WI 47, ¶54, 369 Wis. 2d 272, 882 N.W.2d 333 (Rebecca Grassl Bradley, J., concurring) ("I give priority to the plain meaning of the words[.]" (citation omitted)). The Legislative and Executive branches cannot, through tacit understanding, change the constitutional allocation of powers. Bartlett v. Evers, 2020 WI 68, ¶210, 393 Wis. 2d 172, 945 N.W.2d 685 (Kelly, J., concurring/dissenting). 65The legal scholars include (in the order listed in the brief's appendix) Richard Briffault, Joseph Fishkin, James A. Gardner, Michael S. Kang, D. Theodore Rave, David Schultz, Kate Shaw, and Robert Yablon.

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legislature breached its constitutional duty to redistrict by

failing to pass a bill with gubernatorial support or a veto-

proof majority."66 This viewpoint is peculiar, but it highlights

a problem with Zimmerman. The Legal Scholars blame this

litigation solely on the Legislature, but an analogous charge

could be levied against the Governor if in fact the executive

has any constitutional role to play in redistricting despite the

absence of a provision granting him one. As long as this

court's precedent permits the Governor to veto redistricting

plans, redistricting is as much his duty as it is the

Legislature's——but that is inconsistent with the way we have

described the duty. E.g., Johnson, 399 Wis. 2d 623, ¶79 ("[T]he

legislature must implement a redistricting plan each cycle.").

¶259 This court's precedent significantly increases the

likelihood of judicial involvement in what should be a purely

political process.67 If the political process fails to produce

Amicus Br. Legal Scholars, at 5. The majority similarly 66

misstates the Legislature's duty, saying "[w]e have given the political branches a fair opportunity to carry out their constitutional responsibilities. They have not done so." Majority op., ¶2. Actually, the Legislature has. The Legislature fulfilled its constitutional duty to "apportion and district anew the members of the senate and assembly, according to the number of inhabitants," but the Governor vetoed the Legislature's plans. See Wis. Const. Art. IV, § 3. The majority describes our responsibilities as an "unwelcome task," majority op. ¶2, which is a strange way of describing the job we were elected to perform. 67Johnson v. WEC, No. 2021AP1450-OA, unpublished order, at 11 (Wis. Sept. 22, 2021, amended Sept. 24) (Rebecca Grassl Bradley, J., concurring) (explaining Zimmerman creates "a constitutional conundrum").

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redistricting plans, this court has a duty to remedy

constitutional and other legal defects in the existing maps;

however, if this court's precedent defines the process

differently than the Wisconsin Constitution, this court has a

duty to align its precedent with the text of the constitution.

We cannot mistake "the law" for "the opinion of the judge"

because "the judge may mistake the law."68 Introduction, William

Blackstone, Commentaries *71; see also Bryan A. Garner et al.,

The Law of Judicial Precedent 397 (2016) ("The primary and most

important factor to weigh in considering whether to overrule an

earlier decision is its correctness.").

¶260 Our November 30 opinion in this case cabined the

court's redistricting decision-making to the confines of the

law. Unfortunately prophetic, it also cautioned that if four

The 2011 assembly and senate maps were adopted by law and 68

are codified as statutes (except for a minor change to the assembly map made by a federal court). Johnson, 399 Wis. 2d 623, ¶14 (majority opinion). A joint resolution cannot replace duly enacted law——even when that law has been declared unconstitutional. Id., ¶72 n.8. Contra id., ¶93 n.3 (Dallet, J., dissenting) ("[B]oth the Wisconsin and U.S. Constitutions require that all maps be redrawn every ten years to account for population shifts since the prior census. These are the sunset provisions. In this respect, the 2011 maps are unlike an ordinary unconstitutional statute, since they were enacted without any expectation of longevity." (citations omitted)).

Perhaps this court should consider, as a remedy, allowing the Legislature to redistrict by joint resolution. Unless a court adopts the Governor's maps as it did in this case, a court-ordered remedy ultimately denies the Governor control anyway. Zimmerman does not prohibit the Legislature from implementing redistricting plans by joint resolution in the event of an impasse.

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members of this court cast aside those confines, "judges would

refashion this court as a committee of oligarchs with political

power superior to both the legislature and the governor."

Johnson, 399 Wis. 2d 623, ¶80 (citation omitted). In this

opinion, the majority abandons the law, perverts the least-

change approach into a license for policymaking, and

subordinates constitutional commands, statutory restrictions,

and precedent to the majority's preferences. I dissent.

¶261 I am authorized to state that Chief Justice ANNETTE

KINGSLAND ZIEGLER and Justice PATIENCE DRAKE ROGGENSACK join

this dissent.

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