Frederica Freyberg:

Tonight, a decision from the Wisconsin Supreme Court on legislative redistricting maps. And it’s a loss for Democrats. The court voted 4-3 to adopt the Republican Legislature’s maps instead of those of Governor Tony Evers that it originally approved. Justice Brian Hagedorn was the swing vote in both cases. In what dissenting justices tonight called a disheartening odyssey, this decision follows a Republican challenge that had the U.S. Supreme Court sending the case back to the state court. At issue in this case, the number of majority-minority Assembly districts in Milwaukee. The Wisconsin high court majority wrote in its decision, “The maps proposed by the governor are racially motivated and under the equal protection clause they fail strict scrutiny. By contrast, the maps proposed by the Wisconsin Legislature are race neutral. Governor Tony Evers weighed in tonight, calling the decision an unconscionable miscarriage of justice and outrageous. Expert and UW Law School Professor Robert Yablon joins us to discuss. Professor, thanks very much for being here.

Robert Yablon:

Good to be with you.

Frederica Freyberg:

So what’s your reaction to this decision?

Robert Yablon:

Well, this is a big decision and a big turnaround from earlier in the case, when the governor’s map prevailed. Now the state Supreme Court adopted as its own the map the legislature passed and the governor vetoed. And this is a highly unusual decision in a number of respects. It’s a decision that in effect nullifies the force of the governor’s veto. The state Supreme Court steps in and, in effect, decides that even though the governor said this is not a map that the state should have, it’s adopted anyway. It also goes well beyond what the U.S. Supreme Court required the state Supreme Court to do. The only districts that the U.S. Supreme Court took issue with were those handful of majority-minority districts in the Milwaukee area. All that needed to be done was to have those districts re-drawn in a more race-neutral manner but instead the Wisconsin Supreme Court chose to jettison the governor’s map entirely and embrace the legislature’s entirely.

Frederica Freyberg:

So we were just speaking to the Milwaukee Assembly districts, but what about for the rest of the state’s legislative districts, where the Evers maps would have given Democrats a chance to win but the GOP maps lock in that solid majority?

Robert Yablon:

So this map, the map that the legislature passed last fall, is one that reinforces the partisan gerrymander that this state has had for the last decade, and it means that although this state is often a 50/50 state, one where Democrats frequently manage to win statewide races, they’re going to have virtually no chance of taking control of the legislature. If anything, the issue we might see coming up in 2022 is whether the Republicans will be able to win a veto-proof majority in the legislature.

Frederica Freyberg:

So the Wisconsin Supreme Court said there was insufficient evidence to justify drawing state legislative districts on the basis of race and that by contrast, the maps proposed by the legislature are race-neutral and legal. Are the keywords there “insufficient evidence” or did they get that right?

Robert Yablon:

I do think that that is the key from their perspective. What the U.S. Supreme Court said is that it wasn’t convinced that the governor had introduced enough evidence. The governor on a remand to the Wisconsin Supreme Court offered to introduce more, the justices didn’t want that extra evidence, said he’d had a sufficient chance, and found that evidence insufficient. Now, the dissenters disagree with that. The dissenters also question whether the legislature’s map was indeed race neutral as they said it was.

Frederica Freyberg:

For his part, Justice Brian Hagedorn seemed to agree with this insufficient evidence, even as he sided with conservatives to adopt the Republican map saying that the record before the court was incomplete, but there was no time to develop it. What did you think of his comments?

Robert Yablon:

Well, you know, he lamented the position that the court found itself in. Now, the court could have taken some additional evidence. The governor offered to put that evidence in the record quite quickly, but I think the justices felt like it was getting fairly late in the game. Another part of what Justice Hagedorn was getting at is that the court didn’t really imagine itself to be fully litigating a voting rights challenge in this case at all. The main reason that this case was being heard was because of the population inequalities in the districts after the last census. So he said had they known from the beginning that the Voting Rights Act was going to be the central issue, they probably would have handled things differently, but in his view, they were kind of stuck at this point.

Frederica Freyberg:

How difficult does this late decision make it for election clerks at this point?

Robert Yablon:

Well, what this means is that the Wisconsin Elections Commission is going to very quickly need to try to go through the administrative steps of entering this new map into the system. Today was the day that candidates were supposed to be able to start collecting nomination signatures for themselves. I suspect that the Wisconsin Elections Commission will get on this quickly and that they’ll be able to do that next week, and so the time for collecting those petitions will only have been diminished somewhat, but this is going to create some headaches, no doubt, for election administrators.

Frederica Freyberg:

How will this decision go down in legal history in your mind?

Robert Yablon:

I suspect not very well. As someone who has studied court-drawn maps across the country, it is almost unheard of for a court to adopt as its own a map that is so strikingly gerrymandered. Both state and federal courts across the country have generally taken their obligations to being neutral and non-partisan extremely seriously, and so to see a judicial gerrymander of this kind really is something that stands out.

Frederica Freyberg:

Professor Yablon, thank you. Thank you for joining us tonight.

Robert Yablon:

Good to talk to you.