Here & Now

Wisconsin Redistricting and the Voting Rights Act

Frederica Freyberg:

The state Supreme Court today denied a Governor Tony Evers’ motion on why his redistricting maps should be upheld. The latest action in Wisconsin’s high court over voting maps comes after the U.S. Supreme Court struck down Evers’ maps and sent the case back to the state. Expert on election and constitutional law and former clerk for two U.S. Supreme Court justices, UW-Madison Law School professor Robert Yablon joins us for the latest. Thanks very much for being here.

Robert Yablon:

Good to be with you.

Frederica Freyberg:

The Evers’ motion and experts’ report said the seven Milwaukee Assembly districts in his maps avoid illegal vote dilution under the Voting Rights Acts, but Republicans weren’t having it calling Evers’ motion, among other things, unsolicited and the Wisconsin Supreme Court apparently agreed today, rejecting the expert’s submission. But wasn’t SCOTUS asking for more evidence in support or just not from Evers?

Robert Yablon:

Well, the U.S. Supreme Court indicated that one of the options available to the Wisconsin Supreme Court was to consider more evidence and so I think that it was that line in their opinion that led the governor to put in this submission today, which the Supreme Court, the Wisconsin Supreme Court denied in a one line order. So it seems they have decided they are not going to take new evidence in this case. Instead there are a couple of other paths they may try to pursue to get a legal map in place.

Frederica Freyberg:

Like?

Robert Yablon:

Well, so essentially, they were given, earlier in this litigation, a number of proposals from the parties. They chose the governor’s map because they said the governor’s map best complied with the “least change” framework they imposed. So one thing they could do is go back to those other proposals and see which of them is the next best on the “least change” framework and adopt one of those. That’s what the legislature is asking for. And that would mean jettisoning the governor’s map wholesale and adopting theirs instead. The governor thinks that’s overkill. The U.S. Supreme Court only called into question the districts in the Milwaukee area, so what the governor has said is either hear more evidence, that’s what the Wisconsin Supreme Court said today it’s not going to do or look at the evidence in the record now and maybe make a more convincing case to the U.S. Supreme Court about why you need to continue to uphold the governor’s map. It seems like right now either the Wisconsin Supreme Court is going to get more elaborate reasons for why the governor’s map indeed complies with the Voting Rights Act or it’s going to choose one of the other maps that have been submitted earlier in this case.

Frederica Freyberg:

Is this like a rocket docket in the state high court? Should we expect a decision on Wisconsin maps very soon?

Robert Yablon:

We will see a decision soon. The court is — they realize they need to get on this expeditiously. The nomination petition process for the fall elections opens on April 15th and the Wisconsin Elections Commission needs some time ahead of that to do some implementation steps. Once the map is adopted, they need to put it into their system to make sure candidates know what districts they are in. Voters know what districts they are in. We are going to see a decision quite soon, I would think, from the Wisconsin Supreme Court.

Frederica Freyberg:

Backing up just a little bit, what is the point of a majority-minority district under the Voting Rights Act?

Robert Yablon:

The Voting Rights Act is a landmark federal law that seeks to ensure fair representation for communities of color. And you are primarily talking about communities of color that would potentially be large enough to form a majority in a single member district. And in Wisconsin, the act primarily applies in the Milwaukee area where you have large enough African American communities that they could form electoral majorities at the district level. Traditionally when you have communities that large, when they’re politically cohesive communities, and they vote distinctly from other communities, you tend to ensure that they will get representation, and that’s why the governor drew that seventh majority-minority district in Milwaukee. He saw the African American community in Milwaukee had grown to some extent, particularly relative to other communities and thought the act required the addition of that district. The U.S. Supreme Court was unconvinced and that’s why they reversed the decision and now have sent it back.

Frederica Freyberg:

In your expert opinion, how well do either of the maps, the legislature’s or the governor’s ensure minority voters have the political power to elect candidates of their choice?

Robert Yablon:

This is a really complicated area of the law. The Supreme Court justices themselves sometimes lament how complicated and confusing it can be. So you know, one, what the Voting Rights Act is not about is purely creating districts that just have a numerical majority of a minority population. Because sometimes that won’t be enough for them to elect their preferred candidate given voting patterns and so on. So if you are doing a functional analysis, what you might see is just having a majority-minority district may be inadequate. In other cases, what you might find is you don’t actually need to create a majority-minority district at all, because maybe there will be crossover votes from other communities that will be adequate to allow that minority community to elect its preferred representative. So it requires a very detailed, functional analysis. And one of the complaints from the U.S. Supreme Court was the Wisconsin Supreme Court just didn’t delve in deeply enough into that kind of functional inquiry.

Frederica Freyberg:

Less than a minute left, what about how the U.S. Supreme Court handled it. It has been described as shocking and unprecedented. Why?

Robert Yablon:

Well, the dissent did describe it as unprecedented and I think there were a couple of unusual features about what the U.S. Supreme Court did. First of all, this was a summary reversal. The U.S. Supreme Court acted very quickly. It did not hear full briefing or oral argument and it does not do that very often, and usually when it does, it’s because there is a crystal-clear legal error. But precisely because the Voting Rights Act law is so complicated, the dissenters pointed out there were nuances that had been overlooked by the majority. So, unusual it was a summary reversal. More than that, unusual that it happened so close in time to when the state really needs to have maps. This was a disruptive decision from the U.S. Supreme Court. And in other instances, the U.S. Supreme Court has said we recognize it is difficult to run an election and we want to make sure that states are not — that wrenches are not thrown into state processes at the last minute, but that’s essentially what the U.S. Supreme Court did to Wisconsin here.

Frederica Freyberg:

Here we are. Professor, thank you very much.

Robert Yablon:

Good talking to you.