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MADISON – The Wisconsin Supreme Court embraced a redistricting plan crafted by Republican state lawmakers Friday, three weeks after the U.S. Supreme Court threw out election maps drawn by Democratic Gov. Tony Evers.
In the 4-3 decision, Justice Brian Hagedorn joined the court's conservatives after earlier siding with its liberals. The ruling came at one of the last possible moments, falling on the day that candidates could begin circulating petitions to get on the ballot.
The new maps tilt heavily in Republicans’ favor, with 63 of the 99 Assembly seats and 23 of the 33 Senate seats leaning toward the GOP, according to a December analysis by the Milwaukee Journal Sentinel.
Because this fall's election is so soon — the primary is four months away on Aug. 9 — the maps are all but certain to be the ones used this fall. But the long-term legal fight may not be over because Democrats and their allies may challenge the maps in federal court for the elections that will be held in 2024 and beyond.
States must draw new election maps once a decade after each census to make sure legislative districts have equal populations. Where the lines go can confer advantages on one political party.
Evers and Republicans who control the Legislature couldn't agree on new maps, so it fell to the state Supreme Court to decide on the districts. In a 4-3 ruling last month the justices picked Evers' maps, which had a Republican tilt to them even though they were drawn by a Democrat.
Republican lawmakers appealed to the U.S. Supreme Court, which found the state court had not provided enough evidence justifying why the state was increasing the number of Assembly districts with Black majorities in Milwaukee from six to seven.
The U.S. Supreme Court left in place the congressional district boundaries drawn by Evers and approved by the state Supreme Court. Friday's decision by the state court affects only races for the state Legislature.
In Friday's 4-3 ruling, the justices concluded Evers had not provided enough evidence to show why race should be taken into account when drawing districts in Milwaukee. The Republican-drawn maps they adopted reduce the number of Assembly districts in Milwaukee with Black majorities from six to five.
Democrats or others are likely to challenge the maps in federal court on the grounds that they don't comply with the Voting Rights Act. With the election approaching so quickly, such a challenge may have to wait until after this fall's election.
Federal law is complicated because it says mapmakers cannot consider race most of the time but must take it into account when they are drawing lines in areas with high populations of minorities. The policy is meant to ensure Black and Latino voters have opportunities to elect the candidates they want.
"The Governor did not present evidence of a (Voting Rights Act) violation, despite drawing maps on the basis of race. He produced no evidence of electoral history and no district-specific evidence demonstrating that the black communities he moved among districts would be denied the opportunity to effectively participate in democracy absent his proposed district lines," Chief Justice Annette Ziegler wrote for the majority.
Ziegler was joined by Hagedorn and Justices Rebecca Bradley and Patience Roggensack.
In dissent, Justice Jill Karofsky wrote that the justices needed to take race into account for Milwaukee's maps and concluded the majority opinion included a "willful silence on Milwaukee's history of segregation and racial disparity."
"Milwaukee's history of forced segregation created a historical racial gerrymander, limiting minority populations from the opportunity to exert influence outside of a limited geographic area," Karofsky wrote. "Additionally, the low rates of Black homeownership and high rates of evictions in Black communities result in more transient populations that change addresses frequently. These populations may face difficulties staying registered under the proper address and providing necessary proof of address under voter ID laws."
She was joined in the dissent by Justices Ann Walsh Bradley and Rebecca Dallet. (The two Bradleys on the court are not related.)
The state justices issued their opinion the same day candidates could start taking out petitions to get on the ballot. Candidates need to know where the lines are so they can make sure the signatures they gather are from residents of their districts.
As with the other redistricting decisions, Friday's ruling came down to Hagedorn. He was elected in 2019 with the support of Republicans but has ruled with the court's liberals in some high-profile cases.
Hagedorn sided with conservatives in November in a decision benefiting Republicans that set rules for drawing maps. That decision said the court would make as few changes as possible to the existing districts, which Republicans drew in 2011 to their advantage.
Hagedorn joined with liberals to choose the maps drawn by Evers in March but re-joined the conservatives after the U.S. Supreme Court threw out the March decision.
In a concurring opinion, he wrote that the state justices had essentially run out of time.
“One solution could be to develop a fuller record, make factual findings, and adjudicate a (Voting Rights Act) claim with a firmer factual foundation. But the timing does not work,” Hagedorn wrote. “It would undoubtedly require delaying statutory deadlines and otherwise disrupting the administration of the fall elections.”
Hagedorn wrote that the court could have drawn new boundaries itself "but time and our institutional limitations make that unrealistic at this juncture."
“The remaining option is to choose one of the proposed maps we received as the baseline. Only one proposal was represented as race-neutral in its construction: the maps submitted by the Legislature," he wrote.
Republicans cheered the decision and Democrats decried it.
"We have thought our maps were the best option from the beginning," Assembly Speaker Robin Vos, a Republican from Rochester, said in a statement.
Democratic Attorney General Josh Kaul dubbed the ruling "a travesty for democracy in Wisconsin."
"The court, applying a new standard in a case it never should have taken, has made one of the most extreme gerrymanders in America even worse," Kaul said in a statement. "This ruling entrenches control by politicians rather than voters, sapping what life remained from any claim that our legislature meaningfully represents the People."
Evers, in a tweet, called the ruling “outrageous.”
“At a time when our democracy is under near-constant attack, the judiciary has abandoned our democracy in our most dire hour. This is an unconscionable miscarriage of justice,” he said in a statement.
Molly Beck of the Journal Sentinel staff contributed to this report.
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This article originally appeared on Milwaukee Journal Sentinel: Wisconsin Supreme Court adopts legislative maps drawn by Republicans