SUPREME COURT OF THE UNITED STATES
WISCONSIN LEGISLATURE, et al. v.
WISCONSIN ELECTIONS COMMISSION, et al.
on application for stay and injunctive relief
[March 23, 2022]
Because of population shifts revealed by the 2020 decennial census, Wisconsin’s State Assembly and Senate districts are no longer equally apportioned. The Wisconsin Legislature passed new maps to fix the problem, but the Governor vetoed them. At an impasse, the legislature and the Governor turned to the Wisconsin Supreme Court, which had already agreed to hear an original action brought by a group of voters seeking to remedy the malapportionment. Rather than attempt to draw new maps itself, the court invited the parties and intervenors—including the legislature and the Governor—to propose maps that complied with the State Constitution, the Federal Constitution, and the Voting Rights Act of 1965 (VRA),
437, as amended,
52 U. S. C. §10301 et seq
., and that otherwise minimized changes from the current maps.
On March 3, the court issued a decision selecting the Assembly and Senate maps that the Governor had proposed. Johnson
v. Wisconsin Elections Comm’n
, 2022 WI 14, ___ Wis. 2d ___, ___ N. W. 2d ___. (Because the State Constitution requires three Assembly districts to be nested within each Senate district, the court analyzed and selected the maps as a unit. Id.
, ¶26.) The Governor’s Assembly map intentionally created seven majority-black districts—one more than the current map.[1
] The Governor argued that the addition of a seventh majority-black district was necessary for compliance with the VRA. In adopting the Governor’s map, the court explained: “[W]e cannot say for certain on this record that seven majority-Black assembly districts are required by the VRA.” Id.
, ¶47. It nevertheless concluded that the Governor’s map complied with the Equal Protection Clause of the
Fourteenth Amendment because there were “good reasons” to think that the VRA “may” require the additional majority-black district. Id.
The legislature and the voters who initiated the state-court proceeding now seek relief from that decision. They argue that the court selected race-based maps without sufficient justification, in violation of the Equal Protection Clause. They ask this Court either to grant an emergency stay or to construe their application as a petition for certiorari and reverse the decision below.
We agree that the court committed legal error in its application of decisions of this Court regarding the relationship between the constitutional guarantee of equal protection and the VRA. We accordingly construe the application for stay presented to Justice Barrett and by her referred to the Court as a petition for certiorari, grant the petition, reverse the imposition of the Governor’s State Assembly and Senate maps, and remand to the Wisconsin Supreme Court for proceedings not inconsistent with this opinion. Summarily correcting the error gives the court sufficient time to adopt maps consistent with the timetable for Wisconsin’s August 9th primary election.
* * *
Under the Equal Protection Clause, districting maps that sort voters on the basis of race “ ‘are by their very nature odious.’ ” Shaw
509 U.S. 630
, 643 (1993). Such laws “cannot be upheld unless they are narrowly tailored to achieving a compelling state interest.” Miller
515 U.S. 900
, 904 (1995). We have assumed that complying with the VRA is a compelling interest. Cooper
, 581 U. S. ___, ___ (2017) (slip op., at 2). And we have held that if race is the predominant factor motivating the placement of voters in or out of a particular district, the State bears the burden of showing that the design of that district withstands strict scrutiny. Ibid.
Thus, our precedents hold that a State can satisfy strict scrutiny if it proves that its race-based sorting of voters is narrowly tailored to comply with the VRA. Ibid.
A State violates §2 of the VRA “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 minority group] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
52 U. S. C. §10301(b). We have construed §2 to prohibit the distribution of minority voters into districts in a way that dilutes their voting power. See Thornburg
478 U.S. 30
, 46–51 (1986). In Gingles
, we provided a framework for demonstrating a violation of that sort. First, three “preconditions” must be shown: (1) The minority group must be sufficiently large and compact to constitute a majority in a reasonably configured district, (2) the minority group must be politically cohesive, and (3) a majority group must vote sufficiently as a bloc to enable it to usually defeat the minority group’s preferred candidate. Id.
, at 50–51.
If the preconditions are established, a court considers the totality of circumstances to determine “whether the political process is equally open to minority voters.” Id.
, at 79; see also Johnson
v. De Grandy
512 U.S. 997
, 1011–1012 (1994) (satisfying the Gingles
preconditions is necessary but not sufficient to show a §2 violation; “courts must also examine other evidence in the totality of circumstances”). We have identified as relevant to the totality analysis several factors enumerated in the Senate Report on the 1982 amendments to the VRA, as well as “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.” League of United Latin American Citizens
548 U.S. 399
, 426 (2006) (LULAC
We said in Cooper
that when a State invokes §2 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.” 581 U. S., at ___ (slip op., at 3). The Wisconsin Supreme Court concluded that the Governor’s intentional addition of a seventh majority-black district triggered the Equal Protection Clause and that Cooper
’s strict-scrutiny test must accordingly be satisfied. Accepting those conclusions, we hold that the court erred in its efforts to apply Cooper
’s understanding of what the Equal Protection Clause requires.
It is not clear whether the court viewed the Governor or itself as the state mapmaker who must satisfy strict scrutiny, but the court’s application of Cooper
was flawed either way. If the former, the Governor failed to carry his burden. His main explanation for drawing the seventh majority-black district was that there is now a sufficiently large and compact population of black residents to fill it, Brief for Intervenor-Respondent Evers in Johnson
v. Wisconsin Elections Comm’n
, No. 2021AP1450–OA (Wis. Sup. Ct., Dec. 15, 2021), p. 14—apparently embracing just the sort of uncritical majority-minority district maximization that we have expressly rejected. De Grandy
, 512 U. S., at 1017 (“Failure to maximize cannot be the measure of §2”). He provided almost no other evidence or analysis supporting his claim that the VRA required the seven majority-black districts that he drew. See 2022 WI 14, ¶¶90–91, 103–107 (Ziegler, C. J., dissenting). Strict scrutiny requires much more. See Abbott
, 585 U. S. ___, ___ (2018) (slip op., at 40) (“[W]here we have accepted a State’s ‘good reasons’ for using race in drawing district lines, the State made a strong showing of a pre-enactment analysis with justifiable conclusions”). If the Wisconsin Supreme Court was reviewing whether the Governor satisfied strict scrutiny, it erred by adopting his maps.
If, on the other hand, the court sought to shoulder strict scrutiny’s burden itself, it fared little better. First
, it misunderstood Cooper
’s inquiry. The court believed that it had to conclude only that the VRA might
support race-based districting—not that the statute required it. See 2022 WI 14, ¶¶47, 50 (“[W]e cannot say for certain on this record that seven majority-Black assembly districts are required by the VRA,” but “we see good reasons to conclude a seventh majority-Black assembly district may
be required” (emphasis added)). Our precedent instructs otherwise. Thus in Cooper
we explained, for example, that “race-based districting is narrowly tailored . . . if a State had ‘good reasons’ for thinking that the Act demanded
such steps.” 581 U. S., at ___ (slip op., at 12) (emphasis added). And we concluded that “experience gave the State no reason to think that the VRA required
” it to move voters based on race. Id.
, at ___ (slip op., at 14) (emphasis added). That principle grew out of the more general proposition that “the institution that makes the racial distinction must have had a ‘strong basis in evidence’ to conclude that remedial action was necessary
it embarks on an affirmative-action program.’ ” Shaw
517 U.S. 899
, 910 (1996) (some emphasis added).
To be sure, we said in Cooper
that States have “ ‘breathing room’ ” to make reasonable mistakes; we will not fault a State just because its “compliance measures . . . may prove, in perfect hindsight, not to have been needed.” 581 U. S., at ___ (slip op., at 3). But that “leeway” does not allow a State to adopt a racial gerrymander that the State does not, at the time of imposition, “judg[e] necessary under a proper interpretation of the VRA.” Id.
, at ___ (slip op., at 17).
, the court’s analysis of Gingles
’ preconditions fell short of our standards. As we explained in Cooper
, “[t]o have a strong basis in evidence to conclude that §2 demands . . . race-based steps, the State must carefully evaluate whether a plaintiff could establish the Gingles
preconditions . . . in a new district created without those measures.” 581 U. S., at ___ (slip op., at 15). Rather than carefully evaluating evidence at the district level, the court improperly relied on generalizations to reach the conclusion that the preconditions were satisfied. See id.
, at ___, n. 5 (slip op., at 16, n. 5) (a “generalized conclusion fails to meaningfully . . . address the relevant local question” whether the preconditions would be satisfied as to each district).
The court’s entire discussion of the first precondition was to say that “it is undisputed” and “the parties’ submissions demonstrate” that seven sufficiently large and compact majority-black districts could be drawn. 2022 WI 14, ¶43. Similarly, its discussion of the second precondition consisted of nothing but the statement that “[e]xperts from multiple parties analyzed voting trends and concluded political cohesion existed; no party disagreed.” Id.
, ¶44. And while the court did cite one specific expert report for the third precondition—calculating, based on eight previous races, how often white voters in the Milwaukee area defeat the preferred candidate of black voters—it made virtually no effort to parse that data at the district level or respond to criticisms of the expert’s analysis. Id.
, ¶45; see id.
, ¶¶108–111 (Ziegler, C. J., dissenting).[2
, the court improperly reduced Gingles
’ totality-of-circumstances analysis to a single factor. The court acknowledged the Senate factors but concluded that they had no role to play in its analysis. 2022 WI 14, ¶46, and n. 28. Instead, it focused exclusively on proportionality. See id.
, ¶¶46–50. We rejected just that approach in De Grandy
, explaining that “[n]o single statistic provides courts with a shortcut to determine whether a set of single-member districts unlawfully dilutes minority voting strength.” 512 U. S., at 1020–1021; see also id.
, at 1026 (O’Connor, J., concurring) (“The Court . . . makes clear that proportionality is never dispositive. Lack of proportionality can never by itself prove dilution, for courts must always carefully and searchingly review the totality of the circumstances”).
The question that our VRA precedents ask and the court failed to answer is whether a race-neutral alternative that did not add a seventh majority-black district would deny black voters equal political opportunity. Answering that question requires an “ ‘ “intensely local appraisal” ’ of the challenged district.” LULAC
, 548 U. S., at 437. When the Wisconsin Supreme Court endeavored to undertake a full strict-scrutiny analysis, it did not do so properly under our precedents, and its judgment cannot stand.
* * *
The judgment of the Supreme Court of Wisconsin is reversed as to the selection of the Governor’s State Assembly and Senate maps, and the case is remanded for further proceedings not inconsistent with this opinion. On remand, the court is free to take additional evidence if it prefers to reconsider the Governor’s maps rather than choose from among the other submissions. Any new analysis, however, must comply with our equal protection jurisprudence.
It is so ordered.