On August 23, 2021, a Wisconsin non-profit group and a group of Wisconsin voters filed a petition with the Wisconsin Supreme Court seeking to invoke the Court's original jurisdiction to challenge the state's 2010-cycle congressional and legislative redistricting plans as violating the state constitution. Plaintiffs alleged that based on the 2020 Census results, population shifts over the last decade had rendered Wisconsin's congressional and legislative plans malapportioned in violation of Article IV of the Wisconsin Constitution and the one person, one vote constitutional requirement interpreted therefrom. The plaintiffs also alleged that their action should be controlling with respect to the state's redistricting process rather than a similar challenge that was filed and then-pending in federal court, Hunter v. Bostelmann, because congressional and legislative redistricting are primarily state, not federal, functions. They requested a judicial declaration that the 2010-cycle redistricting plans were unconstitutional, an injunction barring them from being implemented or used in any future elections, and a stay on the case until the Legislature had adopted a new redistricting plan; then, if a challenge was made to the new maps, for the Court to rule on the constitutionality of such plan. They also requested that the Court adopt new, properly apportioned congressional and legislative maps in accordance with the state's traditional redistricting criteria and without regard to their likely political impacts in the event the Legislature and Governor failed to do so.

On November 30, 2021, the court issued an opinion detailing how they would implement a judicial remedy upon the expected impasse between the Governor and the Legislature given that both parties agreed the current congressional and legislative maps had become unconstitutionally malapportioned. The court held that redistricting disputes such as this may only be judicially resolved to the extent necessary to remedy the violation of a "justiciable and cognizable" right protected under the U.S. Constitution, the Voting Rights Act, or Article IV, §§ 3, 4, or 5 of the Wisconsin Constitution. For that reason, the court explained it would confine its remedy to making the minimum changes necessary in order to conform the existing plans to the constitutional and statutory requirements, including equal population. Similarly, the court also ruled it would not consider the partisan composition of districts when devising their remedy because their political makeup doesn't implicate any justiciable or cognizable right.

Oral arguments in this case were held on January 19, 2022. On March 3, 2022, the court issued an opinion and order adopting the congressional and legislative plans proposed by the Governor as final and directing the state to implement them for use in future elections. On March 7, 2022, the Wisconsin Legislature filed an emergency application for a stay of the Wisconsin Supreme Court's ruling adopting the legislative plans pending a petition for writ of certiorari with the U.S. Supreme Court. On March 9, 2022, the Congressmen Intervenors filed a similar application with the U.S. Supreme Court in regard to the adopted congressional plan.

On March 23, 2022, the U.S. Supreme Court issued an order denying the request for a stay on the adopted congressional plan. That same day, the Court issued an opinion reversing and remanding the Wisconsin Supreme Court's adoption of the Governor's legislative redistricting plans on the grounds it erroneously applied the Court's precedents as to the guarantees of the Equal Protection Clause and the Voting Rights Act. Specifically, the Court found the Wisconsin Supreme Court committed legal error by concluding the Governor's intentional addition of a seventh majority-black legislative district satisfied strict scrutiny review under the Equal Protection Clause, reiterating its holding in Cooper v. Harris that a State must show it had a "strong basis in evidence" for concluding that their race-based redistricting decisions were necessary for compliance with § 2 of the Voting Rights Act. The Court found that here, neither the Governor nor the Wisconsin Supreme Court sufficiently established the seventh majority-black district was required by the VRA, citing the Governor's improper taking of an "uncritical majority-minority district maximization" approach expressly rejected by the Court in the past and the Wisconsin Supreme Court's insufficient Gingles analysis supporting the district's necessity. The Court remanded the case back to the Wisconsin Supreme Court for further proceedings consistent with its opinion and equal protection jurisprudence.

On April 15, 2022, the Wisconsin Supreme Court issued its decision adopting the Wisconsin Legislature's proposed legislative redistricting plans on the grounds that, based on the record before it and the U.S. Supreme Court's guidance on remand, they were the only legally compliant maps submitted to the court. The majority opinion explained there was not a "strong basis in evidence" to justify the other parties' use of race to draw majority-black legislative districts in their proposed plans, thereby leaving the Legislature's race-neutral plans as the only viable proposals in compliance with the U.S. and Wisconsin Constitutions, the Voting Rights Act, and the court's least-changes approach.

Related Cases: Hunter v. Bostelmann; Black Leaders Organizing for Communities v. Spindell


Wisconsin Supreme Court - No. 2021AP001450

U.S. Supreme Court - No. 21A471 [The Wisconsin Legislature v. Wisconsin Elections Commission]

U.S. Supreme Court - No. 21A490 [Grothman v. Wisconsin Elections Commission]

Wisconsin Supreme Court - No. 2021AP1450-OA [On Remand]