VRA violation in Wisconsin

2023A majority of this court misunderstood and misapplied VRA § 2 in creating a race-based remedy in the absence of a VRA violation or wrong: creating such an untethered race-based remedy out of thin air, as a majority of the court had done, is in fact, unconstitutional. ¶118 "A State may not use race as the predominant factor in drawing district lines unless it has a compelling reason." Cooper v. Harris, 581 U.S. 285, 291 (2017).

2023A majority of this court misunderstood and misapplied VRA § 2 in creating a race-based remedy in the absence of a VRA violation or wrong: creating such an untethered race-based remedy out of thin air, as a majority of the court had done, is in fact, unconstitutional. ¶118 "A State may not use race as the predominant factor in drawing district lines unless it has a compelling reason." Cooper v. Harris, 581 U.S. 285, 291 (2017).

2023The Supreme Court determined that the majority of this court had "failed to answer" "whether a race-neutral alternative that did not add a seventh majority-black district would deny black voters' equal political opportunity" in trying to determine whether there was a VRA violation which justified First, the United States Supreme Court determined that 56 the Johnson II majority mistook the VRA § 2 as requiring the creation of as many majority opportunity districts as possible, thus "embracing just the sort of uncritical majority-minority district maximization that [the Supreme Court] ha[s] expr

2023The Supreme Court determined that the majority of this court had "failed to answer" "whether a race-neutral alternative that did not add a seventh majority-black district would deny black voters' equal political opportunity" in trying to determine whether there was a VRA violation which justified First, the United States Supreme Court determined that 56 the Johnson II majority mistook the VRA § 2 as requiring the creation of as many majority opportunity districts as possible, thus "embracing just the sort of uncritical majority-minority district maximization that [the Supreme Court] ha[s] expr

2023The Supreme Court determined that the majority of this court had "failed to answer" "whether a race-neutral alternative that did not add a seventh majority-black district would deny black voters' equal political opportunity" in trying to determine whether there was a VRA violation which justified First, the United States Supreme Court determined that 56 the Johnson II majority mistook the VRA § 2 as requiring the creation of as many majority opportunity districts as possible, thus "embracing just the sort of uncritical majority-minority district maximization that [the Supreme Court] ha[s] expr

2023The Supreme Court determined that the majority of this court had "failed to answer" "whether a race-neutral alternative that did not add a seventh majority-black district would deny black voters' equal political opportunity" in trying to determine whether there was a VRA violation which justified First, the United States Supreme Court determined that 56 the Johnson II majority mistook the VRA § 2 as requiring the creation of as many majority opportunity districts as possible, thus "embracing just the sort of uncritical majority-minority district maximization that [the Supreme Court] ha[s] expr

2022See LULAC, 548 U.S. at 423-29 (describing in detail the electoral history, by race, of an at issue congressional district to find a VRA violation); Cooper, 137 S. Ct. at 1470-72 (explaining the electoral history of an area to determine that a 25 No. 2021AP1450-OA.akz majority-minority district fell outside the VRA and was thus unconstitutional). ¶104 The Governor presents, and the majority opinion accepts, zero evidence of election history to support the application of the Gingles factors to the current maps, the Legislature's maps, or other race-neutral alternatives to support his division of

2022Cooper, 137 S. Ct. at 1471-72 , 1471 n.5 ("[G]eneralized conclusion[s]" of state-wide racial polarization in voting "fails to meaningfully (or indeed, at all) address the relevant local question: whether, in a new version of District 1 created without a focus on race, black voters would encounter sufficient white bloc- voting to cancel their ability to elect representatives of their choice." (cleaned up)); LULAC, 548 U.S. at 432, 437 (explaining that VRA analysis requires "an intensely local appraisal" of the relevant district); Shaw v. Hunt, 517 U.S. at 917 ("For example, if a geographically

2022See LULAC, 548 U.S. at 432 (examining in a VRA analysis that different Hispanics in different parts of Texas had "differences in socio-economic status, education, employment, health, and other characteristics"); Comm. for Fair & Balanced Map, 835 F. Supp. 2d at 583 (noting that "northern and southern enclaves" of a Hispanic district had "a common heritage and share[d] common core value[s]"); City of Euclid, 580 F. Supp. 2d at 605 - 07 (explaining in detail, with numerous experts reports, record evidence, and testimony, forms of official discrimination against a discrete African-American commun

2022Cooper, 137 S. Ct. at 1471-72 , 1471 n.5 ("[G]eneralized conclusion[s]" of state-wide racial polarization in voting "fails to meaningfully (or indeed, at all) address the relevant local question: whether, in a new version of District 1 created without a focus on race, black voters would encounter sufficient white bloc- voting to cancel their ability to elect representatives of their choice." (cleaned up)); LULAC, 548 U.S. at 432, 437 (explaining that VRA analysis requires "an intensely local appraisal" of the relevant district); Shaw v. Hunt, 517 U.S. at 917 ("For example, if a geographically

2022Cooper, 137 S. Ct. at 1471-72 , 1471 n.5 ("[G]eneralized conclusion[s]" of state-wide racial polarization in voting "fails to meaningfully (or indeed, at all) address the relevant local question: whether, in a new version of District 1 created without a focus on race, black voters would encounter sufficient white bloc- voting to cancel their ability to elect representatives of their choice." (cleaned up)); LULAC, 548 U.S. at 432, 437 (explaining that VRA analysis requires "an intensely local appraisal" of the relevant district); Shaw v. Hunt, 517 U.S. at 917 ("For example, if a geographically

2022Cooper, 137 S. Ct. at 1471-72 , 1471 n.5 ("[G]eneralized conclusion[s]" of state-wide racial polarization in voting "fails to meaningfully (or indeed, at all) address the relevant local question: whether, in a new version of District 1 created without a focus on race, black voters would encounter sufficient white bloc- voting to cancel their ability to elect representatives of their choice." (cleaned up)); LULAC, 548 U.S. at 432, 437 (explaining that VRA analysis requires "an intensely local appraisal" of the relevant district); Shaw v. Hunt, 517 U.S. at 917 ("For example, if a geographically

2023See Allen v. Milligan, 599 U.S. 1 , 143 S. Ct. 1487 (2023). ¶154 The parties have insisted on bringing these claims as original actions and decline to go the route of traditional factfinding.

2023See Allen v. Milligan, 599 U.S. 1 , 143 S. Ct. 1487 (2023). ¶154 The parties have insisted on bringing these claims as original actions and decline to go the route of traditional factfinding.

2022Elections Bd., 553 U.S. 181, 204 (2008) ("The application of [Indiana's Voter- ID law] to the vast majority of Indiana voters is amply justified by the valid interest in protecting the integrity and reliability of the electoral process."). ¶122 BLOC also looks at general socio-economic correlations between white and African-American individuals in Wisconsin, including the lower rates of African-American homeownership and lower average incomes, and concludes, without any substantial analysis on the extraordinary complexities of causation, that this is the result of current and past discriminati

2022Elections Bd., 553 U.S. 181, 204 (2008) ("The application of [Indiana's Voter- ID law] to the vast majority of Indiana voters is amply justified by the valid interest in protecting the integrity and reliability of the electoral process."). ¶122 BLOC also looks at general socio-economic correlations between white and African-American individuals in Wisconsin, including the lower rates of African-American homeownership and lower average incomes, and concludes, without any substantial analysis on the extraordinary complexities of causation, that this is the result of current and past discriminati

2022Cooper, 137 S. Ct. at 1471-72 , 1471 n.5 ("[G]eneralized conclusion[s]" of state-wide racial polarization in voting "fails to meaningfully (or indeed, at all) address the relevant local question: whether, in a new version of District 1 created without a focus on race, black voters would encounter sufficient white bloc- voting to cancel their ability to elect representatives of their choice." (cleaned up)); LULAC, 548 U.S. at 432, 437 (explaining that VRA analysis requires "an intensely local appraisal" of the relevant district); Shaw v. Hunt, 517 U.S. at 917 ("For example, if a geographically

2022Cooper, 137 S. Ct. at 1471-72 , 1471 n.5 ("[G]eneralized conclusion[s]" of state-wide racial polarization in voting "fails to meaningfully (or indeed, at all) address the relevant local question: whether, in a new version of District 1 created without a focus on race, black voters would encounter sufficient white bloc- voting to cancel their ability to elect representatives of their choice." (cleaned up)); LULAC, 548 U.S. at 432, 437 (explaining that VRA analysis requires "an intensely local appraisal" of the relevant district); Shaw v. Hunt, 517 U.S. at 917 ("For example, if a geographically

2022See Miller, 515 U.S. at 917-18 (holding that a state subordinated traditional redistricting criteria to race by noting the objective characteristics of the district which strongly indicated racial 22 No. 2021AP1450-OA motivations as well as statements made by map drawers, confirming the use of race in drawing districts). ¶34 The Governor did not present evidence of a VRA violation, despite drawing maps on the basis of race.

2022See Miller, 515 U.S. at 917-18 (holding that a state subordinated traditional redistricting criteria to race by noting the objective characteristics of the district which strongly indicated racial 22 No. 2021AP1450-OA motivations as well as statements made by map drawers, confirming the use of race in drawing districts). ¶34 The Governor did not present evidence of a VRA violation, despite drawing maps on the basis of race.

2022See Ketchum, 740 F.2d at 1403 - 06, 1418 (case cited by the majority, noting the commonly accepted target of 65-70% minority population percentages in applying a VRA remedy, after a VRA violation in relevant districts has been established). 46 No. 2021AP1450-OA.akz conclusion.

2022See Ketchum, 740 F.2d at 1403 - 06, 1418 (case cited by the majority, noting the commonly accepted target of 65-70% minority population percentages in applying a VRA remedy, after a VRA violation in relevant districts has been established). 46 No. 2021AP1450-OA.akz conclusion.

2022See, e.g., Cooper, 137 S. Ct. at 1471-72 (examining 28 No. 2021AP1450-OA.akz the electoral history of a congressional district at issue in the challenge); LULAC, 548 U.S. at 427-28 (explaining electoral history in the congressional district at issue); City of Euclid, 580 F. Supp. 2d at 598-600 (describing non-applicable elections in the context of a detailed review of city council elections at issue in the lawsuit); Harper v. City of Chicago Heights, 824 F. Supp. 786, 790, 799-800 (N.D.

2022See, e.g., Cooper, 137 S. Ct. at 1471-72 (examining 28 No. 2021AP1450-OA.akz the electoral history of a congressional district at issue in the challenge); LULAC, 548 U.S. at 427-28 (explaining electoral history in the congressional district at issue); City of Euclid, 580 F. Supp. 2d at 598-600 (describing non-applicable elections in the context of a detailed review of city council elections at issue in the lawsuit); Harper v. City of Chicago Heights, 824 F. Supp. 786, 790, 799-800 (N.D.

2022See LULAC, 548 U.S. at 432 (examining in a VRA analysis that different Hispanics in different parts of Texas had "differences in socio-economic status, education, employment, health, and other characteristics"); Comm. for Fair & Balanced Map, 835 F. Supp. 2d at 583 (noting that "northern and southern enclaves" of a Hispanic district had "a common heritage and share[d] common core value[s]"); City of Euclid, 580 F. Supp. 2d at 605 - 07 (explaining in detail, with numerous experts reports, record evidence, and testimony, forms of official discrimination against a discrete African-American commun

2022See LULAC, 548 U.S. at 432 (examining in a VRA analysis that different Hispanics in different parts of Texas had "differences in socio-economic status, education, employment, health, and other characteristics"); Comm. for Fair & Balanced Map, 835 F. Supp. 2d at 583 (noting that "northern and southern enclaves" of a Hispanic district had "a common heritage and share[d] common core value[s]"); City of Euclid, 580 F. Supp. 2d at 605 - 07 (explaining in detail, with numerous experts reports, record evidence, and testimony, forms of official discrimination against a discrete African-American commun

2022See, e.g., Cooper v. Harris, 581 U.S. ___ , 136 S. Ct. 2512 (2017) (analyzing a VRA claim using BVAP data). 19 No. 2021AP1450-OA.jjk remaining VRA district packed at 73.3 percent BVAP highly suspicious.21 ¶189 This suspicion is not assuaged by the Legislature's expert report.

2022See, e.g., Cooper v. Harris, 581 U.S. ___ , 136 S. Ct. 2512 (2017) (analyzing a VRA claim using BVAP data). 19 No. 2021AP1450-OA.jjk remaining VRA district packed at 73.3 percent BVAP highly suspicious.21 ¶189 This suspicion is not assuaged by the Legislature's expert report.

2022See State v. Hunt, 2014 WI 102 , ¶42 n.11, 360 Wis. 2d 576 , 851 N.W.2d 434 ("Because it is our constitutional duty to say what the law is, we are not bound by a party's concessions of law.").

2022See State v. Hunt, 2014 WI 102 , ¶42 n.11, 360 Wis. 2d 576 , 851 N.W.2d 434 ("Because it is our constitutional duty to say what the law is, we are not bound by a party's concessions of law.").

2022See Frank v. Walker, 768 F.3d 744, 753-54 (7th Cir. 2014) (upholding a direct § 2 VRA challenge against Wisconsin's Voter-ID law, noting "[s]ection 2(b) tells 39 No. 2021AP1450-OA.akz us that § 2(a) does not condemn a voting practice just because it has a disparate effect on minorities," there was no finding "blacks . . . have less 'opportunity' than whites to get photo IDs," and black individuals had equal if not higher voter registration and turnout in the 2012 election as compared to white individuals); Brnovich, 141 S. Ct. at 2345 (noting that "a distorted picture can be created" by the ma

2022See Frank v. Walker, 768 F.3d 744, 753-54 (7th Cir. 2014) (upholding a direct § 2 VRA challenge against Wisconsin's Voter-ID law, noting "[s]ection 2(b) tells 39 No. 2021AP1450-OA.akz us that § 2(a) does not condemn a voting practice just because it has a disparate effect on minorities," there was no finding "blacks . . . have less 'opportunity' than whites to get photo IDs," and black individuals had equal if not higher voter registration and turnout in the 2012 election as compared to white individuals); Brnovich, 141 S. Ct. at 2345 (noting that "a distorted picture can be created" by the ma

2022The Equal Protection Clause "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 1250 (quoting Cooper, 137 S. Ct. at 1472 ). ¶16 Further, the Supreme Court indicated that the court failed to properly examine the three-step prerequisites to proving a VRA violation, as stated in Thornburg v. Gingles, 478 U.S. 30, 46-51 (1986).

2022The Equal Protection Clause "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 1250 (quoting Cooper, 137 S. Ct. at 1472 ). ¶16 Further, the Supreme Court indicated that the court failed to properly examine the three-step prerequisites to proving a VRA violation, as stated in Thornburg v. Gingles, 478 U.S. 30, 46-51 (1986).