Johnson v. Wis. Elections Comm'n

• Decision Date: 15 April 2022
• Docket Number: 2021AP1450-OA
• Citation: 2022 WI 19
• Parties: Billie Johnson, Eric O'Keefe, Ed Perkins and Ronald Zahn, Petitioners, v. Wisconsin Elections Commission, Marge Bostelmann in her official capacity as a member of the Wisconsin Elections Commission, Julie Glancey in her official capacity as a member of the Wisconsin Elections Commission, Ann Jacobs in her official capacity as a member of the Wisconsin Elections Commission, Dean Knudson in his official capacity as a member of the Wisconsin Elections Commission, Robert Spindell, Jr. in his official capacity as a member of the Wisconsin Elections Commission and Mark Thomsen in his official capacity as a member of the Wisconsin Elections Commission, Respondents, Black Leaders Organizing for Communities, Voces de la Frontera, League of Women Voters of Wisconsin, Cindy Fallona, Lauren Stephenson, Rebecca Alwin, Congressman Glenn Grothman, Congressman Mike Gallagher, Congressman Bryan Steil, Congressman Tom Tiffany, Congressman Scott Fitzgerald, Lisa Hunter, Jacob Zabel, Jennifer Oh, John Persa, Geraldine Schertz, Kathleen Qualheim, Gary Krenz, Sarah J. Hamilton, Stephen Joseph Wright, Jean-Luc Thiffeault, and Somesh Jha, Intervenors-Petitioners, The Wisconsin Legislature, Governor Tony Evers, in his official capacity, and Janet Bewley Senate Democratic Minority Leader, on behalf of the Senate Democratic Caucus, Intervenors-Respondents.
• Court: Wisconsin Supreme Court

2022 WI 19

Billie Johnson, Eric O'Keefe, Ed Perkins and Ronald Zahn, Petitioners, Black Leaders Organizing for Communities, Voces de la Frontera, League of Women Voters of Wisconsin, Cindy Fallona, Lauren Stephenson, Rebecca Alwin, Congressman Glenn Grothman, Congressman Mike Gallagher, Congressman Bryan Steil, Congressman Tom Tiffany, Congressman Scott Fitzgerald, Lisa Hunter, Jacob Zabel, Jennifer Oh, John Persa, Geraldine Schertz, Kathleen Qualheim, Gary Krenz, Sarah J. Hamilton, Stephen Joseph Wright, Jean-Luc Thiffeault, and Somesh Jha, Intervenors-Petitioners, v. Wisconsin Elections Commission, Marge Bostelmann in her official capacity as a member of the Wisconsin Elections Commission, Julie Glancey in her official capacity as a member of the Wisconsin Elections Commission, Ann Jacobs in her official capacity as a member of the Wisconsin Elections Commission, Dean Knudson in his official capacity as a member of the Wisconsin Elections Commission, Robert Spindell, Jr. in his official capacity as a member of the Wisconsin Elections Commission and Mark Thomsen in his official capacity as a member of the Wisconsin Elections Commission, Respondents, The Wisconsin Legislature, Governor Tony Evers, in his official capacity, and Janet Bewley Senate Democratic Minority Leader, on behalf of the Senate Democratic Caucus, Intervenors-Respondents.

No. 2021AP1450-OA

Supreme Court of Wisconsin

April 15, 2022

ORAL ARGUMENT: January 19, 2022

ORIGINAL ACTION. On remand from the United States Supreme court. Relief granted.

For the petitioners, there were briefs filed by Richard M Esenberg, Anthony F. LoCoco, Lucas T. Vebber and Wisconsin Institute for Law & Liberty, Milwaukee. There was oral argument by Richard M. Esenberg.

For the intervenors-petitioners Black Leaders Organizing for Communities, Voces de la Frontera, League of Women Voters of Wisconsin, Cindy Fallona, Lauren Stephenson and Rebecca Alwin, briefs, including amicus briefs, were filed by Douglas M. Poland, Jeffrey A. Mandell, Rachel E. Snyder, Richard A Manthe, Carly Gerads and Stafford Rosenbaum LLP, Madison; Mel Barnes and Law Forward, Inc., Madison; Mark P. Gaber (pro hac vice), Christopher Lamar (pro hac vice)and Campaign Legal Center, Washington, D.C.; Annabelle Harless (pro hac vice) and Campaign Legal Center, Chicago. There was oral argument by Douglas M. Poland.

For the intervenors-petitioners Congressmen Glenn Grothman, Mike Gallagher, Bryan Steil, Tom Tiffany and Scott Fitzgerald there were briefs, including amicus briefs, filed by Misha Tseytlin, Kevin M. LeRoy, and Troutman Pepper Hamilton Sanders LLP, Chicago. There was oral argument by Misha Tseytlin.

For the intervenors-petitioners Lisa Hunter, Jacob Zabel Jennifer Oh, John Persa, Geraldine Schertz and Kathleen Qualheim, there were briefs, including amicus briefs filed by Charles G. Curtis, Jr. and Perkins Coie LLP, Madison; Marc Erik Elias (pro hac vice), Aria C. Branch (pro hac vice), Daniel C. Osher (pro hac vice), Jacob D. Shelly (pro hac vice), Christina A. Ford (pro hac vice), William K. Hancock (pro hac vice) and Elias Law Group LLP, Washington, D.C. There was oral argument by John Devaney fpro hac vice, ) r Perkins Coie LLP, Washington, D.C.

For the intervenors-petitioners Citizens Mathematicians and Scientists Gary Krenz, Sarah J. Hamilton, Stephen Joseph Wright, Jean-Luc Thiffeault and Somesh Jha, briefs were filed by Michael P. May, Sarah A. Zylstra, Tanner G. Jean-Louis and Boardman & Clark LLP, Madison, and David J. Bradford (pro hac vice) and Jenner & Block LLP, Chicago. There was oral argument by Sam Hirsch (pro hac vice), Jenner & Block LLP, Washington, D.C.

For the respondents Wisconsin Elections Commission, Marge Bostelmann, Julie Glancey, Ann Jacobs, Dean Knudson, Robert Spindell, Jr. and Mark Thomsen there were letter-briefs filed by Steven C. Kilpatrick, assistant attorney general, Karla Z. Keckhaver, assistant attorney general, Thomas C. Bellavia, assistant attorney general.

For the intervenors-respondents the Wisconsin Legislature there were briefs, including amicus briefs, filed by Kevin M. St. John and Bell Giftos St. John LLC, Madison; Jeffrey M. Harris (pro hac vice), Taylor A.R. Meehan (pro hac vice), James P. McGlone and Consovoy McCarthy PLLC, Arlington, Virginia and Adam K. Mortara and Lawfair LLC, Chicago. There was oral argument by Taylor A.R. Meehan.

For the intervenor-respondent Governor Tony Evers there were briefs filed by Joshua L. Kaul, attorney general, Anthony D. Russomanno, assistant attorney general and Brian P. Keenan, assistant attorney general. There was oral argument by Anthony D. Russomanno.

For the intervenor-respondent Janet Bewley, State Senate Democratic Minority Leader on behalf of the State Senate Democratic Caucus there were briefs filed by Tamara B. Packard, Aaron G. Dumas and Pines Bach LLP, Madison. There was oral argument by Tamara B. Packard.

There was an amicus brief filed on behalf of William Whitford, Hans Breitenmoser, Mary Lynne Donohue, Wendy Sue Johnson and Deborah Patel by Ruth M. Greenwood (pro hac vice), The Election Law Clinic, Harvard Law School, Cambridge, MA; with whom on the brief were law student-practitioners Mary F. Brown, Mark R. Haidar, Meredith A. Manda, Sarah A. Sadlier, Corey M. Stewart, Harvard Law School and Jakob Feltham and Hawks Quindel, S.C., Madison.

There was an amicus brief filed on behalf of Concerned Voters of Wisconsin by Joseph S. Goode, Mark M. Leitner, John W. Halpin and Laffey, Leitner & Goode, L.L.C., Milwaukee.

There was an amicus brief filed on behalf of Non-Party Legal Scholars by Allison Boldt, Robert Yablon and the University of Wisconsin Law School, Madison.

There was an amicus brief filed by Daniel R. Suhr, Thiensville.

ZIEGLER, C.J., delivered the majority opinion of the Court, in which ROGGENSACK, REBECCA GRASSL BRADLEY, and HAGEDORN, JJ., joined. REBECCA GRASSL BRADLEY, J., filed a concurring opinion, in which ZIEGLER, C.J., and ROGGENSACK, J., joined. HAGEDORN, J., filed a concurring opinion. KAROFSKY, J., filed a dissenting opinion, in which ANN WALSH BRADLEY and DALLET, JJ., joined.

OPINION

ANNETTE KINGSLAND ZIEGLER, C.J.

¶1 This is an original action filed by Petitioners Billie Johnson, Eric O'Keefe, Ed Perkins, and Ronald Zahn to remedy malapportionment in Wisconsin's state legislative and congressional districts. On March 3, 2022, this court selected legislative and congressional maps drawn by Governor Tony Evers. Johnson v. Wis. Elections Comm'n, 2022 WI 14, ¶52, 400 Wis. 2D 626, ___ N.W.2d ___. Upon a request for certiorari review by the United States Supreme Court, the Supreme Court granted certiorari and summarily reversed the selection of the Governor's state legislative maps. Wis. Legislature v. Wis. Elections Comm'n, 595 U.S. ___, 142 S.Ct. 1245, 1251 (2022) (per curiam) . Racial motivations drove the Governor's selection of district lines, and the Supreme Court reasoned that the court relied on insufficient evidence to endorse such race-based decision making. Id. at 1249-51. The Supreme Court remanded the case to the court for further proceedings regarding the Wisconsin State Senate and Assembly maps. Id. at 1251.

¶2 Upon review of the record, we conclude that insufficient evidence is presented to justify drawing state legislative districts on the basis of race. The maps proposed by the Governor, Senator Janet Bewley, Black Leaders Organizing for Communities ("BLOC")/ and Citizen Mathematicians and Scientists ("CMS") are racially motivated and, under the Equal Protection Clause, they fail strict scrutiny.

¶3 By contrast, the maps proposed by the Wisconsin Legislature are race neutral. The Legislature's maps comply with the Equal Protection Clause, along with all other applicable federal and state legal requirements. Further, the Legislature's maps exhibit minimal changes to the existing maps, in accordance with the least change approach we adopted in Johnson v. Wis. Elections Comm'n, 2021 WI 87, 399 Wis.2d 623, 967 N.W.2d 469. Therefore, we adopt the state senate and assembly maps proposed by the Legislature for the State of Wisconsin.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶4 In 2011, the Wisconsin Legislature passed and the Governor signed state legislative and congressional maps after the 2010 census. Over the subsequent ten years, the population of Wisconsin changed; people moved away from some areas and people moved into others. These changes were recognized in the 2020 census, which identified a population increase in the state from 5, 686, 986 to 5, 893, 718. See Johnson, 399 Wis.2d 623, ¶15.

¶5 The Petitioners filed this original action in August 2021 to remedy alleged malapportionment in Wisconsin's state legislative and congressional maps.^[1] In September 2021, this court accepted the case, and in October 2021, the court directed the parties to file briefs addressing what factors the court should consider when selecting new maps. Johnson v. Wis. Elections Comm'n, No. 2021AP1450-OA, unpublished order (Wis. Sept. 22, 2021, amend. Sept. 24, 2021); Johnson v. Wis. Elections Comm'n, No. 2021AP1450-OA, unpublished order (Wis. Oct. 14, 2021) . On November 17, 2021, the court directed the parties to confer and, if they wished to participate in a discovery period, to file a joint proposed discovery plan by December 3, 2021. Johnson v. Wis. Elections Comm'n, No. 2021AP1450-OA, unpublished order (Wis. Nov. 17, 2021).

¶6 On November 30, 2021, the court issued a decision explaining the framework by which the court would select maps. The court identified that under the Equal Protection Clause of the United States Constitution, "a State [must] make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal...