New maps unlikely to give Republicans veto-proof majority and open to voting rights challenges

Last week, the Wisconsin Supreme Court chose political maps proposed by Republicans in the Legislature, entrenching the state’s extreme partisan gerrymander for another decade — yet, for now, the maps are unlikely to create a veto-proof Republican majority and are still subject to legal challenges. 

No matter what the courts do with the maps moving forward, however, they will be in place for this fall’s midterm elections where no matter how well Democrats do statewide in the races for governor and U.S. Senate, Republicans are expected to maintain their large majority in the Legislature. But, according to Marquette University research fellow John Johnson, the seats Republicans would have to win to override the veto pen of Democratic Governor Tony Evers, if he wins reelection, are unlikely to flip. 

This, he says, is because rather than prioritizing the maps to get past the veto, Republicans focused on making sure vulnerable Republicans in districts that have changed demographically since the previous maps were set in 2011 remain in their seats. 

“A veto proof majority is unlikely and in fact if anything, even slightly less likely now than it was under the old maps,” Johnson says. “I suspect the Republican party recognized that it’s really unlikely you’d have a scenario where they’d win a supermajority under any maps without also winning the governor’s seat. So without optimizing for a supermajority, they were shoring up Republican-held seats they were concerned were trending in the wrong direction.”

According to a Marquette University analysis, under the new map Republicans are expected to increase their majority in the state Assembly from the current 61 seats to 63 — three seats short of a 66 seats needed to claim a veto-proof, two-thirds majority

Johnson uses election results from the 2016 presidential election, 2018 gubernatorial election and 2020 presidential election to predict how the maps will play out. He says that in the 99 Assembly districts across the entire state, only three are truly competitive — the 73rd and 74th districts in Northern Wisconsin near Superior, which are currently held by the retiring Reps. Nick Milroy (D-South Range) and Beth Meyers (D-Bayfield), and the 94th district near La Crosse, held by Rep. Steve Doyle (D-Onalaska). 

The 66th seat Republicans would need to flip in order to gain a supermajority, Johnson says, is the 71st district near Stevens Point, which is held by Rep. Katrina Shankland and unlikely to be won by Republicans. 

But the highly contentious maps are also likely to face legal challenges from voters who object to the way they handle minority voters around Milwaukee and the extreme partisan gerrymander it entrenches. 

The state Supreme Court had initially selected maps proposed by Evers, which also leaned Republican but were more competitive than the 2011 maps or Republican legislators’ recent maps, which the court  eventually chose. Evers’ maps also included seven majority Black districts in the Milwaukee area, one more than in the old maps. On an appeal from the Legislature, the U.S. Supreme Court said the state court didn’t provide enough evidence for why the seven majority Black districts were required under the federal Voting Rights Act (VRA) and sent the case back, saying it needed to show why the seventh district was needed or choose a different map. 

In his concurring opinion, conservative Justice Brian Hagedorn — the crucial swing vote who initially sided with the court’s liberals in picking Evers’ maps, then flipped once the U.S. Supreme Court sent those maps back to the state — wrote that it’s possible the chosen maps won’t survive a challenge under the VRA. 

“The record, such as it is, does not sufficiently support the conclusion that the Legislature’s maps violate the VRA,” he wrote. “Perhaps a court deciding a VRA challenge on a more complete record would reach a different result. But I cannot conclude a violation is established based on the record we have before us. That means that in light of the Supreme Court’s clarified instructions, the Legislature’s state senate and state assembly maps are the only legally compliant maps we received.”

Mel Barnes, an attorney for progressive legal group Law Forward, says there will likely be a challenge to the maps under the VRA and if successful the Milwaukee area districts would be redrawn — even though Law Forward, which argued in the state lawsuit over the new maps, disagrees that the record was insufficient to prove the seventh district was required. 

“I think that Justice Hagedorn very much left the door open to a Voting Rights Act challenge here,” she says. “While we believe there was plenty of evidence in the record showing that those districts were required, the court has a responsibility to comply with the VRA in the maps it selects. The VRA is still the law of the land and I think that the court in this decision abdicated its responsibility to apply those protections.”

“I think the Wisconsin Legislature’s decision to reduce the number of Black majority districts after the census data showed us the Black population grew is really indefensible,” she continues. “The Legislature’s districts have very high percentages of Black voters in several of its districts and I think those districts could be challenged under the VRA in federal court.” 

There are also two federal court cases that were brought last year and put on hold while the state court chose the new maps. Barnes says that this week Law Forward attorneys told the federal courts it wants to keep those suits open while it strategizes for what’s next. 

She also says a lawsuit against the partisan gerrymander could still happen in the state court system. A federal challenge centered on partisan  gerrymandering is impossible because the U.S. Supreme Court has ruled that partisan issues are not a federal concern. 

While the maps give Republicans a firm hold on the Legislature for the foreseeable future, Johnson says Wisconsin will change in unpredictable ways over the next decade. Suburban Milwaukee seats that were safely Republican in 2011 have now flipped, for example. 

“Gerrymanders grow stale over the course of a decade,” he says. “It’s not actually predictable how the winds will change over the course of the decade. I expect us to be surprised by which seats are competitive in 2028.”