By Gretchen Schuldt

Three state Supreme Court justices have called for the court to reconsider whether the Legislature can adopt political maps through a joint resolution, bypassing involvement by the governor.

Justice Rebecca Grassl Bradley was joined by Justices Annette K. Ziegler and Patience D. Roggensack in her dissent to the court's 4-3 decision selecting redistricting maps submitted by Gov. Tony Evers. 

The justices said the court should revisit its 1964 decision in State ex rel. Reynolds v. Zimmerman, which upheld the governor's ability to approve or veto maps proposed by the Legislature.

"While Zimmerman has been precedent for many years, it is the only case to address that issue, and this court has never had the opportunity to revisit it because every redistricting case that followed was heard exclusively in federal court. Unlike a fine wine, precedent does not necessarily get better with age," she said.

"The foundation for Zimmerman is weak," Bradley wrote. "The text of Article IV, Section 3 (of the state constitution) does not contemplate a role for the Governor in the drawing of assembly and senate maps....While the Legislature's prerogative to enact laws is subject to a gubernatorial veto, the constitution does not describe the Legislature's duty to redistrict as lawmaking, suggesting the constitution denies the Governor a role in the process."

In a footnote, she added, "Perhaps this court should consider, as a remedy, allowing the Legislature to redistrict by joint resolution. Unless a court adopts the Governor's maps as it did in this case, a court-ordered remedy ultimately denies the Governor control anyway. Zimmerman does not prohibit the Legislature from implementing redistricting plans by joint resolution in the event of an impasse."

Sachin Chheda, director of the Fair Elections Project, which opposes partisan gerrymandering, said the justices' proposal was an effort to "pervert the law in order to advance the Republican cause."

“It’s unfortunate that the partisan, right-wing judicial activists on the Supreme Court continue in their efforts to ignore the law, the constitution, and established precedent," he said. "What folks want is nonpartisan, independent judges, and not partisan activists. There’s no way citizens will stand for this kind of manipulation of our political process.”

If the court were to reject Zimmerman, it could also remove redistricting from court review and open the door to additional powers reserved for the legislature alone, without being subject to gubernatorial veto or involvement. That is because, as the Zimmerman court noted but Bradley did not mention, the state constitution refers several times to legislative authority without specifically describing a role for the governor:

Sec. 1, art. III, Wis. Const. "Every person, of the age of twenty-one years or upwards, belonging to either of the following classes, who shall have resided in the state for one year next preceding any election, and in the election district where he offers to vote such time as may be prescribed by the legislature, not exceeding thirty days, shall be deemed a qualified elector at such election: . . ."

Sec. 23, art. IV, Wis. Const. "The legislature shall establish but one system of town and county government, which shall be as nearly uniform as practicable."

Sec. 26, art. IV, Wis. Const. "The legislature shall never grant any extra compensation . . . "

Sec. 7, art. VII, Wis. Const. ". . . the legislature may, from time to time, authorize additional circuit judges to be chosen. . . ."

Sec. 5, art. VIII, Wis. Const. "The legislature shall provide for an annual tax sufficient to defray the estimated expenses of the state for each year; and whenever the expenses of any year shall exceed the income, the legislature shall provide for levying a tax for the ensuing year, sufficient, with other sources of income, to pay the deficiency as well as the estimated expenses of such ensuing year."

(Emphases in Zimmerman decision.)

Bradley's suggestion that the Legislature alone has the authority to enact legislative maps echoes the "independent legislature" idea being pushed in conservative legal circles. Under that theory, only state legislatures can regu­late congres­sional elec­tions, including redistricting. The theory, if enacted, would eliminate any role for governors or judges.

The theory has been rejected by courts for more than 100 years, but four U.S. Supreme Court justices have signaled they may buy into it.