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From this Perch: Time for non-partisan redistricting

Last June, the U.S. Supreme Court issued a decision in the Wisconsin gerrymandering case.

A brief review: "gerrymandering" is the convoluted re-drawing of voting districts, by one party, for partisan political advantage.

Both parties are capable of this shenanigan.

The issue in the Wisconsin case was whether Republicans went too far when they re-set district lines following the 2010 census. But instead of addressing that issue, all nine justices concluded that the plaintiffs (those who brought the suit) had not proven they had "standing" to make their claims.

A legal technicality, "standing" means plaintiffs have to show they have been, or will be, harmed by an alleged wrong.

The plaintiffs had tried to prove injury by focusing on the state-wide effect of the gerrymandered districts. The court said they should have addressed the claimed unfairness on a district-by-district basis and not state-wide.

So the plaintiffs lacked standing, said all nine justices.

Ordinarily, a failure to prove standing means that the case is dismissed, i.e., it's over.

But In another surprise, seven of the nine justices concluded that the plaintiffs ought to be given a second bite at the apple.

So now the case is back at the trial court level, where the plaintiffs will re-frame their arguments and focus on the district-by-district effect of the Wisconsin's gerrymandered districts.

Example: one (of many) of the plaintiffs lives in Eau Claire, and in her case, the lawyers will now focus on her district in Eau Claire.

My guess as to why seven of the nine justices gave the plaintiffs a second bite at the apple: there is likely a recognition by most of the justices that Wisconsin's current districts are not right. The challenge for the court, and it's no small challenge, is to agree on a legal standard that makes constitutional and practical sense. (If not to all nine justices, then at least to a majority.)

Justice Anthony Kennedy probably would have been a key player in the effort to find a standard, but he's now retired. With the arrival of his likely replacement, Brett Kavanaugh, it's anyone's guess as to where this is headed.

So until the court comes up with a clear standard, get used to the deck being stacked if one party holds all the cards when it comes time to do redistricting. (District boundaries are set every ten years, so it will be done again after the 2020 census.)

Wisconsin is not the only state involved in litigation over gerrymandered districts. So maybe one of those other cases will be decided first and end up establishing a standard that has thus far eluded the court.

I continue to wonder why our elected officials in Madison aren't discussing a different system for redistricting. Like, for instance, Iowa's nonpartisan system.

But I guess if you hold the cards and you like the power, you are not likely to lead the way for change.

For instance, in the 2009-2010 legislative session Democrats held all the cards in Madison (majorities in the senate and assembly, and a Democratic governor). A bill was introduced that would have started the process of amending the Wisconsin Constitution to prevent, in effect, gerrymandering.

The bill died at the end of that session. Why? After all, Democrats held all the cards.

My guess is the Democrats were confident they would continue to hold all the cards after the 2010 election, thus giving them control over redistricting.


A few years later, with Republicans holding all the cards, Democrats sponsored a bill that called for an advisory referendum to see what the people think about whether we should do redistricting on a nonpartisan basis.

The bill died, with every single Republican in the Assembly voting against it.

Third-party, anyone?

Election time is near. Since the legislature most recently shot down the idea of getting citizen-input through an advisory referendum, maybe we should have what we could call a reverse-referendum. Instead of the legislature asking us whether we prefer a nonpartisan system, we could ask them.

As we approach election time in November, a reverse-referendum question for every candidate for the State Senate, Assembly and Governor: do you favor a nonpartisan system for redistricting?

It's a straight-up question.