GOP Once Bypassed Governor on Redistricting

Once upon a time, the Wisconsin Legislature tried to handle redistricting — the process of redrawing Congressional and legislative district lines every 10 years — in a tricky way. It would pass a “joint resolution, a process that does not involve the governor, instead of passing a law outlining the districts that a governor would have to sign into law or veto.

Actually, legislators tried to do this twice, according to a history of redistricting in Wisconsin compiled by the non-partisan Legislative Reference Bureau (LRB).

Both times, the gambit failed.

This was back in the 1960s, after voters in November 1960 elected a Democratic governor, Gaylord Nelson, and a Republican-controlled Legislature.

Sound familiar? It foreshadowed the Capitol today, where Democratic Tony Evers is governor and Republicans have solid majorities in both the Assembly and Senate.

According to the LRB, Republican leaders of the Legislature first tried to redraw legislative district lines by resolution during the 1961-62 session.

But it was the Legislature’s second attempt — in 1963 — that is most interesting. It came after the election of a new Democratic governor, John Reynolds, and Republicans keeping control of the Legislature.

In 1963, legislators and Reynolds agreed on new district lines for U.S. House members. Reynolds signed that bill on May 20, 1963.

But, on July 9, 1963, Reynolds vetoed the Legislature’s bill drawing new districts for members of the Assembly and Senate. After that veto, according to LRB:

“The Legislature again attempted to bypass the governor’s objections by adopting a joint resolution. On July 10, 1963, a day after the governor’s veto … the Senate Committee on Legislative Procedures introduced 1963 Senate Joint Resolution (SJR) 74, relating to the apportionment of senate and assembly seats.”

The Senate passed SJR 74 on July 30, after a Democratic senator — Fred Risser, of Madison, who is retiring this year as the oldest (age 93) state legislator in the nation — objected.

Risser’s argument: The Legislature can’t replace the state law that drew the current legislative lines by passing a joint resolution. The Senate president, Lt. Gov. Jack Olson, a Republican dismissed Risser’s objection.

Two major changes have been made since then: The governor and lieutenant governor are now elected as a ticket, so they are both members of the same party. And the lieutenant governor no longer is the Senate president. Now, senators choose the Senate president; Risser, in 1975, became the first president elected that way.

Back to LRB’s narrative.

“Being unable to veto a joint resolution, Gov. Reynolds went to the Wisconsin Supreme Court, arguing, among other things, that the Legislature could not redraw legislative district boundaries without his approval.”

It gets interesting.

“On Feb. 28, 1964, the Court ruled in Reynolds’ favor. The court held that a redistricting plan could not become law without the governor’s concurrence or a legislative override of the governor’s veto and noted that ‘both the legislative and executive branches of our state government have long regarded legislative reapportionment as a matter of joint action between the Legislature and the governor.’

“The court also noted that, although Article IV, Section 3, of the Wisconsin Constitution does not expressly provide that the apportionment shall be ‘by law,’ the inconsistent use of the phrase ‘by law’ in the Constitution creates an ambiguity that the court will resolve by construing Article IV, Section 3, in the most-reasonable manner … to wit: To create and define the institutions whereby a representative democratic form of government may effectively function.”

The Supreme Court then went one step further: “It would be unreasonable to hold that the framers of the Constitution intended to exclude from the reapportionment process the one institution guaranteed to represent the majority of the voting inhabitants of the state — the governor.”

Why the history lesson?

Because, since Evers took office in January 2019, Republican legislative leaders have successfully limited the powers of him and all future governors. Last week, for example, they got the state Supreme Court to establish the precedent that legislators — and not just a governor and attorney general — can defend new laws. And new legislative districts must be redrawn next year.

Should Republicans continue to hold power in both houses of the Legislature, which seems very likely, Republican leaders may try again, as they did in the 1960s, to pass redistricting through a joint resolution, and hope the Wisconsin Supreme Court will overrule the decision of the 1960s, and the long tradition in this state cited by that decision. Which is why this little history lesson is so relevant and resonant for today.

Steven Walters is a senior producer with the nonprofit channel WisconsinEye. Contact him at stevenscotwalters@gmail.com