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The United States Supreme Court heard arguments Tuesday over Wisconsin's gerrymandered legislative map in a pivotal case that could upend how states nationwide draw their voting districts. 

As a longtime professor of Wisconsin constitutional law and government, I have been lamenting that Wisconsin’s constitution and institutions have been largely absent from the Wisconsin redistricting case just argued in the U.S. Supreme Court. Simply put, the case should have gone through the state court system using state constitutional arguments.

The case challenges Wisconsin’s obviously partisan “gerrymandering” after the 2010 census, claiming that the Legislature purposely drew voting boundaries to increase the number of districts with a majority of Republicans and decrease the number of districts with a majority of Democrats.

Indeed, the result is that while more Wisconsin citizens vote for Democrats than Republicans, we end up with more Republicans than Democrats in the state Legislature.

The case was argued this week before the United States Supreme Court and largely boiled down to three or four constitutional issues: standing, justiciability, and freedom of association coupled with equal protection. My intent is not to give some mundane academic dissertation on these issues, but simply to make one point. Those issues are all addressed in the Wisconsin Constitution just as they are in the U.S. Constitution. So why is this case being argued in the federal courts under the federal Constitution?

The discussion boils down to an arcane constitutional doctrine known as the Adequate and Independent State Grounds Doctrine. If a state court can adequately address a matter independently of the federal Constitution, then the federal courts should defer to the state court to take the first pass at resolving the matter. The logic is simple, really. If state courts could apply the state constitution, interpret state law, and protect state voting rights, then why should the federal Supreme Court decide the case first, potentially imposing its remedy on all the states, including those that may have less politically motivated redistricting practices? The answer: It shouldn’t.

There was a time when advancing state-centric arguments invoked the uglier side of American history. After all, the Civil War Southern states masked their penchant for slavery with arguments over states’ rights and economic freedom. The early states also battled the Union over the right to acquire vast swaths of frontier territory. As a result, both African-Americans and Native Americans suffered from racism in the name of states’ rights. In today’s political world, however, with some states legalizing marijuana and protecting gender-neutral marriage, states in our union have re-emerged as both violators and protectors of rights. The Adequate and Independent State Grounds Doctrine helps us reveal the difference.

It might surprise some to know that the Wisconsin Constitution also has provisions dealing with standing, justiciability, freedom of association and equal protection. I for one would like to know whether our state constitution, as interpreted by our own state courts, would address these rights and requirements. I for one would like to learn and appreciate the position of our own state courts, judges, attorneys, and all Wisconsin citizens on these matters.

Now before you go there, let me jump in. I have no misconceptions that the Wisconsin Supreme Court as currently constituted would redraw our current district maps and protect our voting rights, or whatever right our wildly partisan redistricting is violating. Frankly, certain of our justices seem so beholden to partisan politics that they might as well have run for the Assembly instead. But it would behoove the people of this state to know if their own constitution, as interpreted by their own courts, adequately protected their own voting rights. At the very least, it would be valuable for them to address the one concrete redistricting requirement in our state constitution that districts be “in as compact form as practicable.” I have no doubt that the state’s nearly 6 million people would elicit roughly the same number of opinions on whether our current districts meet that requirement. 

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As it now stands, we the people will simply learn whether the federal Constitution is robust enough to protect these rights, but we will learn nothing about our own state constitution. Or about ourselves. Who knows – if our own Wisconsin Constitution doesn’t protect our rights, we might take it upon ourselves to amend it. But if the U.S. Constitution doesn’t protect our rights, what will we, the people of Wisconsin, do – amend it?

The redistricting case is, or could have been, a reminder to the people of the state that we have our own constitution, that our state constitution offers another layer of constitutional rights and responsibilities, that certain state rights may be stronger than federal rights, and ultimately, that if our own constitution is broken, we can fix it. As it is, the redistricting case is a bit of a missed opportunity – so far.

Richard Monette is a professor at the UW-Madison Law School.

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