State Facing Endless Lawsuits?

You might call 2019 the Year of The Lawsuits. The sweeping lame-duck laws passed by Republican legislators and signed by defeated Gov. Scott Walker are likely to provoke a series of lawsuits. In fact, one legal action has already been filed. And the battles could continue into 2020 and 2021, including suits over gerrymandering of legislative districts. 

Attorney General-elect Josh Kaul has predicted there will be “multiple litigation” in “multiple courts” in response to the 141 pages of legislation passed.  

Governor-elect Tony Evers seems likely to ask Kaul to file suit against some of these laws, but there may also be citizen suits against the Legislature. Wisconsin Common Cause leader Jay Heck says his group is “exploring” litigation — “And in a number of areas, not just the reduction of early voting.”

When asked if they contemplated filing suit, Erin Grunze, Executive Director of the League of Women Voters of Wisconsin, said her group “is concerned about the legislation, and currently considering our options,” while Chris Ott, Executive Director of the ACLU of Wisconsin, says “we will be looking closely at this sprawling, hastily passed measure.” 

One Wisconsin Institute and Citizen Action have already initiated the first legal action, returning to the federal district court that in 2016 struck down earlier limits on voting rights imposed by Walker and Republican legislators and asking Judge James Peterson to block the new law by these same actors that again limits early voting.

“The Wisconsin Republican attempts to rig the rules on voting were unconstitutional in 2016 and they’re unconstitutional today,” said One Wisconsin Institute Executive Director Scot Ross.

Many observers see the early voting restrictions as the most likely of the lame duck laws to be overturned, but what about the rest?

Rick Esenberg of the conservative, Bradley Foundation-funded Wisconsin Institute of Law and Liberty says, “I think that most, if not all, will eventually be upheld.” 

Madison attorney Lester Pines, who has appeared often before the Wisconsin Supreme Court on behalf of Democrats, says the massive list of 81 lame duck appointments by Walker are “probably constitutional,” but contends that all the other actions shouldn’t be upheld. 

“The laws that the Legislature passed that require its supervision of the governor and attorney general are unconstitutional because the Legislature has granted itself executive authority when all the Wisconsin Constitution grants the Legislature is the power to legislate,” Pines contends. 

For instance, he points to the law requiring state agencies to provide extensive documentation for any rule passed. “The legislature left intact that the governor oversees agency rules. But they put in place that agencies must do all this documentation of rules. They are trying to supervise state agencies which they can’t do.” Moreover, he notes, the amount of documentation required is impractical and might require the state to “hire 5,000 lawyers.”

Evers and Kaul could decide to ignore the laws, Pines says. “The governor and attorney general can, if they choose, refuse to abide by these incursions into their executive authority and allow themselves to be sued. I doubt that the Legislature would bring such lawsuits. They would probably be brought by the legal arm of the Bradley Foundation—the Wisconsin Institute for Law & Liberty.”

The new laws give legislators the power to appoint their own private attorneys to defend them from any challenges — at taxpayer expense. Pines has called it “a full-employment bill for Republican law firms… It will drive up the cost through the roof.”

Esenberg’s prediction that the laws would “eventually” be upheld might suggest that defeats are possible in the lower courts, whereas the Wisconsin Supreme Court has a conservative majority that has tended to side with Republicans. 

Republicans were so concerned about retaining this trump card that their proposed bills included one to move the 2020 presidential election to March, thereby protecting conservative Supreme Court Justice Daniel Kelly from running in the April presidential primary when there will be a big turnout of Democratic voters. But they dropped the bill after it came out that the extra election would cost taxpayers nearly $7 million and would require citizens to vote in three straight months of elections, which county clerks said would be impractical to administer. 

Kelly’s defeat wouldn’t matter if the April 2019 race to fill the seat of retiring Justice Shirley Abrahamson, a liberal, is won by conservative Brian Hagedorn, but many expect the blue electoral wave to continue, electing liberal Lisa Neubauer. If both Hagedorn and Kelly lost, the court would then have a liberal majority, which would make challenges to any Republican legislation easier to make. 

Some Democrats have speculated that the GOP push to protect Kelly was about having a state high court that might uphold another round of gerrymandering by Republican legislators after the 2020 election. Under the law, Evers could then veto this legislation and the issue would be kicked to the courts. But were Republicans hoping to sue Evers, arguing the governor can’t veto a redistricting bill and hoping a conservative high court would uphold this notion?

Pines shoots down this conspiracy theory. “There’s a series of decisions (going back to the 1950s and 1960s) ruling that redistricting has to be done through legislation,” he notes,  and since Wisconsin’s governor can veto any legislation, Evers could do so “and there’s nothing the Legislature can do about it. It would be extraordinary for the Supreme Court to overturn a precedent that has lasted that long.”

Moreover, it’s likely that if Ever and the legislature disagree on redistricting, the issue will go to federal courts rather than state courts. That is what happened after the 1980, 1990 and 2000 census and subsequent redistricting, and will likely happen in this case, too. (Though it could proceed to both state courts, filed by Republicans, and federal courts, filed by Democrats, depending on what each side sees as the friendlier venue.)  

Meanwhile, the 2012 redistricting passed by Republican legislators is still being litigated in the courts. Federal courts have ruled the law is an unconstitutional gerrymandering, but on appeal the U.S. Supreme Court punted it back to the lower courts with instructions that the defendants must prove standing. The democratic team of lawyers have re-filed the case to meet this requirement and a federal district court ruling is expected by this summer. However it rules, that will likely be appealed to the federal court of appeals and eventually to the U.S. Supreme Court. That is likely to drag well into 2020 or even 2021, just in time for suits to be filed challenging the new redistricting passed after the 2020 census. 

All of which is good news for lawyers, and quite a mess for newly-elected Democrats hoping for a chance to govern.

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