State Facing Endless Lawsuits?
Suits by governor, legislature, citizens coming on lame duck laws, gerrymandering.
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.”
“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?
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?
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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More about the Lame Duck Laws
- Judge Blocks Lame Duck Voting Restrictions - Laurel White - Jan 18th, 2019
- Rep. Jimmy Anderson Seeks to Void the Wisconsin Power Grab - State Rep. Jimmy Anderson - Jan 10th, 2019
- Op Ed: Lame Duck Mischief Defamed the State - Spencer Black - Jan 2nd, 2019
- Campaign Cash: Lame Duck Law Helped Ashley Furniture - Wisconsin Democracy Campaign - Dec 20th, 2018
- Op Ed: Liberals All Wrong on Early Voting Law - Rick Esenberg - Dec 20th, 2018
- Op Ed: We the Irrelevant People - Sheila Plotkin - Dec 19th, 2018
- History Repeats With Latest Post-Election Republican Attack on Early Voting - One Wisconsin Now - Dec 19th, 2018
- Kaul Calls Lame Duck Laws ‘Terrible’ - Mary Kate McCoy - Dec 19th, 2018
- Court Challenge to Voting Restrictions Filed - Laurel White - Dec 18th, 2018
- Murphy’s Law: State Facing Endless Lawsuits? - Bruce Murphy - Dec 18th, 2018
- One Wisconsin Institute Files Request for Court to Enforce Rulings Striking Down Republican Lame Duck Restrictions on Voting - One Wisconsin Institute - Dec 17th, 2018
- Motion to Block Early Voting Restrictions to be Filed Today - Citizen Action of Wisconsin - Dec 17th, 2018
- Carpenter: Require ‘Lame Duck” Bills to Supermajority Votes - State Sen. Tim Carpenter - Dec 17th, 2018
- Op Ed: Lame Duck Bills Too Rushed, Secretive - Erin Grunze - Dec 16th, 2018
- Walker Signs Lame Duck Bills - Laurel White - Dec 14th, 2018
- Rep. Zamarripa Statement on Lame Duck Bills - State Rep. JoCasta Zamarripa - Dec 14th, 2018
- One Wisconsin Institute Announces Coming Legal Action Against GOP ‘Lame Duck’ Voting Rights Attacks - One Wisconsin Institute - Dec 14th, 2018
- Governor Walker just sealed his legacy as the worst Governor in state history - State Sen. Chris Larson - Dec 14th, 2018
- Governor Walker Signs Extraordinary Session Legislation into Law in Green Bay - Gov. Scott Walker - Dec 14th, 2018
- Governor-elect Tony Evers Statement on Kimberly-Clark Announcement - Gov. Tony Evers - Dec 13th, 2018
- Walker Defends Lame Duck Bills - Laurel White - Dec 12th, 2018
- Murphy’s Law: Republicans’ Plan for Permanent Power - Bruce Murphy - Dec 11th, 2018
- Lame Duck Law Adds Work For State Agencies - Rich Kremer - Dec 11th, 2018
- Lawmakers Change How WEDC Tracks Jobs - Laurel White - Dec 10th, 2018
- Op Ed: Republican Power Grab Unprecedented - State Sen. Chris Larson - Dec 10th, 2018
- The State of Politics: 5 Reasons for Republican Power Play - Steven Walters - Dec 10th, 2018
- Campaign Cash: WMC Behind New Anti-Regulation Bill - Wisconsin Democracy Campaign - Dec 7th, 2018
- Wisconsin Budget: One More Tax Cut For The Wealthy - Tamarine Cornelius - Dec 7th, 2018
- City Beat: Episode 002 - Jeramey Jannene - Dec 6th, 2018
- Lame-Duck Bill Changes Highway Funding - Rich Kremer - Dec 6th, 2018
- Murphy’s Law: What Will Scott Walker’s Legacy Be? - Bruce Murphy - Dec 6th, 2018
- Governor Walker: What Will Your Message To Gov.-Elect Evers Be? - State Sen. Tim Carpenter - Dec 6th, 2018
- WI & MI GOP Attempt to Undermine the Voice of Voters, Put Democracy and Safety at Risk - Democratic Attorneys General Association - Dec 6th, 2018
- Your Right to Know: Lame Duck Laws All About Secrecy - Dee J. Hall - Dec 5th, 2018
- Data Wonk: The Republican War Against Democracy - Bruce Thompson - Dec 5th, 2018
- Extraordinary Session Update: Legislature Approves Critical Reforms - Wisconsin Institute for Law & Liberty - Dec 5th, 2018
- Rep. Gwen Moore Statement on Republican Power Grab - U.S. Rep. Gwen Moore - Dec 5th, 2018
- Statement on Lame Duck Session - State Rep. Evan Goyke - Dec 5th, 2018
- Legislature Works Overnight To Curb Evers Power - Shawn Johnson and Laurel White - Dec 5th, 2018
- Governor-elect Tony Evers Statement on Extraordinary Session - Gov. Tony Evers - Dec 5th, 2018
- Republican’s Holiday Gift to Wisconsin: An Assault on Democracy - State Sen. Janis Ringhand - Dec 5th, 2018
- Unprecedented Power Grab Will Break Wisconsin for Years to Come - State Sen. Chris Larson - Dec 5th, 2018
- Senator Taylor Believes GOP Are Taking Career Ending Votes - State Sen. Lena Taylor - Dec 4th, 2018
- Bill Curbing Evers’ Power Moves to Legislature - Shawn Johnson and Laurel White - Dec 4th, 2018
- Extraordinary Session Policy Items Flying Under the Radar - Wisconsin Institute for Law & Liberty - Dec 4th, 2018
- Will Republican Legislature Risk Contempt With Scheme to Enact New Limits on Early Voting? - One Wisconsin Now - Dec 4th, 2018
- Representative Lisa Subeck Statement on the Extraordinary Session - State Rep. Lisa Subeck - Dec 4th, 2018
- Power Tends to Corrupt, Absolute Power Corrupts Absolutely - State Rep. Jimmy Anderson - Dec 4th, 2018
- Governor-elect Tony Evers’ Testimony to the Joint Committee on Finance Opposing Extraordinary Session Legislation - Gov. Tony Evers - Dec 3rd, 2018
- Eight Days After November Election Republican Assembly Leader Robin Vos Requested New Restrictions on Early Voting - One Wisconsin Now - Dec 3rd, 2018
- Op Ed: GOP Bills Change 400 Sections of State Law - State Sen. Kathleen Vinehout - Dec 3rd, 2018
- Rep. Brostoff Statement on Republican Effort to Override Will of Wisconsin Voters - State Rep. Jonathan Brostoff - Dec 3rd, 2018
- Conservation Voters issue statement on lame duck bills - Wisconsin League of Conservation Voters - Dec 3rd, 2018
- Evers Will Fight Plan to Limit His Power - Corri Hess - Dec 3rd, 2018
- GOP Lame Duck Session Targets Evers - Laurel White - Dec 3rd, 2018
- ACLU of Wisconsin’s Board of Directors condemns lame duck session - American Civil Liberties Union of Wisconsin - Dec 3rd, 2018
- Stop the Wisconsin GOP power grab - Indivisible Madison - Dec 3rd, 2018
- Election defeat leads to GOP temper tantrum - State Sen. Jennifer Shilling - Nov 30th, 2018
- Vos Republicans: ‘Too Many People Voted’ - One Wisconsin Now - Nov 30th, 2018