Wisconsin Democrats Mull Litigation After GOP Lame-Duck Session

Wisconsin's state capitol building.

Wisconsin's state capitol building. Shutterstock

 

Connecting state and local government leaders

As Republicans move to preserve their political power in Wisconsin, Michigan and North Carolina despite election losses, many anticipate legal challenges.

Moves made this week by swing-state Republican lawmakers aiming to blunt gains made by Democrats in November’s midterm elections have fueled angry protests, generated a storm of media coverage and are all but certain to draw a raft of lawsuits filed by incoming Democratic officials and voting rights groups.

Michigan Republicans in a lame-duck state legislative session began moving bills to limit the powers of the newly elected Democratic governor, attorney general and secretary of state, while also proposing changes to a proposal voters approved last month to create a commission to draw voting districts.  

Even more dramatically, Wisconsin Republicans launched and concluded within about 48 hours a tumultuous lame-duck legislative session that passed a package of bills aimed most controversially at curtailing the executive authority of incoming Democratic Governor Tony Evers and incoming attorney general Josh Kaul, along with limiting early voting periods that have helped fuel victories for Democratic candidates.

One of the proposals would shift some oversight of the Wisconsin Economic Development Corporation from the governor to the state assembly. Evers in his election campaign decried the Economic Development Corporation, a public-private agency created by outgoing Republican Gov. Scott Walker, and its centerpiece FoxConn project. The state working through the Economic Development Corporation wooed the Taiwanese electronics manufacturing company to build a new plant in Racine County with $2.85 billion in tax credits, which has come under criticism for not delivering on promised jobs. Evers characterized Economic Development Corporation as unaccountable to taxpayers and promised voters he would work to disband it.

Another proposal would strip power from Attorney General-elect Kaul to withdraw the state from a lawsuit filed by 20 Republican attorneys general targeting the Affordable Care Act. Kaul  campaigned on the need to retain the ACA’s guaranteed coverage for preexisting health conditions and promised to end Wisconsin’s involvement in the lawsuit.

Gov. Walker was in Washington, D.C. attending the funeral of former President George H.W. Bush when the action was unfolding at the Capitol in Madison on Wednesday, but earlier in the week he voiced support for the efforts of the state’s Republican lawmakers.   

"Members of the legislature were elected not for a term that ended on election day; they were elected for a term that ends in January, just like my term ends in January," Walker said. “So we are going to look at things just like people expect us to serve a full four-year term."

Incoming Democratic officials and voting rights groups in Wisconsin are taking stock of the Republican bills and planning their responses. Evers said he saw the session as lamentable last-gasp partisan gambit mostly conducted behind closed doors.

"Wisconsin values of decency, kindness, and finding common ground were pushed aside so a handful of people could desperately usurp and cling to power while hidden away from the very people they represent," Evers said.

Assembly Speaker Robin Vos said reaction among Democrats and the media was overblown.

“While some on the left and many in the media have tried to make this into some kind of a cause célèbre, it's a simple reality that we are ensuring by passing these bills that, when we negotiate over the course of next four years, we have equal seats at the table," he said. "The governor, with one of the most powerful veto pens in the entire country, still has the upper hand in all of the negotiations that we will have."

A ‘continuation of the play’

The efforts in Wisconsin and Michigan mirror actions taken by North Carolina Republicans in 2016, when they passed laws to strip newly elected Democratic Governor Roy Cooper of some powers, such as making crucial appointments. In the new year, legislative Republicans in North Carolina will lose their veto-proof supermajority, and they are now pushing through a new measure to impose polling place voter ID requirements—even as evidence mounts in allegations of absentee-ballot fraud by Bladen County campaign workers supporting Republican congressional candidate Mark Harris.

Jay Heck, executive director of the Wisconsin chapter of Common Cause, a liberal-leaning good government nonprofit, told Route Fifty he felt the moves in Wisconsin, Michigan and North Carolina were revealing in the way they distilled long-running Republican policy priorities—controlling elections administration, resisting campaign finance changes, and passing corporate friendly regulatory, tax and labor policies.

“This was all just more of the same related to the strategic vision Republicans have been following for the last 20 years,” Heck said. “They’ve worked and been successful at gaining legislative majorities in the upper Midwest, at redrawing voting district maps, passing voter ID laws, making it harder to vote in the urban Democratic strongholds, discharging nonpartisan elections and ethics boards and eliminating campaign finance disclosure and transparency.

“These lame-duck session moves were a continuation of the play,” he said.

‘Courtrooms full of suits’

Democrats in Wisconsin reeling from the lame-duck session also know that soon they will have more room to maneuver than they have in eight years.

President Trump narrowly won the state in 2016. But in November, Democrats swept all five statewide offices—governor, lieutenant governor, attorney general, secretary of state and treasurer. Another way of putting it is that they won all the offices in the state that remain unaffected by the state legislative gerrymandering engineered by Wisconsin Republicans in 2011, the subject of Gill v. Whitford, a closely watched ongoing lawsuit.

Democratic voters in the state are clearly energized. Turnout in November’s election hit more than 57 percent, the largest of any midterm election in Wisconsin history. And many of the same voters have flocked in the tens of thousands to the Capitol to protest in the Walker years, including the protesters who gathered there this week.

State politics observers told Route Fifty that references to the lame-duck session will help keep Democratic energy stoked leading up to the 2020 general election. They also point out that the governor’s veto power over the next round of voter-district maps is constitutionally guaranteed. 

Many also believe that the proposals passed in the lame-duck session, if they’re signed into law by Walker, will end up  in court.

“It’s Walker’s move for now,” Mike Brown, director of progressive politics group One Wisconsin Now, told Route Fifty. “We will be here ready to work to protect voting rights,”

One Wisconsin Now was one of the parties behind the pathbreaking Whitford case, which won a district court ruling in 2016, only to be bounced up to the U.S. Supreme Court and back again.   

“We successfully defended voting rights in 2016 and we’re extremely concerned with attempts in the lame-duck session to undermine the will of the voters,” Brown said. “We’re exploring all our options.”   

In a tweet responding to news Wednesday morning that the lame duck-session bills passed, the group suggested it was away from Twitter at the moment, “talking to counsel.”

Barry C. Burden, a political science professor at the University of Wisconsin in Madison, told CNN that some of the most contentious provisions were removed, which could reduce the number of lawsuits stemming from the session. He also noted that some of the changes revert back to policies in place before Walker became governor.

But others were more certain about the future legal implications.

Incoming Democratic Attorney General Josh Kaul told reporters that laws coming out of the lame-duck session were sure to generate lawsuits.

"This is virtually certain to end up in litigation. Probably, there will be multiple litigation that result from this, maybe in multiple courts," Kaul said. “The state is going to be mired in litigation in 2019, when what we need to be doing is focusing on the significant challenges we face."

Former U.S. Attorney Eric Holder, now head of the National Democratic Redistricting Committee, suggested his group might sue over the measures, depending on which bills Walker signs into law. As the Milwaukee Journal Sentinel reported, the foundation tied to the Holder’s group filed the lawsuit that in March forced Walker to hold two special elections for legislative seats he had delayed for fear Republican candidates might lose.

“I think there are really some substantial constitutional questions raised… by Republicans contemplating taking power away from the attorney general, specifically, and I think more generally power away from the governor,” Holder said. “I think there are really some core constitutional questions…we will look at to see if they form the basis of a lawsuit.”

Noting the expectation of lawsuits, Journal Sentinel columnist Daniel Bice named lawyers one of the winners of the session.

“Just what everybody wants after a legislative session,” he wrote. “Courtrooms filled with suits, many of whom are billing taxpayers by the hour.”

Tar Heel precedent

To see how exactly how things could soon play out in Wisconsin and Michigan, look to North Carolina.

After Democrat Roy Cooper unseated Republican Governor Pat McCrory in 2016, Tar Heel Republican lawmakers quickly passed laws aimed at stripping power from the governor before Cooper took office and shoring up Republican control over elections administration.

Those laws drew a tangle of lawsuits—four main lawsuits that have generated  strings of appeals and counter suits. All of the North Carolina suits center around the state constitution’s separation of powers guarantee and some of the cases have already met with early-stage success. In fact, a judge in Wake County just this week overturned one of the moves by Republican legislators, saying it was unconstitutional for them to allow McCrory to make appointments to a commission that determines compensation when employees are injured while working.

On the other hand, some observers argued that the hardball partisan politics that shaped the headline-making lame-duck legislative sessions might fuel a new dawning awareness about the fragility of the levers of democracy.

Heck, with Common Cause, noted that when Wisconsin Democrats were in power between 2003 and 2010, they didn’t make what he called “small-d democratic policies” a major priority. Maybe that will now change, he said.

Heck also noted that four states—Colorado, Michigan, Missouri and Utah—passed anti-gerrymandering ballot initiatives in November that will shift the responsibility to draw voting-district maps to nonpartisan commissions.  

“There are a lot of angry people. People want balance. And maybe now there are enough of them on all sides, including people in office, who see partisan hardball as unsustainable.”

John Tomasic is a journalist who lives in Seattle.

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