Name: The Fight for Democracy in Wisconsin
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The Fight for Democracy in Wisconsin

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Over the past decade, the Republican leadership of Wisconsin’s legislature has engaged in an all-out assault on democracy. The ferocity of this assault, the scope of the damage inflicted, and the sheer number of fronts on which the legislature is attacking make the struggle in Wisconsin a formidable and vital one.&nbsp;Wisconsin stands as an example and a warning: If we continue to abandon our long-standing norms, the American experiment will look much different from what our forebears ever imagined.As attorneys who have played a role in a number of lawsuits concerning how democracy works in Wisconsin, we have had a front-row seat to this struggle, which gains heightened importance given the state’s possibly pivotal role in the November 3 presidential election. With Milwaukee preparing to host the Democratic National Convention from August 17 to 20, we write to take stock of the damage, and of efforts to restore the state’s democratic process.Misgovernance in Wisconsin over the past decade, and nationally during the Trump Administration, has raised a whole new set of issues, challenging basic precepts of democracy that had been cherished by both major parties. These new challenges do not revolve around the major themes that have long dominated American politics, but instead attack the soft connective tissue of democracy.Wisconsin has been, unfortunately, ahead of the curve in this respect. We have already spent nearly a decade learning what happens when the levers of government are operated by people with open contempt for the fundamental principles of how our democracy should work. The issues at stake are those which—with the exception of the Civil War years—all sides have agreed upon for nearly 250 years.Wisconsin has long been home to divergent political opinions, from the formation of the Republican Party in the 1850s to the “sewer socialists” who led Milwaukee at the turn of the twentieth century, and from “Fighting Bob” La Follette’s Progressive Party to Joseph McCarthy’s abusive Red Scare. But in recent years in Wisconsin, the idea that people should govern and their preferences should be heard has been undermined.Wisconsin stands as an example and a warning: If we continue to abandon our longstanding norms, the American experiment will look much different from what our forebears ever imagined.We, along with a number of state groups and many Wisconsin residents, are trying to prevent that. Doug was one of the lead trial attorneys in Whitford v. Gill, which convinced a panel of federal judges that the state Republican Party’s was so extreme that it violated the Constitution. That case ultimately ended when the U.S. Supreme Court decided that the Constitution provides no remedy for partisan gerrymandering.Jeff represented a coalition of plaintiffs who the Wisconsin legislature’s 2018 lame-duck power grab to strip authority from the Democrats who were elected as governor and attorney general even before they could take office.We each separately represent voting-rights advocates in the lawsuit that has (at least thus far) fought off an effort to purge nearly a quarter-million voters from Wisconsin’s rolls. And we each separately represented groups favoring public health in the Legislature v. Palm case, where the Wisconsin Supreme Court struck down the statewide “Safer at Home” restrictions issued to curb the spread of COVID-19. Since then, the number of confirmed cases of the disease in Wisconsin has skyrocketed.Doug also represented plaintiffs in the Lewis v. Bostelmann and Gear v. Knudson that secured a six-day extension of the deadline to return mail-in absentee ballots for Wisconsin’s election on April 7. And in Swenson v. Bostelmann, we jointly represent another group of plaintiffs in federal court to ensure that voting in the November 3 general election is safe and accessible, even if COVID-19 surges in the fall.We are actively protecting voting rights, preparing for next year’s legislative redistricting, and working to restore democracy in Wisconsin. In just this one “flyover state,” there is no shortage of pressing work.In June 2020, the Wisconsin Institute for Law &amp; Liberty (WILL), a conservative nonprofit law firm that has been instrumental in much of the damage done to Wisconsin over the past decade, filed a in the Wisconsin Supreme Court. It was filed on behalf of former Wisconsin Assembly Majority Leader Scott Jensen, who left office in 2002 after being in Wisconsin’s legislative caucus scandal. WILL and Jensen want the court to adopt unique procedures for redistricting litigation, so that such cases could be decided only by the state supreme court.Wisconsin has served as a laboratory for Republicans to experiment with methods of voter suppression and dismantling democracy.The proposed rules are terribly out of step with Wisconsin history, law, and the preferences of its voters. In 2009, the state supreme court to adopt rules governing redistricting litigation, citing the highly partisan and political nature of this undertaking. To change course now, by approving Jensen’s petition, would signal a stunning reversal of established precedent.Moreover, by mandating that only the legislature, governor, and “political parties” are guaranteed the opportunity to participate in redistricting litigation, WILL’s proposed rules would inject partisanship into the legal process. Most voters are opposed to this, preferring instead that their legislative and Congressional districts be drawn through a nonpartisan process, as a Marquette Law School poll has since early 2019.So why does WILL want to inject politics into the process and force all redistricting litigation into the conservative-dominated Wisconsin Supreme Court? The answer may well be that it anticipates trying to cut the state’s Democratic governor, Tony Evers, out of next year’s redistricting process altogether.The Wisconsin legislature tried this in the early 1960s, and the Wisconsin Supreme Court the practice. But that opinion did not deeply engage the text of the state constitution, and now it seems likely that the GOP-controlled legislature will try again, especially with a conservative-dominated state supreme court that has consistently disregarded precedent.&nbsp;Such an effort to reverse long-settled precedent and enshrine another decade of gerrymandered legislative control would fit a troubling pattern. The Wisconsin legislature, emboldened by the extreme pro-Republican gerrymander enacted in 2011, has spent the past decade making clear that it considers only Republicans fit to govern.With the state government under unified Republican control from January 2011 until January 2019, the legislature granted broad discretion to then Governor Scott Walker and expanded the authority of successive Republican attorneys general. But when the voters sought change, electing Democrats to in 2018, the legislature reacted with a lame-duck session that “rebalanced” power among the branches—in practice, they simply the legislature sweeping powers traditionally exercised by the governor and the attorney general.This power grab gave the legislature unfettered power to block executive regulations, to prevent the attorney general from settling litigation on behalf of the state, and to use private law firms (paid with public funds) to intervene in any lawsuit challenging state law, a procedural practice that the legislature has used at every turn. These laws have been by the conservative majority on the state supreme court, including in a just issued in July.When Walker signed the lame-duck bills less than one month before leaving office, he that they were uncontroversial, in part because Wisconsin’s governor would retain the broadest power of any governor in the United States to partially veto legislation. Yet when Evers utilized that partial veto authority, WILL a lawsuit, with the legislature’s support, claiming Evers had violated the Wisconsin constitution.And, as it has done over and over since Evers took office, the state supreme court with the legislature, disregarding decades of precedent and the plain text of the state constitution. This was not a shock, coming just two months after the court sided with the legislature in the state’s public health order in response to COVID-19, and three months after the court the legislature’s request to quash the extending the April 7 election to June 9. More than Wisconsinites ended up having to vote in-person during a global pandemic.The legislature’s contempt for Wisconsin’s democracy extends beyond aggrandizing its own power at the expense of other branches of government—it also manifests as attempts to minimize the impact of voters.In 2015, the legislature Wisconsin’s highly regarded nonpartisan Government Accountability Board, through which a group of retired judges oversaw both election laws and campaign finance restrictions. In its place, the legislature created the bipartisan Wisconsin Elections Commission. The WEC, which must always be evenly divided between Democratic and Republican appointees, is designed to deadlock and take no action on anything important, which is exactly .This has facilitated a broad array of measures intended to suppress Democratic votes. The state legislature has repeatedly acted to reduce access to the ballot by voting constituencies conventionally viewed as Democratic-leaning. This includes:one of the nation’s most stringent photo ID laws for voting, and taking to exclude available forms of student ID from meeting the statutory requirements.early voting, which is particularly popular in parts of the state with high minority populations.new obstacles to mail-in absentee voting. &nbsp;These restrictions have voting in Wisconsin, especially among minority populations.On top of the legislature’s assault on voting rights, in the past two years, its allies at WILL have repeatedly pressed the WEC to take actions beyond the letter of the law, and then litigating if it fails to do so.In the most widely noticed of these efforts, WILL in an attempt to strike approximately 234,000 registered voters from the voting rolls before the April 2020 election, which included a crucial contest for a seat on the Wisconsin Supreme Court. While the trial court judge in the conservative-leaning county where WILL chose to file the case initially the purge to proceed, the Wisconsin Court of Appeals that ruling, noting that the statute does not authorize, much less require, the purge that WILL seeks. The state supreme court will the case this fall.Meanwhile, WILL is also that the WEC issue a rule against so-called ballot harvesting, by which it means any contact by others with a person’s absentee ballot. Under WILL’s theory, if a voter asks their spouse to place their completed absentee ballot in the mailbox or drop it off at the local clerk’s office, both voter and spouse will have violated the law.This is absurd, and not what the law requires. But WILL is nonetheless trying to bully the WEC into distorting the law, by legal action if the commission refuses.In the 2018 lame-duck laws, the legislature authority to intervene in any litigation involving the validity or interpretation of state law. For more than 170 years, the attorney general had represented the state’s interests in litigation. But the Republican legislative leadership is certain it could do a better job. So it gave itself power to jump into any lawsuit, in state or federal court, at any time.Of course, the legislature does not have its own legal department, so it also granted itself authority to hire private lawyers and pay them private-sector rates with taxpayer dollars. There is no available total for the legislature’s expenditures on private counsel so far, but in several cases the legislature has at rates of or more. And that is on top of the more than $3.5 million that state Republicans have spent to enact their partisan gerrymander in 2011 and defend it in court.The Republican legislature’s hostility to and distrust of government in Wisconsin is not limited to constraining Democrats in the executive branch. Increasingly, the legislature has exerted power over the operation of Wisconsin courts.Adhering to a longstanding playbook used around the country, the Wisconsin Republican Party has intervened in ostensibly nonpartisan judicial races, to support rightwing candidates. (GOP involvement is not an exaggeration: In this year’s officially nonpartisan supreme court contest, the conservative candidate based his campaign in the .)The mantra used by conservatives is that they alone can be fair judges because they apply the law as written and do not make value judgments. In practice, the judges who have campaigned on this theory have routinely the of the law and they do not like in order to reach their own preferred outcomes.The legislature often works in broad strokes, leaving the details of implementing particular policies to subject-matter experts at executive agencies. Environmental scientists know better than legislators how many parts per million of certain chemicals are safe; agricultural experts know better than legislators how certain farm processes can be safely implemented; and traffic engineers know better than legislators how to design roads for different levels of use in different parts of the state.Recognizing this, courts have long deferred to executive agencies’ interpretations of laws for which they bear responsibility. But the 2018 lame-duck laws not only prohibit courts from deferring to agencies, they also agencies from even asking courts to defer. In this one prohibition, the legislature has weakened executive agencies and judicial independence, further increasing its own power by diminishing the other two branches of government.Wisconsin is a battleground state not just in terms of the role it may play in the 2020 presidential election. It has served as a laboratory for Republicans to experiment with methods of voter suppression and gerrymandering. Those methods continue to be rolled out nationwide. In other words, what happens in Wisconsin is coming soon to a state near you. That makes Wisconsin the key battleground in the fight for democracy.Sign-up for our free weekly e-mail newsletter.Sign up for our free email newsletter!The Progressive Inc. publishes The Progressive magazine plus Progressive.org and Public Schools Advocate.© 2022 • The Progressive Inc. • 931 E. Main Street, Suite 10 • Madison, Wisconsin 53703 • (608) 257-4626Built with

Over the past decade, the Republican leadership of Wisconsin’s legislature has engaged in an all-out assault on democracy. The ferocity of this assault, the scope of the damage inflicted, and the sheer number of fronts on which the legislature is attacking make the struggle in Wisconsin a formidable and vital one.&nbsp;Wisconsin stands as an example and a warning: If we continue to abandon our long-standing norms, the American experiment will look much different from what our forebears ever imagined.As attorneys who have played a role in a number of lawsuits concerning how democracy works...

The Fight for Democracy in Wisconsin

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