MADISON, Wis. (AP) — Wisconsin Democrats trying to undo laws passed by Republicans during a lame-duck session just before Gov. Scott Walker left office are putting their hopes behind a federal court challenge following a resounding legal defeat Friday.
The conservative-controlled Wisconsin Supreme Court, breaking 4-3 along ideological lines, upheld the lame-duck session during which Republicans passed laws limiting the powers of incoming Democratic Gov. Tony Evers and Attorney General Josh Kaul.
Most of the laws — enacted just weeks before Walker left office after his November defeat — have been reinstated and are in effect while the legal challenges proceed.
The case decided on Friday turned on a procedural challenge to the calling of the session itself. A pending federal case gets at the laws passed, arguing that they violate the U.S. Constitution’s free speech and equal protection guarantees, among other rights.
Vincent Levy, an attorney for the Wisconsin Democratic Party in that lawsuit, said he was disappointed with the state court’s ruling, but that he was confident “the federal courts, reviewing our claims with independence, will see things our way, and rule that the lame-duck laws unconstitutionally struck core principles of our democracy.”
Evers’ attorney Tamara Packard said that given the current makeup of the state Supreme Court, political disputes such as those involving the lame-duck legislation may be better fought in federal court.
There is another case being fought at the state level brought by unions challenging the laws before the Wisconsin Supreme Court. A federal judge has also separately blocked one provision that limited early voting, which was taken up as part of a larger case challenging laws approved prior to the lame-duck session.
A group of liberal-leaning organizations led by the League of Women Voters sued in January alleging the laws are invalid because legislators convened illegally to pass them in December. The groups maintained the Legislature’s session had ended months earlier and that the lame-duck floor session wasn’t part of the Legislature’s regular schedule.
But the Supreme Court declared that the Wisconsin Constitution gives lawmakers the authority to decide when to meet.
“The terminology the Legislature chooses to accomplish the legislative process is squarely the prerogative of the Legislature,” the conservative majority wrote. Three liberal justices dissented, saying the Legislature went beyond what is constitutionally allowable when it convened the lame-duck session.
Evers called the ruling a disappointment and “all too predictable.”
“It is based on a desired political outcome, not the plain meaning and text of the constitution,” Evers said in a statement.
He said the Wisconsin Constitution was designed to prevent lawmakers from quickly passing laws without public scrutiny. He called the lame-duck session “an attack on the will of the people, our democracy, and our system of government.”
Republican legislative leaders who orchestrated the lame-duck session heralded the ruling, calling it a “common sense decision.”
“This lawsuit, pursued by special interests and Governor Evers, has led to an unnecessary waste of taxpayer resources,” Assembly Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald said in a joint statement. “We urge the governor to work with the Legislature instead of pursuing his political agenda through the courts.”
Republican legislators in several states have passed laws in lame-duck sessions following election losses in recent years. In addition to the Wisconsin provisions, outgoing Michigan Gov. Rick Snyder signed lame-duck measures in December to weaken minimum wage and paid sick time laws. North Carolina Republicans approved a sweeping package of restrictions on incoming Democratic Gov. Roy Cooper in a December 2016 lame-duck session. Democrats have decried the tactics as brazen attempts to hold onto power.
Wisconsin’s laws prohibit Evers from ordering Kaul to withdraw from lawsuits, a move designed to prevent Evers from fulfilling a campaign pledge to withdraw Wisconsin from a multistate lawsuit challenging the Affordable Care Act. Evers pulled the state from the lawsuit while the lame-duck provisions were on hold in March and the court’s ruling Friday will not undo that action.
The laws also require Kaul to get permission from the Legislature’s Republican-controlled finance committee before settling lawsuits, and force him to deposit settlement awards in the state general fund rather than in state Department of Justice accounts. The provisions also guarantee Republican lawmakers the right to intervene in lawsuits using their own attorneys rather than Kaul’s DOJ lawyers.
Other sections of the laws restrict early in-person voting to the two weeks before an election. The cities of Madison and Milwaukee, both Democratic strongholds, held early voting for six weeks leading up to last November’s elections. Republicans hoped the shorter window would tamp down Democratic turnout in 2020, but a federal judge blocked the restrictions in January and the state’s ruling does not trump that.
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