Federal court hears ‘lame duck’ arguments

Courthouse News Service

CHICAGO - Democratic voters in Wisconsin argued before a Seventh Circuit panel Monday that their challenge to lame-duck laws passed under the outgoing Republican administration to limit the new governor’s powers should be reinstated.

The voters and the Wisconsin Democratic Party told the Chicago-based appeals court that a federal judge should not have dismissed their lawsuit filed last year after the Legislature passed the controversial measures in an extraordinary session.

The session took place after the November 2018 election, in which Democratic Governor Tony Evers and Attorney General Josh Kaul ousted Republicans Scott Walker and Brad Schimel, promising to expand health care and defend the Affordable Care Act.

“As a result of these historic victories, members of DPW would take control of every statewide executive office for the first time in decades,” the complaint states, abbreviating the Democratic Party of Wisconsin.

The Republican-controlled Legislature passed Acts 369 and 370 in December 2018, limiting the powers of the governor and the attorney general to regulate Medicaid and other welfare benefits and to withdraw from or settle multi-state lawsuits that Wisconsin is involved in.

The Democrats’ lawsuit says the GOP lawmakers “were not shy about their objectives.”

“The day after DPW-supported candidates prevailed, defendant Robin Vos, the Republican speaker of the Wisconsin Assembly, stated a desire to ‘rebalance’ the powers of government in view of the electoral results,” the complaint states.


Saying the laws violate the First Amendment, the equal protection clause of the 14th Amendment and the U.S. Constitution’s guarantee clause, Wisconsin Democrats claim the Legislature’s actions amount to discriminatory vote dilution, assuring that Governor Evers will not be able to fulfill his campaign promises.


“Elections matter. In this case, a lame-duck legislature and outgoing governor deprived the people of Wisconsin of their electoral choice,” the complaint states.

U.S. District Judge James D. Peterson, a Barack Obama appointee, dismissed the case last September.

“There are many reasons to criticize the lame-duck laws. The legislative defendants don’t dispute that the lame-duck laws were intended to limit the power of the newly Democratic executive officers and to consolidate power in the Republican-controlled legislature. But the role of a federal court is not to second-guess the wisdom of state legislation, or to decide how the state should allocate the power among the branches of its government,” Peterson said in his opinion.

Concluding that the plaintiffs lack the standing to sue the state, the judge said the lame-duck laws do not restrict their conduct in any way.

“The only identifiable harm alleged is that the legislature has prevented plaintiffs from enacting policies that they support,” Peterson wrote.

The Democratic Party and voters appealed the dismissal to the Seventh Circuit, arguing they do have standing to sue and the judge made a legal error.

In their brief, the Democrats say they have a constitutional right to vote and their votes were diluted when the powers they counted on Governor Evers and Attorney General Kaul having were taken away. Evers also asked to be joined as a plaintiff in the lawsuit.

The Republican defendants countered in their brief that the lawsuit was filed “simply to make a political statement,” asking the appeals court to “put an end to this legally foreclosed effort to embroil the federal courts in a state-law political dispute.”

Oral arguments Monday centered around whether the lame-duck laws directly violate the Constitution and voter rights, even if they were directed towards limiting the reach of one party.

“This is an unusual way of looking at vote dilution,” Chief U.S. Circuit Judge Diane Wood, a Bill Clinton appointee, said about the newly elected Democrats’ inability to keep campaign promises.

“Why isn’t that something that just happens in a democracy?” the judge asked the Democrats’ attorney Vincent Levy of Holwell Shuster & Goldberg.

“It’s not about thwarting the campaign promises,” Levy said. “The point is that it is about removing powers and authorities from one office…the voters think they are electing an attorney general and a governor who will wield certain powers.”

“By diminishing the powers of the office and appointing them to somebody else,” the attorney added, “that’s the violation.”

Levy argued that the GOP lame-duck laws have directly interfered with the Democratic Party by undermining their voters.

“The allegation is that the vote for statewide office was diluted, which means all voters would have standing,” he said

Wood questioned whether a political motivation was enough to strike down the laws, pointing out that the restrictions apply to the executive branch regardless of which party occupies the office.

“Isn’t it a little dangerous to go down that path?” she asked.

“This is a case involving facial and naked discriminatory purpose,” Levy replied. “The state Legislature violated the Constitution.”

Misha Tseytlin of Troutman Sanders argued for the Republican lawmakers that the Legislature has every right to enact laws changing the balance of power.

“The Democratic Party’s claim is that the state of Wisconsin no longer has a republican form of government because the state enacted a couple of laws,” he said.

“What we have here is the claim that a state Legislature cannot take away too many powers with partisan intent at the wrong time,” Tseytlin added. “How does one tell what is too many?”

“You say there’s no logical stopping point for his position,” Wood told Tseytlin. “I don’t see the stopping point of your position…that the Legislature can do virtually anything. Where is the limit?”

Tseytlin said that while there are limits to lawmaking, “when you have a facially mutual law and all you have is the allegation of partisan intent…you need a judicially manageable standard” to strike it down.

The Democrats have no such standard, he said.

“They don’t cite a single case…recognizing that a politician’s loss of power equals standing,” Tseytlin.

The frustration of a political party and its voters not being able to pass the policies they want is not a legal harm, the attorney argued.

Wood was joined on the panel by U.S. Circuit Judges Amy Barrett and Michael Scudder, both appointees of President Donald Trump.

The judges took the case under advisement and did not say when they would issue their decision.

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