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A look at lawsuits challenging Wisconsin’s lame-duck laws

By TODD RICHMOND, Associated Press

MADISON, Wis. (AP) — A coalition of five labor unions on Monday filed the third lawsuit to be pursued to challenge legislation Wisconsin Republicans passed last year to curtail the powers of the governor and state attorney general.

Here is a look at the latest legal challenge and the status of the other two:


The measures approved in a lame-duck session prohibit the new governor, Tony Evers, from ordering Attorney General Josh Kaul, a Democrat like Evers, from withdrawing from lawsuits, a step meant to block Evers from pulling Wisconsin out of a multi-state lawsuit challenging the Affordable Care Act. Evers had campaigned on withdrawing the state from the case.

Kaul, meanwhile, must get permission from the Legislature’s budget-writing committee before he can settle lawsuits, and any money from settlements must go into the state’s general fund rather than the attorney general’s office. Lawmakers are now allowed to intervene in cases using their own attorneys. Those steps show that Republicans don’t trust Kaul to represent their views in court.

The measures also prevent early, in-person voting from occurring outside of the two weeks preceding an election. In the past, municipalities could set their own hours; Madison and Milwaukee, both Democratic strongholds, held early voting for six weeks leading up to the last November’s elections.


The liberal advocacy group One Wisconsin Now challenged the early-voting restrictions in federal court in December. A coalition of other groups, including the League of Women Voters and Disability Rights Wisconsin, filed its own lawsuit in state court last month arguing the Legislature had no authority to convene because its regular session had ended months earlier.

Five unions filed a lawsuit on Monday in state court arguing the new laws violate the separation-of-powers doctrine because they take authority from the executive branch and shift it to the Legislature.


U.S. District Judge James Peterson made short work of the One Wisconsin Now challenge, striking down the early-voting restrictions in mid-January. He said the limits mirror restrictions he had blocked two years before. That decision is part of a larger OWN case challenging Republican-authored voting laws. That case is now under appeal at the 7th U.S. Circuit Court of Appeals.

The League of Women Voters case will be the subject of a telephone scheduling conference on Feb. 11.

The unions have asked for a temporary five-day restraining order preventing Evers, Kaul and Republican leaders from executing or enforcing sections of the lame-duck laws they’re challenging. No action has been scheduled in the case.


It’s tough to say.

Howard Schweber, a political scientist who teaches constitutional law at the University of Wisconsin-Madison, questioned whether the unions have standing to sue.

The unions argue their members purchase health insurance through the ACA and Wisconsin’s participation in the ACA challenge would hurt them.

Schweber said he’s not sure a judge will agree, saying any such harm could only be seen as the result of a policy change rather than a violation of the separation-of-powers doctine.

The state Supreme Court has repeatedly drawn boundaries separating the three branches of government, Schweber said. Reducing Kaul’s authority could violate the separation-of-powers doctrine since the Legislature is trying to exercise direct control over someone in the executive branch, he said.

Donald Moynihan, a public-policy professor at Georgetown University and a former director of the La Follette School of Public Affairs at UW-Madison, said lawmakers made Kaul subservient to the Legislature.

It’s murkier with Evers. If the authority Republicans stripped from him stems from statutes, they may well have been within their rights, Schweber said. If it originates in the Wisconsin Constitution, legislators might have overstepped their bounds, he said.


Things are a little clearer in this one. The Wisconsin Legislative Council issued a memo in early January at the behest of Republican legislative leaders saying the Legislature governs its own proceedings and can convene whenever it chooses. Schweber said the memo is interesting but isn’t a legal authority.


Schweber predicted both cases will end up before the state Supreme Court. That court has said repeatedly that each branch of government has a central set of exclusive powers, he said.

The court is now controlled by conservative-leaning justices and has taken criticism for appearing too partisan. If the justices or other courts rule in the Republican-controlled Legislature’s favor they could lose credibility with progressives, Moynihan said.

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