Wisconsin Supreme Court to hear lame-duck arguments

Gov. Tony Evers signs first bill into law

MADISON, Wis. — Wisconsin Democrats and their allies will make one last attempt to block their Republican rivals’ contentious lame-duck laws on Monday, Oct. 21 during oral arguments before the state Supreme Court in a union lawsuit challenging the provisions. Things look bleak for the party after conservatives who control the high court upheld the statutes in another case this summer.

Here’s a look at the laws, other attempts to defeat the measures over the last year and the case at hand:

What exactly is happening on Monday?

The Supreme Court will listen to oral arguments in a lawsuit that a coalition of labor unions filed in February challenging the laws. The arguments are largely a formality. All the parties have laid out their stances in filings with the court. But the proceeding does offer the justices a chance to ask questions that can reveal what they think about the case.

What do the lame-duck laws do?

Republican legislators in December passed statutes designed to weaken incoming Gov. Tony Evers and Attorney General Josh Kaul before they took office.

They prohibited Evers from ordering Kaul to withdraw from lawsuits, a move meant to prevent Evers from pulling Wisconsin out of a multistate lawsuit challenging the Affordable Care Act, also known as Obamacare. Evers ultimately was able to withdraw from the lawsuit when a state judge temporarily blocked the laws in March.

They also forced Kaul to get permission from the Legislature’s Republican-controlled budget committee before he can settle lawsuits. That language has resulted in a bitter stalemate between Kaul and the committee. The attorney general has taken the position that settlements are confidential and he can’t share details of negotiations with the committee unless its members sign non-disclosure agreements. The committee has refused to comply to Kaul’s satisfaction. He says the Republican stance is leaving hundreds of millions of dollars in settlement money at risk.

Republicans also granted themselves the right to intervene in cases using their own attorneys rather than Kaul’s DOJ lawyers, restricted early in-person voting to the two weeks prior to an election and required state agencies to either review publications explaining state law or take the documents down.

Who has pushed back?

Multiple liberal-leaning groups have tried to block the laws in court.

Liberal advocacy group One Wisconsin Now won a victory in January, convincing U.S. District Judge James Peterson to block the early-voting restrictions. Peterson found the restrictions mirror limitations he blocked two years earlier.

Other challengers haven’t fared nearly so well.

The League of Women Voters, Disability Rights Wisconsin and Black Leaders Organizing for Communities filed a lawsuit in state court in January arguing the lame-duck legislative session was illegal because the regular legislative session had ended months earlier. Conservatives who control the state Supreme Court stopped that lawsuit cold in June, ruling 4-3 along ideological lines that legislators can meet whenever they want.

The state Democratic Party, meanwhile, filed a lawsuit with Peterson in federal court in February alleging the lame-duck laws are meant to retaliate against Evers’ supporters and as such violate constitutional free speech and equal protection guarantees. Peterson threw the case out in September, saying such arguments belong in state court.

So what’s left?

Democrats’ last hope lies in a state lawsuit a coalition of labor unions filed in February. The group alleges that the lame-duck laws violate the state constitution’s separation of powers doctrine, stealing power from the executive branch and transferring it to the legislative branch. They argue the laws have created confusion about who really speaks for the state in legal actions and prevent Evers and Kaul from fulfilling their roles as a check on the Legislature.

The union coalition includes the Service Employees International union and the American Federation of Teachers’ Wisconsin chapter.

What happens after oral arguments?

The justices may ask the parties for additional briefs if issues arise during orals that haven’t yet been addressed in writing. But by this point, the case is practically finished and there will be little left to do except wait for a verdict, which could come at any time.

What are the unions’ chances of prevailing?

Slim to none. Conservatives control the Supreme Court and they’ve already upheld the lame-duck laws in the League of Women Voters’ lawsuit and since that ruling the conservatives have only increased their majority from 4-3 to 5-2. The League of Women Voters’ case challenged the Legislature’s process rather than the merits like the union case. But the conservative justices are closely aligned with Republicans and it’s almost unimaginable that they would strike the laws down.

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