Fighting the Wisconsin Legislature’s Power Grab


On March 21, 2019, a Wisconsin court enjoined state officials from enforcing sweeping legislation that state lawmakers passed in December 2018 before the newly elected governor and attorney general took office. The legislation sought to shift power from the executive branch to the legislature and restricted early voting.

The court ruling was a win for democracy. The Dane County Circuit Court ruled that the plaintiffs were likely to succeed in showing that the laws were invalid because they were passed during an unlawful “extraordinary session.” The Wisconsin constitution empowers the legislature to meet only in regular sessions established by statute, or in a “special session” called by the governor. No constitutional provision allows for the legislature to call an “extraordinary session” on its own initiative. And for good reason. As the court concluded, “the people’s liberty is imperiled by a Legislature that can meet at will any time, with little warning and even less of a published agenda.”

The successful lawsuit was brought by three advocacy organizations, the League of Women Voters of WisconsinDisability Rights Wisconsin, and Black Leaders Organizing for Communities, as well as Green County Clerk Michael Doyle (the only county clerk elected in Wisconsin as an independent) and three Wisconsin residents, union laborer Guillermo Aceves, longtime natural resources attorney and advocate Michael Cain, and former Wisconsin Assistant Attorney General John Greene. The plaintiffs were represented in the matter by Madison and Milwaukee-based law firm Stafford Rosenbaum, Protect Democracy, and the law firm Robbins Russell.

The now-invalidated legislation drew public rebuke from both Republicans and Democrats who saw the legislation for what it was—an anti-democratic power grab. The legislation expanded the legislature’s power at the expense of newly elected Governor Tony Evers and Attorney General Josh Kaul—both of whom defeated incumbents—and restricted early voting to two weeks. When a majority of Wisconsinites voted for a change of party in statewide offices in November 2018, it was largely due to the result of record turnout in Dane and Milwaukee counties, Wisconsin’s two largest, both of which allowed roughly six weeks of early voting.

While multiple lawsuits have challenged various provisions of the legislation, this lawsuit is the only one that sought to invalidate the entire “extraordinary session” as unconstitutional. It was also the first to reach a hearing on the merits.

Statement of Protect Democracy Counsel Deana El-Mallawany

“We’re proud to stand with our clients and co-counsel in defense of democracy in Wisconsin. State legislators convened an unauthorized ‘lame duck’ session for the clear purpose of taking power away from the winner of an election. That behavior is anti-democratic, no matter which party does it. Today’s court ruling is a signal to government officials who may be tempted to expand their powers beyond constitutional limits at the expense of democracy—voters will challenge such abuses and they will win.”

Statement of Plaintiff League of Women Voters Wisconsin Executive Director Erin Grunze

“Today’s court ruling is a victory for the people of Wisconsin, who are entitled to a government that represents their interests transparently and respects the limits of its constitutional authority. As an organization dedicated to voting rights and informed participation in government, we feel vindicated that the court saw the Legislature’s ‘extraordinary session’ for what it was—an unconstitutional act that harmed Wisconsin voters and taxpayers.”

Statement of Jeffrey A. Mandell of Stafford Rosenbaum LLP

“The court’s ruling today faithfully upholds the Wisconsin Constitution and the rule of law. Legal scholars, former Wisconsin legislators and members of Congress, our clients, and now the judiciary all agree: The Legislature does not have the authority to convene itself in an ‘extraordinary session.’ Exercises of power in excess of that constitutional authority will not go unchecked.”

The ruling can be found here.

Related Work

Constitutional Scholars File Amicus Brief on the Guarantee Clause

Protect Democracy, along with civil rights attorney Patrick O. Patterson, filed an amicus brief on behalf of leading constitutional law experts in a federal lawsuit challenging the Wisconsin legislature’s December 2018 lame-duck laws that took power from the newly elected Governor and Attorney General before they took office.  The brief supports the Plaintiffs’ claim that the Wisconsin legislature’s power grab violated the Guarantee Clause, a little-known clause of the Constitution that was intended to serve as an important safeguard of our democracy.

The law professors’ brief argues that the Guarantee Clause should protect against power grabs that threaten our democracy by overriding electoral results.  At its core, the Clause guarantees popular sovereignty and the power of voters to choose government officials who reflect their will. The brief explains that the acts of the Wisconsin legislature are antithetical to this conception of a republican government that was central to our nation’s founding.  It urges the Court to reach the merits of the Plaintiffs’ claim.

Post-election legislative efforts by the losing party to nullify voter choice are becoming an alarming trend that North Carolina started after its 2016 election and that Michigan and Wisconsin followed after their 2018 elections.  This trend is a hallmark of democratic decline.  According to the legal experts who signed this brief, if the Republican Guarantee Clause is to have any force at all, it should be to protect against this type of threat to our democracy.

This case is The Democratic Party of Wisconsin et al v. Robin Vos, et al., 19-cv-142 (W.D. Wis.).

Case Documents

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