Commentary

Wisconsin’s high court shouldn’t let Vos and LeMahieu cut in line

Wisconsin Supreme Court

Wisconsin Supreme Court (Creative Commons attribution 2.0)

The Wisconsin Supreme Court is once again on the receiving end of an extraordinary request from the leaders of the Wisconsin Legislature. This time, the plea is for the high court to circumvent the normal judicial process and dive headlong into a redistricting-related legal challenge. But the case isn’t about new maps: with the Census data delayed, Wisconsin likely won’t even have new maps to argue about until autumn. This case is about the ability of legislative leaders to hire private attorneys — on the public dime — even when they could rely on the Department of Justice or other government lawyers for counsel related to redistricting.

In late 2020 and early 2021, Assembly Speaker Robin Vos and Senate Majority Leader Devin LeMahieu signed contracts with private lawyers, promising to pay hundreds of thousands of dollars. The meter began to run in January, even though the Census Bureau still hasn’t delivered the data for the drawing of new maps. With no new maps to dispute and no lawsuit pending, the legislators had no legal authority to hire private attorneys. A circuit court voided the expensive contracts in April, a decision the court of appeals has now repeatedly declined to put on hold. 

Frustrated with this result, Vos and LeMahieu ran straight to the Supreme Court, asking that their case be put on a special fast-track that is different from how other appeals proceed. 

We filed a brief in opposition to their requests. We believe that in high-profile or politically charged cases, it is particularly important to follow the usual legal processes. Sticking faithfully to these time-tested and well-developed procedures is the best way to guarantee that the most important legal issues will receive thorough, considered review by the courts. And only holding such cases to regular procedures can instill public confidence that our courts are judging impartially, without fear or favor. 

That is why we’re asking the Wisconsin Supreme Court to block this attempted end-run around the legal process. Our “friend-of-the-court” brief, filed Thursday, argues that the Justices should refuse to make extraordinary allowances just because politicians shout for urgency. If we’ve learned anything from the recent deluge of election litigation (and the pandemic litigation, and the pandemic-election litigation), it’s that even when time is tight, process matters. Steady, consistent adherence to the established process is critical for public trust in our legal system. 

We don’t think the courts got it right in every single one of those cases, and we don’t assert that following the appellate process guarantees good outcomes when courts make decisions on major legal issues. But it is often a prerequisite. Procedural fairness is crucial for our judicial system. All parties should be treated fairly, no matter their station. Only then can the public have confidence in the courts.  

In this instance, there is not even a downside to sticking to the normal process. There is no rush to resolve the case about the out-sourced legal counsel. No one has yet filed a legal challenge to new maps; indeed, there is not yet even any data to use in drawing new maps. Let the legal process work. When and if the legislators’ claims are ripe to be reviewed by the Supreme Court, they can be.

But not before. They shouldn’t be allowed to cut in line.

Notably, another issue lurks in Vos and LeMahieu’s insistence that the Supreme Court step in and reverse the fate of their redistricting contracts. Even if they believe the circuit court got it wrong when it voided their expensive retainer agreements, a victory will not be as simple as the high court flipping a switch. In our brief at the circuit court we explained why, even once a redistricting lawsuit is filed, legislators cannot use public dollars to advance their partisan political goals. 

If their plans for redistricting look anything like the partisan gerrymander they saddled Wisconsin with in 2011, the bill for that legal work should go straight to the Republican Party. 

Vos and LeMahieu are entitled to legal advice, and to the lawyers of their choice, but taxpayers don’t have to pick up the tab. In fact, the Wisconsin Constitution prohibits spending taxpayer money for private purposes (like seeking partisan political advantages). This “Public Purpose Doctrine” has protected Wisconsinites and their tax dollars since statehood. While Judge Ehlke’s ruling at the circuit court noted this issue, he appropriately concluded that it was unnecessary to weigh those constitutional arguments at the time — the absence of a pending redistricting lawsuit was enough to make the legislators’ contracts unlawful. 

Should the Supreme Court reverse that statutory decision, the next step is to grapple with the constitutional issues presented by this case. The Public Purpose Doctrine exists to ensure that when government spends tax revenue, it does so to advance public interests rather than to line the pockets of cronies or save elected officials from personal expenses. The Legislature’s authority to spend public dollars is broad — all of us see our tax dollars used to fund things we’d personally prefer not spend money on — but that authority is not unlimited. 

Let’s examine the current situation. These contracts for legal services were signed by legislative leadership before there was a state law (a new redistricting plan) to defend. They’ve retained some of the same lawyers who helped their caucuses design and entrench the 2011 partisan gerrymander, recognized by a federal court as one of the most extreme partisan gerrymanders in the past half-century. Those maps allowed their political party to maintain a stranglehold on democracy in Wisconsin for a decade, regardless of which party won a majority of votes statewide. The maps serve, then, to protect Vos and LeMahieu’s own political power. 

If legislators need legal advice as they undertake redistricting, they need only ask. The Department of Justice — the state of Wisconsin’s law firm — employs hundreds of lawyers, whose salaries are already funded by the public. The Legislature itself has several in-house service agencies, which are also home to a talented legal staff, there to provide technical assistance when called upon by our lawmakers. 

The truth is that legislative leadership may have the private attorneys of their choosing. They may have attorneys paid for by the taxpayers. But they can’t have both at once in this case. Unsatisfied with that legal reality, they are asking the Supreme Court for a short-cut. The Court should deny that extraordinary request.

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Mel Barnes
Mel Barnes

Mel Barnes is a staff attorney with Law Forward: a nonprofit, nonpartisan law firm focused on protecting democracy and good government in Wisconsin. She is a graduate of UW Law and previously worked for Planned Parenthood of Wisconsin, where she focused on litigation and state policy. Read more about Mel at lawforward.org and follow her on twitter @theMelBarnes and @lawfwd.

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Matt Rothschild
Matt Rothschild

Prior to joining the Democracy Campaign at the start of 2015, Matt worked at The Progressive magazine for 32 years. For most of those, he was the editor and publisher of The Progressive.

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