Wisconsin Supreme Court rules that the Legislature may represent the state’s interests in court

By: - October 7, 2020 9:19 am
Wisconsin Supreme Court chambers at the Capitol

Supreme Court chamber, Wisconsin State Capitol, Madison, Wisconsin. “Supreme Court chamber through the cast iron doors. Mural by Albert Herter depicts signing of U.S. Constitution.” by Photo Phiend via Flickr CC BY-NC-ND 2.0

In a 4-3 decision the conservative majority on the Wisconsin Supreme Court ruled on Tuesday in a case involving an extension on counting absentee ballots that “the Wisconsin Legislature has the authority to represent the State of Wisconsin’s interest in the validity of state laws.”

The case arose after Judge William Conley of the U.S. District Court for the Western District of Wisconsin ordered a pandemic-related extension on absentee vote counting, among other rule changes, in the November election. The Legislature appealed that extension to the Seventh Circuit Court of Appeals in Chicago. The appeals court initially held that the Legislature — as opposed to the attorney general — did not have standing to represent the state’s interests in court. Republicans asked that the question, as a matter of state law, be sent to the Wisconsin Supreme Court. Now that the Wisconsin Supreme Court has ruled in favor of the Legislature, the case will returns to the Seventh Circuit Court of Appeals.

“Today’s decision does not change the bottom line: the relief Judge Conley ordered to protect the November election is tailored, necessary and lawful,” said Jeffrey Mandell, an attorney for the plaintiffs in the case, who include the Democratic Party and the Wisconsin Elections Commission. “The case now returns to the appeal in the Seventh Circuit, where we will continue defending the injunctive relief we won to ensure all Wisconsinites can have a meaningful opportunity to express their preferences in November’s election.”

“We are pleased that the Court agreed that the Wisconsin Legislature can defend laws where the Attorney General refuses to do so,” Luke Berg, a lawyer for the Wisconsin Institute for Law & Liberty, which filed an amicus brief siding with the Legislature, said in a statement. “If this were not so, the state would have no lawyer and a single judge’s decision to change election procedures on the eve of an election would evade review by higher courts.” 

In a dissent joined by the other liberal justices on the court, Justice Rebecca Dallet called the majority decision granting the Legislature the right to take over the attorney general’s role in representing the interests of the state “shocking.” “[T]he legislature can represent its institution’s interest, but it cannot, by the plain terms of our statutes, appropriate the state’s interests so as to veto the executive’s decision not to appeal,” she wrote.

While the case is a victory for Republicans in their ongoing battle over executive powers with Democratic Gov. Tony Evers’ administration, it is not clear that they will succeed in preventing the extension on absentee voting.


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Ruth Conniff
Ruth Conniff

Ruth Conniff is Editor-in-chief of the Wisconsin Examiner. She formerly served as Editor-in-chief of The Progressive Magazine where she worked for many years from both Madison and Washington, DC. Shortly after Donald Trump took office she moved with her family to Oaxaca, Mexico, and covered U.S./Mexico relations, the migrant caravan, and Mexico’s efforts to grapple with Trump. Conniff is a frequent guest on MSNBC and has appeared on Good Morning America, Democracy Now!, Wisconsin Public Radio, CNN, Fox News and many other radio and television outlets. She has also written for The Nation, The New York Times, The Washington Post, and The Los Angeles Times, among other publications. She graduated from Yale University in 1990, where she ran track and edited the campus magazine The New Journal. She lives in Madison, Wisconsin with her husband and three daughters.