In the wake of the November midterms, Republicans in Wisconsin joined with their GOP colleagues across the country in attempting to use a lame duck legislative session to kneecap newly elected Democrats and push through conservative priorities.
Democrats in Wisconsin won the state’s governor’s mansion and attorney general’s office. Republicans reacted by passing a series of laws that weakened those posts and limited early voting in the state.
Democrats made clear at the time that they would respond with vigorous legal challenges. Those lawsuits have already begun to pay off – while a lawsuit challenging the fundamental legality of the entire lame duck legislation is working its way through the courts, a federal judge has already struck down the early voting limits passed in December.
Limits on Early Voting Ruled Unconstitutional
Of all the provisions passed by Wisconsin Republicans in the 2018 lame duck legislative session, the most unabashedly partisan of them were the restrictions on early voting. Early voting usually favors Democrats, and liberal municipalities like Madison and Milwaukee provided ample opportunities for citizens to cast their ballots early. Republicans in the legislature decried this as unfair, and generally have made no secret of their disdain for Madison and Milwaukee, the state’s two largest cities and reliable providers of votes for Democrats.
The legislature moved in the lame duck session to limit municipalities to just two weeks of early voting while also restricting the acceptable forms of ID. The progressive group One Wisconsin immediately sued to overturn those restrictions in federal court.
Their arguments won out in mid-January, when District Judge James Peterson struck down the early voting restrictions. Judge Peterson made clear the case wasn’t a particularly close call, noting that the restrictions were nearly identical to ones he had struck down two years earlier.
As a result, local officials throughout Wisconsin will be able to hold as much early voting as they want. In addition, Peterson ruled that voters will be able to use early voting credentials for six months and not two months as GOP legislators had sought. Peterson also ruled that college students will be able to use expired college IDs to meet photo ID requirements.
A Broader Legal Challenge
While One Wisconsin’s specific challenge to the legislature’s early voting limits quickly found success, a broader challenge to the entire lame duck session is still under consideration.
Advocacy groups filed a lawsuit in Dane County Court arguing that the entire legislative session that produced the controversial lame duck legislation was fundamentally illegal.
Republicans passed the laws in a so-called “extraordinary session.” Plaintiffs in the suit are claiming that the legislature did not have the authority to hold an extraordinary session, arguing that it violated the state constitution. The advocacy groups – joined by three Wisconsin citizens – say that an extraordinary session needs to be called by the governor and argue that the legislature did not pass law authorizing the session.
And the legal challenges in Wisconsin continue. In February, a group of labor unions filed a suit (again in Dane County Court) challenging the lame duck legislation, arguing that it violated the state government’s fundamental separation of powers by providing legislators with an unreasonable veto over the executive branch.
The Political Context in Wisconsin
Wisconsin is one of the country’s most closely divided states. It generally voted for Democrats in presidential elections before famously swinging to Donald Trump in 2016. And Republicans and Democrats usually compete fiercely for statewide offices.
However, the legislature is one of the most gerrymandered in the country, as Republicans who won victories in the 2010 GOP wave election moved to draw up a post-census map that cemented their iron grip on power in the state.
Their efforts have resulted in a particularly egregious imbalance in the legislature. Democrats won 54 percent of the votes in elections for the state assembly in 2018, but won just 34 percent of the assembly’s seats. Democrats were able to net just one assembly seat in 2018 despite strong performances statewide (Democrats won the Secretary of State and Treasurer’s offices, in addition to the gubernatorial and attorney general’s races).
Wisconsin Republicans, then, ran a classic play in their lame duck legislative efforts. First, relentlessly gerrymander the state map to ensure the opposition has no reasonable path to re-gaining power. And second, use the seats won through gerrymandering to weaken any opposition politician who actually manages to win an election and threaten the entrenched majority’s power.
It’s up to the Wisconsin courts to decide if those tactics are acceptable.