In 2016, shortly after North Carolina voted to replace Republican Gov. Pat McCrory with Democrat Roy Cooper, GOP legislators sprang into action. Aided by an unconstitutional gerrymander, Republican legislators passed a raft of measures stripping the incoming governor of power. In a lame-duck special session, the legislature deprived Cooper of his authority over the state elections board, preventing him from restoring voting rights throughout the state. They also denied Cooper the ability to appoint hundreds of employees to the executive branch in an effort to immobilize it, and packed state commissions with allies. Later, they restructured the judiciary to preclude Cooper from appointing judges, attempted to throw state Supreme Court elections, slashed the budget of his attorney general, and barred the governor from suing to block unconstitutional laws.
Last month, Wisconsin voted to replace Republican Gov. Scott Walker with Democrat Tony Evers. GOP legislators, aided by a grossly partisan gerrymander, have proposed a series of bills to strip Evers of power in the lame-duck session. In other words, Wisconsin Republicans have adopted the North Carolina playbook for a legislative coup to kneecap an incoming Democratic governor before he even takes office.
The Wisconsin GOP’s power grab is best described as a crisis for the rule of law. It transcends mere hardball politics and instead marks an effort to erode the separation of powers prescribed in the state constitution. Republicans seek to accomplish three broad goals: manipulate the 2020 state Supreme Court election; rob the governor and attorney general of their executive authority; and curb voting rights. If passed, these proposals would constitute a sweeping overhaul of the Wisconsin government, illegitimately entrenching Republican control. Here are the three ways Wisconsin Republicans want to rig the system in their favor.
Manipulating Wisconsin Supreme Court Elections
Back in April, voters elected Rebecca Dallet, a progressive, to the Wisconsin Supreme Court, cutting the conservative majority from 5–2 to 4–3. In April 2020, voters are set to return to the polls as Republican Justice Daniel Kelly fights for re-election against a Democratic challenger. Currently, that election is scheduled to coincide with the state’s general election, as well as the Democratic presidential primary. If Kelly loses, liberals will seize control of the court. Republicans are already concerned that high turnout for the primary could result in a progressive victory.
In response, GOP legislators have proposed moving the state Supreme Court election back one month, to March 2020. There is no plausible reason for the shift except to decrease Democratic turnout. It would cost the state an extra $7 million, and 60 of 72 Wisconsin county election officials have already declared that it would be logistically impossible. Legislative Republicans are plowing ahead anyway, well aware that a progressive Supreme Court could undo the GOP assault on unions, voting rights, gun control, education, and the environment.
Under Walker, Wisconsin attempted to slash early voting, allowing the practice just two weeks before Election Day and only on weekdays. In 2016, U.S. District Judge James Peterson blocked these limitations, ruling that the scheme “intentionally discriminates on the basis of race.” His decision restored the previous law, under which municipalities can allow voting as early as 47 days before an election. In November, a record number of citizens took advantage of early voting, casting more than 547,000 ballots before Election Day.
Now Republicans want to revive the two-week limitation, alleging it is necessary for “consistency” across the state. That rationale is difficult to believe, since no one has credibly claimed that voters are confused by the present regime. As Peterson noted in his ruling, early voting is disproportionately popular among minority voters, who tend to support Democrats. The real motive behind the proposed law, then, likely remains the same: restricting minorities’ access to the ballot. (Although a lawsuit is inevitable, Donald Trump’s judicial appointees are unlikely to halt cuts to early voting.)
Attack on the Executive Branch
Republicans’ most complex bills are also their most radical. Rather than allow Evers and his Democratic Attorney General Josh Kaul to faithfully execute the laws, the GOP wants to divest the executive branch of its constitutional powers.
Evers and Kaul rode to victory partly on their promise to withdraw from multistate litigation seeking to invalidate the Affordable Care Act’s most popular provisions, such as protections against pre-existing conditions. Now Republican legislators seek to prevent this withdrawal by transferring law enforcement authority to the legislature. Special Session Bill 2 would require the governor and attorney general to obtain explicit legislative approval before withdrawal from the suit—which the legislature is certain to withhold.
But the bill goes much further than that: It also abolishes the principle that the attorney general represents the state in litigation. The bill authorizes legislative leadership to hire private lawyers, using taxpayer money, to defend state laws in court when legislators do not trust the attorney general to litigate a case. It also makes it difficult for the attorney general to operate by eliminating the office of the solicitor general, which oversees high-profile cases. Finally, the bill bars the attorney general from reaching settlements without legislative consent, while moving settlement and victory funds from the attorney general’s purview to the legislature’s general fund.
These provisions are designed to paralyze the attorney general. They also seem designed to stop Kaul from settling cases that the executive branch deems unworthy of appealing after an initial court loss. For instance, under current law, the attorney general could settle lawsuits challenging Wisconsin’s disenfranchisement measures, including a stringent voter ID rule. Josh Stein, North Carolina’s Democratic attorney general, was able to kill the state’s “monster” voter suppression law in 2017 by dismissing an appeal after a court found that it “target[ed] African Americans with almost surgical precision.” Wisconsin Republicans have decided to prevent Kaul from making a similar decision.
Meanwhile, Special Session Bills 2 and 4 limit the governor’s control over a number of state commissions, including the Group Insurance Board (which oversees state benefits), the Wisconsin Economic Development Corporation (a controversial Walker initiative that grants loans to businesses), the Department of Administration (which prepares the state budget), the Department of Corrections, and the Department of Transportation. The bills allow the legislature to appoint more members to these boards, curtailing Evers’ appointment powers. They also restrict state agencies’ ability to promulgate rules and regulations regarding taxes, infrastructure, transportation, education, health care, and elections. This is another area in which the Wisconsin GOP is copying North Carolina Republicans, who used similar maneuvers to stop Cooper from exercising control over the state government.
Wisconsin’s democracy is already on shaky ground. In November, Democrats won 54 percent of the total legislative vote—but Republicans won 63 of 99 Assembly seats thanks to a ruthlessly anti-Democratic gerrymander. The U.S. Supreme Court declined to strike down this map in June, allowing Republicans to retain their grasp on the General Assembly. (Following the 2020 census, the legislature will redraw Wisconsin’s maps, though Evers can veto them.) Now GOP legislators are poised to aggrandize their own authority at the expense of the executive branch to prevent the Democratic governor from carrying out the will of the voters. And Wisconsin is not alone: Michigan Republicans are considering a similar tactic before Democratic Gov.-elect Gretchen Whitmer takes office.
A responsible federal judiciary would have already stepped in to undo the egregious gerrymander that enabled the travesty in Wisconsin. Instead, the U.S. Supreme Court has sat idly by as Republicans entrench their stranglehold on state legislatures through antidemocratic means. And thanks in part to the justices’ inaction, what began as a shocking abuse of power in North Carolina is quickly becoming standard practice for the GOP.
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