Battle over Venue Defines First Phase of Litigation on Wisconsin Redistricting 

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This blog post continues the focus of the Law School’s Lubar Center on redistricting.

In the litigation over Wisconsin legislative and congressional redistricting, both sides say they’re not on a venue-shopping spree.

But however it’s characterized, virtually all of the legal action to date has been directed toward deciding which court will hear the case—and perhaps ultimately draw the maps for Wisconsin’s Assembly, state Senate and U.S. House districts—and when.

Officially, the job of redrawing those lines after each decennial census belongs to the Legislature, subject to veto by the governor. But both sides—and even a federal judge—have cast doubt on the chances that Republican legislative leaders and Democratic Gov. Tony Evers will agree on maps. Both sides argue that their preferred courts must be ready to step in swiftly if the legislative process breaks down. Continue reading “Battle over Venue Defines First Phase of Litigation on Wisconsin Redistricting “

Wisconsin’s Local Governments Face a Time Crunch in Redrawing Boundaries

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This is the first in a series of posts this fall concerning redistricting in Wisconsin—a focus of the Law School’s Lubar Center for Public Policy Research and Civic Education. 

In a race against time to draw new district lines for local governments, three of Wisconsin’s four largest counties are off to a slower-than-recommended start—a delay that could throw the state’s three biggest cities behind schedule as well.

Perhaps not coincidentally, those three counties—Milwaukee, Dane, and Brown—are the same ones that have created independent advisory bodies to devise their supervisory district maps. That means they faced the added challenge of inventing a new redistricting process when their timeline was more compressed than ever before.

By contrast, the Waukesha County Board used its traditional process, working through a board committee, and approved a preliminary supervisory district map on September 14, one day ahead of the target date recommended by the Wisconsin Counties Association.

All of the state’s counties and municipalities, along with the Racine Unified School District (RUSD), are under pressure to finish redistricting before December 1, when candidates can begin circulating nomination papers to run in the spring 2022 elections. If any of them miss that deadline, the legal consequences are uncertain. Continue reading “Wisconsin’s Local Governments Face a Time Crunch in Redrawing Boundaries”

Lubar Center Exploration of Redistricting in Wisconsin Expands to Include Blog Updates

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Political redistricting in Wisconsin is important to shaping long-term policies. The process for deciding political boundaries at all levels is controversial and hot. The courts, more so than legislative chambers, are likely to be the central arenas for deciding a number of the important outcomes in the now-unfolding decennial cycle.

Put those three statements together and you see why Marquette Law School’s Lubar Center for Public Policy Research and Civic Education is giving redistricting special attention, with the goal of providing evenhanded background and insight.

A blog post that will follow this is the first in a series of Lubar Center posts on the Marquette Law School Faculty Blog that will focus on aspects of the current work on redistricting.

Reporting and writing the posts is Larry Sandler, a freelance journalist with more than 38 years of experience covering government and business in southeastern Wisconsin for the Milwaukee Journal Sentinel and other publications. Continue reading “Lubar Center Exploration of Redistricting in Wisconsin Expands to Include Blog Updates”

Democracy’s Self-Perpetuating Illusion

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Can legal formalism help save democracy? That is a question posed by a very interesting draft paper posted by Will Baude of the University of Chicago last week, “The Real Enemies of Democracy.” Baude’s paper is a response to Pam Karlan’s 2020 Jorde Symposium lecture, “The New Countermajoritarian Difficulty,” in which Karlan laments the recent Supreme Court’s failure to take action against anti-majoritarian forces that dilute the votes of, or outright disenfranchise, millions: the Electoral College, the filibuster, campaign finance, gerrymandering, and anti-suffrage laws.

But Baude has his eyes set on a different horizon: “I worry that democracy faces far worse enemies than the Senate, the Electoral College, or the Supreme Court. Those enemies are the ones who resist the peaceful transfer of power, or subvert the hard-wired law of succession in office.” And he suggests a different bulwark to hold them back: “The shield against them may be more formalism, not less.”

I agree with Baude’s sense of the threats, but I think the hope that formalism—or even the rule of law generally—will save us is misplaced. It was often said of the Soviet Union that it had an extremely rights-protective constitution; better than that of the United States, even. But of course the problem was that the Communist Party was not really bound by it. Formal guarantees mean nothing with the will to back them up. Law without faith is dead. Continue reading “Democracy’s Self-Perpetuating Illusion”

Want Politicians to Prioritize the Greater Good over Partisanship? Change Election Rules, Speakers Say

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You want to do something about the partisan polarization that puts the United States Congress into frequent gridlock? Katherine Gehl and Austin Ramirez say there is a solution that has nothing to do with any specific policy or how people define themselves when it comes to partisanship: Change the way Congress members are elected.

“It turns out what really matters is the system, the rules of the game,” Gehl said during an “On the Issues with Mike Gousha” program posted on the Marquette Law School web site on April 8, 2021. The game she referred to is the way politicians get re-elected. Single-party primary elections motivate them to take highly partisan positions that play to small, but decisive blocks of voters within their party.

“Currently the system pushes – forces — the sides apart,” Gehl said. What’s best in the big picture doesn’t count the way that it counts to do what’s best for winning a party primary or keeping others from launching primary challenges.

“Our task is to make keeping the job the same as getting results for the country,” she told Gousha, Marquette Law School’s distinguished fellow in law and public policy. Continue reading “Want Politicians to Prioritize the Greater Good over Partisanship? Change Election Rules, Speakers Say”

Election Reform Efforts Are Needed in Wisconsin, GOP Party Chair Says

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The 2020 election is over, but the need for election reform continues, the chairman of the Wisconsin Republican Party, Andrew Hitt, said during an “On the Issues with Mike Gousha” program posted on Marquette Law School’s web site on Feb. 9, 2021.

So expect legislative action on that front and, given the likelihood of vetoes by Democratic Gov. Tony Evers, new lawsuits and efforts to get the Wisconsin Election Commission to take more action regarding election rules, Hitt said.

But, Reid Ribble, who represented an area including Green Bay as a Republican member of the US House of Representatives from 2011 to 2017, took a different approach to the subject, suggesting it would be “a huge confidence boost for everyone” if legislators and the governor came together on a bipartisan plan for election integrity. Continue reading “Election Reform Efforts Are Needed in Wisconsin, GOP Party Chair Says”

Gerrymandering Opponents Describe Fight for Non-partisan Political Boundaries

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In 2011, Dale Schultz was a Republican state senator from Richland Center and he voted for a plan created by Republicans to draw new boundaries for legislative districts in Wisconsin that helped the party grow and solidify its control of the legislature.

It’s a long-standing practice in politics. In different times and places, both Democrats and Republicans have tailored district lines to favor their party. It’s called gerrymandering.

Schultz, who left the legislature in 2015, and a former state Senate colleague, Democrat Tim Cullen, who also left office in 2015, have come to call it an abuse of power. Continue reading “Gerrymandering Opponents Describe Fight for Non-partisan Political Boundaries”

Lessons Learned in April Will Lead to Smoother Voting This Fall, Election Administrators Say

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There were upsides to the tumultuous Wisconsin election in April. At that time, there was an unprecedented flood of absentee voting, with some significant missteps related to mail service. Many of the usual polling places were closed, leading to long lines at those that were available, amid extensive precautions due to the COVID-19 pandemic. A photo from one Milwaukee polling place of a voter holding a sign proclaiming the situation “ridiculous” circulated around the world.

So what was that upside? A lot was learned about what to do and what not to do, the challenges of running an election in today’s circumstances were clear to the public, and there is a good forecast for an election this fall that will be well run, with good options for voting and good reason to be confident the results will be reliable.

That was the picture painted Wednesday by three people involved in overseeing how the election, featuring a presidential choice, is shaping up. Wisconsin Elections Commission Administrator Meagan Wolfe, Milwaukee Election Commission Executive Director Claire Woodall-Vogg, and Brookfield City Clerk Kelly Michaels spoke with Mike Gousha, Marquette Law School’s distinguished fellow in law and public policy, during a virtual “On the Issues with Mike Gousha” program. Continue reading “Lessons Learned in April Will Lead to Smoother Voting This Fall, Election Administrators Say”

The Wisconsin Supreme Court Misinterprets Emergency Powers

Posted on Categories Constitutional Interpretation, Constitutional Law, Election Law, Health Care, Judges & Judicial Process, Public, Wisconsin Law & Legal System, Wisconsin Supreme CourtLeave a comment» on The Wisconsin Supreme Court Misinterprets Emergency Powers
A young woman during the coronavirus outbreak of 2020

Under Wisconsin Law, the governor possesses extremely broad power to issue any order that he or she deems necessary to protect lives and property during a state of emergency.  When responding to an outbreak of a communicable disease, the governor has the specific power to prohibit public gatherings in any place within the state and for any period of time while the emergency is ongoing.  The source of this authority is the power granted to the governor under the Emergency Management Act, which places a duty on the governor to issue orders coordinating the state’s response to a disaster, and the power granted to the Secretary of the Department of Health Services to issue orders forbidding public gatherings during an epidemic.  As the top executive branch official in the State of Wisconsin, Governor Evers has both the statutory authority to direct the state’s emergency response efforts and the constitutional authority to make full use of the power of the state’s administrative departments.  

On April 6, the Wisconsin Supreme Court — its members meeting under emergency procedures intended to protect their own health — issued an order that had the practical effect of requiring Wisconsin voters who had not already received an absentee ballot to visit a polling place on April 7 and vote in person if they wished to cast a ballot in the spring election.

The result of the Court’s ruling in Wisconsin Legislature v. Evers was to place Wisconsin voters in an untenable position. The ruling disenfranchised anyone who wished to shelter at home in order to avoid possible exposure to Covid-19, a deadly communicable disease, if that person lacked either a computer, internet access, a scanner for making a digital copy of their ID, or a witness to verify their absentee ballot.  All of these prerequisites were necessary before a Wisconsin voter could obtain and cast an absentee ballot whilst still sheltering in place. The majority opinion was clear: for anyone who fell into this category, the price of casting a ballot was risking exposure to Covid-19.

The majority opinion in Wisconsin Legislature v. Evers has nothing to do with defending the Rule of Law, and it is a mistake to characterize it in that fashion.  There is nothing in any law passed by the Wisconsin legislature that requires the result announced by the Court. Indeed, had the Wisconsin Supreme Court truly intended to uphold the longstanding statutory scheme relating to government powers in response to an outbreak of communicable disease, the Court would have arrived at a contrary result.

A.      Background

The State of Wisconsin, like the rest of the country, has been engaged in a struggle to contain the spread of a coronavirus known as Covid-19. On March 12, 2020, Governor Tony Evers issued Executive Order 72, declaring a public health emergency in Wisconsin.  This order was part of a series of executive actions taken by Governor Evers and other executive branch officials in order to address public health and safety concerns during the spread of this deadly communicable disease. On March 24, 2020, the Secretary-designee of the Wisconsin Department of Health Services, Andrea Palm, acting at the direction of Governor Evers, issued Emergency Order 12 (the “Safer-at-Home Order”).  That order directed all individuals in Wisconsin to shelter at home, unless engaged in essential activities, until April 24, 2020, or until such time as a superseding directive took effect.

Continue reading “The Wisconsin Supreme Court Misinterprets Emergency Powers”

National Voter Registration Day: Make Your Voice Heard

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Today has National Voter Registration Day—a good time to remind everyone register to vote so that all eligible voters can make their voices heard on Election Day (which, by the way, is Tuesday, November 6). While Wisconsin allows same-day voter registration, save yourself the time and the hassle of doing it all on Election Day and register now.

You can register to vote online at My Vote up to 20 days before Election Day (para Mi Voto en español, haga clic aquí), by mail up to 20 days before Election Day, or in person at your municipal clerk’s office until the Friday before Election Day. I’ll explain how to register online at My Vote, but first let me explain who is eligible to register to vote in Wisconsin. Continue reading “National Voter Registration Day: Make Your Voice Heard”

More Doubts About the Court’s Resolution of the John Doe Investigation

Posted on Categories Constitutional Interpretation, Constitutional Law, Election Law, Public, U.S. Supreme Court, Wisconsin Supreme CourtLeave a comment» on More Doubts About the Court’s Resolution of the John Doe Investigation

Today, the United States Supreme Court summarily affirmed the decision of a Three Judge Panel of the U.S. District Court for the District of Columbia in  Independence Institute v. Federal Election Commission.  By affirming the panel in this case, the U.S. Supreme Court seriously undermined the legal rationale that the Wisconsin Supreme Court relied upon when it dismissed the John Doe investigation into possible illegal campaign coordination during the Governor Walker Recall Election.  In one sense, today’s action by the U.S. Supreme Court merely establishes the narrow rule that “electioneering activity,” which encompasses a variety of activity beyond express advocacy on behalf of a candidate for office, is subject to regulation without violating the U.S. Constitution.

However, the action of the U.S. Supreme Court is significant because it also necessarily rejects a converse proposition: that the scope of permissible government regulation of election activity is limited to conduct which constitutes “express advocacy.”  The Independence Institute case is relevant to the John Doe Investigation because both cases raise the legal question of whether the U.S. Constitution permits any regulation of election activity other than “express advocacy” or its functional equivalent.  “Express advocacy” is usually defined as a communication that expressly advocates for the election or defeat of a clearly identified candidate.

The Independence Institute is a nonprofit organization.  It challenged disclosure requirements contained in the McCain-Feingold Act which would have required it to disclose its donors if it spent more than $10,000 on “electioneering communications” in the 60 days before a general election (or the 30 days before a primary election).  The group argued that this statutory requirement was unconstitutional because it went beyond the regulation of express advocacy.  As described by Judge Wilkins in an earlier proceeding in the D.C. Circuit, the argument of the Independence Institute reduced to the argument that “the only speech that should be considered an electioneering communication, and therefore trigger the BCRA’s reporting and disclosure requirements, is speech that is ‘unambiguously related’ to a campaign.”  The group wanted the Court to rule that the disclosure requirement in the statute could only be enforced in instances involving express advocacy.

If this sounds familiar, it is because the legal argument advanced by the Independence Institute is parallel to the reasoning adopted by the Wisconsin Supreme Court in its opinion ending the John Doe Investigation (State ex rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85).  Continue reading “More Doubts About the Court’s Resolution of the John Doe Investigation”

On the Issues: “Politically Homeless” Activist Calls for Change in the System

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Katherine Gehl says, “I like to say I’m politically homeless.” It was clear at an “On the Issues with Mike Gousha” program at Marquette Law School on Wednesday that she does not use that label because she is not involved. In fact, the opposite is true: She is deeply involved.

Her sense of “homelessness” comes from her frustration with what she calls “the political-industry complex.” The two major parties, Congress, the executive branch, Washington lobbyists, and the national media are all thriving, but they are not producing solutions to the nation’s problems, Gehl said. And while Washington thrives, problems go unsolved and people grow increasingly dissatisfied. She said the system and particularly the two major political parties do not have the incentives businesses have to respond constructively to competition. “Two parties equals zero results,” she said.

Gehl (pronounced Gayle) is a former Democrat who describes herself now as “a proud independent, a centrist, a pro-problem-solving, non-ideological citizen who wants to see government deliver on its promise to the citizens.” She adds, “That is not an ideology that fits with either of the parties.” Continue reading “On the Issues: “Politically Homeless” Activist Calls for Change in the System”