Badger State

In November 2018, Republican Governor Scott Walker lost his seat to Democratic Governor-Elect Tom Evers who would take office in January 2019.   The following month, during an “Extraordinary Session,” the Wisconsin State Legislature passed a law to expand its authority and intervene in litigation involving the interpretation of state statutes.

Wis. Stat. § 803.09(2m).  When a party to an action challenges in state or federal court the constitutionality of a statute, facially or as applied, challenges a statute as violating or preempted by federal law, or otherwise challenges the construction or validity of a statute, as part of a claim or affirmative defense, the assembly, the senate, and the legislature may intervene as set forth under s. 13.365 at any time in the action as a matter of right by serving a motion upon the parties as provided in s. 801.14.

Although challenged, the statute was ultimately ruled constitutional through a variety of subsequent lawsuits.  For example, in the 7th Circuit Court of Appeals, in Planned Parenthood of Wisconsin, Inc. v. Kaul, 942 F.3d 793 (7th Cir. 2019), Judge Sykes observed,  “section 803.09 (2m) reflects a sovereign policy judgment that the Attorney General is not the State’s exclusive representative in court when state laws are challenged.

The Wisconsin State Legislature’s ability to intervene as a party to a lawsuit was cemented at the start of the 2020 election cycle when Wisconsin became the first state to hold an in-person primary election after the outbreak of Covid-19.  The Legislature tried to intervene as Defendants in a March 2020 pre-primary federal case (DNC v. Bostelman, discussed below) but was denied by the District Judge William Conley.  Upon appeal to the 7th Circuit Court of Appeals, the Court found that the lower court had erred in denying the Legislature’s motion to intervene as this statutory right had already been upheld in two other lawsuits (Virginia House of Delegates v. Bethune-Hill, 139 S. Ct. 1945 (2019) and Planned Parenthood of Wisconsin, Inc. v. Kaul, 942 F.3d 793 (7th Cir. 2019).

In DNC v. Bostelman, Democrats had sued to relax voting safeguards prior to the primary but the 7th Circuit Court of Appeals denied their injunctive relief.  18 hours before the primary election, Governor Evers issued an executive order to suspend in-person voting until June 9, extend absentee ballot applications to the first week in June, and allow absentee ballots to be accepted for an additional two months.  The Legislature stepped in and the Wisconsin Supreme Court reinstated the election.

Within an hour, the U.S. Supreme Court also ruled that the absentee ballot deadline would not be extended (RNC v. DNC, discussed below).  Wisconsin conducted a fair and safe primary election.  Despite the pandemic, the CDC later reported that Wisconsin had not seen an increase in Covid-19 cases stemming from the in-person election.