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Stacking the Deck Against Democracy in Wisconsin

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The power grab by Wisconsin Republicans to limit the incoming authority of the Democratic Attorney General and Governor is about pettiness and being a sore loser.  But it is not the only instance of such pettiness–Michigan too is experiencing this, as did North Carolina a few years ago when the Democratic governor ousted the Republican. Pettiness seems to be de rigueur, inspired by Donald Trump’s brand of politics, violating two norms, one informal, the other constitutional.

Pettiness and being a sore loser is not a unique feature of contemporary American politics–it tradition goes back perhaps as early as 1800. Then, when Thomas Jefferson and his fellow Democrats took control of the White House and Congress and ousted John Adams and the Federalists, the latter retaliated with a series of late minute acts that included judgeships to stack the  courts. This resulted in the appointment by John Adams of a judicial commission to William Marbury, who, while confirmed by the Senate, did not have his judgeship delivered in term and which Thomas Jefferson refused to honor. The dispute resulted in the arguably the most important and famous Supreme Court case in American history–Marbury v. Madison–which established the principles of judicial review, constitutional supremacy, and separation of powers as fundamental values in American law and politics.

The incidents surrounding Marbury are twofold important.  First, the 1800 elections were arguably the most significant in American history, establishing a pattern of peaceful transition of government power from one party to another.  A hallmark of democracy is the acknowledgment by one party that it has lost and its willingness to give up the reigns of power peacefully to the opposition.  Yes, in 1800 the Federalists were sore losers, but power transferred without gun shots and the election established the unwritten norm of how parties ought to observe one another–not as enemies or criminals to be locked up–but as rivals with whom you disagree but nonetheless will not seek to illegitimately undermine.

Throughout American history losers may grumble that they have lost an election but they have not generally sought to change the rules of the game to undermine the incoming winners. Moreover, they have generally not  sought to entrench themselves in power, either directly by trying to undermine the election results directly or indirectly. Unfortunately that has changed. Republicans now regularly seek to stack the deck when it comes to elections, through voter identification laws, false claims of voter fraud, uncapping limits on political contributions, partisan gerrymandering, and the weakening of labor unions.  Wisconsin has experienced all of this and yet somehow Democrats still won statewide elections there.

Mitch McConnell’s announcement after Obama’s victory in 2008 to do everything he could to oppose him is an example of what Jacob Hacker and Paul Pierson describe in their Winner-Take-All-Politics.  Politics has become a zero sum game–I win or you win’‘and not how to figure out how to create a “win-win” game that is the product of compromise.  Winner-take-all-politics is a product of the intense polarization and partisanship that has emerged in American politics, personified most perfectly in Donald Trump’s intense tribalism of divide and conquer politics, best captured in the “Lock her up” mantra against Hillary Clinton.  Largely Trump’s strategy was rejected in 2018, but many who thrived on it, as in Wisconsin, are unable to accept losing, view the opposition as evil.

But if Wisconsin represents a breaking of the unwritten tradition of respecting election results and seeking reconciliation that the incidents surrounding the 1800 taught, it also violates another–the concepts of constitutionalism and separation of powers. Incoming Governor Tony Evers has threatened legal action, what are his option?

What the Wisconsin legislature is doing  arguably violates that state’s constitution. The concept of separation of powers is located with the three vesting clauses of the Wisconsin Constitution, specifically  Art. 4, § 1; Art. 5, § 1; Art. 7, § 2.  When it comes to the power of the governor, the state Constitution declares that “The executive power shall be vested in a governor.”  Art. 5, § 1 (Layton School of Art & Design v. WERC, 82 Wis.2d 324, 347, 262 N.W.2d 218, 229 (1978); State v. Washington, 83 Wis.2d 808, 816, 266 N.W.2d 597, 601 (1978)). According to the Wisconsin Supreme Court: “No branch of our government is subordinate to the others, no branch is to seize control over the others except as provided by the constitution and no branch may exercise power committed by the constitution to another” (State v. Holmes, 106 Wis.2d 31, 42, 315 N.W.2d 703, 709 (1982)).

The test to determine whether a violation of separation of powers has occurred is whether actions by one branch result in the usurpation of powers of another branch (J.F. Ahern Co. v. Building Comm’n, 114 Wis.2d 69, 104, 336 N.W.2d 679, 695 (Ct.App.1983)). A departure from a strict separation of powers is permitted so long  as the zone of shared powers of  one branch does not unduly burden or substantially interfere with another branch (In re E.B., 111 Wis.2d 175, 184, 330 N.W.2d 584, 589 (1983)).

Given this language by the Wisconsin courts, the question seems to be a matter of degree–how far can one branch go before it encroaches on the core functions of another branch?  Arguably, the Wisconsin legislature appears to be at this point with it efforts to limit the governor. The question is what are the core executive functions vested in the governor and has the legislature  unduly burdened them?  Arguably, preventing the governor from withdrawing from law suits or changing other policies directly limit core functions, questioning the constitutionality of this move.

But what about the attorney general?  Article 5, § 3 declare the,” duties and compensation of the treasurer and attorney general shall be prescribed by law.” This constitutional provision appears to give the legislature more authority to act to augment the attorney general’s authority than that of the governor.

So what are the remedies? A federal law suit will not work because this is a matter of state and not federal constitutional law and the federal courts will generally not render a decision on state constitutions and what they mean. Thus, the suit must be in state court. However, according to a Wisconsin Court of Appeals decision State v. City of Oak Creek, 223 Wis. 2d 219, 588 N.W.2d 380 (Ct. App. 1998), the attorney general does not have authority to challenge the constitutionality of statutes.  This decision would appear to foreclose a lawsuit, however there are reasons to think this decision is wrong and could be reversed by the Wisconsin Supreme Court.  But even if correct, the governor could hire a private attorney to bring suit, but given the current partisan line up on the Wisconsin Supreme Court,  Evers may not win were the issue to likely go there for resolution.  The legal option may be foreclosed, at least in the short term.

Instead, Evers and the Democrats option may be legislative next year, threatening to veto provisions that Republicans want if they do not change the law. Additionally, while unsuccessful  in the past, threats of recall are possible, and, of course, with 2020 and then redistricting after that, the Democrats may have to rely on the electoral solutions to address the petty turn of sore losers in Wisconsin.

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David Schultz is a professor of political science at Hamline University. He is the author of Presidential Swing States:  Why Only Ten Matter.

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