Wisconsin Power Struggle Appears Bound for Court, Long Favorable to Republicans

Now it may be what decides the fate of the outgoing governor’s new laws to limit the power of his successor.

“There will be a challenge, no doubt,” Gov. Scott Walker said a few days before he signed bills expanding the power of legislative Republicans he teamed up with over the last decade. “They’ve challenged just about everything we or lawmakers have done.”

The threat of litigation has rarely dissuaded Walker, a Republican who reshaped Wisconsin in his conservative image and who signed the power-shifting measures Friday afternoon as one of his final acts in office. The judiciary has upheld several of Walker’s signature policies in recent years, despite fierce challenges from the left. And as Walker predicted, liberal groups quickly vowed legal action on the new legislation.

“This is a shameful attack on our democracy by politicians who will do anything to hold onto power,” said Eric Holder, an attorney general under President Barack Obama who leads one of the groups that has promised a court fight. In a statement, Holder called the new laws “grossly partisan” and “deeply undemocratic.”

After Democrats won top posts in a state that had been controlled over the last eight years by Republicans, Wisconsin is at the center of a bitter national debate over political norms, the transfer of power between parties and the roles of the executive and legislative branches. A similar power struggle in North Carolina, after a Democratic governor won election in 2016, set off a court battle, and the fate of Wisconsin’s new laws seems destined for that as well.

The courts have played a central role in a larger ideological split that has unfolded across the state — which both Obama and President Donald Trump carried and where its two U.S. senators, Ron Johnson, a Republican, and Tammy Baldwin, a Democrat, could not be more different.

With conservatives holding a one-vote majority, the state Supreme Court has also been at the forefront of a pattern Democrats say they have grown tired of: Republicans pass right-leaning policies despite protests, Walker signs them, and the judiciary upholds them, even if a local judge first expresses skepticism. (Walker’s opponents have had somewhat better luck in federal courts, where Holder’s group said it intends to act.)

“They’re acting as a rubber stamp,” Matthew Rothschild, executive director of the liberal Wisconsin Democracy Campaign, said of the state Supreme Court. He called the judiciary “a crucial lever of power for Republicans” that had allowed the “Walker wrecking crew” to advance its policies.

The court’s ideological divide is clear, but many conservatives in the state reject the rubber-stamp argument.

“I don’t think it’s fair to say that so-called liberal judges will always vote for what Democrats want or so-called conservative judges will always vote for what Republicans want,” said Rick Esenberg, a lawyer who is president of the Wisconsin Institute for Law and Liberty, a conservative group that supported several of the measures Walker signed Friday.

One example: The Wisconsin Supreme Court this year sided with Tony Evers, the state schools superintendent who is now the governor-elect, when he wanted to hire outside lawyers for a lawsuit. Evers, who narrowly defeated Walker in November, is a Democrat.

Still, Walker has repeatedly received friendly rulings from the state’s highest court. And he has expressed confidence that the new measures will ultimately pass legal muster, even if a local judge in a liberal city like Madison strikes some of them down for a time.

In 2014, state Supreme Court justices validated limits on public sector unions that were Walker’s signature policy and made him a national figure in the Republican Party. That same year, the court upheld a voter identification law. And in 2015, justices ordered the end to an investigation of whether Walker’s campaign had illegally coordinated with conservative groups.

“The Supreme Court has been there for Walker every step of the way,” said Scot Ross, executive director of the One Wisconsin Institute, a liberal organization that along with Holder’s group promised to challenge some of the provisions signed Friday.

Esenberg offered a different explanation for that series of court outcomes: “I don’t think the challenges to any of those laws were particularly strong.”

The three laws Walker signed Friday include a grab bag of provisions ranging from the niche (Evers would need legislative approval to ban guns at the Capitol) to the expansive (Republican lawmakers could intervene in lawsuits and block more administrative rules). The laws also curbed the authority of the new Democratic attorney general, further codified voter identification and Medicaid work requirements and restricted early voting to two weeks.

Both Evers and Josh Kaul, the incoming attorney general, have raised the possibility of suing, but neither had announced lawsuits as of Saturday morning.

Ross’ group successfully challenged a previous limit to early voting in the federal courts, and Ross said he was optimistic that the same judge would block the new restriction on the timing of early voting. Most of the other provisions signed by Walker appeared to be matters for state judges to decide. That was seen as a roadblock for liberals, who remain in the minority on the Wisconsin Supreme Court despite flipping a conservative-held seat this year in a hard-fought election.

Still, Democrats said they have reason for some optimism. Two court seats are up for the election in the next year and a half — one held by a liberal, another by a conservative.

If left-wing jurists were to win both races, the court could look different by the time it hears appeals to Walker’s new laws.

This article originally appeared in The New York Times.