Wisconsin Supreme Court on 4-3 Ideological Vote Upholds Governor Evers’ Crazy Rewriting of State Law to Protect School Funding for 402 Years Instead of 2 Years

legislation and legislatures

You can find the majority decision, a concurrence, and the dissent at this link. It’s not every day I side with the conservative justices on the Wisconsin Supreme Court, but they are surely right here. As the majority explained: “As related to this matter, the governor deleted entire words and some numbers from Sections 402, 403, 404, and 408 of Senate Bill 70. The result, published as 2023 Wisconsin Act 19, authorized a $325 per pupil revenue limit increase from 2023–2425,
extending the provision by 400 additional years.”

Here’s the key edit:

Here’s the introduction to Richard Briffault’s amicus brief in this case (authored by Rob Yablon and Bryna Godar):

Wisconsin’s partial veto power stands at a fork in the road. For decades, this Court has been the most permissive in the nation in condoning broad partial vetoes, an outlier even among states with similar constitutional text. But the Court’s most recent precedent has rejected creative partial vetoes, albeit without binding reasoning. See Bartlett v. Evers, 2020 WI 68, ¶ 4, 393 Wis. 2d 172, 945 N.W.2d 685 (per curiam). As the Court considers the future of this jurisprudence, it should maintain guidelines that phold the partial veto’s founding purpose: facilitating the democracy-promoting system of bicameralism and presentment, not subverting it.


Wisconsinites adopted the partial veto to address a defect of early twentieth century democracy: the “[v]ery definite evils” of legislative malfeasance through “log-rolling” multiple measures that “could not pass on their own merits.” State ex rel. Martin v. Zimmerman, 233 Wis. 442, 447–48, 289 N.W. 662 (1940). As this Court has correctly recognized, the partial veto is a broad gubernatorial power. State ex rel. Wis. Tel. Co. v. Henry, 218 Wis. 302, 314–15, 260 N.W. 486 (1935). By design, it is an affirmative or even “quasi legislative” power. Id. at 315. “By putting asunder what the legislature has put together,” a partial veto necessarily “results in laws that the legislature never passed.” Briffault at 1174.


But the power is not limitless. The governor may only reject “part” of an appropriations bill for the legislature’s “reconsideration”—he may not invent entirely novel provisions. Wis. Const. art. V, § 10. Neither the text nor purpose of Wisconsin’s partial veto provision establishes a loophole for the governor to act as a unilateral lawmaker. Using the veto to add unforeseen measures cannot be squared with the state constitution’s structural commitment to deliberative, accountable lawmaking. Whatever the merits of this or any individual policy dispute, such an unbounded power is corrosive to democracy in the long run. Line-drawing in partial veto cases is inherently difficult; no state court has avoided close judgment calls. Yet this Court, like every court to consider the question nationwide, has recognized a role for state courts in preventing the partial veto power’s misuse. This is an appropriate case in which to resist further expansion.

By striking individual digits and words to convert a two-year revenue limit increase to a 402-year increase, the governor here engaged in novel lawmaking that exceeds this Court’s prior approvals (at least under the Constitution’s current text). Allowing this creativity would further depart from the Constitution’s text, history, and structure and its core democratic commitments. And it would make Wisconsin even more of an outlier among states with partial vetoes.

Share this:

“A Startling Admission From a G.O.P. Senator: ‘We Are All Afraid'”

authoritarian threats in US

NYT:

Senator Lisa Murkowski, the moderate Alaska Republican who has routinely broken with her party to criticize President Trump, has made a startling admission about the reality of serving in public office at a time when an unbound leader in the Oval Office is bent on retribution against his political foes.

“We are all afraid,” Ms. Murkowski said, speaking at a conference in Anchorage on Monday. After pausing for about five seconds, she acknowledged: “It’s quite a statement. But we are in a time and a place where I certainly have not been here before. I’ll tell you, I’m oftentimes very anxious myself about using my voice, because retaliation is real. And that’s not right.”

Ms. Murkowski’s comments were first reported by The Anchorage Daily News.

Ms. Murkowski, an independent voice in an increasingly tribal party, has been the rare Republican on Capitol Hill willing to criticize the Trump administration. After Mr. Trump in February berated President Volodymyr Zelensky of Ukraine in the Oval Office, she warned that the United States was “walking away from our allies.”….

On Monday in Anchorage, Ms. Murkowski said she did not plan to stop speaking out, even if she was frightened of retaliation. “That’s what you’ve asked me to do,” she said, referring to her constituents. “I’m going to use my voice to the best of my ability.”

She added: “I have to figure out how I can do my best to help the many who are so anxious and are so afraid.”…

Share this:

“Dual Orders From Judges Edge Courts Closer to Confrontation With White House”

authoritarian threats in US

NYT:

After the Trump administration rushed nearly 240 Central American immigrants onto charter planes last month and flew them — most without hearings — to a prison in El Salvador, the courts responded with a flurry of orders more or less instructing Trump officials to figure out a way to give them the due process they had been denied.

But for much of the past few weeks, the White House has dodged, dragged its feet and found other ways to defy some of those orders. And that has led to a remarkable development.

Two federal judges in Washington and Maryland handling cases arising from the deportation flights have now declared that they have reason to believe that Trump officials have acted in bad faith by failing to comply with their decrees. To get to the bottom of the obfuscation, the judges have made plans for searching inquiries into who in the administration may have been responsible.

The threat of the investigations has come at an especially fraught moment: just as President Trump and his advisers are increasingly butting heads with the courts and are testing the traditional balance of power between the judicial and executive branches. The jurists’ dual moves have brought the two coequal parts of the government closer than ever to an open confrontation.

The prospect of that rift has become so glaring that it made its way on Thursday into an almost mournful order regarding one of the deportation cases written by Judge J. Harvie Wilkinson III, a conservative Reagan appointee, who sits on the U.S. Court of Appeals for the Fourth Circuit in Virginia.

The purpose of the order was to reaffirm that the White House needed to play a more active role in seeking the release of a Maryland man, Kilmar Armando Abrego Garcia, who was flown last month to a prison in El Salvador, despite a court order expressly forbidding him from being sent there.

But Judge Wilkinson devoted long passages of his ruling to bemoaning the incipient breakdown of the nation’s constitutional order.

“Now the branches come too close to grinding irrevocably against one another in a conflict that promises to diminish both,” he wrote.

“This is a losing proposition all around,” he added. “The judiciary will lose much from the constant intimations of its illegitimacy,” to which he said that “by custom and detachment we can only sparingly reply.”

The judge added: “The executive will lose much from a public perception of its lawlessness and all of its attendant contagions.”…

Share this:

“The Instant Runoff Voting Patchwork: Handling Voter Errors and Ballot Length”

alternative voting systems

Tait Helgaas has written this student comment in the U. Pa. L. Rev. Here is the abstract:

As states and cities across the United States adopt instant runoff voting (IRV) in their constitutions and charters, they enact statutes and ordinances to implement this electoral system. IRV laws vary across jurisdictions, including by how many candidates they allow voters to rank and how they handle voters’ ballot-marking errors. These variations affect both the fraction of ballots disqualified due to voter error and whether an election’s winner is deemed to have earned a majority of votes. To maximize the number of ballots in the final round of tabulation and increase the odds of a majoritarian outcome, jurisdictions should consider adopting the IRV implementation rules proposed here: (1) allow voters to rank all candidates and (2) interpret overvotes, skipped rankings, and overrankings in the manner outlined within.

Share this:

Justice Riggs in 4th Circuit Cites Justice Scalia in Bush v. Gore to Support Her Request for Stay of “Cure” Order in North Carolina Supreme Court Election Dispute

Bush v. Gore reflections

From the 4th Circuit motion:

Proceeding with the proposed cure process also poses a serious risk of irreparable harm directly to Justice Riggs by undermining the legitimacy of her election victory. The U.S. Supreme Court issued a stay in Bush v. Gore, forestalling various state-court remedies pending federal court review of the equal protection issues, because proceeding with a state process “of questionable legality” threatens irreparable harm to a candidate, as well as to the public, “by casting a cloud upon what [she] claims to be the legitimacy of [her] election.” 531 U.S. 1046, 1047 (2000) (mem.) (Scalia, J., concurring)….

Consistent with the Supreme Court’s issuance of a stay in Bush, federal courts across the country allow candidates for office to assert per se irreparable harm based on constitutional violations resulting from improper election challenges. See, e.g., Moore v. Circosta, 494 F. Supp. 3d 289, 321 (M.D.N.C. 2020); Jones v. United States Postal Serv., 488 F. Supp. 3d 103, 109, 139–40 (S.D.N.Y. 2020); Gallagher, 477 F. Supp. 3d at 26, 41–42. One can barely imagine the chaos that would ensue if an arbitrary, non-uniform, and constitutionally improper state-law “cure” process suggested a change to the election outcome, only for this Court later to decide that Justice Riggs’ constitutional arguments were meritorious and the “cure” process should never have proceeded. The proverbial toothpaste can never be put back in the tube, and that is exactly why the U.S. Supreme Court intervened in Bush v. Gore….

The challenged North Carolina voters were eligible to vote in November 2024, they followed every rule, and they acted in reliance on longstanding, unchallenged election laws. “Surely, upholding constitutional rights serves the public interest,” Newsom ex rel. Newsom v. Albemarle Cnty. Sch. Bd., 354 F.3d 249, 261 (4th Cir. 2003), especially when, as here, the threatened constitutional violation would erode the “fundamental” right to vote, Raleigh Wake Citizens Ass’n v. Wake Cnty. Bd. of Elections, 827 F.3d 333, 337 (4th Cir. 2016) (quoting Bush, 531 U.S. at 104–05). “Count first, and rule upon legality afterwards, is not a recipe for producing election results that have the public acceptance democratic stability requires.” Bush, 531 U.S. at 1047 (Scalia, J., concurring).

I had fleshed out such an argument earlier this week in my Slate piece.

Share this:

Justice Riggs (and Others) Go to Fourth Circuit in an Emergency Effort to Stay the Federal District Court Ruling Allowing Steps Toward What is Likely an Unconstitutional Attempt to Redo State Judicial Election

judicial elections
Riggs’ case is assigned number 25-1397 in the Fourth Circuit. There are three other requests for stays from other parties that will likely be consolidated. I wrote at Slate about the disaster of the district court’s order: In a preliminary … Continue reading