WILL Amicus: State Legislature Should Have Standing to Defend State Law When Attorney General Doesn’t Defend It
Case presents critical threat to separation of powers
UPDATE: The Wisconsin Supreme Court issued a 4-3 decision on October 6, 2020 holding the legislature does have standing to defend state law when the Attorney General does not.
The News: The Wisconsin Institute for Law & Liberty (WILL) filed an amicus to the Wisconsin Supreme Court in DNC v. Bostelmann urging the Court to hold that the Wisconsin Legislature has standing to defend state law in court when the Attorney General does not. This is a critical matter to preserve the separation of powers in the Badger State.
The Background: The controversy over standing stems from four consolidated lawsuits that challenge various Wisconsin election laws. The Attorney General withdrew from the cases early on and the Wisconsin Elections Commission has not defended the laws in federal court. The Wisconsin Legislature intervened, as state law permits, and offered a robust defense of those laws. When the district court ordered changes to some of Wisconsin’s election laws, just a few months before the November election, the Legislature appealed to the Seventh Circuit Court of Appeals, but the panel initially held that the Legislature does not have standing to defend state law in federal court. At the Legislature’s request, the federal court agreed to certify that question to the Wisconsin Supreme Court.
WILL’s Amicus: The amicus makes a clear and straightforward argument to the Court about why it is critical to allow the Wisconsin Legislature to defend state law in federal court when others, typically charged with doing so, do not. The amicus reads in part:
“The importance of the question certified to this Court cannot be overstated. The Seventh Circuit’s holding, if this Court agrees with it, poses an existential threat to the separation-of-powers principles our state and country are founded upon. The effect of the Seventh Circuit’s interpretation of Wisconsin law is to allow the Attorney General and/or unelected state bureaucrats to function as a mini legislature, nullifying laws they disagree with through concession or half-hearted defense.”