WILL AMICUS: STATE LEGISLATURE SHOULD HAVE STANDING TO DEFEND STATE LAW WHEN ATTORNEY GENERAL DOESN’T DEFEND IT

Case Name: DNC v. Bostelmann (WILL amicus)

Type of Case: Constitutional Government

Court: Wisconsin Supreme Court, on a certified question from the Seventh Circuit Court of Appeals

Case Number:

Filed On: October 5, 2020

Current Status: The Wisconsin Supreme Court issued a 4-3 decision on October 6, 2020, holding that the Legislature does have standing to defend state law when the Attorney General does not.

WILL filed an amicus brief arguing that the Legislature must be permitted to defend state law in federal court when others, typically charged with doing so, do not. The Wisconsin Supreme Court agreed in a 4-3 decision. Proving the importance of that ruling, shortly after the Court’s decision the Seventh Circuit stayed the District Court’s ruling, restoring Wisconsin’s election laws prior to the November election.

Background

Four consolidated lawsuits challenged various Wisconsin election laws. After the Attorney General withdrew and the Wisconsin Elections Commission failed to defend the statutes, the Legislature intervened and mounted a legal defense. When a district court ordered modifications to election procedures shortly before the November election, the Legislature appealed. The Seventh Circuit initially ruled the Legislature lacked standing, prompting a certified question to the Wisconsin Supreme Court.

WILL’s Position

WILL’s amicus brief contended that denying the Legislature standing would undermine the separation of powers, allowing the Attorney General and unelected state officials to nullify laws they disagree with through concession or half-hearted defense.

Status

The Wisconsin Supreme Court issued a 4-3 decision on October 6, 2020, affirming that the Legislature does possess standing to defend state law when the Attorney General does not.