Pines Bach attorneys won a significant victory for open, democratic government on April 29, as a Dane County court ruled that Republican leaders of the Wisconsin Legislature had unlawfully entered into contracts with private lawyers, at taxpayer expense, to aid their partisan redistricting efforts. Pines Bach, representing a group of taxpayers and teachers, sued the Republican leaders, seeking to have their contracts with private counsel declared void ab initio and to permanently enjoin them from spending any more public funds on the contracts. The court granted summary judgment in Pines Bach’s favor and awarded their clients all of the relief they had requested.
Like all states, Wisconsin is required to redraw its congressional and legislative districts every 10 years based on population changes reported by the U.S. Census Bureau. Sometimes states have skewed their redrawn districts so as give one or more groups of people a built-in advantage in representation at the expense of others, an anti-democratic practice known as “gerrymandering.” In 2011, the Republican majorities in the Legislature and then-Governor Scott Walker enacted a gerrymandered map so hyper-partisan in the advantage it gave Republicans that the Harvard Electoral Integrity Project scored Wisconsin’s boundaries as a 3 out of 100—the single lowest rating in the entire nation. In this cycle, Governor Tony Evers has proposed to have the redistricting process directed by a non-partisan commission. In addition, the legislature’s own full-time service agencies historically have provided the legal advice and technical work to translate policymaker directions into legal maps, and they remain capable of that work, whether in conjunction with a non-partisan commission or not.
However, Republican legislative leaders not only refused a non-partisan commission, but instead signed contracts with two private law firms to work with them to replicate their 2011 gerrymandering work in secret. The requisite data from the Census Bureau will not be delivered for months, with the genuine work of redistricting beginning only then, and any potential litigation about the new maps commencing only after that work is completed. Even so, the Republican leaders have already been paying $30,000 per month since January on one of their outside contracts alone, for pre-litigation “consulting” to enable their gerrymandering efforts.
Pines Bach attorneys Lester Pines, Tamara Packard, Aaron Dumas, and Beauregard Patterson sued after acquiring copies of these contracts. They argued that statute specifically allows the Legislature to retain counsel at public expense in limited circumstances in which its interests are affected in a lawsuit. By contrast, the law clearly does not allow individual, partisan legislative leaders to spend taxpayer funds on outside attorneys for their own secret consulting purposes when there is not yet even a lawsuit for those attorneys to work on.
The defendants, state Assembly Speaker Robin Vos and Senate Majority Leader Devin LeMahieu, claimed that both the Wisconsin Constitution and each of three separate statutes, Wis. Stat. §§ 13.124, 16.74, and 20.765, independently authorized the contracts. However, Judge Stephen Ehlke ruled that none of the laws the defendants cited supported the contracts. He noted that one of the statutes was passed in 2018 and that the Legislature could have enacted it then with the meaning they want it to have now, but that they chose not to do so. And at any rate, he ruled, their proffered interpretations “impermissibly infringe” on the separation of powers provided for in Wisconsin’s constitution.
“Vos and LeMahieu have already lawlessly spent tens of thousands of taxpayer dollars on private lawyers for secret legal advice for a non-existent action, all to enable their gerrymandering,” Pines said. “This misuse of taxpayer funds had to be stopped. Hopefully they will learn their lesson and come to the redistricting process in an open, honest, and democratic way.”