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What a lawsuit could mean for Democrats following GOP power-stripping measures

barnes evers kaul.jpg

MADISON, Wis. - What will Gov. Scott Walker do following the Legislature's extraordinary session?

He will have six days to veto or approve the measures passed by the Wisconsin Legislature.

Gov.-elect Tony Evers said Wednesday he will make a personal appeal to Walker to ask that he veto the bills, which would strip certain powers from Evers and Attorney General-elect Josh Kaul.

"We are exploring anything to make sure that this legislation does not get into practice," Evers told reporters Wednesday. Evers said he would consider litigation if necessary.

News 3 asked political science professors to weigh in on what they think will happen next.

"I think there's no doubt that some of this is going to be contested in court. It's possible still that Gov. Walker could veto parts of this," said David Canon, a professor of political science at University of Wisconsin-Madison.

But what would a lawsuit look like? It would likely end up in the state Supreme Court, and it would likely be drawn out over many months or even years.

"There are multiple provisions of this bill, and they can be challenged on different grounds," said Howard Schweber, a professor of political science at University of Wisconsin-Madison. "The basic challenge to most of these restrictions will be a separation of powers challenge."

Assembly Speaker Robin Vos said he's "confident" the bills are constitutional but that Democrats have the right to contest them.

"We've already vetted these with legal experts that we believe have shown that they are clearly constitutional, so they have every right to go to court. I'll be anxious to see what the results are," Vos said Wednesday.

Canon said Evers may have more of a case than Kaul, considering the state constitution only has one line about the attorney general: "The powers, duties and compensation of the treasurer and attorney general shall be prescribed by law."

"It depends a lot on how the Wisconsin Constitution will be interpreted by the state Supreme Court, but there's precedent from both earlier Wisconsin case law and from other situations," Canon explained.

Other states have had similar situations. In Michigan, the Republican-controlled Senate voted to strip certain powers from incoming Democrats this week during a lame-duck session, sending the bill to the Republican-controlled House.

Canon pointed to North Carolina, where in 2016, a Democratic unseated a Republican governor, and the North Carolina General Assembly passed restrictions on the incoming governor's power.

"North Carolina's gone through a very similar thing the last two years where their state Supreme Court has struck down several attempts to limit the governor's powers on separation of powers grounds," Canon said.

Canon and Schweber said if a lawsuit was filed, Evers and Kaul would likely be suing either the state Assembly, state Senate or both.

Democrats might have an easier time contesting the limits on early voting in court than the power-stripping measures, Canon said. The bills would limit in-person absentee voting to two weeks.

A similar attempt to limit early voting was found unconstitutional by a federal judge in 2016.

The two professors said this lame-duck attempt could end up in state court or federal court, where lawyers would likely try to argue it violated the 14th Amendment.

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