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Wisconsin GOP redistricting attorney contracts examined by high court

Attorneys for taxpayers and the Legislature sparred over whether Republican lawmakers had the authority to hire outside lawyers with taxpayer money to defend themselves in a lawsuit over redistricting before such a lawsuit existed.

MADISON, Wis. (CN) — The Wisconsin Supreme Court heard arguments on Monday in a lawsuit seeking to toss out contracts GOP legislators entered with outside law firms in anticipation of a legal fight over decennial redistricting after the release of 2020 census data.

Four Wisconsin taxpayers sued Wisconsin Assembly Speaker Robin Vos, R-Rochester, and Senate Majority Leader Devin LeMahieu, R-Oostburg, in March over contracts the lawmakers entered with attorneys from Madison-based firm Bell Giftos St. John and Consovoy McCarthy, a boutique firm with offices in Boston and Washington that has represented the Republican National Committee and former President Donald Trump.

The taxpayers claimed the contracts were illegal because nothing in state statutes or the Wisconsin Constitution allows lawmakers to engage counsel outside the Wisconsin Department of Justice when there is no existing lawsuit in which the Assembly, Senate or Legislature are a party or have an interest. They said the possibility of litigation over drawing Wisconsin’s legislative maps is not a good enough reason to spend taxpayer money on lawyers before there is any lawsuit.

Dane County Circuit Court Judge Stephen Ehlke agreed with the taxpayers in April and voided the contracts, rejecting the notion that the potential for a lawsuit over redistricting allows the legislature to lawyer up immediately, which could lead to a scenario in which lawmakers can effectively intervene in any challenge to state law and violate the province of the executive branch.

The Wisconsin Supreme Court this summer decided along party lines to grant the legislators’ petition for bypass, took up the case and reinstated the contracts.

Three lawsuits have been filed in both state and federal courts over drawing Wisconsin’s legislative and congressional maps since the census data arrived, illustrating the urgency with which both liberals and conservatives are treating the issue, which will affect electoral advantages for at least a decade.

Two consolidated cases asked a federal panel to intervene and implement new maps before 2022 elections, but the panel — made up of U.S. District Judge James Peterson from a Madison district court, U.S. District Judge Edmond Chang from a Chicago district court and U.S. Circuit Judge Amy St. Eve of the Seventh Circuit — stayed those actions after the Wisconsin Supreme Court took up a separate petition from taxpayers represented by a conservative advocacy group in September asking the state high court to intervene in lieu of the federal courts.

The federal panel, however, kept a trial date for the matter slated for late January should it be needed to settle the redistricting dispute and draw the maps, since federal rights are still at stake even though the Wisconsin Supreme Court has decided to handle a redistricting lawsuit instead of the federal courts for the first time since 1964.

Misha Tseytlin, a former Wisconsin solicitor general and attorney for the Legislature, argues the case for contracts with private law firms entered ahead of a redistricting lawsuit at the Wisconsin Supreme Court on Monday, Nov. 1, 2021. (Image via Courthouse News)

On Monday in the high court’s hearing room, Misha Tseytlin, a former Wisconsin solicitor general and counsel for the Republican lawmakers from the Chicago office of Troutman Pepper, called the circuit court’s order voiding the attorney contracts “an unprecedented intrusion in the Legislature’s basic function.”

Tseytlin said, in part, that the same statutes that authorize the Legislature to spend money on things like pens and computers allows it to enter professional services contracts with attorneys ahead of an imminent legal fight over redistricting, pointing out that this happens every decennial, everyone involved knew there was going to be a lawsuit and other legislative authorization from 2017 that never expired also allows for the contracts.

Lester Pines, a senior partner with the Madison-based firm Pines Bach, countered on behalf of the taxpayers that there is no interpretation of Wisconsin statutes or the Wisconsin Constitution that allows lawmakers to enter these kinds of private contracts with private law firms before a lawsuit is filed.

"How can anyone know whether or not there is going to be interests affected if the action does not exist?” Pines argued.

Referring to how commonplace lawsuits over redistricting are, Justice Brian Hagedorn retorted that “if there is a more certain litigation that exists, I am not aware of it,” and wondered how that does not implicate the Legislature’s interests.

Pines maintained that these contracts—one of which, with Consovoy McCarthy, allows for spending $30,000 per month—cannot just be based on theoretical lawsuits, not in the least because that is not what the statutes say.

The high court gave no timeline for its ruling at the close of arguments on Monday.

The GOP-controlled Wisconsin Legislature rolled out maps they drew based on 2020 census data and public input last month, but they were almost immediately blasted by Democratic Governor Tony Evers, who decried the maps as being designed for bald partisan advantage, reiterated he will veto such maps and instead encouraged lawmakers to take up the maps drawn by the People’s Maps Commission he created.

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