The people of Wisconsin elect their attorney general to uphold the law of the land, including defending in court the constitutionality of the laws enacted by the Legislature.
Six years ago, after several years of control by the Democratic Party, the citizens of Wisconsin elected a majority Republican Legislature in both the Assembly and Senate and a Republican governor. Among the legislation passed and signed into law in 2011 was an Assembly map setting the borders of voting districts. That map is the law of the state of Wisconsin, and it is my constitutional responsibility to defend the law creating that map against court challenges.
My duty would be the same if the map had been enacted by Democrats.
Late last year, in a sharply divided 2-1 decision, a three-judge trial court invalidated the Assembly map as too “political,” on a theory that the Supreme Court has never adopted, not once, in any case. The plaintiff’s theory in this case is so legally flawed that it would call into question one out of every three maps drawn by legislatures in the United States.
And the plaintiff’s theory is so extreme that even the maps that a federal court drew for Wisconsin in 2002 would be invalid under the guise of having too much “political” impact.
I asked the Supreme Court to review the three-judge court’s decision and, not surprisingly, the Supreme Court has agreed to do so. Even more telling, the Supreme Court also blocked the three-judge court’s decision from even taking effect. The Supreme Court does this in rare cases, and only after concluding that the strength of the party’s argument and the harms the party and the public will suffer are so powerful that extraordinary relief is necessary.
Written just two days after the Supreme Court’s action blocking the three-judge court’s decision, a Wisconsin State Journal editorial attacked me for seeking to overturn a decision made by the “Seventh U.S. Circuit Court of Appeals,” rather than publicly urging the Legislature to enact a different law, under which the Legislature would no longer draw Assembly maps.
The editorial is rife with errors. To begin with, the decision to invalidate Wisconsin’s map was not made by the “Seventh U.S. Circuit Court of Appeals,” as the editorial inaccurately claims, but rather by a divided three-judge trial court, whose decision the Supreme Court has already blocked.
The editorial also misrepresents the proper function of the attorney general in our state’s constitutional system. The role of the attorney general under Wisconsin’s Constitution is to defend the laws that the Legislature passes, so long as there is a good faith basis to make such arguments.
In this case, of course, there is much more than a good faith argument: The divided three-judge court’s decision is entirely unprecedented and has now been blocked by the Supreme Court. It would be inappropriate, and contrary to my responsibility under the Wisconsin Constitution, for me to criticize the very law I was elected to defend in court and to advocate for the enactment of a replacement law.
As attorney general of Wisconsin, I am proud to defend the laws that the people’s representatives adopt. Any attorney general, from any party, would have the same responsibility.
