In an editorial penned by Rick Esenberg, head of the Republican “Wisconsin Institute for Law and Liberty,” he argues…badly…that Republicans are actually expanding early voting hours when they cut them in the raft of “lame-duck” bills recently signed by outgoing Gov. Scott Walker (R-WI).
This editorial requires a response. It’s so badly argued, and so flimsy in legal bases, that it’s almost unfathomable to think that it was written by a Harvard-educated attorney with nearly forty years at the bar. This is the state of Republican thought today.
Currently, Wisconsin law allows local, municipal clerks to set their own early voting availability. While not perfect, it allows local municipalities to do as much early voting as they have resources for. That said, some municipal clerks (who are in charge of elections) are part time in smaller towns, or only have a few voting machines available for early voting, or don’t have other resources to go “whole hog.”.
Conversely, places like Milwaukee and Madison, the state’s two largest cities, make extra efforts and commit their own resources to having early voting open as early as six weeks prior to election day.
In 2016, Republicans tried to nuke this arrangement, by limiting early voting to only weekdays (eliminating weekends) during two full weeks prior to the election. U.S. District Judge James Peterson, presiding for the Western District of Wisconsin (based in Madison), struck down this law.
In this most recent lame-duck law, Republicans want another bite at the same apple, while denying that’s what they’re doing.
The 2018 bill just signed into law still limits early voting to two weeks, they just add weekends back in, and back off the hour restrictions. That’s…the only difference.
They don’t provide extra resources for the rural and otherwise under-funded municipalities to be open the full two weeks, so nothing is going to change there. The only functional change this bill implements is restricting the cities and counties that were going above and beyond to serve their voters.
Esenberg disagrees. In criticizing the legal motion filed by the One Wisconsin Institute and the Wisconsin ACLU, he first accuses them of “judge shopping” by filing a motion for contempt in front of Judge Peterson, who issued the original ruling (which is still sitting in Chicago awaiting a decision from the 7th Circuit Court of Appeals), instead of filing a whole new case and being randomly assigned a new judge.
Dear Mr. Esenberg, as someone who has decades of legal experience and a Harvard sheepskin should know by now, this isn’t judge shopping (although Republican opposition to such a practice in Wisconsin would seem to be newfound). This is 1st-year Civil Procedure. Had the lawyers representing the ACLU and One Wisconsin Institute not filed such a motion in the court they did, they would be liable for legal malpractice. Esenberg assumes everyone else doesn’t know that, but if he were on the other side of the table, he would do the exact same thing because he would have to.
There is a ruling in a case about this exact same issue that looks 90 percent the same, so the attorney must file the motion with the judge who made that ruling since that particular case is still open.
The fact Mr. Fancy-Pants Harvard Lawyer can’t write an argument to support his position that doesn’t take into account stuff you learn in your first year in law school, but this non-lawyer who just fixed court computers for a few years can, shows you just how weak their position is.
Second, in yet another Republican round of “who are you going to believe, me or your lying eyes?” Esenberg argues their bill expands early voting. Apparently, one of Esenberg’s paralegals needs to write him a memo on how “two weeks” is “less than six weeks.” Maybe then they can write him another memo explaining how “telling people they can do what they can already do now without providing extra resources to accomplish it” means rural counties are going to have the same result.
Third, he complains how taking the matter to the same judge (which, as I’ve already explained, is exactly what must happen) “unduly complicates the matter.” However, if you read through his whole editorial, and count how many times he complains about the “Madison judge,” it makes you wonder just what other options there are.
Well, the only other option is to file…with a different Madison (federal) judge, since the lawsuit is against the State of Wisconsin, whose capital is in…wait for it…Madison. The U.S. District Court for the Western District of Wisconsin is chiefed by the aforementioned Judge Peterson, an Obama appointee, while also being home to Judge William Conley (another Obama appointee) and Judge Barbara Brandriff Crabb (a Carter appointee). Who would Esenberg rather appear before?
Now, none of this is to opine on the legal merits of the actual motion filed, nor the law it was filed against. But if this is the best argument that Republicans like Esenberg can put forth in support of their law, might I recommend not wagering your life savings on a Republican-favoring ruling.