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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

THE DEMOCRATIC PARTY OF WISCONSIN,
COLLEEN ROBSON, ALEXIA SABOR, PETER
KLITZKE, DENIS HOSTETTLER, JR., DENNIS D.
DEGENHARDT, MARCIA STEELE, NANCY
STENCIL, and LINDSAY DORFF,
Plaintiffs,

OPINION and ORDER

v.
19-cv-142-jdp
ROBIN VOS, SCOTT L. FITZGERALD, ALBERTA
DARLING, JOHN NYGREN, ROGER ROTH, JOAN
BALLWEG, STEPHEN L. NASS, JOEL BRENNAN,
TONY EVERS, and JOSHUA L. KAUL,
Defendants.
This is another legal challenge to 2017 Wisconsin Act 369 and 2017 Wisconsin Act
370. These are the so-called “lame-duck” laws, passed by the Republican-controlled legislature
after the November 2018 election, while Republican Scott Walker was still governor. The
lame-duck laws restrict the authority of the executive branch in numerous ways, such as by
limiting the governor’s control over the Wisconsin Economic Development Corporation and
by prohibiting the attorney general from settling some lawsuits without legislative approval.
The Democratic Party of Wisconsin and several of its members challenge the
constitutionality of the lame-duck laws. Plaintiffs allege that the legislature acted with partisan
intent to limit the power the newly elected governor, Tony Evers, and attorney general, Josh
Kaul, both Democrats. Plaintiffs say that the lame-duck laws effectively changed the results of
the election, Dkt. 64, at 5, and as a result violate the First Amendment, the Equal Protection
Clause, and the Guarantee Clause of the United States Constitution.

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Two motions are before the court: (1) plaintiffs’ motion to preliminarily enjoin Acts
369 and 370, Dkt. 2; and (2) a motion to dismiss filed by defendants Joan Ballweg, Alberta
Darling, Scott L. Fitzgerald, Stephen L. Nass, John Nygren, Roger Roth, and Robin Vos, all of
whom are Wisconsin legislators, Dkt. 34. (The court will refer to these individuals as “the
legislative defendants” for the remainder of the opinion.) Defendant Evers and defendant Joel
Brennan (Secretary of the Wisconsin Department of Administration) have filed briefs in
support of the motion for a preliminary injunction and in opposition to the motion to dismiss.
Defendant Kaul has not taken a position on either motion.
There are many reasons to criticize the lame-duck laws. The legislative defendants don’t
dispute that the lame-duck laws were intended to limit the power of the newly Democratic
executive officers and to consolidate power in the Republican-controlled legislature. But the
role of a federal court is not to second-guess the wisdom of state legislation, or to decide how
the state should allocate the power among the branches of its government. The court will deny
the motion for a preliminary injunction and grant the motion to dismiss, because the plaintiffs
are not entitled to any remedy under the United States Constitution. Any judicial remedy for
the harms alleged in this case must come from the courts of Wisconsin. See, e.g., SIEU, Local 1
v. Vos, 2019AP622 (Wis. Sup. Ct. reviewed accepted April 19, 2019) (case before state
supreme court alleging that Acts 369 and 370 violate Wisconsin Constitution’s separation of
powers doctrine).

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ANALYSIS
A. Overview of the claims and defenses
Enacted in December 2018, 2017 Wisconsin Act 369 and 2017 Wisconsin Act 370
made dozens of changes to state law. Plaintiffs cite the following changes in their complaint:
•

prohibiting the governor from renominating potential appointees who were
already rejected by the legislature, 2017 Wis. Act 369, § 4;

•

requiring the Department of Veterans Affairs to notify the legislature of certain
transfers of funds, id. § 23;

•

requiring legislative approval for the attorney general to withdraw from a lawsuit
filed by state government, id. § 26;

•

requiring legislative approval before the attorney general may settle lawsuits for
injunctive relief, id. § 30;

•

giving the legislature authority to suspend an administrative rule “multiple
times,” id. § 64;

•

adding legislative appointees to the Wisconsin Economic Development
Corporation, id., § 82m;

•

codifying administrative rules related to voter identification requirements, id.
§ 91;

•

removing the governor’s ability to appoint the chief executive officer of the
Wisconsin Economic Development Corporation, id. § 102(2v);

•

codifying administrative rules requiring drug testing for individuals applying for
certain kinds of public assistance, 2017 Wis. Act 370, § 17;

•

placing new conditions on funding for the Department of Health Services, id.
§§ 10(6), 44(3)(b).

Plaintiffs challenge Acts 369 and 370 on three grounds. First, plaintiffs say that the
Acts violate the Guarantee Clause, which states that “[t]he United States shall guarantee to
every State in this Union a Republican Form of Government.” U.S. Const. art. IV, § 4.
Plaintiffs’ Guarantee Clause theory has several components, but the gist is that the Acts violate

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the Guarantee Clause because the purpose and effect of the Acts were “to blunt the electoral
results” by transferring power from the executive to the legislature only after candidates from
a rival party were elected as the governor and attorney general. Dkt. 1, ¶ 8 and Dkt. 3, at 17.
Second, plaintiffs raise claims under their First Amendment rights of free expression
and association. Plaintiffs contend that the Acts violate the First Amendment in various ways,
including by “retaliat[ing] against Plaintiffs due to their political views and the expression of
their political preferences.” Dkt. 1, ¶ 93. Plaintiffs’ theory is that the legislature enacted Acts
369 and 370 to retaliate against those who voted for Evers and Kaul and to prevent those
voters from “enact[ing] their policy preferences,” which they had “spent years working to
achieve.” Dkt. 1, ¶ 92 and Dkt. 3, at 10.
Third, plaintiffs raise a claim under the Equal Protection Clause. As with the First
Amendment claim, plaintiffs say that the legislature discriminated against them because of
their political beliefs. Dkt. 1, ¶ 99. Plaintiffs also say that the Acts “dilute the power of
Democratic voters’ votes” by “by substantially changing, in the lame-duck session, the
authorities of the” executive branch. Id., ¶ 100 and Dkt. 3, at 23.
The legislative defendants move to dismiss plaintiffs’ claims on three grounds:
(1) plaintiffs lack standing to sue; (2) plaintiffs’ claims present political questions that can’t be
resolved by a federal court; and (3) plaintiffs’ allegations don’t state a claim upon which relief
may be granted. The court concludes that plaintiffs lack standing to sue on all of their claims
because they haven’t pointed to any concrete harms they have suffered or will suffer because
of Acts 369 and 370. And even if the court were to accept plaintiffs’ request to consider the
injuries of the governor and attorney general, plaintiffs’ claims would fail for other reasons. So

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the court will grant the motion to dismiss in full, which moots plaintiffs’ motion for a
preliminary injunction.
B. Standing
1. Legal standard
Standing is an “essential aspect” of the requirement that every plaintiff in federal court
show that its complaint falls within the judicial power under Article III of the Constitution.
Hollingsworth v. Perry, 570 U.S. 693, 704 (2013). A plaintiff doesn’t have standing unless he or
she shows three things: (1) plaintiff suffered an injury in fact; (2) the injury is fairly traceable
to the challenged conduct of the defendant; and (3) the injury is likely to be redressed by a
favorable judicial decision. Gill v. Whitford, 138 S. Ct. 1916, 1929 (2018). The injury must be
an “invasion of a legally protected interest that is concrete and particularized,” meaning that it
“affects the plaintiff in a personal and individual way.” Id. (internal quotations and alterations
omitted). A plaintiff can’t rely on a “generalized grievance about the conduct of government.”
Id. at 1931.
In determining whether a plaintiff has adequately pleaded the requirements for
standing, the court applies the same standard that it applies to motions to dismiss for failure
to state a claim: a complaint must contain sufficient factual matter, accepted as true, to
plausibly allege each of the requirements for standing. Silha v. ACT, Inc., 807 F.3d 169, 173–
74 (7th Cir. 2015). The court must draw reasonable inferences in favor of the plaintiff but may
not accept conclusory allegations. Id. However, when, as in this case, the parties have submitted
evidence outside the pleadings, “[t]he district court may properly look beyond the jurisdictional
allegations of the complaint and view whatever evidence has been submitted on the issue to
determine whether in fact subject matter jurisdiction exists.” St. John's United Church of Christ

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v. City of Chi., 502 F.3d 616, 625 (7th Cir. 2007). In that situation, “the plaintiff bears the
burden of coming forward with competent proof that standing exists.” Apex Digital, Inc. v. Sears,
Roebuck & Co., 572 F.3d 440, 444 (7th Cir. 2009).
2. Plaintiffs’ alleged injuries
A threshold problem for plaintiffs in meeting their burden to satisfy the requirements
for standing is that Acts 369 and 370 do not restrict or regulate plaintiffs’ conduct in any way.
Rather, the laws at issue are restrictions on the governor and the attorney general, who are
defendants, not plaintiffs. As the legislative defendants point out, “when the plaintiff is not
himself the object of the government action or inaction he challenges, standing is not
precluded, but it is ordinarily substantially more difficult to establish.” Lujan v. Defs. of Wildlife,
504 U.S. 555, 561–62 (1992). This is because the causal connection between the government’s
conduct and the alleged harm tends to be more attenuated in those situations. See Summers v.
Earth Island Inst., 555 U.S. 488, 493–94 (2009); DH2, Inc. v. U.S. S.E.C., 422 F.3d 591, 596
(7th Cir. 2005). Despite the legislative defendants’ reliance on this aspect of Lujan, plaintiffs
do not address it or explain why they believe that the causal relationship between the Acts and
their alleged injuries is sufficiently direct to satisfy standing requirements. That is reason alone
to conclude that plaintiffs haven’t met their burden.
Another problem is that plaintiffs articulate many of their injuries at a high level of
generality. For example, in their brief in opposition to the motion to dismiss, the individual
plaintiffs describe their injuries as follows:
[D]efendants diluted and retaliated against plaintiffs’ exercise of
their vote by enacting laws that disempowered the incoming
administration from enacting [the] policy [that plaintiffs
supported]. This conduct specifically and directly infringed
plaintiffs’ constitutional rights (1) to associate; (2) to express their
views; (3) to advance their collective beliefs; (4) to not have their

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votes diluted; and (5) to live under a republican form of
government.
Dkt. 37, at 11. But this is simply a summary of plaintiffs’ legal theories; it is not a description
of any “concrete and particularized” injuries that affect plaintiffs “in a personal and individual
way.” Gill, 138 S. Ct. at 1929.
The only identifiable harm alleged is that the legislature has prevented plaintiffs from
enacting policies that they support. Specifically, they say that they voted for Evers and Kaul
because of the policies the candidates promised to enact, but Acts 369 and 370 have prevented
Evers and Kaul from keeping many of those promises. Dkt. 1, ¶¶ 2–7. But the Supreme Court
has already rejected the view that a voter has a legally protected interest in advancing a
particular policy, concluding that “the citizen’s abstract interest in policies adopted by the
legislature on the facts here is a nonjusticiable general interest common to all members of the
public.” Gill, 138 S. Ct. at 1931 (internal quotations omitted). Again, although the legislative
defendants cite and rely on this holding from Gill, plaintiffs don’t show how this principle
would not apply directly to the harms they allege.
Plaintiffs name several other types of alleged harm throughout their complaint and
briefs: (1) vote dilution; (2) emotional distress; (3) unequal treatment “targeting” plaintiffs;
(4) resources expended by the Democratic Party; (5) future difficulties that the Democratic
Party may experience. But none of these alleged harms are sufficient to give plaintiffs standing
to sue.
a. Vote dilution
Plaintiffs invoke the concept of “vote dilution,” but they don’t clearly explain what they
mean by that. The Supreme Court has recognized vote dilution as an injury arising from the
malapportionment of legislative districts. Those cases “require that each elector have the same

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voting power, as measured by the number of votes required to elect each elected state official.”
Risser v. Thompson, 930 F.2d 549, 553–54 (7th Cir. 1991). For example, a citizen’s vote is
diluted if legislative districts have significant population differences. See Wesberry v. Sanders,
376 U.S. 1, 7 (1964) (malapportioned maps “contract the value” of urban citizens’ votes while
“expand[ing]” the value of rural citizens’ votes). Plaintiffs don’t allege anything like that in this
case. Rather, they explain their theory of vote dilution as follows:
Wisconsin’s voters thought they were voting for one thing—a
Democratic administration with all the powers of the outgoing
administration—and, after the election, the lame-duck
Republican legislature gave them another—a Democratic
administration with fewer powers, with powers core to the
fulfilment of the candidates’ campaign promises having been
transferred to the gerrymandered legislature.
Dkt. 3, at 30. So plaintiffs appear to be alleging that their votes were diluted because the Act
made it more difficult for them to achieve their favored policies. This is just a re-packaging of
their interest in a specific policy agenda. Such a view of vote dilution has not been recognized
by the Supreme Court or the court of appeals.
b. Emotional distress
In their declarations, the individual plaintiffs discuss the way the Acts made them and
others feel. Dkt. 4, ¶ 5 (“the excitement and energy of Democratic activists in my area was
zapped”); Dkt. 5, ¶ 7 (the Acts “demoralized Wisconsin voters”); Dkt. 6, ¶ 6 (“many
Democratic voters feel helpless”). That type of emotional harm might be understandable, but
it doesn’t qualify as an injury under the Constitution. Johnson v. U.S. Office of Pers. Mgmt., 783
F.3d 655, 660 (7th Cir. 2015) (“Neither psychological harm produced by observation of
conduct with which one disagrees nor offense at the behavior of government and a desire to

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have public officials comply with one’s view of the law constitutes a cognizable injury.”
(internal quotations omitted)).
c. “Targeting”
Plaintiffs say that they have standing because “the Acts were passed to target Democrats
and the Democratic Party because of the views expressed by their voters and candidates and
the subsequent electoral victory of Evers and Kaul.” Dkt. 37, at 15–16. But plaintiffs are
confusing the requirements of standing with the merits of their claims. Evidence of legislative
intent might be relevant to prove a violation of the First Amendment or the Equal Protection
Clause, but it is the effect of the Acts on plaintiffs, not the intent of the legislature, that matters
for standing. See Gill, 138 S. Ct. at 1932 (“The question at this point is whether the plaintiffs
have established injury in fact. That turns on effect, not intent.”). As discussed above, plaintiffs
are not the “targets” of Acts 369 and 370 in the sense that those laws prohibit or require any
action by plaintiffs; rather, the laws are directed at the governor and the attorney general. Even
if it is true that the purpose of the law was to subject plaintiffs to unequal treatment, such a
purpose doesn’t provide a basis for standing unless it is coupled with concrete harm. Johnson,
783 F.3d at 666 (“[P]laintiffs . . . cannot rely on the theory that they have been injured by
being treated unequally favorably in the abstract.”).
d. Resources expended by the party
Plaintiffs say that the Democratic Party “raised millions of dollars in support of the
candidates and policies that [the party] promoted, undertook significant efforts to register
voters, coordinated the activities of its members and candidates for office, conducted recruiting
and fundraising activities, and conducted a number of other activities designed to obtain
victory at the polls in 2018.” Dkt. 37, at 11–12. Those costs may be concrete and

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particularized, but they cannot provide a basis for standing because the party incurred them
before Acts 369 and 370 were enacted. So the costs are not “fairly traceable” to the Acts and
they could not be recouped by prevailing in this lawsuit.
e. Future harm
Plaintiffs rely on a declaration by the Democratic Party chair, who predicts that the
party will have greater difficulty attracting volunteers, recruiting candidates, and raising money
because of the Acts. Dkt. 14. This theory of harm rests on a concurring opinion in Gill, in
which Justice Kagan observed that a “disfavored party” subjected to gerrymandering could have
standing to sue if the party “face[s] difficulties fundraising, registering voters, attracting
volunteers, generating support from independents, and recruiting candidates to run for office”
as a result of the gerrymander. 138 S. Ct. at 1938 (Kagan, J., concurring).
Justice Kagan’s opinion was not adopted by a majority of the court. See id. at 1916
(“The reasoning of this Court with respect to the disposition of this case is set forth in this
opinion and none other.”). And the Court expressed skepticism of that theory of harm in Rucho
v. Common Cause because such harm would be difficult to measure: “How much of a decline in
voter engagement is enough to constitute a First Amendment burden? How many door knocks
must go unanswered? How many petitions unsigned? How many calls for volunteers
unheeded?” 139 S. Ct. 2484, 2504–05 (2019).
But even if this court treated Justice Kagan’s opinion as controlling, it would not help
plaintiffs for two reasons. First, Justice Kagan’s theory was specific to gerrymandering, in which
one party is directly targeting another: “By placing a state party at an enduring electoral
disadvantage, the gerrymander weakens its capacity to perform all its functions.” Gill, 138 S.
Ct. at 1938 (Kagan, J., concurring). Although plaintiffs allege that Acts 369 and 370 “target”

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them as well, the connection is more tenuous because the Acts on their face are about the
relationship between the state legislative and executive branches rather than the political
parties per se. If the court were to recognize a loss of party enthusiasm as an injury in this
context, it would give a political party standing to challenge any decision by a governmental
body that could be viewed as demoralizing by the party’s members.
Second, Justice Kagan’s theory rested on an assumption that a political party could
show that it had already been harmed in tangible ways. In this case, plaintiffs rely on nothing
but conclusory assertions to support a view that the Acts will have an adverse effect on the
party. That’s not enough. “Plaintiffs cannot rely on speculation about the unfettered choices
made by independent actors not before the court.” Clapper v. Amnesty Int’l USA, 568 U.S. 398,
414 n.5 (2013) (internal quotations omitted). Rather, the harm must be “actual or imminent.”
Id. at 409. “Although ‘imminence’ is concededly a somewhat elastic concept,” Lujan, 504 U.S.
at 564, “there must be at least a substantial risk that such harm will occur.” Hummel v. St. Joseph
Cty. Bd. of Comm’rs, 817 F.3d 1010, 1019–20 (7th Cir. 2016). Because plaintiffs have not
adduced evidence or even alleged facts plausibly showing that the Democratic Party will suffer
the harms identified by the party chair, they do not provide a basis for giving plaintiffs standing
to sue in this case.
C. Potential claims of Evers and Kaul
Plaintiffs contend that, if they “lack the requisite interest to establish standing,
Governor Evers and Attorney General Kaul can supply the missing ingredient” because there
is no dispute that Evers and Kaul are injured by Acts 369 and 370 Dkt. 37, at 13.1 The

1

Plaintiffs also say that the Democratic Party of Wisconsin has standing to assert the rights of
Evers and Kaul because they are members of the party. Dkt. 37, at 12–13. But plaintiffs cite
no authority for the view that a political party may assert the rights of an elected official, who

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legislative defendants dispute that Evers and Kaul were injured, but defendants’ argument on
that point is dubious. They say that Acts 369 and 370 were passed into law before Evers and
Kaul took office, so “they never had any federal right (or state law right, or any other kind of
right) to the powers that previous occupants of their offices had.” Dkt. 40, at 9. But the laws
were passed after the elections and just before the previous governor and attorney general left
office, so it was only Evers and Kaul who suffered the effects of the limitations on their
respective offices.
Regardless, Evers and Kaul are defendants, not plaintiffs, so any injuries they have
suffered are irrelevant to the standing analysis. Town of Chester, N.Y. v. Laroe Estates, Inc., 137
S. Ct. 1645, 1651 (2017) (“At least one plaintiff must have standing to seek each form of relief
requested in the complaint.” (emphasis added)). Plaintiffs have not moved to dismiss Evers
and Kaul as defendants; and Evers and Kaul haven’t asked to be realigned as plaintiffs. The
case plaintiffs cite had nothing to do with standing. See Teamsters Local Union No. 727 Health
& Welfare Fund v. L & R Grp. of Cos., 844 F.3d 649 (7th Cir. 2016). Rather, the court in that
case amended the caption to reflect the real name of the party being sued. Id. at 652. Plaintiffs
cite no authority for the view that a court may consider a defendant’s injuries when determining
standing or realign the parties to preserve standing without a proper motion. 2

is obviously capable of asserting his or her own rights. Also, the party represents Evers and Kaul
as Democrats, not as the governor and attorney general. Because the court has concluded that
plaintiffs haven’t alleged an injury in fact to Democratic voters, Evers and Kaul’s membership
in the party provides no help in showing that the party itself has standing to sue.
2

Realigning the defendants who are part of the executive branch would create a different a
problem because the remaining defendants would all be legislators. Even in a lawsuit for
injunctive relief, legislators are generally entitled to absolute immunity for any conduct
performed in a legislative capacity. See Reeder v. Madigan, 780 F.3d 799, 802 (7th Cir. 2015).

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Even if the court were to consider Evers and Kaul’s injuries, doing so would not save
the case for plaintiffs. Plaintiffs’ claim under the Guarantee Clause is not justiciable. See Rucho,
139 S. Ct. at 2506 (“This Court has several times concluded . . . that the Guarantee Clause
does not provide the basis for a justiciable claim.”). Plaintiffs contend that Rucho isn’t
dispositive because it didn’t expressly disavow a statement in New York v. United States, 505
U.S. 144, 185 (1992), that “perhaps not all claims under the Guarantee Clause present
nonjusticiable political questions.” But the Court didn’t acknowledge any exceptions in Rucho,
so if plaintiffs believe that the door is still open for presenting a claim under the Guarantee
Clause, that is an issue they will have to raise with the Supreme Court. See Risser, 930 F.2d at
552 (“The clause guaranteeing to each state a republican form of government has been held
not to be justiciable, [and that holding] is too well entrenched to be overturned at our level of
the judiciary.”).
And the court of appeals has already held that “[a] modest shift of power among elected
officials is not a denial of republican government or even a reduction in the amount of
democracy.” Id. at 553. Although plaintiffs may resist a conclusion that the shift of power at
issue in this case is “modest,” the shift was not more substantial than what was at issue in
Risser, which was the governor’s ability to exercise a partial veto of legislation, a power so broad
that it allows him to “delete phrases, words, and digits.” Id. at 550. Both cases involve “a retail,
not a wholesale, reallocation of” state power. Id. at 554.
As for plaintiffs’ claims under the First Amendment and the Equal Protection Clause,
adding Evers and Kaul as defendants wouldn’t help because plaintiffs’ have framed their claims
as violations of the constitutional rights of voters and the Democratic Party, not as violations
of the rights of the governor and attorney general. Plaintiffs haven’t explained how Acts 369

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and 370 burden the First Amendment rights of Evers or Kaul or discriminate against them
within the meaning of the Equal Protection Clause. Rather, plaintiffs describe Evers and Kaul’s
injuries as an encroachment by the legislature on the powers of the executive branch. But it is
well established that “[t]he Constitution does not prescribe the balance of power among the
branches of state government.” Id. at 552.
D. Conclusion
The bottom line is that federal courts don’t have the authority under the United States
Constitution to police the boundaries between legislative and executive power in state
government in the absence of a concrete and particularized harm and the violation of a federal
constitutional right. If Evers, Kaul, or anyone else believes that the state legislature has
overstepped its lawful authority, the remedy is a lawsuit in state court under the state
constitution. See, e.g., Cooper v. Berger, 809 S.E.2d 98 (N.C. 2018) (holding that state legislature
violated separation of powers doctrine by transferring certain powers from legislative to
executive branch during lame-duck session).

ORDER
IT IS ORDERED that the motion for a preliminary injunction, Dkt. 2, is DENIED, and
the motion to dismiss, Dkt. 34, is GRANTED on the ground that plaintiffs lack standing to

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sue. The case is DISMISSED without prejudice for lack of subject matter jurisdiction. The
clerk of court is directed to enter judgment accordingly.
Entered September 30, 2019.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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