Democratic Party of Wisconsin v. Robin Vos

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-3138
DEMOCRATIC PARTY OF WISCONSIN,
et al.,
Plaintiffs-Appellants,
v.
ROBIN VOS, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 19 C 142 — James D. Peterson, Chief Judge.
____________________
ARGUED MAY 18, 2020 — DECIDED JULY 16, 2020
____________________
Before WOOD, BARRETT, and SCUDDER, Circuit Judges.
WOOD, Circuit Judge. In 2018, Democrats Tony Evers and
Josh Kaul were elected as the governor and attorney general
of Wisconsin. Both replaced Republican incumbents. Immedi-
ately after the election, while Wisconsin still had a Republican
governor, the Republican-controlled legislature enacted two
laws, 2017 Wisconsin Act 369 and 2017 Wisconsin Act 370
2 No. 19-3138
(“Acts”), which strip the incoming governor and attorney gen-
eral of various powers and vest legislative committees that re-
mained under Republican control with formerly-executive
authority. The changes effected by the Acts include prohibit-
ing the governor from re-nominating potential appointees
who have been rejected once by the legislature; giving the leg-
islature authority to suspend an administrative rule multiple
times; removing the governor’s ability to appoint the chief ex-
ecutive officer of the Wisconsin Economic Development Cor-
poration; adding legislative appointees to the Economic De-
velopment Corporation; requiring that the attorney general
obtain legislative approval before withdrawing from a law-
suit filed by the state government or settling a lawsuit for in-
junctive relief; and granting the legislature the unrestricted
right to intervene in litigation to defend the constitutionality
or validity of state law.
Dismayed by these measures, the Democratic Party of
Wisconsin (“Party”) and several of its individual members
brought suit in federal court under 42 U.S.C. § 1983 claiming
violations of the First Amendment, the Fourteenth Amend-
ment’s Equal Protection Clause, and the Guarantee Clause of
Article IV, Section 4 of the United States Constitution. The de-
fendants are the following: several members of the Wisconsin
legislature (“legislative defendants”); the Secretary of the
Wisconsin Department of Administration; now-Governor
Evers; and now-Attorney General Kaul. (Although he was a
nominal defendant, Governor Evers, along with Joel Brennan,
the Secretary of the Department of Administration, initially
filed a brief supporting the plaintiffs and opposing dismissal.
Attorney General Kaul stayed out of the fray. None of those
three is participating in this appeal.) The district court granted
No. 19-3138 3
the legislative defendants’ motion to dismiss for lack of sub-
ject-matter jurisdiction, concluding that the plaintiffs “haven’t
pointed to any concrete harms they have suffered or will suf-
fer because of Acts 369 and 370” and “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.” We affirm.
I
The plaintiffs based the district court’s subject-matter ju-
risdiction on 28 U.S.C. §§ 1331 and 1343. The legislative de-
fendants argued that the district court lacked subject-matter
jurisdiction because the plaintiffs did not have standing to sue
and their claims raised only nonjusticiable political questions.
The district court agreed with those arguments and dismissed
the case, entering final judgment on September 30, 2019. The
plaintiffs filed a timely appeal.
We assess de novo the district court’s grant of a motion to
dismiss for lack of subject-matter jurisdiction, “taking the
facts alleged in the complaint as true and drawing reasonable
inferences in [the nonmovant’s] favor.” Miller v. Fed. Deposit
Ins. Corp., 738 F.3d 836, 840 (7th Cir. 2013). We may affirm a
dismissal for lack of subject matter jurisdiction on any ground
supported by the record. Fuqua v. United States Postal Serv.,
956 F.3d 961, 964 (7th Cir. 2020).
II
As we noted, the plaintiffs raise three claims: first, one
based on their First Amendment rights to freedom of expres-
sion and freedom of association; second, one based on the
Equal Protection Clause of the Fourteenth Amendment; and
4 No. 19-3138
third, one resting on the Guarantee Clause of Article IV, Sec-
tion 4 of the United States Constitution. The Party asserts that
it has standing to vindicate its own rights as well as associa-
tional standing to sue on behalf of its members. The legislative
defendants reject these contentions.
A
Before a plaintiff may invoke the federal courts’ judicial
power, Article III of the United States Constitution requires
her to demonstrate that she has standing to sue. She accom-
plishes that task by showing three things: (1) that she has suf-
fered an actual or imminent, concrete and particularized in-
jury-in-fact; (2) that there is a causal connection between her
injury and the conduct complained of; and (3) that there is a
likelihood that this injury will be redressed by a favorable de-
cision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). A
plaintiff may not rely on only a “generalized grievance about
the conduct of government.” Gill v. Whitford, 138 S. Ct. 1916,
1931 (2018). In determining at the pleadings stage whether the
plaintiff’s showing of standing passes muster, we accept as
true the pleaded factual matter and draw all reasonable infer-
ences in favor of the plaintiff. Silha v. ACT, Inc., 807 F.3d 169,
173 (7th Cir. 2015).
As the district court pointed out, “Acts 369 and 370 do not
restrict or regulate plaintiffs’ conduct in any way.” Rather, the
Acts reduce the power of the governor and the attorney gen-
eral, who were initially named as defendants in the action and
never formally re-designated as plaintiffs. “[W]hen the plain-
tiff is not himself the object of the government action … [that]
he challenges, standing is not precluded, but it is ordinarily
No. 19-3138 5
substantially more difficult to establish.” Lujan, 504 U.S. at 562
(internal quotation marks omitted).
The plaintiffs here seek to base their standing on “consti-
tutional provisions that protect their voting rights.” They con-
tend that the legislature’s passage of Acts 369 and 370 violated
their First Amendment right to participate effectively in the
political process and degraded the effectiveness of the votes
cast by supporters of the Democratic Party, in violation of the
Equal Protection Clause. Those people voted for Governor
Evers and Attorney General Kaul with the understanding that
the winners in the election would be vested with certain pow-
ers upon taking office; the result of the Acts is that the plain-
tiffs did not get what they believe they were entitled to. They
refer to this as “vote dilution.” But this is an unprecedented
application of the familiar vote-dilution theory, and one that
we cannot accept.
The plaintiffs attempt to marshal major voting-rights prec-
edents in support of their claims, but all are inapposite. Baker
v. Carr, 369 U.S. 186 (1962), and Reynolds v. Sims, 377 U.S. 533
(1964), addressed vote dilution that arose through state legis-
lative apportionment that did not reflect the actual population
distribution of the state. Anderson v. Celebrezze, 460 U.S. 780
(1983), decided the constitutionality of ballot-eligibility re-
strictions on candidates. Meyer v. Grant, 486 U.S. 414 (1988),
concerned First Amendment rights to circulate and sign peti-
tions. California Democratic Party v. Jones, 530 U.S. 567 (2000),
considered the type of primary election a state runs (i.e.,
closed versus blanket) and the implications that choice had
for voters and political parties. Bush v. Gore, 531 U.S. 98 (2000),
addressed the manner of counting votes in Florida in the 2000
presidential election. Finally, Judge v. Quinn, 612 F.3d 537 (7th
6 No. 19-3138
Cir. 2010), opinion amended on denial of reh’g, 387 F. App’x
629 (7th Cir. 2010), analyzed the right of voters to vote
promptly for a vacated United States Senate seat rather than
allow the governor to fill the seat for the unexpired term.
All these cases are about the legality and fairness of the
process of raising issues, nominating candidates, and voting
for those candidates. None raises the type of concern that is at
the heart of this case: whether elected officials are able to
achieve the substantive policy outcomes their constituents ex-
pect or desire. In fact, the Supreme Court recently signaled
that disputes of this sort are nonjusticiable. Gill, 138 S. Ct. at
1931 (“[T]he citizen’s abstract interest in policies adopted by
the legislature on the facts here is a nonjusticiable general in-
terest common to all members of the public.” (internal quota-
tion marks omitted)). We see no reason why that observation
does not apply with equal force to a citizen’s abstract interest
in the powers and policies of the governor and attorney gen-
eral conferred by state law.
The individual plaintiffs in this case were able to vote in
the 2018 state election for their preferred candidates. There is
no allegation that their votes were not counted or were
counted differently from those of all other Wisconsin voters.
Evers and Kaul won their elections and assumed the offices of
governor and attorney general. To that degree, the plaintiffs’
votes were effective. Only after the plaintiffs voted for Evers
and Kaul did the legislature (we can assume for partisan rea-
sons) decide to strip those offices of certain powers through
Acts 369 and 370. As understandably frustrating as that is, the
United States Constitution does not guarantee that state offi-
cials will have any particular powers once they assume office;
that is the domain of state constitutions and statutes. The
No. 19-3138 7
United States Constitution guarantees only that each citizen’s
vote will be counted equally.
The partisan motive reflected in the fact that Republican
legislators took away the specified powers from the offices of
the governor and attorney general only because Democrats
won does not save the plaintiffs’ case. The Supreme Court has
stated that, standing alone, the partisan intentions of legisla-
tors are not constitutionally suspect and that pursuing parti-
san ends does not violate the rights of people who disagree.
See Rucho v. Common Cause, 139 S. Ct. 2484, 2503 (2019) (“A
permissible intent—securing partisan advantage—does not
become constitutionally impermissible, like racial discrimina-
tion, when that permissible intent ‘predominates.’”).
We therefore agree with the district court that the individ-
ual plaintiffs have not pleaded a constitutional injury-in-fact
and do not have standing under Article III.
B
Next, we turn to the Party’s standing, both on behalf of its
members and in its own right. The Party’s associational stand-
ing claim can be resolved easily: because the Party’s members
do not have standing to sue in their own right, the Party does
not have standing to sue on their behalf. See Hunt v. Wash.
State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977).
With respect to its effort to support standing on its own
injuries, the Party runs into the same problem as the individ-
ual plaintiffs. The Acts do not target the Party nor do they for-
mally restrict the Party’s ability to raise funds, register voters,
get candidates on ballots, or otherwise meaningfully partici-
pate in elections. Once again, the cases the plaintiffs cite are
distinguishable: California Democratic Party v. Jones dealt with
8 No. 19-3138
the type of primary the state was using; Williams v. Rhodes, 393
U.S. 23 (1968), had to do with candidate ballot access; Libertar-
ian Party of Ill. v. Scholz, 872 F.3d 518 (7th Cir. 2017), addressed
candidate access to the ballot access; and Wisconsin Right to
Life State Political Action Comm. v. Barland, 664 F.3d 139 (7th
Cir. 2011), concerned fundraising restrictions. None of these
provides support for the Party’s standing here.
The Party fares no better with Crawford v. Marion Cnty.
Election Bd., 472 F.3d 949 (7th Cir. 2007), and Common Cause
Ind. v. Lawson, 937 F.3d 944 (7th Cir. 2019), which concerned
voter identification and voter registration laws, respectively.
In both those cases, the organizational plaintiffs had an injury
sufficient to confer standing because the laws at issue affected
their members’ ability to vote and as a consequence forced the
organizations to devote resources to counteracting the effects
of the laws. There was no such injury here: Acts 369 and 370
were enacted after the election in question and do not address
the process of voting or other forms of political mobilization.
The named individual plaintiffs were able to, and indeed did,
vote for Governor Evers and Attorney General Kaul, and
there is no allegation that Wisconsin Democrats will find it
more difficult to vote in future elections or elect the candi-
dates of their choice as a result of these laws.
The immediate harm the Party has suffered is psychologi-
cal: it asserts that it will have a harder time organizing voters
and fielding candidates because of concerns that Democrats
who win elections will have less power in office than they ex-
pect. The Party also expects an added financial burden insofar
as it must spend more money to generate enthusiasm among
the populace. But mobilizing voters who are discouraged or
apathetic, but not actually impeded in their ability to achieve
No. 19-3138 9
desired electoral outcomes, is “baseline work” for a political
party; it is an “ordinary program cost[],” not an “injury in
fact.” Common Cause, 937 F.3d at 955.
C
In a final effort to establish standing, the plaintiffs contend
that Governor Evers is a de facto plaintiff even though he is
named in his official capacity as a defendant. They have some
cause for taking this position: Evers asked to be considered as
a plaintiff in the pretrial conference report, and he filed a brief
in support of the plaintiffs’ preliminary injunction and in op-
position to the legislative defendants’ motion to dismiss. But
the plaintiffs never moved to dismiss him as a defendant, nor
did they formally request realignment. The district court con-
cluded that it could not “realign the parties to preserve stand-
ing without a proper motion” and thus declined to treat Evers
as a de facto plaintiff.
The plaintiffs argue that this was error, because Federal
Rule of Civil Procedure 21 empowers the district court to de-
termine the proper parties in a case even without a motion
from one of the existing parties. Rule 21 addresses misjoinder
and nonjoinder. It is permissive, stating that the court “[o]n
motion or on its own, … may, at any time, on just terms, add
or drop a party.” To achieve the realignment the plaintiffs
seek, the district court perhaps could have dropped Evers as
a defendant and then added him as a plaintiff. But we can
hardly accuse the court of abusing its discretion by declining
to take these actions on its own initiative, without briefing
from the parties about the potential issues raised by such a
move. Those issues include the question whether the gover-
nor has the power to litigate in his official capacity against the
state, and the question whether the legislative defendants are
10 No. 19-3138
entitled to legislative immunity. And, for the icing on the case,
Governor Evers is not participating in this appeal, and the ex-
isting plaintiffs have not offered a reason why they have
standing to raise, on his behalf, the issue of his position in the
litigation. And in the end, neither the individual voters’ rights
nor the Party’s rights are affected by Evers’s ability or inability
to litigate his personal claims in this case.
It is also notable that the complaint does not allege that
either Evers or Kaul suffered First Amendment and Equal
Protection violations in their roles as governor and attorney
general. It confines itself to the constitutional rights of voters
and the Party. Evers remains free to sue on his own behalf if
he wants to allege constitutional violations that injure him in
his role as governor (as opposed to as a member of the Dem-
ocratic Party and voter), though we make no prediction about
the fate of such an action. See generally Arizona State Legisla-
ture v. Arizona Indep. Redistricting Comm’n, 135 S. Ct. 2652,
2665–66 (2015) (finding that the Arizona Legislature had insti-
tutional standing to challenge a redistricting map drawn by
an independent commission). No matter: those claims are not
present in this suit, and so the plaintiffs cannot establish
standing on that basis.
Democratic voters in Wisconsin may have been disheart-
ened by the Republican-controlled legislature’s gambit, but
that frustration is not a federal constitutional injury. As the
plaintiffs themselves admit, “[p]olitical parties obviously
have no constitutional right to ensure their policy preferences
are adopted.” Their recourse is to the voting booth, i.e. win-
ning control of the state legislature (which, if held in the fu-
ture by members sharing the goals of the Democrats here,
No. 19-3138 11
could easily undo whatever the lame-duck Republican legis-
lature crafted), or to the state courts, not to the federal courts.
III
Plaintiffs also invoke the Guarantee Clause, to which we
now turn. Article IV, Section 4 of the United States Constitu-
tion provides: “The United States shall guarantee to every
State in this Union a Republican Form of Government…” U.S.
Const. art. IV, § 4. Plaintiffs argue that Acts 369 and 370 violate
the Guarantee Clause because they are inconsistent with
“core norms of our democratic and republican form of gov-
ernment.” The district court agreed with the legislative de-
fendants’ argument that the Guarantee Clause is categorically
nonjusticiable, quoting dicta in Rucho, 139 S. Ct. at 2506, say-
ing that “[the Supreme Court] has several times concluded,
however, that the Guarantee Clause does not provide the ba-
sis for a justiciable claim.” See also City of Rome v. United
States, 446 U.S. 156, 182 n.17 (1980) (“We do not reach the mer-
its of the appellants’ argument that the Act violates the Guar-
antee Clause, Art. IV, § 4, since that issue is not justiciable.”);
Baker v. Carr, 369 U.S. at 217–29; Pacific States Telephone & Tele-
graph Co. v. Oregon, 223 U.S. 118, 147–51 (1912).
Plaintiffs argue that this statement in Rucho does not re-
flect a bright-line rule that Guarantee Clause claims are never
justiciable, but rather acknowledges only that the Supreme
Court has not yet been presented with a justiciable claim. In
support, they cite New York v. United States, 505 U.S. 144
(1992), in which the Court said that “perhaps not all claims
under the Guarantee Clause present nonjusticiable political
questions.” Id. at 185 (citing Reynolds v. Sims, 377 U.S. at 582
(“[S]ome questions raised under the Guaranty Clause are
12 No. 19-3138
nonjusticiable.”)). They also point to the First Circuit’s opin-
ion in Largess v. Supreme Judicial Court for the State of Mass., 373
F.3d 219, 225 (1st Cir. 2004) (per curiam) (“[R]esolving the is-
sue of justiciability in the Guarantee Clause context may also
turn on the resolution of the merits of the underlying claim.”),
and the Tenth Circuit’s opinion in Kerr v. Hickenlooper, 744
F.3d 1156, 1176 (10th Cir. 2014) (“[W]e reject the proposition
that Luther and Pacific States brand all Guarantee Clause
claims as per se non-justiciable.”), vacated and remanded on
other grounds by Hickenlooper v. Kerr, 135 S. Ct. 2927 (2015).
The plaintiffs believe that theirs is the elusive justiciable claim,
or at least that it is too early to conclude that it is not.
We do not interpret Rucho or any other decision by the Su-
preme Court as having categorically foreclosed all Guarantee
Clause claims as nonjusticiable, even though no such claim
has yet survived Supreme Court review. The district court
thus went too far in saying that no Guarantee Clause claim
could proceed to adjudication on the merits. Instead, it should
have decided simply whether this particular Guarantee
Clause claim is among the rare ones that can survive a motion
to dismiss. We conclude that it is not.
Once again, standing poses a problem. See Largess, 373
F.3d at 224 n.5 (“It is of note for purposes of the standing in-
quiry that the Guarantee Clause makes the guarantee of a re-
publican form of government to the states; the bare language
of the Clause does not directly confer any rights on individu-
als vis-á-vis the states.” (emphasis in original)). Moreover,
even if we could surmount the standing problem here, on the
No. 19-3138 13
theory that state officials stand on a different footing than in-
dividuals and could establish the necessary personal stake,
causation, and redressability, other obstacles remain.
Our opinion in Risser v. Thompson, 930 F.2d 549 (7th Cir.
1991) is instructive. There, Wisconsin state legislators alleged
that the partial veto provision of the Wisconsin Constitution
violated the First Amendment, Due Process and Equal Protec-
tion, and the Guarantee Clause. We held that the legislators
had standing to sue because they alleged that the partial veto
diminished the effectiveness of their votes, but we then deter-
mined that none of the constitutional claims had merit. With
respect to the Guarantee Clause claim, which we noted was
nonjusticiable in that case, we commented that the “[t]he [fed-
eral] Constitution does not prescribe the balance of power
among the branches of state government.” Id. at 552. This ob-
servation is not one that is favorable to plaintiffs. Within
broad boundaries, state legislatures may enact measures that
reallocate power between duly elected branches of state gov-
ernment, at least as far as federal law is concerned.
The legislative defendants here are elected officials, just
like the governor and attorney general, but a “modest shift of
power among elected officials is not a denial of republican
government or even a reduction in the amount of democ-
racy.” Id. at 553. The First Circuit’s decision in Largess is on
point: “The Guarantee clause does not require a particular al-
location of power within each state so long as a republican
form of government is preserved. … If there is any role for
federal courts under the Clause, it is restricted to real threats
to a republican form of government.” 373 F.3d at 227 (empha-
sis in original). The plaintiffs have not shown that the power
shifts Acts 369 and 370 produced pose an existential threat to
14 No. 19-3138
the “republican form of government” in Wisconsin, even as-
suming that the legislature was trying to undo some of the
consequences of the 2018 election. And we note that the Su-
preme Court of Wisconsin has just ruled that nearly all of the
provisions challenged in the present case are consistent with
the state constitution’s separation-of-powers regime. See Serv.
Emps. Int’l Union (SEIU), Local 1 v. Vos, Nos. 2019AP614-LV &
2019AP622, 2020 WI 67 (July 9, 2020). No one in that case even
mentioned the Guarantee Clause, but the tenor of the state
court’s decision is that the legislative changes fell within ac-
cepted limits. We see no reason to conclude that the state court
would have so concluded if it thought that there was an abuse
serious enough to trigger the Guarantee Clause, which is of
course binding on the states. See U.S. Const., Art. VI, cl. 2.
IV
One final issue remains: the legislative defendants’ motion
for sanctions against the plaintiffs under Federal Rule of Ap-
pellate Procedure 38.
Under Rule 38, the court may award “just damages and
single or double costs to the appellee” when an appellant files
a frivolous appeal. Fed. R. App. P. 38. “An appeal is … frivo-
lous if it presents arguments that are so insubstantial that they
are guaranteed to lose.” McCurry v. Kenco Logistics Servs., LLC,
942 F.3d 783, 791 (7th Cir. 2019). “When an appeal is frivolous,
Rule 38 sanctions are not mandatory but are left to the sound
discretion of the court of appeals to decide whether sanctions
are appropriate.” Harris N.A. v. Hershey, 711 F.3d 794, 802 (7th
Cir. 2013).
The legislative defendants contend that it is “obvious” that
plaintiffs’ appeal is a “futile” “political statement” and that
No. 19-3138 15
sanctions are therefore warranted. We do not take such a
harsh view of their case. As discussed above, we do not inter-
pret Rucho as having categorically foreclosed the plaintiffs’
Guarantee Clause arguments. Furthermore, although we con-
clude that the plaintiffs do not have Article III standing to pur-
sue either their own claims or those of Governor Evers, the
record reflects that Governor Evers conveyed to the district
court, though not in a motion for formal realignment, a desire
to be treated as a plaintiff. Thus, the plaintiffs were within the
bounds of good-faith argument to assert on appeal that the
district court should have taken Governor Evers’s interests
into account in its standing analysis. Their jurisdictional and
merits arguments ultimately may have failed, but that does
not mean they are so patently frivolous as to be worthy of
sanction.
V
Because plaintiffs did not establish their standing under
Article III with respect to their First Amendment and Four-
teenth Amendment claims, we AFFIRM the judgment of the
district court on those points. With respect to the Guarantee
Clause claim, although we conclude that it is not categorically
foreclosed, we nonetheless AFFIRM the judgment of the dis-
trict court that this particular claim is nonjusticiable. The de-
fendants-appellees’ motion for sanctions under Rule 38 is
DENIED.