(The Center Square) – The legal battle over counting absentee ballots delivered after Election Day in Wisconsin is likely headed back to federal court.
The Wisconsin Supreme Court on Tuesday ruled that state lawmakers can sue over a Madison-based federal judge’s order to count those absentee ballots up to six days after Election Day.
Conservative Justice Brian Hagedorn, who wrote for the majority, said essentially, state lawmakers can sue anytime a law they wrote is challenged.
“While defending state law is normally within the province and power of the Attorney General,” Hagedorn wrote, he added: “[State law] grants this same power to defend the validity of state law to the Legislature in certain circumstances. Where the prerequisites are met, Wisconsin law gives the Legislature, if it chooses to intervene, the power to represent the State of Wisconsin's interest in the validity of its laws.”
The ruling means the case is likely headed back to the 7th Circuit Court of Appeals in Chicago.
That court earlier this month refused to block the late-ballot count order, but only because the judges said Wisconsin lawmakers lacked the ability to sue.
The Wisconsin Supreme Court ruling ends that justification.
Liberal Wisconsin Justice Rebecca Dallet wrote a dissent on Tuesday. She disagreed with the 2018 law that gave Wisconsin lawmakers the power to intervene in lawsuits.
“The plain language of our statutes demarcates a clear line between the legislature's right to appear and be heard on behalf of its own interests, and the attorney general's mandatory duty to appear and make litigation decisions on behalf of the State of Wisconsin,” Dallett wrote. “The attorney general, and only the attorney general, has the authority to represent the state on appeal.”
It is unclear when the case could end-up back before the 7th Circuit Court of Appeals.