The League of Women Voters of Wisconsin is challenging three state laws that essentially prohibit the state’s new governor, Tony Evers (D), from fulfilling his key campaign promise to expand the state’s Medicaid program.

If successful, the lawsuit, filed Jan. 10 in Dane County Circuit Court, could ease the path for Wisconsin to become the next state to expand Medicaid, the low-income health program run by states and partially funded by the federal government.

The complaint said three bills and 82 nominations to various state boards and commissions, approved by a lame-duck session of the Wisconsin Legislature, are unenforceable.

“Because the legislative session during which the underlying bills were adopted and nominees were confirmed was not convened in accord with the Wisconsin Constitution, the Legislature acted ultra vires,” or beyond its legal authority, the complaint said.

A contentious legislative session Dec. 4 passed, largely along party lines, Wisconsin AB 1069/SB 883 as Public Act 368 (2017-2018), AB 1070/SB 884 as Public Act 369 (2017-2018) , and Wisconsin AB 1072/SB 886 as Public Act 370 (2017-2018). The bills were signed into law Dec. 14 by former Gov. Scott Walker (R), who left office in January.

The bills included a measure that prohibits the state attorney general from withdrawing as a plaintiff in a civil lawsuit without approval from the state Legislature. They also require legislative approval before an executive agency can ask the federal government to change the state’s Medicaid program.

Campaign Promise

During his campaign, Evers said if elected he would pull the state out of a federal court case challenging the constitutionality of the Affordable Care Act, commonly known as Obamacare, and expand Medicaid eligibility in the state as permitted by the ACA.

After the gubernatorial election was decided in Democrats’ favor, the Republican-controlled Wisconsin state Legislature convened and passed the laws.

To make a change in its Medicaid program, Wisconsin or any other state must submit and receive approval for the change from the federal Centers for Medicare & Medicaid Services.

Currently, 36 states and the District of Columbia have elected to expand their Medicaid programs to people who make slightly more than the federal poverty level.

‘Heart of our Lawsuit’

One of the lawyers representing the plaintiffs said the lawsuit was not really about the substance of the provisions contained in the laws.

"[T]he fundamental heart of our lawsuit is that the Wisconsin constitution sets forth two, and only two, circumstances in which the Legislature may convene to do business: when the Legislature convenes as prescribed by law and when the governor calls the legislature into special session,” Jeffrey Mandell, a partner with Stafford Rosenbaum LLP, Madison, Wis., told Bloomberg Law.

“Because the December 2018 extraordinary session doesn’t fit into either of those two categories, we contend it was unconstitutional, and the laws passed and actions taken at that session are unenforceable,” he said.

Kit Kerschensteiner, director of advocacy and legal services at Disability Rights Wisconsin Inc., another plaintiff in the case, said in a Jan. 10 statement that the laws change how the state manages its Medicaid program in a way that puts individuals with disabilities at risk.

The group’s executive director, Lea Kitz, said in the statement her organization didn’t join the suit to support the interests of any political party.

Additional plaintiffs in the lawsuit include Black Leaders Organizing for Communities, and three Wisconsin residents. Defendants in the case include Evers and Wisconsin Elections Commission officials.

The case is League of Women Voters of Wisconsin v. Knudson, Wis. Cir. Ct., No. 2019-cv-00084, complaint 1/10/19.