Molly Beck

Milwaukee Journal Sentinel

MADISON - State Assembly leaders have hired a private attorney to intervene in a lawsuit over Wisconsin's legislative map and will seek to dismiss the suit if a judge allows them to intervene.

The Republican lawmakers' decision to hire their own attorney is based, in part, on the potential of Republican Attorney General Brad Schimel losing re-election in November, court records show.

In a Thursday court filing, Assembly lawmakers represented by Madison attorney Kevin St. John argued the body should be allowed to intervene in the case because the outcome of the lawsuit directly affects their legislative districts.

The lawmakers said their decision to seek representation outside the Department of Justice, which is defending the maps against the challenge launched by the Fair Elections Project, is due in part to "a considerable likelihood" that the current state defendants will "not 'have the same goal' throughout the course of this litigation," the court filing says.

"The Attorney General is an elected position, and is up for election this fall on a partisan ballot. While the incumbent has, to date, defended Act 43, a new Attorney General may change course," the filing reads. "One major party candidate favors taking redistricting out of the hands of the legislature and intends to downsize the Solicitor General’s office, which represented the state-defendants on appeal in this matter."

Former federal prosecutor Josh Kaul, a Democrat, is challenging Schimel and has said he would reduce the scope of the DOJ's Solicitor General's office, which is leading the defense of the maps.

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Kaul said in a recent interview he favored a nonpartisan redistricting process but would defend the Republican maps if he were elected.

"In a typical litigation, state-defendants and Attorneys General may be presumed to defend the law adequately. But make no mistake, this is not a typical litigation," the court filing says.

"Partisan elected executive officers have a history of failing to vigorously defend the law and not appeal or take every effort to preserve a map. We cannot represent that this will happen here; only that this is precisely the kind of case where it has happened before and is likely to happen again."

Gillian Drummond, spokeswoman for Kaul, said he would not defend the maps in a partisan manner.

"As AG, Josh will defend state laws if there is a reasonably defensible legal basis for doing so," Drummond said.

It's unclear how much the state Assembly is paying its attorney. Aides to Assembly Speaker Robin Vos and St. John did not immediately respond to messages left by the Milwaukee Journal Sentinel.

The U.S. Supreme Court in June ruled against the Democratic challenge to Wisconsin's GOP-friendly legislative map and sidestepped the big constitutional questions the case raised about partisan gerrymandering.

The opinion leaves in place the current legislative lines, a political victory for Wisconsin Republicans, but the ruling came on procedural grounds. The court found the plaintiffs lacked legal standing and unanimously sent the case back to federal district court.

The high court gave Democrats a chance to continue their case, leaving open the possibility they could eventually prevail after going back to the trial court. The lawsuit could continue for years — even beyond the next round of map-drawing that is slated for 2021.

The new filing comes three weeks after an expanded group of Democratic voters filed a new version of their long-running lawsuit.

Just hours later, the campaign operation for the Democratic members of the Assembly filed a separate suit. The group asked to consolidate its case with the other one.

The filings were aimed at addressing legal flaws identified by the high court and giving the Democrats a chance to challenge the maps for all 99 of the state's Assembly seats.