State Supreme Court will hear challenge to Evers’s 400-year veto

The Wisconsin Supreme Court has accepted a petition to hear a challenge to Gov. Tony Evers’s veto last year that allows property taxes to increase for the next 402 years, filed by the WMC (Wisconsin Manufacturers & Commerce) Litigation Center on behalf of two taxpayers.

The WMC Litigation Center is representing Jeffery LeMieux and David DeValk in the lawsuit, which was filed in April. The lawsuit asks the high court to strike down the governor’s alleged unconstitutional use of the so-called “Vanna White” veto.

According to the Litigation Center, at issue is Evers’s use of the illegal veto, also known as the “pick-a-letter” veto, which allows the governor to cross out individual letters and digits to form new words and numbers.

In this case, the Litigation Center asserts, the governor eliminated specific numbers in a portion of the budget bill that was meant to increase the property tax levy limit for school districts in the 2023-24 and 2024-25 fiscal years. By striking individual digits, the levy limit would instead be increased from the years 2023 to 2425, or 402 years into the future.

Specifically, the governor changed, “For the limit for the 2023-24 school year and the 2024-25 school year, add $325 to the result …” to “For the limit for 2023-2425, add $325 to the result …”

The 402-year addition is significantly longer than the two years the legislature intended, the lawsuit maintains.

“No governor from any political party has the authority to perform such a veto,” said WMC Litigation Center executive director Scott Rosenow. “We appreciate the court providing the necessary oversight.”

The Litigation Center says the veto runs afoul of a 1990 constitutional amendment banning that kind of veto and limiting the governor’s authority. The Wisconsin Legislature had also approved the amendment in 1988 and 1989 with bipartisan support.

The WMC Litigation Center says it filed the lawsuit directly with the Supreme Court to ensure that the issue could be resolved in a timely manner. The first brief in the case is due in 30 days.

“No Wisconsin governor has the authority to strike individual letters or digits to form a new word or number, except when reducing appropriations,” Rosenow said. “This action is not only unconstitutional on its face, but it is undemocratic because this specific partial veto allows school districts to raise property taxes for the next 400 years without voter approval.”

The long and winding tax increase

In the petition, the WMC Litigation Center pointed out that Wisconsin school districts may increase their revenue in multiple ways. 

“Voters may approve a referendum to exceed their district’s revenue limit,” the petition states. “The legislature may also increase that revenue limit because it is statutory — and school districts may then raise revenue up to that new limit without needing voter approval.”

In the 2023–25 biennium budget bill, Rosenow and WMC Litigation Center attorney Nathan Kane observed, the Wisconsin legislature approved a two-year increase of the school district revenue limit, but Evers used a partial veto to add 400 years to that two-year increase.

Such a partial veto is profoundly undemocratic, Rosenow and Kane argue.

“Besides harnessing lawmaking power vested in the legislature, this partial veto deprived Wisconsin voters of their ability to decide via referendum whether to allow their respective school district to increase their property taxes for 400 years,” they wrote. “That point warrants emphasis: this partial veto allows school districts to raise their property taxes for 400 years without voter approval.”

And, the attorneys wrote, the partial veto is not only undemocratic, it violates the Wisconsin constitution for two separate reasons.

“First, this partial veto violates Article V, § 10(1)(c) of the Wisconsin Constitution,” the petition states. “As approved by voters in 1990, this clause ‘prohibits the governor from ‘creat[ing] a new word by rejecting individual letters in the words of the enrolled bill.’ This 1990 amendment effectively eliminated the ‘pick-a-letter’ veto, which is the selective vetoing of letters to form a new word, or of digits to form a new number.’” 

The 1990 amendment was adopted in response to a case where the high court upheld partial vetoes by then-Gov. Tommy Thompson and “affirmed the authority of Wisconsin governors to veto ‘parts’ of appropriation bills as small as single digits and individual letters,” the attorneys argued.

They also argued that many observers, especially Democrats, agreed that the sweeping partial veto authority created problems that needed to be addressed, even with a “stopgap” constitutional amendment. Some Republicans also believed that the governor enjoyed too much partial veto power, they wrote.

In less than three weeks after that case was settled, the Democratic-controlled legislature held a one-day extraordinary session to adopt a resolution proposing a constitutional amendment to limit that decision, they continued. That amendment passed by wide margins in both the Senate and the Assembly.

“After the legislature passed the proposed constitutional amendment a second time by a wide margin, more than 60 percent of Wisconsin voters approved it in an April 1990 referendum,” the petition stated. “The 1990 amendment to Article V, § 10(1)(c) ‘keeps intact’ the governor’s power to use the partial veto to reduce appropriations.”

A partial veto that strikes a “digit from an appropriation” is known as the “digit veto,” a term of art that is different from a pick-a-letter veto that strikes digits, the attorneys explained.

Rosenow and Kane say the partial veto at issue in this case is an unconstitutional “pick-a-letter” veto, not a reduction of an appropriation. 

“It struck individual digits to create a new year four centuries further into the future,” the petition states. “This partial veto thus violates Article V, § 10(1)(c).”

More than that, the attorneys argued, the partial veto is unlawful for a second reason: it exceeds the governor’s authority under the constitution, which states that “appropriation bills may be approved in whole or in part by the governor, and the part approved shall become law.” 

So to fall within the purview of powers authorized by the constitution, the attorneys wrote, a partial veto must approve a “part” of an appropriation bill. 

The word “part” means “something less than a whole; a number, quantity, mass, or the like, regarded as going to make up, with others or another, a larger number, quantity, mass, etc.,” they asserted.

The problem is, the attorneys argued, the partial veto at issue is not an approval of “part” of a bill.

“As enrolled and presented to the governor, the biennial budget bill authorized a school district revenue increase in the 2023–2024 and 2024–2025 academic years only,” the petition states. “This partial veto authorizes additional revenue increases beginning in the year 2025 through the year 2425. The governor’s 400-year increase of the revenue limit is not a ‘part’ of the legislatively authorized two-year increase.”

In sum, even if the constitution does not forbid a governor from creating new dates and durations, a governor exceeds the partial-veto power in the constitution by striking language to create a larger duration than the one approved by the legislature.

To say it another way, the attorneys wrote, Evers’s partial veto also did not strike one or more digits to reduce an appropriation.

“This partial veto is thus a Vanna White veto, also known as a pick-a-letter veto,” the petition states. “It is not a digit veto. Unlike partial vetoes in [other cases], the governor’s veto here increased (rather than reduced or eliminated) the duration that the legislature had adopted. This veto thus did not approve ‘in part’ the duration that the legislature had adopted.”

The 402-year duration is not less than, and thus is not a “part” of, the two-year duration that the legislature authorized, the attorneys contended.

There were specific reasons for the court taking the case, the attorneys had argued before the announcement that it would indeed hear the challenge.

“This court routinely hears original actions that challenge partial vetoes,” the attorneys wrote. “About four years ago, this court heard an original action that raised the same question as the first issue presented here.”

The court then did not resolve the issue, Rosenow and Kane explained. In that case, the petitioners argued that then-Gov. Scott Walker had violated the constitution by striking individual digits to create a new year — such as by altering “December 31, 2018” to read “December 3018,” the petition stated.

“This petition challenges a materially identical exercise of the partial veto,” the petition states. “The Court should grant original jurisdiction here to resolve that important issue.”

In Citizens Utility Board, the attorneys argue, the governor’s counsel argued that the 1990 amendment allowed a governor to strike numbers in appropriation amounts but not other numbers, including dates. 

“Indeed, this court indicated that the partial-veto power does not allow a governor to create new dates and durations,” the petition states. “The partial veto at issue here struck individual digits to create a new year.”

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.