The Little Known Wisconsin Legal Group Wreaking Havoc on Democracy

By Devon Hesano

A collage of items in front of a dark blue background that include: A ripped mail-in ballot envelope, a blue postal box with that is crossed out, WILL's logo, a voter registration application and Rick Esenberg talking

Ever wonder just who is behind the consistent attacks on Democracy in the courts? Look no further than a little known law group in Wisconsin. The Milwaukee-based Wisconsin Institute For Law and Liberty (WILL) is a conservative firm founded in 2011 that has filed lawsuits and intervened in a myriad of cases to advance Republican interests. 

WILL was founded and is led by Rick Esenberg, who claims to have litigated more cases as a lawyer at the Wisconsin Supreme Court than any other private lawyer in the state. WILL is largely funded by the Bradley Foundation, a conservative Wisconsin right-wing group that “has become an extraordinary force in persuading mainstream Republicans to support radical challenges to election rules—a tactic once relegated to the far right” and “funds a network of groups that have been stoking fear about election fraud,” according to the New Yorker.

Despite its website’s “Preserving Democracy Project,” WILL is the exact opposite of a pro-democracy force. WILL spent nearly a year investigating former President Donald Trump’s bogus claims of election fraud and forced the purging of 200,000 voter registrations. The law firm has litigated to restrict voting rights in numerous cases in recent years, with some cases still outstanding. 

Perhaps the most infamous impact WILL has on Wisconsin elections is its involvement in a case that ultimately banned the use of drop boxes across the entire state. In June 2021, the group filed a lawsuit on behalf of two voters against the Wisconsin Elections Commission (WEC), requesting that the court ban drop boxes and require voters to mail or return their own ballots to designated officials. Drop boxes are secure containers where voters can easily drop off ballots in sealed and signed envelopes.  

The suit was filed despite the fact that in 2020, Wisconsin Democrats and Republicans both agreed that drop boxes were a secure way to cast mail-in ballots that led to a flourishing of voter turnout.

Lawyers for WILL argued that guidance issued by WEC allowing the use of drop boxes conflicted with the state’s existing mail-in ballot system. In their lawsuit, they went so far as making absurd claims that a liberal reading of the guidance would permit “a shoebox on a park bench” to be a way for voters to cast a ballot — a blatantly false claim. WILL also attacked community ballot collection, outright ignoring the numerous voters for whom dropping off a ballot is a significant burden. Community ballot collection provides voters with a safe and easy way to cast their ballots by permitting designated organizations, election officials or family members to collect a voter’s signed and sealed ballot and deliver the ballot to election officials on the voter’s behalf. 

WEC along with the Democratic Senatorial Campaign Committee, Wisconsin Faith Voices for Justice, League of Women Voters of Wisconsin and Disability Rights Wisconsin defended the practice, arguing that the drop boxes were permissible and served as an authorized extension of clerks. They pointed to the disenfranchisement of marginalized voters as a further defense of drop boxes. 

Ultimately, the then-conservative-controlled Wisconsin Supreme Court held that drop boxes were unauthorized under Wisconsin law in a catastrophic ruling. The decision was devastating for Wisconsin voters, eliminating a convenient method of voting that is especially of use to Black, working-class and younger voters that contributed to the 1.9 million votes cast by mail in the state in 2020.  WILL would later herald the devastating decision in a press release.

WILL found another way to attempt to attack Wisconsinites’ voting rights in the run up to the 2022 midterm elections, this time by challenging the use of convenient mobile voting sites throughout the city of Racine. Wisconsin law permits city clerks to designate alternate mail-in voting locations if the clerk’s office is unavailable for in-person voting. Racine seemingly took advantage of that policy by using an “election van” that moved to various locations to best allow for early mail-in voting.

WILL challenged the validity of the van, claiming that alternate locations are not allowed to be moved, as the van permitted, claiming the expansive policy “afforded an advantage to the Democratic Party.” Tara McMenamin, Racine’s city clerk, pointed out in a response to WILL that nothing in Wisconsin law prohibits the use of a vehicle as an alternate mail-in voting site, and clarified that the site’s various locations were chosen based on accessibility for all Racine residents. 

McMenamin was adamant in her response that the city was compliant with the law, despite numerous claims by WILL’s lawyers to the contrary. In a ruling, WEC agreed, writing that it found “that the Complainant did not show probable cause to believe that a violation of law or abuse of discretion occurred,” allowing the accessible voting method to remain in effect for the 2022 election.

Not dismayed by the decision, WILL challenged Racine’s van yet again in December 2022, this time filing a lawsuit against the city clerk as well as WEC, appealing its dismissal of the administrative complaint. WILL claimed that mobile voting sites violate Wisconsin law, and once again alleged the voting sites disproportionately helped Democrats. 

Just this week, a court reversed WEC’s dismissal of the complaint lodged against the van, ruling it violated state law and barring the van from being used in future elections. 

Before September 2023, 47 states accepted the use of the federal voter registration form, the National Mail Voter Registration Form. Provided by the U.S. Election Assistance Commission, the form has long been used to allow voters to register by mail and by third-party voter registration groups to increase turnout from diverse groups.

That number went down to 46 last September, as a result of a lawsuit filed by WILL. The conservative group claimed the form failed to comply with Wisconsin law by omitting certain items, such as information about a voter’s residency or whether a voter has a criminal record. Despite fierce arguments from WEC defending the use of the form as compliant with Wisconsin law, a Wisconsin judge declared the form illegal and ordered WEC to withdraw the form’s approval. 

The court did not rule on whether the form itself was compliant with state law, but rather deemed the form to have never been approved by WEC, as required. WILL described the restrictive decision as a “tremendous victory for Wisconsinites.”

WILL also filed a petition in the summer of 2021, arguing that the state’s legislative and congressional maps were malapportioned following the release of 2020 census data because the state had yet to subsequently draw new maps reflective of the changes. Ultimately, maps were ordered to be drawn reflecting this new data, and the state’s Republican-controlled Legislature adopted gerrymandered maps to further entrench their power. 

Intervening to defend suppressive voting laws and gerrymandered maps has also been a practice of WILL. In a lawsuit filed last July challenging three restrictive Wisconsin procedures regulating mail-in voting, WILL served as counsel for an association attempting to intervene to defend the laws. The lawsuit challenged the state’s blanket drop box ban, which WILL made possible, the state’s burdensome absentee ballot witness requirement and a cure deadline for absentee ballots. The association was ultimately denied intervention.

WILL similarly represented a group of voters seeking to uphold the state’s gerrymandered legislative maps (a result of the previously mentioned lawsuit filed by WILL), which are among the most gerrymandered in the U.S. Among other arguments, WILL’s lawyers claimed that the state’s legislative maps did not violate the contiguity requirements of the Wisconsin Constitution, an assertion the Wisconsin Supreme Court disagreed with — the state’s high court struck down the maps just last week for including districts that were illegally noncontiguous, meaning not touching.

While WILL has done its fair share of work to endanger democracy, the right-wing legal group is far from the only group continuously attacking voting rights under the radar. The Public Interest Legal Foundation (PILF), a Virginia-based conservative law group, has made it its mission to purge voters from rolls in states across the country. The America First Legal Foundation, founded by Stephen Miller, a close ally to former President Donald Trump, has fought to attack drop boxes and promote the fringe and now-rejected independent state legislature theory.

The conservative legal groups are part of a wide anti-voting network that work together to make voting more difficult and free and fair elections less likely. Other groups include True the Vote, the Election Integrity Network, the Heritage Foundation and more. While suppressive efforts by Republicans will continue to make headlines, it is important to be aware of the often overlooked groups like WILL who are responsible for the anti-democratic carnage.

A representative for WILL did not respond to repeated requests for comment.