### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 19-3138

D EMOCRATIC P ARTY OF W ISCONSIN, et al. , Plaintiffs-Appellants ,

v.

R OBIN V OS, et al. , Defendants-Appellees.

____________________ Appeal from the United States District Court for the Western District of Wisconsin. No. 19 C 142 — James D. Peterson, Chief Judge

.

____________________
A RGUED M AY 18, 2020

— D ECIDED J ULY 16, 2020

____________________

Before W OOD , B ARRETT, and S CUDDER , Circuit Judges

. W OOD , Circuit Judge . In 2018, Democrats Tony Evers and Josh Kaul were elected as the governor and a tt orney generalof Wisconsin. Both replaced Republican incumbents. Immediately after the election, while Wisconsin still had a Republican governor, the Republican-controlled legislature enacted two laws, 2017 Wisconsin Act 369 and 2017 Wisconsin Act 3702 No. 19-3138

(“Acts”), which strip the incoming governor and a tt orney general of various powers and vest legislative commi tt ees that remained under Republican control with formerly-executive authority. The changes e ffected by the Acts include prohibiting the governor from re-nominating potential appointees who have been rejected once by the legislature; giving the legislature authority to suspend anadministrative rule multipletimes; removing the governor’s ability to appoint the chief executive o ffi cer of the Wisconsin Ec onomic Development Corporation; adding legislative appointees to the Economic Development Corporation; requiring that the a tt orney generalobtain legislative approval before withdrawing from a lawsuit fi led by the state government or se tt ling a lawsuit for injunctive relief; and granting th e legislature the unrestricted right to intervene in litigation to defend the constitutionality or validity of state law. Dismayed by these measures , the Democratic Party of Wisconsin (“Party”) and several of its individual members brought suit in federal court under 42 U.S.C. § 1983 claiming violations of the First Amen dment, the Fourteenth Amendment’s Equal Protection Clause, and the Guarantee Clause ofArticle IV, Section 4 of the United States Constitution. The defendants are the following: several members of the Wisconsin legislature (“legislative defendants”); the Secretary of the Wisconsin Department of Administration; now-Governor Evers; and now-A tt orney General Kaul. (Although he was a nominal defendant, Governor Evers, along with Joel Brennan, the Secretary of the Department of Administration, initially fi led a brief supporting the plainti ff s and opposing dismissal. A tt orney General Kaul stayed out of the fray. None of those three is participating in this a ppeal.) The district court grantedNo. 19-3138 3

the legislative defendants’ motion to dismiss for lack of subject-ma tt er jurisdiction, concluding that the plainti ff s “haven’t pointed to any concrete harms they have su ffered or will suffer because of Acts 369 and 370” and “are not entitled to any remedy under the United States Constitution. Any judicial remedy for the harms alleged in this case must come from the courts of Wisconsin.” We a ffi rm. I The plainti ff s based the district court’s subject-ma tt er jurisdiction on 28 U.S.C. §§ 1331 and 1343. The legislative defendants argued that the dist rict court lacked subject-ma tt er jurisdiction because the plainti ff s did not have standing to sue and their claims raised only nonj usticiable political questions. The district court agreed withthose arguments and dismissed the case, entering fi nal judgment on September 30, 2019. The plainti ff s fi led a timely appeal.

We assess de novo the district court’s grant of a motion to dismiss for lack of subject-ma tt er jurisdiction, “taking the facts alleged in the complaint as true and drawing reasonable inferences in [the nonmovant’s] favor.” Miller v. Fed. Deposit Ins. Corp. , 738 F.3d 836, 840 (7th Cir. 2013). We may a ffi rm a dismissal for lack of subject ma tt er jurisdiction on any ground supported by the record. Fuqua v. United States Postal Serv. , 956 F.3d 961, 964 (7th Cir. 2020).

II As we noted, the plainti ff s raise three claims: fi rst, onebased on their First Amendment rights to freedom of expression and freedom of associatio n; second, one based on the Equal Protection Clause of the Fourteenth Amendment; and4 No. 19-3138

third, one resting on the Guarantee Clause of Article IV, Section 4 of the United States Cons titution. The Party asserts thatit has standing to vindicate its own rights as well as associational standing to sue on behalf of its members. The legislative defendants reject these contentions.

A Before a plainti ff may invoke the federal courts’ judicial power, Article III of the United States Constitution requires her to demonstrate that she ha s standing to sue. She accomplishes that task by showing three things: (1) that she has suffered an actual or imminent, concrete and particularized injury-in-fact; (2) that there is a causal connection between her injury and the conduct complained of; and (3) that there is alikelihood that this injury will be redressed by a favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). A plainti ff may not rely on only a “g eneralized grievance about the conduct of government.” Gill v. Whitford, 138 S. Ct. 1916, 1931 (2018). In determining at the pleadings stage whether the plainti ff’s showing of standing pa sses muster, we accept as true the pleaded factual ma tt er and draw all reasonable inferences in favor of the plainti ff

. Silha v. ACT, Inc. , 807 F.3d 169, 173 (7th Cir. 2015). As the district court pointed out, “Acts 369 and 370 do not restrict or regulate plainti ff s’ conduct in any way.” Rather, the Acts reduce the power of the governor and the a tt orney general, who were initially named as defendants in the action and never formally re-designated as plainti ff s. “[W]hen the plainti ff is not himself the object of the government action ... [that] he challenges, standing is not pr ecluded, but it is ordinarilyNo. 19-3138 5

substantially more di ffi cult to establish.” Lujan , 504 U.S. at 562 (internal quotation marks omi tt ed). The plainti ff s here seek to base their standing on “constitutional provisions that protect their voting rights.” They contend that the legislature’s passa ge of Acts 369 and 370 violated their First Amendment right to participate e ffectively in the political process and degraded the e ffectiveness of the votes cast by supporters of the Democratic Party, in violation of the Equal Protection Clause. Those people voted for Governor Evers and A tt orney General Kaul with the understanding that the winners in the election woul d be vested with certain powers upon taking o ffi ce; the result of the Ac ts is that the plainti ff s did not get what they believe they were entitled to. They refer to this as “vote dilution .” But this is an unprecedented application of the familiar vote -dilution theory, and one that we cannot accept. The plainti ff s a tt empt to marshal major voting-rights precedents in support of their cl aims, but all are inapposite. Baker v. Carr, 369 U.S. 186 (1962), and Reynolds v. Sims , 377 U.S. 533(1964), addressed vote dilution that arose through state legislative apportionment that did not re fl ect the actual population distribution of the state. Anderson v. Celebrezze, 460 U.S. 780 (1983), decided the constitution ality of ballot-eligibility restrictions on candidates. Meyer v. Grant, 486 U.S. 414 (1988),concerned First Amendment rights to circulate and sign petitions. California Democratic Party v. Jones , 530 U.S. 567 (2000), considered the type of primary election a state runs ( i.e. , closed versus blanket) and the implications that choice had for voters and political parties. Bush v. Gore, 531 U.S. 98 (2000), addressed the manner of counting votes in Florida in the 2000 presidential election. Finally, Judge v. Quinn , 612 F.3d 537 (7th6 No. 19-3138

Cir. 2010), opinion amended on denial of reh’g, 387 F. App’x 629 (7th Cir. 2010), analyzed the right of voters to vote promptly for a vacated United States Senate seat rather than allow the governor to fi ll the seat for the unexpired term. All these cases are about the legality and fairness of the process of raising issues, nominating candidates, and voting for those candidates. None raises the type of concern that is at the heart of this case: whether elected o ffi cials are able toachieve the substantive policy outcomes their constituents expect or desire. In fact, the Supreme Court recently signaled that disputes of this sort are nonjusticiable. Gill , 138 S. Ct. at 1931 (“[T]he citizen’s abstract inte rest in policies adopted bythe legislature on the facts here is a nonjusticiable general interest common to all members of the public.” (internal quotation marks omi tt ed)). We see no reason why that observation does not apply with equal force to a citizen’s abstract interest in the powers and policies of the governor and a tt orney general conferred by state law. The individual plainti ff s in this case were able to vote in the 2018 state election for their preferred candidates. There is no allegation that their votes were not counted or were counted di fferently from those of all other Wisconsin voters. Evers and Kaul won their elections and assumed the o ffi ces of governor and a tt orney general. To that degree, the plainti ff s’
votes were e ffective. Only after the plainti ff s voted for Evers and Kaul did the legislature (we can assume for partisan reasons) decide to strip those o ffi ces of certain powers through Acts 369 and 370. As understandably frustrating as that is, the United States Constitution does not guarantee that state o ffi

cials will have any particular powers once they assume o ffi ce; that is the domain of state constitutions and statutes. TheNo. 19-3138 7

United States Constitution guaran tees only that each citizen’s vote will be counted equally. The partisan motive re fl ected in the fact that Republican legislators took away the speci fi ed powers from the o ffi ces of the governor and a tt orney general only because Democrats won does not save the plainti ff s’ case. The Supreme Court has stated that, standing alone, the partisan intentions of legislators are not constitutionally su spect and that pursuing partisan ends does not violate the rights of people who disagree. See Rucho v. Common Cause, 139 S. Ct. 2484, 2503 (2019) (“A permissible intent—securing partisan advantage—does notbecome constitutionally impermissible, like racial discrimination, when that permissible intent ‘predominates.’”). We therefore agree with the di strict court that the individual plainti ff s have not pleaded a constitutional injury-in-fact and do not have standing under Article III.

B Next, we turn to the Party’s st anding, both on behalf of its members and in its own right. The Party’s associational standing claim can be resolved easily: because the Party’s members do not have standing to sue in their own right, the Party does not have standing to sue on their behalf. See Hunt v. Wash. State Apple Advert. Comm’n , 432 U.S. 333, 343 (1977). With respect to its e ff ort to support standing on its owninjuries, the Party runs into the same problem as the individual plainti ff s. The Acts do not target the Party nor do they formally restrict the Party’s ability to raise funds, register voters,get candidates on ballots, or otherwise meaningfully participate in elections. Once ag ain, the cases the plainti ff s cite are distinguishable: California Democratic Party v. Jones dealt with8 No. 19-3138

the type of primary the state was using; Williams v. Rhodes , 393 U.S. 23 (1968), had to do with candidate ballot access; Libertarian Party of Ill. v. Scholz, 872 F.3d 518 (7th Cir. 2017), addressed candidate access to the ballot access; and Wisconsin Right to Life State Political Action Comm. v. Barland, 664 F.3d 139 (7th Cir. 2011), concerned fundraising restrictions. None of these provides support for the Party’s standing here. The Party fares no be tt er with Crawford v. Marion Cnty. Election Bd. , 472 F.3d 949 (7th Cir. 2007), and Common Cause Ind. v. Lawson , 937 F.3d 944 (7th Cir. 2019), which concerned voter identi fi cation and voter registration laws, respectively. In both those cases, the organizational plainti ff s had an injury

su ffi cient to confer standing because the laws at issue a ffected their members’ ability to vote an d as a consequence forced the organizations to devote resources to counteracting the e ffects of the laws. There was no suchinjury here: Acts 369 and 370 were enacted after the election in question and do not address the process of voting or other forms of political mobilization. The named individual plainti ff s were able to, and indeed did, vote for Governor Evers and A tt orney General Kaul, and there is no allegation that Wisconsin Democrats will fi nd it more di ffi cult to vote in future elections or elect the candidates of their choice as a result of these laws. The immediate harm the Party has su ffered is psychological: it asserts that it will have a harder time organizing voters and fi elding candidates because of concerns that Democrats who win elections will have less power in o ffi ce than they expect. The Party also expects an added fi nancial burden insofar as it must spend more money to generate enthusiasm among the populace. But mobilizing vo ters who are discouraged or apathetic, but not actually impeded in their ability to achieveNo. 19-3138 9

desired electoral outcomes, is “baseline work” for a political party; it is an “ordinary program cost[],” not an “injury in fact.” Common Cause, 937 F.3d at 955.

C
In a fi nal e ff ort to establish standing, the plainti ff s contend that Governor Evers is a de facto plainti ff even though he is named in his o ffi cial capacity as a defend ant. They have some cause for taking this position: Evers asked to be considered as a plainti ff in the pretrial conference report, and he fi led a brief in support of the plainti ff s’ preliminary injunction and in opposition to the legislative defe ndants’ motion to dismiss. But the plainti ff s never moved to dismiss him as a defendant, nordid they formally request realignment. The district court concluded that it could not “realign the parties to preserve standing without a proper motion” and thus declined to treat Evers

as a de facto plainti ff

. The plainti ff s argue that this was error, because FederalRule of Civil Procedure 21 empowers the district court to determine the proper parties in a case even without a motion from one of the existing partie s. Rule 21 addresses misjoinder and nonjoinder. It is permissive , stating that the court “[o]n motion or on its own, ... may, at any time, on just terms, add or drop a party.” To achiev e the realignment the plainti ff s seek, the district court perhaps could have dropped Evers as a defendant and then added him as a plainti ff . But we can hardly accuse the court of abusing its discretion by declining to take these actions on its own initiative, without brie fi ng from the parties about the pote ntial issues raised by such a move. Those issues include th e question whether the governor has the power to litigate in his o ffi cial capacity against the state, and the question whether the legislative defendants are10 No. 19-3138

entitled to legislative immunity. And, for the icing on the case,Governor Evers is not participating in this appeal, and the existing plainti ff s have not o ffered a reason why they have standing to raise, on his behalf, the issue of his position in the litigation. And in the end, neithe r the individual voters’ rights nor the Party’s rights are a ffected by Evers’s ability or inability to litigate his personal claims in this case. It is also notable that the complaint does not allege that either Evers or Kaul su ffered First Amendment and Equal Protection violations in their roles as governor and a tt orney general. It con fi nes itself to the constitutional rights of voters and the Party. Evers remains free to sue on his own behalf if he wants to allege constitutional violations that injure him inhis role as governor (as opposed to as a member of the Democratic Party and voter), though we make no prediction about the fate of such an action. See generally Arizona State Legislature v. Arizona Indep. Redistricting Comm’n , 135 S. Ct. 2652, 2665–66 (2015) ( fi nding that the Arizona Legislature had institutional standing to challenge a redistricting map drawn by an independent commission). No ma tt er: those claims are not present in this suit, and so the plainti ff s cannot establish standing on that basis.Democratic voters in Wisconsin may have been disheartened by the Republican-control led legislature’s gambit, but that frustration is not a federal constitutional injury. As the plainti ff s themselves admit, “[p]olitical parties obviously have no constitutional right to ensure their policy preferences are adopted.” Their recourse is to the voting booth, i.e. winning control of the state legislature (which, if held in the future by members sharing the goals of the Democrats here,No. 19-3138 11

could easily undo whatever the lame-duck Republican legislature crafted), or to the state courts, not to the federal courts.

III

Plainti ff s also invoke the Guarantee Clause, to which we now turn. Article IV, Section 4 ofthe United States Constitution provides: “The United St ates shall guarantee to every State in this Union a Republican Form of Government...” U.S. Const. art. IV, § 4. Plainti ff s argue that Acts 369 and 370 violate the Guarantee Clause because th ey are inconsistent with “core norms of our democratic and republican form of government.” The district court ag reed with the legislative defendants’ argument that the Guarantee Clause is categorically nonjusticiable, quoting dicta in Rucho , 139 S. Ct. at 2506, saying that “[the Supreme Court] has several times concluded,however, that the Guarantee Clause does not provide the basis for a justiciable claim.” See also City of Rome v. United States , 446 U.S. 156, 182 n.17 (1980) (“We do not reach the merits of the appellants’ argument that the Act violates the Guarantee Clause, Art. IV, § 4, since th at issue is not justiciable.”); Baker v. Carr, 369 U.S. at 217–29; Paci fi c States Telephone & Telegraph Co. v. Oregon , 223 U.S. 118, 147–51 (1912).

Plainti ff s argue that this statement in Rucho does not refl ect a bright-line rule that Guarantee Clause claims are never justiciable, but rather acknowledges only that the Supreme Court has not yet been presented with a justiciable claim. In support, they cite New York v. United States , 505 U.S. 144 (1992), in which the Court said that “perhaps not all claims under the Guarantee Clause pres ent nonjusticiable political questions.” Id. at 185 (citing Reynolds v. Sims , 377 U.S. at 582 (“[S]ome questions raised under the Guaranty Clause are12 No. 19-3138

nonjusticiable.”)). They also point to the First Circuit’s opinion in Largess v. Supreme Judicial Court for the State of Mass. , 373 F.3d 219, 225 (1st Cir. 2004) (per curiam) (“[R]esolving the issue of justiciability in the Gu arantee Clause context may also turn on the resolution of the me rits of the underlying claim.”), and the Tenth Circuit’s opinion in Kerr v. Hickenlooper , 744 F.3d 1156, 1176 (10th Cir. 2014) (“[W]e reject the proposition that Lutherand Paci fi c States brand all Guarantee Clause claims as per se non-justiciable.”), vacated and remanded on other grounds by Hickenlooper v. Kerr , 135 S. Ct. 2927 (2015). The plainti ff s believe that theirs is the elusive justiciable claim, or at least that it is too early to conclude that it is not. We do not interpret Rucho or any other decision by the Supreme Court as having categorically foreclosed all Guarantee Clause claims as nonjusticiable , even though no such claim has yet survived Supreme Court review. The district court thus went too far in saying that no Guarantee Clause claim could proceed to adjudication on the merits. Instead, it should have decided simply whether this particular Guarantee Clause claim is among the rare ones that can survive a motion to dismiss. We conclude that it is not. Once again, standing poses a problem. See Largess , 373 F.3d at 224 n.5 (“It is of note for purposes of the standing inquiry that the Guarantee Clause makes the guarantee of a republican form of government to the states ; the bare language of the Clause does not directly confer any rights on individuals vis-á-vis the states.” (emphasis in original)). Moreover, even if we could surmount the standing problem here, on theNo. 19-3138 13

theory that state o ffi cials stand on a di fferent footing than individuals and could establish th e necessary personal stake, causation, and redressability, other obstacles remain. Our opinion in Risser v. Thompson , 930 F.2d 549 (7th Cir. 1991) is instructive. There, Wisconsin state legislators alleged that the partial veto provision of the Wisconsin Constitution violated the First Amendment, Due Process and Equal Protection, and the Guarantee Clause. We held that the legislators had standing to sue because they alleged that the partial veto diminished the e ffectiveness of their votes, but we then determined that none of the constitu tional claims had merit. With respect to the Guarantee Clause claim, which we noted wasnonjusticiable in that case, we commented that the “[t]he [federal] Constitution does not prescribe the balance of power among the branches of state government.” Id. at 552. This observation is not one that is favorable to plainti ff s. Within broad boundaries, state legislatures may enact measures thatreallocate power between duly elected branches of state government, at least as far as federal law is concerned. The legislative defendants here are elected o ffi cials, just like the governor and a tt orney general, but a “modest shift of power among elected o ffi cials is not a denial of republican government or even a reduct ion in the amount of democracy.” Id. at 553. The First Circuit’s decision in Largess is on point: “The Guarantee clause does not require a particularallocation of power within each state so long as a republican form of government is preserved. ... If there is any role for federal courts under the Clause, itis restricted to real threatsto a republican form of government.” 373 F.3d at 227 (emphasis in original). The plainti ff s have not shown that the power shifts Acts 369 and 370 produced pose an existential threat to14 No. 19-3138

the “republican form of government” in Wisconsin, even assuming that the legislature was trying to undo some of the consequences of the 2018 election . And we note that the Supreme Court of Wisconsin has just ruled that nearly all of the provisions challenged in the pr esent case are consistent with the state constitution’s separation-of-powers regime. See Serv. Emps. Int’l Union (SEIU), Local 1 v. Vos , Nos. 2019AP614-LV & 2019AP622, 2020 WI 67 (July 9, 2020). No one in that case even mentioned the Guarantee Clause, but the tenor of the state court’s decision is that the le gislative changes fell within accepted limits. We see no reason to conclude that the state court would have so concluded if it thought that there was an abuse serious enough to trigger the Guarantee Clause, which is of course binding on the states. See U.S. Const., Art. VI, cl. 2.

IV
One fi nal issue remains: the legislative defendants’ motion for sanctions against the plainti ff s under Federal Rule of Appellate Procedure 38. Under Rule 38, the court may award “just damages and single or double costs to the appellee” when an appellant fi lesa frivolous appeal. Fed. R. App. P. 38. “An appeal is ... frivolous if it presents arguments thatare so insubstantial that they are guaranteed to lose.” McCurry v. Kenco Logistics Servs., LLC , 942 F.3d 783, 791 (7th Cir. 2019). “Whenan appeal is frivolous, Rule 38 sanctions are not mandatory but are left to the sound discretion of the court of appeal s to decide whether sanctions are appropriate.” Harris N.A. v. Hershey, 711 F.3d 794, 802 (7th Cir. 2013). The legislative defendants conten d that it is “obvious” that plainti ff s’ appeal is a “futile” “political statement” and thatNo. 19-3138 15

sanctions are therefore warranted. We do not take such a harsh view of their case. As discussed above, we do not interpret Rucho as having categorically foreclosed the plainti ff s’Guarantee Clause arguments. Furthermore, although we conclude that the plainti ff s do not have Article III standing to pursue either their own claims or those of Governor Evers, the record re fl ects that Governor Evers conveyed to the district court, though not in a motion for formal realignment, a desire to be treated as a plainti ff . Thus, the plainti ff s were within the bounds of good-faith argument to assert on appeal that the district court should have taken Governor Evers’s interests into account in its standing an alysis. Their jurisdictional and merits arguments ultimately ma y have failed, but that does not mean they are so patently frivolous as to be worthy of sanction.

V Because plainti ff s did not establish their standing underArticle III with respect to their First Amendment and Fourteenth Amendment claims, we A FFIRM the judgment of the district court on those points. With respect to the Guarantee Clause claim, although we conclude that it is not categorically foreclosed, we nonetheless A FFIRMthe judgment of the district court that this particular claim is nonjusticiable. The defendants-appellees’ motion for sanctions under Rule 38 is D ENIED

.