What began with a three-month political foot-dragging ended with surprising speed this week, as Wisconsin Gov. Scott Walker (R) finally called special elections for two state legislative districts that have lacked representation since December.
It took a lawsuit and rulings by three judges to force Walker to comply with the law. Wisconsin statutes require governors to call special elections for vacancies in the legislature as soon as possible. Once called, the vote must happen within 62 to 77 days.
The elections, for Senate District 1 and Assembly District 42, will be held June 12, with a primary (if needed) on May 15. Candidate nomination papers must be filed by April 17.
Walker had argued against calling the elections, claiming that it would cost taxpayers too much money and be a waste of time, given that the legislature was likely to be out of session by the time the new members would be sworn in.
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In his short but succinct ruling on Wednesday, 2nd District Appellate Court Judge Paul F. Reilly rebuffed Walker’s reasoning, writing, “Representative government and the election of our representatives are never ‘unnecessary,’ never a ‘waste of taxpayer resources,’ and the calling of the special elections are as the Governor acknowledges his ‘obligation’ to follow.”
The Republican-controlled legislature was making moves to help Walker prevent a vote from happening, leaving both districts without representation until the fall—about a year after their representatives stepped down. Senate Majority Leader Scott Fitzgerald spearheaded an amendment to an otherwise uncontroversial bill that would have reversed the statute compelling a governor to act to fill the seats while also nullifying any attempts by the judiciary or citizenry to intervene.
Courts ultimately intervened to ensure elections happened, proving once again to be one of the few checks remaining in Wisconsin against legislative and executive overreach. How did we get here?
A Quick Ending to a Drawn-Out Saga
The story began in December 2017, when state Sen. Frank Lasee (R-De Pere) and state Rep. Keith Ripp (R-Lodi) resigned to take positions in Walker’s administration. Both men submitted their official resignations on the last weekday of the year. If they had waited and filed in the New Year, the timing would have immediately forced Walker to call special elections. State statute holds that, “Any vacancy in the office of state senator or representative to the assembly occurring before the 2nd Tuesday in May in the year in which a regular election is held to fill that seat shall be filled as promptly as possible by special election.”
Walker argued that, since they resigned in the previous year, it didn’t count.
There is no precedent for such a long wait in Wisconsin, however, as revealed by an exhaustive investigation by news project WisContext. Of 105 special elections called over the last nearly five decades, 26 resulted in the governor calling a special election either on or before the same day the resignation became effective. In the rest of the cases, “governors waited an average of 17 days after the triggering event to call special elections.”
Voters from the affected districts filed a lawsuit in Dane County Circuit Court in February to compel Walker to call the elections. Much of the media coverage surrounding the lawsuit focused on the National Democratic Redistricting Committee, which was the main sponsor of the suit. Chaired by former Obama Administration Attorney General Eric Holder, the group mostly focuses on challenging gerrymandered district maps across the country.
There’s little to no precedent for a case in which constituents sue their governor to hold special elections, either in Wisconsin or nationally. However, Dane County Circuit Court Judge Josann Reynolds’ first ruling, made last week in favor of the plaintiffs, offers fairly firm ground for any future such challenges. The judge, who was appointed to the bench by Walker in 2014, called the governor’s interpretation of the law “absurd in its application,” noting the law in this case was clear.
“For the life of me, I cannot reconcile the incongruity between Gov. Walker’s administration’s very vocal and consistent policy advocating for strict constructionism and the position taken by the attorney general in this case involving the most basic constitutional guarantee,” she said. Reynolds then ordered Walker to call the special elections by March 29 at noon.
Walker appealed her ruling to Dane County Circuit Court Judge Richard Niess, though found no joy there, either. Niess held that Walker still needed to meet the deadline, regardless of what might happen later in the legislature. “I am not ruling on what the law might be in the future,” Niess said Tuesday. “I am enforcing the law as it is now.”
At the time, Republicans in the state senate were working frantically to pass the aforementioned bill that would undo the judge’s orders and allow Walker to avoid the special elections. Though technically done for the season, Fitzgerald called the body back for an extraordinary session this month in order to take up a bill. The timing was not without irony: It was just such an extraordinary session that Walker and his backers had argued would be a waste of time to call to induct newly elected members.
Language added as an amendment to a bill otherwise meant to clarify procedures for overseas voters would have changed the rules so that “no special election for the office of state senator or representative to the assembly may be held after the spring election in the year in which a regular election is held to fill that seat.” It increased the time a governor would have to schedule the elections to 124 to 154 days, and included the caveat that, “This act first applies to a vacancy existing on the effective date of this subsection, notwithstanding any other law, court order, or order of the governor.” In essence, the bill would have attempted to undo any checks and balances provided for by the judicial or executive branches, or even future bills.
Things came to a head the day before and morning of the Thursday noon deadline. Initially, Walker announced plans to appeal the lower court decisions directly to the Wisconsin State Supreme Court. The officially non-partisan body has a 5-2 conservative majority and may have presented a sympathetic ear for his case.
With the deadline looming, Walker shopped his countersuit to Waukesha County, one of the state’s most reliably conservative areas, asking for an eight-day extension of Reynolds’ deadline.
The Hail Mary failed. Judge Reilly sided with the other two lower court judges and denied the request.
This week, after the rebuff, Walker backed down from plans to bring the case to the state supreme court. Fitzgerald announced the legislature wouldn’t take up and vote on the new bill. “We’re boxed in,” he complained, though at least a few Republican legislators had noted possible opposition to his the bill, indicating that passage may not have been guaranteed.
Holder issued a statement after the GOP efforts collapsed. “This is a victory for the citizens of Wisconsin who are without representation because of Governor Walker’s refusal to do his job,” he said. “Republicans in the legislature should stop trying to find new ways to keep the people they’re supposed to represent from voting.”
Why All the Fuss
Media and citizens alike have speculated about the reasons for Walker’s attempt to stall or eliminate the special elections. The most likely theory is that Republicans were afraid of losing the seats to Democrats.
Republicans currently hold a 63-35 majority in the General Assembly, and 18-14 in the state senate. However, recent developments make it possible their majority may face a threat this spring and fall.
President Donald Trump’s approval rankings took a major hit in the state last year, with minor improvement since, but a massive gender gap that has 60 percent of women disapproving of his presidency, compared to just 39 percent among men.
In January, Democrats won a state senate seat in a largely rural district in a special election. Patty Schachtner (D-Somerset) defeated Republican state Rep. Adam Jarchow (R-Balsam Lake) by a 55-44 percent vote. The spot had been held by Republicans since 2001, and went for Trump by 17 percentage points in 2016. This wasn’t a case of a Roy Moore-like candidate losing to an unlikely Democrat. Jarchow is a reasonably popular and uncontroversial politician.
Walker is also currently engaged in his own campaign for re-election this fall. It’s unclear what, if any, impact his decision to fight calling these special elections will have on his own race results. As of early March, a Marquette University Law School poll shows the two-term governor holding relatively steady at a 47 percent approval rating.
Off to the Races
Candidates began announcing their intentions to run for the seats almost immediately after the special elections were called and scheduled.
In District 1, Door County Economic Development Corp. Executive Director Caleb Frostman, 33, announced he would be running as a Democrat. Two Republicans who had already announced plans to run for the seat in the fall have said they will jump in for the special election. State Rep. Andre Jacque (DePere) is a current member of the state Assembly in District 2, and has become somewhat notorious in the state for his extreme right-wing and anti-choice positions. He’ll face Green Bay factory manager Alex Renard in a primary.
Over in Assembly District 42, Republican Jon Plumer, a Lodi town board member, has thrown his hat into the ring. Democrat Ann Groves Lloyd, also of Lodi, is so far the only other candidate to register, though nomination papers can be filed up until April 17.