Refusing Special Elections is Illegal

On December 29, Keith Ripp and Frank Lasee resigned from their legislative seats to take jobs in Wisconsin’s executive branch. That left one senate seat and one assembly seat unfilled.

Governor Walker has been trying to argue that these seats don’t need to be filled until the next scheduled election for them, which would be the primary this August, and the general this November. The victors of those elections wouldn’t be seated until January next year, meaning that the seats will have been vacant for over a year. However, the legality of that is not nearly as firm as they would have you believe.

The May 8th Statute

Statute 8.50(4)(d) is what establishes the deadline for special elections:

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’s interpretation of this statute is that because the vacancy began prior to the start of the regular election year, this language doesn’t apply, and therefore there isn’t any statute requiring a special election.

One major problem with this is that it goes against the spirit of the law. He’s saying that if a lawmaker left in January, they would have to be replaced by May 8. But since the lawmakers left earlier than that, new ones don’t need to be elected until November.

But that’s also only one interpretation of 8.50(4)(d). There are a couple other ways it could be read:

  1. What does it mean for a vacancy to “occur”? The vacancies certainly began on December 29, but the seats are still vacant, so the vacancies are occurring even now.

2. Let me simplify that nasty run-on sentence:

Any vacancy … occurring before the 2nd Tuesday in May in the year in which a regular election is held … shall be filled as promptly as possible by special election.

Do you see it now? How there are no commas in it? Now try this:

Any vacancy … occurring before the 2nd Tuesday in May, in the year in which a regular election is held, … shall be filled as promptly as possible by special election.

That would mean something very different, wouldn’t it?

Because the clause isn’t split up, “the 2nd Tuesday in May in the year in which a regular election is held” could be read as one single phrase, which in this case translates to May 8, 2018. So let’s just substitute it in there.

Any vacancy … occurring before May 8, 2018 … shall be filled as promptly as possible by special election.

December 29, 2017 is indeed before May 8, 2018, so a special election is required.

“But the legislative session is over…”

…they whine. Well, according to statute, does that matter either?

However, any vacancy … occurring after the close of the last regular floorperiod … shall be filled only if a special session or extraordinary floorperiod of the legislature is called … . The special election to fill the vacancy shall be ordered, if possible, so the new member may participate in the special session or floorperiod.

At this point, it becomes relevant to know:

  • The regular session ran through December 31, 2017.
  • The special session was called on January 18, 2018.

Now, the above statute answers specific questions:

  1. Is a special election required if the vacancy occurs during a regular session? Yes; it’s pretty strongly implied and doesn’t say otherwise. (And the vacancies were before the end of regular session.)
  2. Is a special election required if a special election has been called? Yes; it isn’t applicable because the vacancies occurred during the regular session. Walker could try to make the argument that since the seats were vacant before the special election was called — claiming essentially that as of December 29, he didn’t know he was going to call a special election on January 18 — but that argument is flawed along the same lines as calendar year excuse.
  3. Is a special election required if there is a special session, and the seats can’t be filled in time for it? Yes:

The special election to fill the vacancy shall be ordered, if possible, so the new member may participate in the special session or floorperiod.

That says “fill the seat in time if you can”. In a context that has already established that the election must be held, this is merely clarifying the timing. It does not say “don’t hold a special election unless you can get the seat filled in time”.

Even if we assume that elections called on December 29 couldn’t be completed in time for new legislators to participate in the special session — which is the next thing to look at — special elections are required nonetheless.

“But now we’ve missed our chance…”

Having already violated statute, by failing to call for the elections when he became aware of the legislative vacancies (that he arranged himself by hiring these men), Walker’s staff now claims that he’s missed the window of opportunity to call for special elections and have them completed by the May 8 deadline. But is that even true either?

See 8.50(2)(a):

The date for the special election shall be not less than 62 nor more than 77 days from the date of the order except when the special election is held to fill a vacancy in a national office or the special election is held on the day of the general election or spring election.

If a special election is held concurrently with the spring election, the special election may be ordered not earlier than 92 days prior to the spring primary and not later than 49 days prior to that primary.

If a special election is held concurrently with the general election or a special election is held to fill a national office, the special election may be ordered not earlier than 122 days prior to the partisan primary or special primary, respectively, and not later than 92 days prior to that primary.

On the early end, this means that if the elections were called on December 29, the election date would occur between March 1 and March 16.

On the late end, for an election to happen by or on May 8, it would have to be called by March 7. That means Walker’s deadline for complying with statute is coming up this Wednesday.

For the special election to be held on April 3 with the spring election, it could have been ordered anytime between November 20 and January 2. So he had an opportunity to hold the special elections at the same time as the spring elections — that possibility is explicitly mentioned. But the statute doesn’t say that aligning the election cycles is required, and there are past examples where the special primary happened at the same time as the spring (non-primary) election.

“But they’re not missing out on anything…”

Ignoring the legalities of leaving the seats vacant, Walker’s staff have claimed to me that, because the elections could not have filled the seats in time for the special legislative session, that the constituents are not missing out on anything while being denied an assembly rep or state senator for an entire year. Bear in mind, a year is half of an assembly rep’s term.

It’s also simply untrue. For example, my assembly rep, Terese Berceau, is not seeking reelection. But I’ve confirmed with her office that she’s going to continue performing the duties of her elected seat until her replacement takes office. The end of legislative session doesn’t mean that legislators take the rest of the year off. They’ll still be meeting, listening to constituents, and drafting bills for the next session. The vacant seats are not equivalent.

Recap

Please call the governor’s office, preferably before this Wednesday, and stress:

  1. Elections are required to occur by May 8 according to Wisconsin statute.
  2. The governor still has a chance to not violate that statute, if he orders the elections now.
  3. Leaving a legislative seat vacant for a full year is depriving Wisconsinites of equal representation.

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IndivisibleMadison

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