Bending Toward Justice: Voters sue Wisconsin Governor Scott Walker to compel him to hold special elections

Walker has refused to hold special elections for two state legislature vacancies over fears Democrats will win those seats.

Republicans will do just about anything to keep people from voting, especially when Democrats are likely to win. They’ll gerrymander districts to give themselves an overwhelming partisan advantage. They impose voter ID requirements. They’ll curtail early voting. They’ll close polling places in urban areas. And when that all fails, they’ll simply refuse to hold elections.

That’s what is happening in Wisconsin, where one state assembly district and one state senate district have been without representation since December 29, 2017, when the elected officials from those districts left office to join Governor Scott Walker’s administration. Walker hasn’t scheduled special elections to fill those seats, meaning they’ll remain open until regular elections this November.

Walker is worried about Democratic gains. In January, Patty Schachtner won a special election for a State Senate district that had been in Republican control for 20 years. Donald Trump carried that district by 17 points in the 2016 election. After the results were in, Walker tweeted that it was a “wake up call” for Republicans. Yes, a wake up call to suppress more Democratic votes.

Now voters in the districts without elected representatives are suing Walker, to force him to hold special elections. They’re backed by the National Democratic Redistricting Committee, the anti-gerrymandering group led by former Obama Attorney General Eric Holder. They’re represented by Marc Elias, the political law expert who was general counsel to Hillary Clinton’s 2016 presidential campaign. And they’re right on the law.

The voters filed a Petition for Writ of Mandamus against Walker on Monday in Wisconsin Circuit Court for Dane County. Under Wisconsin law, a petition for writ of mandamus is used to compel a state official to perform a duty he is required by law to do. Here, the law at issue is Wisconsin Statute 8.50(4)(d), which states in part:

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.

There is only one statutory exception to this provision, and it doesn’t apply. No special election is necessary where a “vacancy occur[s] after the close of the last regular floor period of the legislature held during his or her term.” What does that mean? It means if the vacancy takes place after the legislative session ends — even if the session ends prior to the 2nd Tuesday in May in the year of the general election — the governor need not call a special election.

The second Tuesday in May in the year of the regular election is May 8, 2018. The legislative session is scheduled to end on March 22, 2018. The vacancies occurred on December 29, 2017.

Wisconsin’s Constitution requires Governor Walker to act quickly under these circumstances: “The governor shall issue writs of election to fill such vacancies as may occur in either house of the legislature.”

The law couldn’t be more clear. Yet, here we are.

Walker spokesperson Amy Hasenberg told the Milwaukee Journal-Sentinal that Walker’s decision not to hold special elections is “consistent with the law.” “This D.C.-based special interest group wants to force Wisconsin taxpayers to waste money,” Hasenberg said. “The Legislature will be adjourned for 2018 before these seats could be filled in special elections, and staff in these offices are working for constituents until new leaders are elected.”

Holder strongly disagrees. In a statement, Holder said:

Governor Scott Walker’s refusal to hold special elections is an affront to representative democracy. Forcing citizens to go more than a year without representation in the general Assembly is a plain violation of their rights, and we’re hopeful the court will act quickly to order the governor to hold elections.

Attorneys for the voters have asked the court to order Governor Walker to respond to the petition on shortened time. It’s unclear how quickly the court will take up the petition or how quickly it will rule.
In related news, Wisconsin’s top elections administrator announced on Tuesday that he would step down. Michael Haas has held the position on an interim basis since 2016, and has been battling with Republicans in the state legislature. State Senate Republicans voted against his confirmation in retribution for the role with the Government Accountability Board, a state agency that investigated whether Walker illegally coordinated with outside political action groups.