Republicans hoping to delay a call for special elections in two legislative districts ordered by a judge last week received a setback Tuesday when a different Dane County judge declined to give Gov. Scott Walker another week to call for the elections.
The ruling by Circuit Judge Richard Niess doesn’t affect proposed changes to the state law governing special elections that lawmakers are set to take up April 4. Those changes would eliminate the need for special elections in one state Senate and one state Assembly seat that had been ordered last week by Dane County Circuit Judge Josann Reynolds.
But Niess told lawyers after a hearing Tuesday that he could only rule on what the law currently is, not what it might be in the future.
Walker hasn’t argued that he can’t order the elections or that Reynolds was wrong in requiring him to do so, Niess said. Rather, he said, the governor wants to be allowed to delay carrying out “his mandatory, compulsory duty because there are now other reasons that he has brought to the court’s attention.”
“But these other reasons don’t change the fact that his duty under the law remains the same,” Niess said. “No court that I’m aware of is at liberty to ignore the law in order to facilitate the Legislature’s consideration of bills that might become law. When and if a legislative bill becomes law it can be brought to the court, and at that time the arguments can be made as to what the effect of that law is on an already pending (order).”
Niess said he could not presume that the Legislature would even make changes to the law.
“Until they do, it is the obligation of this court to enforce the law,” he said. “And the law right now in this state and under that statute and by order of this court is that this election shall be held as promptly as possible and should be ordered no later than Thursday at noon.”
Niess, who said Reynolds’ interpretation of the law was “spot on,” said he viewed the fact that the Legislature is trying to amend the law as an “explicit concession” that Reynolds correctly interpreted the law.
State Senate Majority Leader Scott Fitzgerald said the ruling would have no impact on plans to change the law.
“We are moving forward with the public hearing on AB947 tomorrow,” Fitzgerald said in a statement, referring to the bill, which also addresses procedures for filing absentee ballots. “There are legitimate issues with military and overseas voting that need to be addressed.”
Lawyers from the state Department of Justice did not say after the hearing whether they plan to appeal. DOJ spokesman Johnny Koremenos said lawyers are discussing their next steps with Walker.
On Monday, Walker, through the DOJ, which is representing Walker in court, sought an eight-day extension of the deadline to call for the special elections to fill vacant seats in Senate District 1 and Assembly District 42.
Niess considered DOJ’s request in place of Reynolds, who is on a previously planned vacation, said Theresa Owens, district court administrator for the state’s Fifth Judicial District.
Last week, Reynolds ordered Walker to issue a call for special elections for the two vacant seats, ruling that Walker was required under state law to “promptly” call for the elections after the seats became vacant in December.
Reynolds’ ruling came in a lawsuit brought by a national Democratic group led by former U.S. Attorney General Eric Holder, which demanded that Walker call special elections to fill seats formerly held by state Sen. Frank Lasee and state Rep. Keith Ripp, who both accepted jobs in the Walker administration.
Democrats have contended that Walker delayed calling special elections for the two seats after a special election in January in which a Democrat won a Senate seat in a northwestern Wisconsin district that traditionally votes Republican.
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Walker’s request for an extension was to allow the Legislature to convene in a so-called extraordinary session next week to change the law. The change would allow Walker not to have to call the special elections at all, and instead put off filling the seats until the November general election.
The bill would prohibit holding special elections for open state Senate or Assembly seats after the spring election in years in which a regular fall election is to be held to fill those seats. It also increases the date range by which a special election may be called.
Currently, the bill sets no time frame for the governor to call a special election for a vacant seat, but Senate Majority Leader Scott Fitzgerald, R-Juneau, said Monday he was open to a Democratic proposal that requires special elections to be called within 60 days of a vacancy occurring.
Under the current law, when a legislator resigns midterm, the governor is required to call a special election if the vacancy occurs before the second week of May in an election year. When vacancies occur after that date, they are filled during the general election.
Sen. Luther Olsen, R-Ripon, said he’s taking a wait-and-see approach to the proposal put forward Monday by Senate Republican leaders on changes to the law.
Olsen said he takes seriously concerns raised by Senate Majority Leader Scott Fitzgerald about the possibility of disenfranchising military and overseas voters in a special election.
But Olsen said lawmakers must balance that against concerns of voters in the two vacant districts. He said he has heard from residents of the 42nd Assembly District, the boundaries of which fall within the Senate District he represents.
“They would like to have a representative,” Olsen said.
Assistant Attorney General Steven Kilpatrick wrote in DOJ’s motion that voter confusion would occur and time and money would be wasted if Niess does not extend the deadline for Walker to call special elections. If Walker were to call for special elections on Thursday, Kilpatrick wrote, candidates in the two open seats would immediately begin requesting nomination papers from the state Elections Commission and circulating them. On April 15, candidates for the general election would also begin requesting and circulating nomination papers for those same seats.
But if Niess granted the extension and the new special elections legislation becomes law, Kilpatrick wrote, there would be only one set of nomination papers for each of the seats, not two, preventing candidate and voter confusion.
In court, Niess questioned state Assistant Attorney General Anthony Russomanno, who argued for the state, whether there would truly be any confusion on the part of voters.
“I should give the benefit of the doubt to the governor who failed to do his duty and caused the confusion?” Niess asked, calling such concerns “speculative.”
Marc Elias, an attorney who works for Democratic candidates and the party on election-related issues, argued against Walker’s requested delay, calling it a “backdoor” attempt to stay Reynolds’ order without having to meet the legal requirements for a stay. He said it was unprecedented for a court to be “baited” into issuing a stay based on what the Legislature might do next week.
Senate Minority Leader Jennifer Shilling, D-La Crosse, applauded Niess’ decision.
“Had Gov. Walker done his job like he was supposed to, we wouldn’t be in this position where Wisconsin families have to sue for their basic constitutional right to representation,” Shilling said. “Every day that Republicans drag their feet and refuse to fill vacant legislative seats is another day that 200,000 Wisconsin voters are deprived of a voice in our legislature.”
State Journal reporter Mark Sommerhauser contributed to this report.
“It is the obligation of this court to enforce the law. And the law right now ... is that this election shall be held as promptly as possible and should be ordered no later than Thursday at noon.” Judge Richard Niess, Dane County Circuit Court
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