By: Richard J. Batzler

As pundits assess the political climate in the lead up to the 2018 midterm elections, special elections provide key insights into electoral trends. Earlier this year, Wisconsin was the site of two State Senate races that buoyed the hopes of those working toward a “blue wave.” But one of these elections almost never took place, as all three branches of state government clashed over whether the Governor had to call special elections in the first place.

On December 29, 2017, two Republican state legislators left office to take jobs in Republican Governor Scott Walker’s administration. With strong majorities in both houses of the Wisconsin legislature, Governor Walker resolved not to exercise his constitutional authority to call special elections to fill either seat, opting to leave the seats open until the November 2018 midterm elections. However, Wisconsin law dictates 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.” (emphasis added).

In late February 2018, a group of constituents from the open districts, State Senate District 1 and State Assembly District 42, sued to obtain a writ of mandamus—a court order to compel state officers to perform legal obligations—to compel Governor Walker to call special elections in each district. The lawsuit, brought just weeks after a surprise Democratic special election win in another state Senate district, was sponsored by former Attorney General Eric Holder’s recently formed National Democratic Redistricting Committee.

In mandamus actions, the Wisconsin Supreme Court requires plaintiffs to establish: (1) a legal right to relief, (2) a “positive and plain” legal duty, (3) “substantial damage” from nonperformance of the duty, and (4) no other adequate legal remedy. In Newton v. Walker, the Plaintiffs argued that Wisconsin Statute 8.50(4)(d) required the Governor, as the only state official with the constitutional authority to call special elections, to promptly call the elections in order to ensure their representation in the legislature.

The Governor argued that the Plaintiffs would suffer no injury because candidates could not be elected and seated before the end of the legislative session. Additionally, he suggested that the special election mandate only applied in general election years, and because the vacancy occurred in 2017, it was not covered by the special election law. A Wisconsin trial judge rejected these arguments and ordered Governor Walker to call the elections, finding all four mandamus conditions satisfied. The Governor’s motion for relief pending appeal was denied by an appellate court, which called the Wisconsin law a “clear mandate” for the Governor to hold a special election.

Governor Walker’s arguments suffered from two key weaknesses. First, the Governor could have called for an election in conjunction with the scheduled spring elections soon after the vacancies occurred, meaning the delay in seating the representatives and the administrative costs of additional elections were problems created by his own delay. Second, the Governor’s argument that the law did not apply to vacancies created the year before a general election year is unsupported by the law’s text; December 2017 is plainly “before the 2nd Tuesday in May in the year in which a regular election is held.” Moreover, the contention that the mandate does not apply to vacancies well before regular elections seems backwards. The statute’s cutoff provision appears clearly aimed at preventing special elections when a regular election for the seat is near, presumably to avoid unnecessary special elections. Of course, vacancies created before the election year are even further from the general election than those occurring in the first half of the election year, making a special election to fill the seat less redundant and more necessary to ensure the district is represented.

In response to the decision, the Republican Assembly leader, Robin Vos, attacked the trial judge as an “activist Dane County judge,” drawing a stern rebuke from another circuit judge. Additionally, the Senate Republican leader, Scott Fitzgerald, proposed an extraordinary session to pass a law that would have allowed the Governor to leave the seat open. Ultimately though, Governor Walker relented and called the special elections.

Perhaps confirming Republican fears, Democrat Caleb Frostman was elected to the state Senate in June, though in the other election, the Democratic Assembly candidate narrowly lost to her Republican opponent Jon Plumer. In each district, the June election will be reprised, as both sets of candidates are on the ballot again in November.

This case is notable in a few respects. First, amidst the currently polarized political climate, it exemplifies a heated clash between all three branches of state government on an interpretation of state election law. Second, it serves as an early legal victory for Eric Holder’s new redistricting organization. Third, the skirmish was a proxy in the larger battle of political parties and narratives leading up to the 2018 midterm elections. It is worth watching whether the outcomes will be any different come November, and whether the fight was worth it.

In a notable postscript, state lawmakers recently called a special session to consider an emergency aid package for a manufacturer at risk of leaving the state. The plant in question is near both contested districts, and each new lawmaker may have the chance to cast a critical vote.

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