Data Wonk

Walker’s Plan to Break the Law

And why Attorney General Schimel didn’t warn him it was folly.

By - Apr 4th, 2018 02:48 pm
Scott Walker and Brad Schimel.

Scott Walker and Brad Schimel.

Apparently unnerved by the special election results in Wisconsin and other states, Governor Scott Walker refused to fill two legislative vacancies that occurred in late December of last year. To support that action, he reinterpreted Wisconsin election law. He claimed that the law requiring him to hold special elections to fill vacancies that occur “before the 2nd Tuesday in May in the year in which a regular election is held” exempts vacancies which occur in previous years.

Not surprisingly, the court did not buy this argument. In response, Walker proposed legislation that would legalize his decision to not call a special election. His lawyers also asked the court to delay the special election to allow time for a bill to be introduced in the state legislature to change the law requiring such elections.

The proposed bill would have made several changes to Wisconsin law on special elections to fill state senate or assembly seats:

  1. No longer would special elections to fill vacancies be held “as promptly as possible” to fill vacancies.
  2. Instead, it prohibited special elections after the spring election in years in which a general election is held.
  3. It doubled the time between the primary and the special election, from 4 to 8 weeks.
  4. It doubled the minimum time that must elapse between the governor’s order and the special election, from 2 months to 4.
  5. It also doubled the maximum time that must elapse between the governor’s order and the special election, from 2.5 months to 5.

If successful, Walker’s proposal would have offered new and interesting strategies for future governors intent on molding the legislature to their liking. Presumably, the calling of a special election would become discretionary. With no legal requirement to promptly call a special election a governor could promptly call special elections to fill vacancies in districts likely to be won by his or her own party, while ignoring vacancies in districts favoring the other party.

Even if a future governor promptly called a special election, the bill would have increased the time that residents go without representation. For vacancies in election years, the bill would have effectively banned special elections. The requirement that at least 4 months must elapse between calling the election and holding it pushes the earliest possible special election beyond the April spring election.

Even In non-election years, the bill would have doubled the time that residents in a district would have been without representation.

Both of the current vacancies Walker didn’t want to fill are in heavily Republican districts. Senate District 1, in particular, is the archetypal safe Republican seat. Covering Door and Kewaunee Counties, it extends into the most rural portions of the Fox Valley, carefully avoiding Appleton and Green Bay. In the 2014 election, the sole previous senate election since redistricting, Republican Frank Lasee won 62 percent of the votes. Trump won about 59 percent of the district in 2016. The best Democratic showing was Obama’s in 2012. While losing the district, he got 47.6 percent of the vote.

Assembly District 42, north of Dane County, is also heavily Republican. In the three elections held since redistricting, Republican Keith Ripp received a vote above 55 percent. His share climbed with every election. However, the district is not an impossible target; in 2012 Obama received a majority of the votes.

Over the past few years, Republicans have come up with a number of strategies to entrench themselves in power. Usually these aim to disenfranchise members of groups who generally vote Democratic—minorities, young people, poor people, residents of cities. Not calling the special election is the first Republican scheme I am aware of that aimed to get an advantage by disenfranchising Republicans. Apparently, Walker feared that these normally Republican voters weren’t loyal enough.

By not promptly calling a special election Walker broke Wisconsin law. Did no one warn him? What about Attorney General Brad Schimel? Good lawyers warn their clients when they are about to do something illegal.

This case illustrates the danger that exists when partisans surround themselves with people who think just as they do. In such a hothouse environment, it is easy to conclude that others are just as partisan. A judge who rules against you? It is because she comes from Dane County—nothing to do with the merits of the case.

The solution to legal problems, according to this line of thinking, is to find a more sympathetic judge. So Schimel decides to appeal to the Second Circuit Court of Appeals, which includes Waukesha County, rather than the fourth district, which includes Dane County where the suit was brought.

This attempt at judge shopping ended badly. The second circuit quickly rejected his appeal. Writing for the court and quoting language from Schimel’s appeal, Judge Paul Reilly wrote a heartfelt endorsement of the right to vote: “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 temptation is to say that this was a victory for Democrats. It is more accurate, I think, to regard it as a victory for democracy.

Categories: Data Wonk, Politics

9 thoughts on “Data Wonk: Walker’s Plan to Break the Law”

  1. Terry says:

    Well said Bruce! These Wisconsin republican schemers are as sick and corrupted as they come. Thankfully these three judges and our democracy did not allow Career Politician Scott Walker and republicans to get away with depriving Wisconsinites (in republican districts no less) from having their constitutionally protected right to vote!

    Dump Walker!
    Dump Schimel!
    Dump ALL republicans!

  2. Sam says:

    It must be the echo chamber Walker is living in. This was a colossal political blunder on his part.

  3. Jake currently of the MKE says:

    Just more evidence that Republicans are tyrants.

  4. Tom says:

    Can’t wait until November to vote these bums out

  5. Joe says:

    Republicans don’t care about democracy, and they haven’t in my lifetime. Constantly making it more difficult to vote; then when that won’t work they try to stop elections from happening altogether on the flimsiest of legal bases. Wisconsin has become an embarrassment under Walker.

  6. max says:

    “Good lawyers warn their clients when they are about to do something illegal”, says the article about Brad Schmeil, who may have gone to law school and practiced being a DA, but apparently never learned anything about the law or how to uphold the law. His legacy will be plain and simple, a very bad lawyer without the kahoonas to apply the law to his political/gangster pals.

  7. Old Man Yells at Cloud says:

    Seriously though, can one of the walker boot lickers explain this to me?

    Republicans / Conservatives are supposed to be all ‘small government, don’t tread on me blahblahbla’ but now we have a government that decides whether or not you even have the representation laid out in the state constitution and you’re totally cool with it? (what kind of government is that?) I also would like an explanation on what kind of ‘fiscal conservatism’ walker is practicing because it doesn’t look like the state is bursting at the seams with spare capital. (Walker’s wealthy donors aside)

  8. Terry says:

    @Old Man, Since Dallet whooped that fat guy who wouldn’t recuse no real republicans are coming around anymore so I’ll give it a shot.
    The keywords you used are “supposed to be.” Republicans aren’t really for small limited government of course. That’s a lie. “Small limited governments” don’t try to Lord over women’s health care choices, or stick their snouts in people’s personal lives trying to wage a war on an herb or a war on gay rights, civil rights, voting rights, nor do they EXPAND government. They are not fiscally conservative either. Fiscal conservatives don’t hand 4.5 Billion in corporate welfare to foreign companies nor do they masdively increase debt like republicans just did with the tax bailout of the mega-rich, so that’s just another lie republicans tell to get elected. Hope that help!

    Dump Walker

  9. CFM says:

    J.B. Van Hollen, & Brad Schimel both disgraced the office.

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