Scott Walker and the Let’s Eat Grandma theory of legislative interpretation

How do you know when to call a special election for an empty legislative seat in Wisconsin?  It’s right there in the statutes, 8.50 (4) (d):

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. However, any vacancy in the office of state senator or representative to the assembly occurring after the close of the last regular floorperiod of the legislature held during his or her term shall be filled only if a special session or extraordinary floorperiod of the legislature is called or a veto review period is scheduled during the remainder of the term. The special election to fill the vacancy shall be ordered, if possible, so the new member may participate in the special session or floorperiod.

Pretty clear, right?  If a Senate or Assembly seat comes open before May of election year,  the governor has to call a special election, unless the last legislative session has already taken place and no extra legislative business is scheduled before November.  You hold an election unless the duration of the vacancy would be so short as to make the election essentially meaningless.

There are two seats in the Capitol open as we speak, the Senate seat formerly held by Frank Lasee and the Assembly seat once occupied Keith Ripp; both of them left to take jobs in the Walker administration in January.  But the governor has asserted that no special election will be held, and residents of those districts will go unrepresented in the legislature for almost a full year.

What’s Walker’s excuse for ignoring the law?  Are you sitting down?  The state’s claim is that the phrase “in the year” does not refer to “May,” but rather “any vacancy.”  So a vacancy arising in March 2018 is required by law to be filled “as promptly as possible” by state law, despite the severely limited amount of lawmaking the new representative would be have a chance to undertake; but if an assembly rep drops dead on the second day of the legislative term, the governor can leave the seat empty for two whole years if he wants.

I kid you not! That is the claim!

Do you think that’s really what the law says?

As this long, well-researched WisContext article makes clear, Walker’s “interpretation” of the law is, well, a novelty.  For fifty years, Wisconsin has been filling legislative vacancies promptly by special elections.  Most of these elections, according to Scott Walker, were optional, some kind of gubernatorial whim.  And it’s definitely not the case that the governor is leaving the seats empty because he’s spooked by the current lust-to-vote of Wisconsin’s Democratic electorate, which has already cost Republicans a long-held seat in Senate District 10.

The Walker administration would like us to read the law as if the phrases came in the opposite order:

Any vacancy in the office of state senator or representative to the assembly occurring in the year in which a regular election is held to fill that seat, before the 2nd Tuesday in May

But English is non-commutative; that sentence says one thing, and 8.50 (4)(d) says a different thing.

Even an extra comma would make Walker’s interpretation reasonable:

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

Commas change meaning.  As the old T-shirt says:  let’s eat grandma!

I suppose we should count ourselves lucky.  Given the syntactic latitude Walker has granted himself, where a prepositional phrase can wander freely throughout a sentence modifying whatever catches its fancy, he might have claimed a special selection is required only if a legislative vacancy occurs in May of an election year!  That would make just as much sense as the interpretation Walker’s claiming now.  Which is to say:  none.

What’s the remedy here?  I’m not sure there is one.  Someone in one of the affected districts could sue the state, but I don’t think there’s any prospect a lawsuit would conclude in time to make any difference.  I can’t see a court ordering an emergency halt to a legislative session on the grounds that two seats were illegally unfilled.

So there’s not much to stop the governor from breaking state law in this way.  Except natural human embarrassment.  A government that has lost the capacity to be embarrassed can be very difficult to constrain.

Update, Feb 26:  Looks like I was wrong to say nobody was going to do anything about this!  A group of voters in the affected districts, represented by the National Democratic Redistricting Committee, sued Governor Walker today.  Good for them.

Update:  I’ve learned from lawyer friends that the principle that a phrase like “in the year” is understood to modify the thing it’s close to, not some other clause floating elsewhere across the sentence, has a name:  it is “the rule of the last antecedent.”

 

 

 

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4 thoughts on “Scott Walker and the Let’s Eat Grandma theory of legislative interpretation

  1. Z says:

    I would never have thought that the sentence “But English is non-commutative” would have such a direct political implication.

    “So there’s not much to stop the governor from breaking state law in this way. Except natural human embarrassment. A government that has lost the capacity to be embarrassed can be very difficult to constrain.”

    I’m not sure the problem is human embarrassment. The way you constrain a government is through popular pressure, typically (but far from exclusively) in its electoral incarnation. As soon as the mechanisms allowing this pressure to be felt are removed – and they have been, by and large, in the US – people with power can do anything. Frankly, at this point, I’m even surprised Walker bothered to give a justification…

  2. Jordan, Z:

    I think the two of you are too cynical. We do have a court system in this country, so if the governor violates the law, the court can order the election. At that point, the governor could refuse to follow the court order, and then you really would have a constitutional crisis. In this situation, with the law written so clearly, it’s hard for me to imagine a court would let this one go. But we’ll see; I guess I could be wrong.

  3. JSE says:

    I may be wrong, but I don’t think a court can take any action unless someone directly affected by Wisconsin’s illegal act sues the state (which has now happened.)

  4. […] so remember last month, when the Walker administration didn’t want to fill two empty legislative seats, so they […]

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