Hey so remember last month, when the Walker administration didn’t want to fill two empty legislative seats, so they decided to treat the state law forbidding this as if it said something else?
Here, I’ll recap. The law, statute 8.50 (4) (d), says:
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.
The state has decided to pretend the law says, instead:
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 shall be filled as promptly as possible by special election.
In other words, the state’s claim is that a special election is required only if the vacancy occurs between January 1 and the 2nd Tuesday of May in an election year. Whereas what the actual law says is that an election is to be called if there’s a vacancy any time before that 2nd Tuesday in May, i.e. as long as there’s enough time to call an election and have the new officeholder participate meaningfully in legislating.
Six voters in the affected districts have sued the governor. There’s a hearing in the Dane County Circuit Court this week, on March 22.
The state has issued its response to the petition.
I’ve read the response. It upset me. It really upset me! Not because I even care that much about whether we hold these elections! But because the people whose job it is to uphold our state’s laws don’t care what those laws are.
The state’s leading argument is “mootness,” which goes like this: “we’ve now delayed this long enough that voters would not longer get any meaningful benefit from the state fulfilling the law’s requirements, so the claim that we have to fulfill the law’s requirements doesn’t stand.”
That might work!
Then it gets really interesting. Here’s a passage from the response:
Under Wis. Stat. §8.50(4)(d), the Governor has a positive and plain duty to call a special election only when a vacancy occurs in the year of a general election from January 1 until the 2nd Tuesday in May. Because the vacancies here did not occur in that year, Governor Walker has no positive and plain duties to call special elections.
See what they did? They switched it! They switched the order of the clauses in the statute to make it say what it does not, in fact, say! Not satisfied with that, they added the language about January 1, which isn’t present in the law!
Won’t the judge ask them about this? Won’t the judge want to know what possessed the state to “paraphrase” a law by moving words around and adding language, instead of quoting the language of the statute itself?
The response then goes on to explain why their interpretation of the law “makes sense.” What they in fact do is explain why it makes sense that a special election isn’t required for vacancies taking place after May of the election year (the point on which their claim agrees with the law). They are silent on why it makes sense that a special election isn’t required before January 1 of the election year. Because that doesn’t make sense.
Maybe the screwiest part of all of this is that the statute in question uses language that appears again and again in Wisconsin code. Look, here’s how 59.10(3)(e) authorizes special elections for vacancies on county boards:
The board may, if a vacancy occurs before June 1 in the year preceding expiration of the term of office, order a special election to fill the vacancy.
According to the state’s account, this means that special elections are authorized only if the vacancy occurs in the year preceding the election year.
If that’s the case, nobody told Sauk County, where a special election was ordered in August 2016 to fill a vacant seat on the county board. It’s hard to doubt there are many such examples — all unauthorized by state law, according to the Walker administration’s current claim.
How could Brad Schimel have put his name to this?
(Update: here’s the plaintiffs’ response to the state’s response.)
That’s okay, you can be sure they’ll argue the opposite way when it avails them to do so.