Tag Archives: scott walker

Scott Walker and the noncommutativity of Wisconsin statute, part II

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.)

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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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Full professors make more money than bus drivers

Former Republican Congressional candidate and current UW-Madison history professor John Sharpless stands up for us against the Governor:

He said he arrives no later than 9 a.m. and leaves no earlier than 5 p.m. During that time, he said he’s either teaching, preparing lectures, doing research, attending required committee meetings, advising students and managing teaching assistants. Sharpless added that he often spends his evenings reading and grading papers.

“None of this seems like work to a guy like Walker because he lives a different life,” he said. “And I’m not going to make fun of what he does. I’m sure being a governor is a lot of work. He has to spend a lot of time in Iowa and South Carolina and North Carolina and courting other Republican big-wigs. That taxes the man horribly.”

But just to make it clear he’s still on board with GOP, he drops this in:

“I will retire with a salary that’s less than a Madison bus driver,” he said.

UW-Madison salaries are public records, so I can tell you that Sharpless’s is just under $80,000.  In 2012, only 9 employees of Metro made more than $70K.  And the ones who made that much, I’m pretty sure, are the ones who worked tons of overtime.

In other words, what Sharpless said is likely true in the strict sense of

“There exists a Madison bus driver whose salary this year exceeds mine”

but gives the wrong impression about typical full professors in the history department and typical bus drivers.

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Wisconsin is not a blue state

Another Wisconsin election day!  By the polls — and I trust the polls, absent any reason not to — incumbent governor Scott Walker is likely to squeeze by with a narrow win.  If you don’t live in Wisconsin, how much should you care about this?  A lot, says Slate’s Betsy Woodruff, who calls this race “The Most Important Race in America.”

Winning statewide as a conservative Republican in Wisconsin isn’t easy. Even though five of its eight congressmen are Republicans and the GOP controls its statehouse, Wisconsin is a very blue state. It’s historically been a union stronghold, and it hasn’t gone Republican in a presidential race since 1984. For progressives, the Republicans’ fragile hold on state government is an insult, an affront that should be corrected.

Wisconsin is not a very blue state.  In those 30 years since 1984, a Republican has been governor for 19 of them.  In both 2000 and 2004, the Democratic candidate won Wisconsin’s electoral vote by less than half a percentage point.  In 2012, Obama won Wisconsin by 7 points, in a year he won nationally by 4 points.  So Wisconsin, in Obama’s home turf of the Upper Midwest, was slightly bluer than the country that year.

But it’s not California or Maryland.  It’s not even New Jersey.  It’s a state that’s half Republican and half Democratic.  (See also:  “It’s a recall, not an omen.”)  That’s why elections here are close.  Despite what Woodruff writes, neither liberals nor conservatives think they have a right to own the state.  Walker has the advantage of incumbency and he’s probably going to win.  That’s important for his dreams of a Presidential run; but I don’t think it has much to say about national politics.

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Is the two-Burke ballot the new butterfly ballot?

Scott Walker’s opponent takes on the WEDC:

BURKE:  One other area outside of that that people really should take a look at is the Wisconsin Economic Development Corporation, which was a nonprofit, public-private corporation created in 2011 which Governor Walker used to make himself the chair of. What’s most interesting is that Governor Walker’s experience in private business is in selling warranties for IBM and doing blood drives and fund-raising for the American Red Cross. While these are both worthy positions and individuals who do them obviously are working to build a life, that doesn’t give someone the experience necessary to make themselves a chair of a venture capital firm. Because that’s what it is. They’re giving away private taxpayer dollars to public businesses. We would end that practice.

Except that’s not Mary Burke; it’s Robert Burke, a lifelong Republican from Hudson who switched to the Libertarian party to run for governor.  Burke talks in the interview about how he hopes the “name recognition” — misrecognition? — he draws from the Mary Burke campaign will help him get votes.  The question is:  will he get votes from people who like libertarianism, or miscast votes that are actually meant for her?

Are you wondering whether Burke the Libertarian is running precisely in order to siphon votes from Burke the Democrat in this way?  I was, too, but I have to admit that the linked interview really does make him sound like a sincere libertarian dude who just found out Republicans dig market distortions as much as Democrats do.

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Sympathy for Scott Walker

The Milwaukee Journal-Sentinel suggests that the slow pace of job creation in Wisconsin, not recall campaign shenanigans, may be Scott Walker’s real enemy in his upcoming re-election campaign:

In each of Walker’s first three years, Wisconsin has added private-sector jobs more slowly than the nation as whole, and the gap is sizable. Wisconsin has averaged 1.3% in annual private-sector job growth since 2010; the national average has been 2.1%. Wisconsin’s ranking in private-sector job growth was 35 among the 50 states in 2011, 36 in 2012 and 37 in 2013.

Combining the first three years of Walker’s term, the state ranks behind all its closest and most comparable Midwest neighbors: Michigan (6 of 50), Indiana (15), Minnesota (20), Ohio (25), Iowa (28) and Illinois (33).

I think this is slightly unfair to Walker!  Part of the reason Michigan is doing so well in job growth since 2010 is that Michigan was hammered so very, very hard by the recession.  It had more room to grow.  Indiana’s unemployment rate was roughly similar to Wisconsin’s in the years leading up to the crash, but shot up to 10.8% as the economy bottomed out (WI never went over 9.2%.)  Now Indiana and Wisconsin are about even again.

But I do mean slightly unfair.  After all, Walker ran on a change platform, arguing that Jim Doyle’s administration had tanked the state’s economy.  In fact, Wisconsin weathered the recession much better than a lot of our neighbor states did.  (The last years Wisconsin was above the median for private-sector job growth?  2008 and 2010, both under Doyle.)   There’s some karmic fairness at play, should that fact come back to make Walker look like a weak job creator compared to his fellow governors.

 

 

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Who does Public Polling Policy think is challenging Scott Walker?

We got a PPP robopoll today.  First of all, I want to note that the recorded voice on the phone was a middle-aged man with the worst case of vocal fry I’ve ever heard.

Anyway.

Much of the poll was of the form “If Republican Scott Walker runs for re-election against Democrat X, who would you support?”  And here are the Democrats they listed:

  • Peter Barca
  • Jon Erpenbach
  • Russ Feingold
  • Steve Kagen
  • Ron Kind
  • Mahlon Mitchell

Are these really the main Democratic contenders?

The poll went on to ask whether I had a favorable or unfavorable opinion of each of the following strange foursome:

  • Sen. Joseph McCarthy
  • Bret Bielema
  • Hilary Clinton
  • Paul Ryan

I’d kind of like to see the crosstabs on that, actually!

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It’s a recall, not an omen

Already time to take back, or at least complicate, the nice things I said about the Times’s Wisconsin coverage.  Today above the fold:

Broadly, the results will be held up as an omen for the presidential race in the fall, specifically for President Obama’s chances of capturing this Midwestern battleground — one that he easily won in 2008 but that Republicans nearly swept in the midterm elections of 2010…

A Marquette Law School telephone poll of 600 likely voters, conducted last week, found Mr. Walker leading 52 percent to 45 percent; the poll’s margin of sampling error was plus or minus 4 percentage points for each candidate.

I suppose I can’t deny that the results “will be held up as” an omen for November’s election by some people.  But those people will be wrong, and the Times should say so.  At the very least they should avoid giving the impression that the recall vote is likely to be predictive of the presidential vote, an assertion for which they give no evidence, not even a quote in support.

I’m just going to repeat what I said in the last post.  Wisconsin is split half and half between Republicans and Democrats.  In nationally favorable Democratic environments (2008) the state votes Democratic.  In nationally favorable Republican environments (2010) the state votes Republican.  At this moment, there’s no national partisan wave, and you can expect Wisconsin elections to be close.  But incumbency is an advantage.  So Walker is winning, and so is Obama. As the Times reports, the Marquette poll has him up 7.  What the Times doesn’t report is that the very same poll has Obama beating Romney by 8.

I guess the recall might be an omen after all — if Walker actually wins by 7, it means there’s no massive shift to the GOP going on in this state, and you’re a broadly popular incumbent President whose hometown is within a half-day’s drive of most of Wisconsin’s population, your prospects here are pretty good.

Arguing against myself:  2006 was also a great year for Democrats nationally, and incumbent Democratic governor Jim Doyle beat Mark Green by only 7.

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No good news for Wisconsin Democrats in the first Marquette Law Poll

My colleague Charles Franklin is running a year-long project at Marquette Law School to poll the heck out of Wisconsin in what will surely be a very interesting political environment.  The first poll is out, and it can’t be making Wisconsin Democrats very happy.  Full results here.  All potential recall challengers trail the Governor, though not by much, and the public is either positive or neutral about the most visible parts of Walker’s legislative plan (higher fees for state workers, voter ID, curtailing of collective bargaining.)  Majorities think that Walker’s program will increase jobs in the state and is “better off in the long run” for Wisconsin.  Cutting funding to public schools and BadgerCare, on the other hand, is deeply unpopular, and presumably those issues will play a big role in the recall campaign.  The Governor has access to a titanic amount of money from out of state, and will make sure people here don’t miss out on hearing his point of view.  His opponents may rise in the polls as they gain statewide name recognition, but it’s hard to see in the numbers a huge “anybody but Walker” sentiment.  On top of all that, Tommy Thompson, the only really popular Republican in the state, is going to be back on the campaign trail running for Senate.

The election is a long way away, but Democrats have to be seen as starting from behind.

My guess is that they have a better chance of capturing the State Senate (though I’m told that if Van Wanggard is tossed, his Democratic replacement has less than a year before being redistricted into an election they’re almost sure to lose.)  I wonder when Marquette starts polling the senate races?

(Note:  I was surprised to see that 43% of Marquette’s sample identified as “independent” — but it turns out that 40% of all Americans now give their party ID as independent, the highest proportion Gallup has ever recorded.)

Despite the title I should include the one piece of good news for Democrats; the President remains popular here and seems at the moment to be well ahead of any potential opponent.

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Are Wisconsin Democrats blowing the recalls?

That might seem like a strange question, given that United Wisconsin claims it already has the 500,000+ signatures they need to force a recall election this spring, and are aiming for a million by the end of the 60-day petition period next month.

But the Walker-Kleefisch recall isn’t the only one going.  Petitions are circulating on five state senators — four Republicans and one Democrat.  Democratic gains in the last recall left the GOP with a precarious 17-16 majority in the upper chamber.  So if Democrats gain one seat, they take over Senate control.

There’s a big difference between this recall election and the previous one.  The state senators recalled last year were elected in 2008, a year of Democratic dominance;  the Republicans who managed to get elected that year were strong candidates in Republican-leaning districts.  And even so, two lost their seats.  This time around, it’s the opposite.  Van Wanggard, Pam Galloway, and Terry Moulton all knocked off Democratic incumbents in the 2010 Republican sweep; and even with that wind at their back, Wanggard and Galloway each won by modest 5-point margins.  There’s every reason to think those two, at least, would be vulnerable to Democratic challengers.

So why aren’t Wisconsin Democrats putting more resources into these races?  The Van Wanggard recall has just about reached the required number of signatures, but will need a lot more to be safe from legal challenges.  Pam Galloway’s petition is only 70% there.  And with Christmas and New Year’s coming, the second month isn’t likely to be as productive as the first.  Per the linked Isthmus article, none of the recall committees has more than $7,000 on hand.  Why?

I get that the Walker recall is the main event.  But with no obvious candidate to oppose the governor, the recall election is at best a coinflip for Democrats.  Maybe the state senate recalls are a coinflip, too:  but changing control of either one would effectively halt Wisconsin’s ability to make meaningful legislative changes.  For Wisconsin Democrats, that would be a huge success.  And one coinflip out of two  is a much easier game to win than one out of one.

And some good news for people who like poll news:  my colleague Charles Franklin, who knows more about polling data than anyone I’ve ever met, is taking a year’s leave of absence from UW to poll the hell out of Wisconsin in 2012 as head of a new project at Marquette Law.  Expect lots of posts here about his sweet crunchy data.

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