By Ed Treleven
A Dane County judge on Thursday ordered Gov. Scott Walker to promptly call special elections in two state legislative districts that have had vacancies since December, saying the governor misinterpreted a state law in choosing not to fill the seats until the November general election.
Circuit Judge Josann Reynolds gave Walker one week to order special elections for the two open seats, Senate District 1 and Assembly District 42. Reynolds' order states that the elections must take place on a Tuesday between 62 and 77 days from the date Walker calls for them.
If Walker were to order the elections on March 29, they would take place on June 5 or June 12. But if he issues the order one day earlier, the elections could be held on May 29.
Reynolds said that Walker, represented by the state Department of Justice, misinterpreted a state law that spells out how legislative vacancies should be filled. DOJ lawyers argued that Walker was required to call a special election only if a vacancy occurs after Jan. 1 and before the second Tuesday in May of an election year.
But Reynolds said that interpretation "flies in the face of reason and applicable statutory principles," as well as the law's plain language, which requires the governor to act anytime a vacancy occurs before the second Tuesday in May in an election year.
Taken to its logical conclusion, Reynolds said, if a legislator dies shortly after taking office, that person's seat could remain unfilled until the next regular election two years later, which is clearly not what the law mandates.
"Either one of the defense's interpretations leads to an absurd result," Reynolds said. "Defendant's reading creates a window of just four months in any two-year period in which special elections must be held and thus leaves open the possibility that residents of Wisconsin could go unrepresented for almost two years if any governor declined to issue an order calling for a special election."
She also noted that when other vacancies have arisen in the past, Walker has promptly called for special elections.
Walker spokeswoman Amy Hasenberg said the governor's office is "working with DOJ to determine the next steps in this case."
Elisabeth Frost, who argued the case Thursday for a group of voters in both of the districts, said she was hopeful that the governor would act quickly "to restore representation to these districts and stop spending taxpayer money on this litigation."
A national Democratic group headed by former U.S. Attorney General Eric Holder sued Walker last month demanding that Walker hold special elections in the two traditionally Republican districts. Both of the legislators who held those seats were appointed to jobs in the Walker administration in December. The Senate district was represented by Sen. Frank Lasee, R-DePere; the Assembly district by Rep. Keith Ripp, R-Lodi.
Critics have said that Walker put off calling the special elections after Democrat Patty Schachtner won a special election in Senate District 10, a heavily Republican area in northwestern Wisconsin, in January.
In addition to arguing that he wasn't required to fill the seats, Walker said calling special elections before the November general election would be a waste of taxpayer money.
Assistant Attorney General Steven Kilpatrick said even if special elections were held, the newly elected legislators would never have the opportunity to vote on any legislation because the current two-year session was due to end Thursday. The seats would also be up for election again in November, Kilpatrick said, and the terms would end in January.
Kilpatrick also argued that even though constituents in Senate District 1 don't have a senator and constituents in Assembly District 42 don't have a representative, they're still represented in the Legislature by, in the case of the former, one of three representatives, and in the case of the latter, a sitting senator.
But Frost argued that constituents in the districts are deprived of equal representation in both houses and that legislative staff persons who still work out of the offices cannot be adequate substitutes for legislators because they cannot vote on issues or take any other official actions.
Senate Minority Leader Jennifer Shilling, D-La Crosse, said she was glad to see the court "uphold the constitutional right for Wisconsin residents to be represented.
"Gov. Walker is clearly intimidated by the thought of losing more power when voters go to the polls," Shilling said in a statement. "His refusal to call special elections is depriving thousands of Wisconsin families equal representation in the Legislature."
Assembly Speaker Robin Vos said he hadn't read the decision, which was issued orally, but believes the judge interjected her own opinion into the process. He said the state will do what it can to avoid "duplicative elections."
"I'm optimistic that, of course, the DOJ will appeal," he said. "And like we have found in so many cases, an activist Dane County judge is usually overruled by a common-sense appeals court that says that we should not be legislating from the bench."
Reynolds was appointed to the bench by Walker in 2014. She was elected to a six-year term the next year.
Vos said he didn't realize Reynolds was a Walker appointee, "But one thing I've learned about appointments," he said. "You don't always get it right."
In her ruling, Reynolds said she was admittedly "not a political animal." But, she said, "for the life of me, I cannot reconcile the incongruity between Gov. Walker's administration's very vocal and consistent policy advocating for strict constructionism and the position taken by the attorney general in this case involving the most basic constitutional guarantees and the interpretation of one simply worded statute. The two views are inconsistent, incompatible, and irreconcilable."
Desiree Frank, of Brandon, one of the plaintiffs in the case who has been without a representative in the Assembly since Ripp left, said after Reynolds' ruling that she feels "very, very good" about the ruling.
"I feel good and I'm eager to vote," Frank said.
State Journal reporters Mark Sommerhauser, Matthew Defour and Molly Beck contributed to this report.
(c)2018 The Wisconsin State Journal (Madison, Wis.)