Patrick Marley

Milwaukee Journal Sentinel

MADISON - Republicans are looking at fast-tracking legislation to move Wisconsin’s 2020 presidential primary to help one man — and he isn’t talking.

Republicans fear Justice Daniel Kelly could lose his seat on the state Supreme Court because he’s up for election the same day as the presidential primary. Democrats could see a surge in turnout as they decide who will challenge President Donald Trump, and that could sink Kelly’s chances of winning a full 10-year term on the court, according to this theory.

To address it, Republicans want to move the April 2020 presidential primary to March or another month so that it doesn’t happen the same day as the Supreme Court election. The change is expected to cost taxpayers about $7 million.

Kelly — who was appointed to the bench by Republican Gov. Scott Walker in 2016 — has refused to say whether he backs the idea. Through aides, he also declined to say whether he or anyone on his behalf has talked to lawmakers about the issue.

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"I think by his silence we can assume he believes it's going to be helpful to him," said Janine Geske, a Marquette University Law School professor and former state Supreme Court justice.

Geske was appointed to the Supreme Court by Republican Gov. Tommy Thompson and in recent years has made public comments backing liberals and frustrating conservatives.

Republicans who control the Legislature are considering moving the primary as part of a lame-duck session next week. If they go through with the idea, they need to get it done before Jan. 7, when Democrat Tony Evers will be sworn in to replace GOP Gov. Scott Walker.

Walker has said he is open to the idea, suggesting he would sign the measure if Republican lawmakers got it to him.

Some Republicans in the state Senate oppose the measure and are seeking to block it, but legislative leaders on Friday advanced it so it could be taken up next week.

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“(We) don’t have any consensus about it, but (are) still kind of going back and forth with the same people that were discussing it earlier,” said Senate Majority Leader Scott Fitzgerald.

Earlier this week, Fitzgerald was blunt about the rationale for the change.

"I think there’s many people that think that Justice Kelly would have a better chance if there’s not really this competitive Democrat primary for president,” he said.

But he added that he feared moving the primary for Kelly could wind up being a political liability that would hurt Kelly’s chances in his election. He said he thought Kelly had a shot at winning even if the election date is not changed.

Other Republicans have contended the date change is being considered because they see it as unusual to have elections for partisan and non-partisan offices on the same day. But in past cycles, Republicans have not spoken out against the date of the presidential primary or considered legislation to change it.

Kelly hasn’t announced yet whether he will run for a full term on the court in 2020 and no one so far has challenged him. For now, the focus is on the April 2019 race, when Appeals Judge Brian Hagedorn will face Appeals Judge Lisa Neubauer for the seat being given up by retiring Justice Shirley Abrahamson.

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Ryan Owens, a University of Wisconsin-Madison political scientist and director of the school's Tommy G. Thompson Center on Public Leadership, said it's typical for justices to steer clear of talking about legislation because it might eventually come before the court in a legal challenge.

"He cares a lot about the court and the legitimacy of the institution," said Owens, who like Kelly is a member of the conservative Federalist Society. "It's not surprising to me he's not commenting on this. ... From the justice's perspective, trying to stay out of the fray is the right thing to do."

Democratic Rep. Chris Taylor of Madison said Kelly has an obligation to tell voters what he thinks of the idea and whether he or his advisers have urged Republican lawmakers to pass it.

"I think he needs to tell us whether he thinks this is a good idea or not," she said. "This is a back-channel attempt to help him. ... The public has a right to know what his opinion is."

Rep. Gary Hebl, a Democrat from Sun Prairie, said Kelly has the right to stay quiet about the legislation but should tell voters what he thinks of it since it is designed to help him.

Often justices don't talk about their views on legislation because it could come before the court in a legal challenge. But Hebl said he thought Kelly should not be involved in hearing such a case even if he stays quiet because the legislation was written to help him.

"He cannot in good conscience stay on the case," Hebl said.

County and municipal clerks from both parties have come out against the plan, saying it would be costly, administratively burdensome and confusing for voters.

Under the Republican plan, three elections would be held in the spring of 2020 — a February primary for state Supreme Court and local offices; a March presidential primary; and the April general election for Supreme Court and local offices.

Clerks say that schedule would create problems for them because they would have to collect and track absentee ballots for different elections at the same time.

The situation would become even tougher if the February or March elections required recounts, according to Dane County Clerk Scott McDonell.

“Recounts abruptly stop the gears of routine activity: serving voters, running in-person absentee voting, proofing ballots, coding equipment,” he wrote in a memo to lawmakers. “The extra expense of a third election in as many months is unappealing to most, but the price tag would not be the issue with a recount. Counties and municipalities couldn’t buy their way out of the deluge of activity. There simply isn’t enough additional staff expertise to go around.”

Fitzgerald said another option would be to push the presidential primary back, perhaps as late as June. That would ease the job of clerks but raise the possibility that the Democrats and Republicans would have already picked their nominees by the time Wisconsinites got to vote.

Fitzgerald said he is concerned that the Republican National Committee would dilute the power of Wisconsin’s delegates if the state moved up its presidential primary. That would mean the state would have less say in who the party’s presidential nominees are.

The 2016 presidential primary cost Wisconsin taxpayers $6.8 million. Scheduling an extra election in 2020 would likely cost more than that, according to the Wisconsin Elections Commission.

Molly Beck of the Journal Sentinel staff contributed to this report.

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