Gov. Scott Walker abandons court fight to hold off special elections after appellate judge rules against him

MADISON - An appellate judge Wednesday became the third in a week to rule against Gov. Scott Walker's attempt to hold off on two special elections, prompting Walker to abandon an attempt to take the issue to the state Supreme Court.

Walker is expected to order the special legislative elections by Thursday's noon deadline set by a judge last week.

Walker and his fellow Republicans who control the Legislature this week have been advancing legislation that could avoid the special elections and they could still pursue that option — which would trigger a new court fight.

District 2 Court of Appeals Judge Paul Reilly in Waukesha left in place a lower court order that the GOP governor call the elections, rejecting Walker's arguments that he needed an extra eight days to let the Legislature change the law and eliminate the need for the elections.

"We know of no law that allows us to disregard the (statute)," reads the order from Reilly, who was first elected to the appeals court in 2010. "Representative government and the election of our representatives are never 'unnecessary,' never a 'waste of taxpayer resources,' and the calling of the special elections are, as the governor acknowledges, his 'obligation.' "

Walker and attorneys in GOP Attorney General Brad Schimel's office told the state Supreme Court Wednesday that they were likely to file their second emergency appeal to the state's highest judicial panel.

But hours later, they backed off from that plan, telling the court they would not seek its intervention after all.

"Having lost in court three times, Governor Walker has accepted that he must follow the law and call the special elections," said Marc Elias, a nationally-known Democratic attorney who represented voters in the two districts. "The voters of Wisconsin have the right to have full representation in the state house. Governor Walker must let the citizens vote."

The day began with Walker appealing a pair of court orders to quickly call elections to fill the two legislative seats, which have been vacant since December. With unusual speed, the appeals judge told him he would not give Walker more time to act.

Republicans are seeking to approve legislation next week that would head off the special elections and give Walker broader powers to determine when to allow voters to fill vacancies in the Legislature.

In the meantime, Walker is under a court order to issue a call for the special elections, which would likely be held June 12.

But Republicans contend those elections would be canceled if Assembly Bill 947 is approved.

If it does get signed into law, it would likely lead to a fresh legal challenge from Democrats, who voiced their fury Wednesday in testimony to the Senate Elections Committee.

"It’s ludicrous, but it’s not funny," said Kathleen Finnerty of Sturgeon Bay, who chairs the Door County Democratic Party and lives in one of the vacant districts. "It couldn’t be more transparent as to what is happening here. You’re afraid of having a Democrat elected into this position."

Democrats say Walker should have acted months ago to call the elections. They say voters have a right to be represented for constituent problems such as bureaucratic headaches or in the event of an unexpected legislative vote, such as a lame-duck session.

Republicans say every voter in the state still has at least one lawmaker representing them and point to the costs of holding an election in the two districts. It cost $403,000 to hold a spring election in 2017 and more than that to hold the 2016 presidential election, according to the Wisconsin Elections Commission.

“Holding two special elections while the regularly scheduled elections are proceeding as planned is I think a waste of money,” Senate Majority Leader Scott Fitzgerald (R-Juneau) told the committee.

Spokespeople for Walker, Fitzgerald and Assembly Speaker Robin Vos (R-Rochester) did not say whether they would continue to pursue the legislation now that Walker had backed off from the court fight.

The legislation would bar holding special elections after the spring election in the year the legislative seat would ordinarily be filled. This year's spring election is on Tuesday.

In an effort to block the special elections even if Walker is forced to call them on Thursday, the legislation says it would supersede "any other law, court order or order of the governor."

Fitzgerald said that holding the elections under a tight time frame — likely a May primary and June general election — might disenfranchise an estimated 100 soldiers and other voters overseas because they might not have enough time to receive and return their ballots.

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But Sen. Mark Miller (D-Monona) asked Fitzgerald why the Senate leader hadn't advanced legislation to help military voters before the judges issued their orders.

"I’ve got to be honest with you. It wasn’t on my radar screen," Fitzgerald told Miller.

Miller, who like Fitzgerald has served in the Armed Forces, replied that Fitzgerald was playing politics and denying the current special election vote to a large group of voters, including soldiers.

"We are disenfranchising the thousands of voters who are without representation," Miller said.

Last week's ruling that Walker must call the special elections came from Dane County Circuit Judge Josann Reynolds, a Walker appointee, who then went on vacation. Filling in for Reynolds on Tuesday, Dane County Circuit Judge Richard Niess ruled that he couldn't consider the special elections bill being debated in the Legislature and denied Walker's request for a delay.

The issue arose in December, when Sen. Frank Lasee (R-De Pere) and Rep. Keith Ripp (R-Lodi) stepped down to take jobs in Walker’s administration. Walker didn't call for special elections to fill those seats despite a law that requires them to be held promptly.

In February, voters in those districts and a group affiliated with former U.S. Attorney General Eric Holder filed a lawsuit demanding special elections. Reynolds, a Walker appointee, agreed.

In response, Walker, Fitzgerald and Vos committed themselves to changing the elections law.

Two Republican senators, Luther Olsen of Ripon and Steve Nass of Whitewater, have expressed concerns about the bill. But Nass said Wednesday he was more comfortable with the bill after listening to the testimony.

To contact your legislators

If you want to contact your lawmakers, you can find them by going to legis.wisconsin.gov or calling (800) 362-9472.

Here's how to contact the leaders of the Assembly and Senate:

Assembly Speaker Robin Vos (R-Rochester), (608) 266-9171, rep.vos@legis.wisconsin.gov

Senate Majority Leader Scott Fitzgerald (R-Juneau), (608) 266-5660, sen.fitzgerald@legis.wisconsin.gov