Judge orders Gov. Scott Walker to hold special elections for open legislative seats

MADISON - Dealing a setback to Gov. Scott Walker and other Republicans, a judge ruled Thursday the governor must call special elections to fill two vacant seats in the Legislature.

Walker declined to call those elections after two GOP lawmakers stepped down to join his administration in December.

His plan would have left the seats vacant for more than a year. Voters in those areas took him to court with the help of a group headed by Eric Holder, the first attorney general under Democratic President Barack Obama.

Dane County Circuit Judge Josann Reynolds — whom Walker appointed to the bench in 2014 — determined Walker had a duty under state law to hold special elections so voters could have representation in the Legislature. She said failing to hold special elections infringed on the voting rights of people who lived in the two districts.

"To state the obvious, if the plaintiffs have a right to vote for their representatives, they must have an election to do so," said Reynolds.

Under her ruling, by next week Walker must call two special elections to fill the seats that belonged to former Sen. Frank Lasee of De Pere and former Rep. Keith Ripp of Lodi. The two Republicans stepped down in December to join Walker's administration.

Reynolds did not say when the elections would be held, though they could be as late as May. The winners would stand for election again in November.

An attorney for Walker raised the prospect of trying to block the ruling but said no final decision on whether to do that had been made. Spokespeople for Walker and GOP Attorney General Brad Schimel said they had not yet decided whether Walker would order the special elections or pursue an appeal.

The ruling is a victory for Democrats who hope a national mood favoring their party can help them capture a pair of seats that had been held by Republicans, just as they did in a January special election in northwestern Wisconsin.

The ruling came on what Assembly leaders contended was likely their last session day of 2018. But Reynolds noted lawmakers could come in for a special session in the coming months, particularly if the U.S. Supreme Court sides with a panel of three federal judges that new congressional and legislative maps must be drawn.

The case hinged on a state law that says Walker must promptly call a special election to fill any legislative seat that becomes vacant "before the second Tuesday in May in the year in which a regular election is held."

Walker aides contended Walker didn't need to hold special elections because the vacancies occurred not in 2018 — the election year — but in 2017.

The judge called that interpretation absurd because a seat that becomes vacant in 2017 remains empty longer than one that begins in 2018.

The judge took a shot at Walker for contending he didn't have to hold the election when the statutes are clear and he so often talks about the need for judges and others to follow the plain meaning of laws.

"I cannot reconcile the incongruity between Governor 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 guarantee," Reynolds said.

Democrats cheered the ruling.

"Governor Walker is clearly intimidated by the thought of losing more power when voters go to the polls," Senate Minority Leader Jennifer Shilling (D-La Crosse) 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 (R-Rochester) ripped the judge as an "activist Dane County judge" who had injected her "own personal opinion into how we conduct elections."

He said he wasn't aware Walker had appointed the judge but said her approach was endemic to judges in liberal Madison.

"It’s something about the water in Dane County," Vos said. "That’s why I try to stay here as little as I can."

Democrats believe they have a shot at winning the seats because of Democratic enthusiasm that has swept the country in special elections, most recently in a congressional district in Pennsylvania.

Ripp’s former seat, Assembly District 42, is just north of Madison and includes most of Columbia County, as well as parts of Dane, Dodge, Fond du Lac, Green Lake and Marquette counties. Lasee’s former seat, Senate District 1, includes portions of Door, Kewaunee, Manitowoc, Brown and Calumet counties.

Desiree Frank, who lives in Ripp's old district and was among those bringing the lawsuit, said she welcomed Thursday's ruling.

"I feel like this is a good day for the voters of Wisconsin," said Frank, of Brandon in Fond du Lac County.

Earlier in the day she and Jennifer Meyer testified they were frustrated by Walker declining to call special elections.

"We have nobody representing the interests of our Senate district right now and that upsets me," testified Meyer, who lives in the Town of Scott in Lasee's old district.

"We’re entitled to representation."

Leading the lawsuit is the National Redistricting Foundation, an affiliate of Holder's National Democratic Redistricting Committee. Holder's group is focused on electing Democrats and blocking legislative and congressional maps that favor Republicans.

"One of our most basic rights as American citizens is that we get to vote and have representation in our legislatures," Holder said in a statement. "Governor Walker’s actions have undermined that right and it never should have taken legal action to force him to do his job."

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The group invested in the January special election that gave Democrat Patty Schachtner of Sommerset the seat that had been long held by Republican Sen. Sheila Harsdorf of River Falls. Harsdorf stepped down in November to become Walker's agriculture secretary.

Holder's group is now spending on digital ads to promote Milwaukee County Circuit Judge Rebecca Dallet, who faces Sauk County Circuit Judge Michael Screnock in the April 3 election for state Supreme Court. Holder campaigned for Dallet in Wisconsin last week.

Jason Stein of the Journal Sentinel staff contributed to this report.