A judge on Tuesday rejected Republican Gov. Scott Walker's attempt to avoid immediately calling special elections for a pair of vacant legislative seats, but the victory for Democrats may be short-lived.
The GOP-controlled Legislature plans to vote next week on a bill changing the special election law. Under the bill, Walker would be prohibited from ordering special elections this year.
Walker's attorney with the state Department of Justice argued it makes no sense to call the special elections given that the Legislature plans to change the law to bar them from being held. But Dane County Circuit Judge Richard Niess said there's no way to know what the Legislature may do, so Walker must abide by the order last week giving him until Thursday to order the special elections by June.
"I am not ruling on what the law might be in the future," Niess said. "I am enforcing the law as it is now. Other arguments are for another day. ... When and if a legislative bill becomes a law, it can be brought to a court and at that time arguments can be made about what the effect of the law is."
Walker has said he will comply with that order and call for the elections to happen on June 12. But if the Legislature changes the law, Assistant Attorney General Anthony Russomanno said Tuesday, Walker would be back in court to argue the earlier order can no longer be enforced.
Department of Justice attorneys did not comment as they exited the courtroom about whether they would seek an appeal of Niess' order. A spokesman for the department did not immediately respond to an email seeking comment.
Marc Elias, a Democratic attorney representing voters seeking the special elections, said Walker risked being in contempt of the earlier court order if he decides not to follow should the Legislature change the law next week. Elias argued that Walker was trying to seek a "backdoor stay" of the earlier ruling in an attempt to "pre-litigate" what the effect of the law change would be.
The hastily called hearing came after attorneys for the state Department of Justice filed a late-night request Monday to seek a delay in the deadline for Walker to issue the special election call from Thursday to April 6. That would give the Legislature time to pass the bill as planned on April 4.
Both seats were held by Republicans who resigned Dec. 29 to join Walker's administration. Walker has refused to call special elections, saying it would be a waste of taxpayer money given that the Legislature's regular session is over for the year.
But Democrats say he's afraid Democrats will win, especially after the party pulled off an upset victory in a special state Senate election in December.
Democratic Senate Minority Leader Jennifer Shilling said that had Walker done his job and called the special elections earlier, "we wouldn't be in this position where Wisconsin families have to sue for their basic constitutional right to representation."
Voters in the districts, represented by attorneys from a group affiliated with one run by former Democratic U.S. Attorney General Eric Holder, sued to force Walker to call the elections. They argued that they're being disenfranchised by not having lawmakers in place to address constituent concerns and do other work, in addition to being in place to vote in case the Legislature returns for special sessions.
Dane County Circuit Judge Josann Reynolds, who was appointed by Walker, last week sided with the voters. Niess, who was appointed by Democratic Gov. Jim Doyle in 2004, heard the case Tuesday because Reynolds was on vacation.
The bill Walker and Republicans are rushing through the Legislature would remove the requirement in current law that the governor promptly call special elections when vacancies occur in the Legislature. Instead, it would bar special elections after the spring primary in years when the legislative seat would be normally filled. Vacancies would be filled in the regular November election.
A Senate committee planned to hold a public hearing Wednesday on the bill and vote on it in an extraordinary session April 4, the day after the spring election.
Republicans control the Senate 18-14 and the Assembly 63-35. The vacant Wisconsin seats were held by Republican Sen. Frank Lasee, of De Pere, and Rep. Keith Ripp, of Lodi. The Senate seat covers the Door County peninsula northeast of Green Bay and the Assembly seat is in a mostly rural area north of Madison.
