A Dane County judge on Tuesday denied Gov. Scott Walker's request to hold off on calling special elections in two vacant districts until after lawmakers change the state laws governing those elections.
Walker sought the delay in a motion filed Monday night by Attorney General Brad Schimel, who argued it would prevent "needless voter confusion" that could arise if the law is changed to effectively cancel the elections.
"I do not presume that the voters of this state are either ill-informed or unintelligent," said Judge Richard Niess as he rejected the argument.
Seats in the state's 1st Senate District and 42nd Assembly District were vacated in late December when Walker appointed Sen. Frank Lasee, R-De Pere, and Rep. Keith Ripp, R-Lodi, to administrative positions.
Walker refused to call special elections for the two seats, arguing it made sense to leave them open until the regularly scheduled Nov. 6 elections. But plaintiffs in a lawsuit filed by former U.S. Attorney General Eric Holder's National Democratic Redistricting Committee argued they do not have representatives voting on several key issues in the Legislature.
Dane County Circuit Judge Josann Reynolds ruled last week that Walker must call special elections in the two districts by March 29. The elections could be held as late as May, and both seats would be back on the ballot in November.
Niess heard the case on Tuesday because Reynolds was not available.
Walker had hoped to delay the deadline until after legislators vote on a bill that would change statutory requirements regarding special elections, thus negating Reynolds' original ruling.
Niess noted during the hearing on Tuesday that if Walker had called special elections within four days of the vacancies being created, the two seats could have been on the ballot for the April 3 spring election. He asked whether he was expected to "give the benefit of the doubt to the one who failed to do his duty and caused confusion."
A committee hearing on the bill is scheduled for Wednesday morning. The state Senate and Assembly both plan to meet in extraordinary session on April 4 to pass the legislation, which would remove a requirement under state statute that special elections be called "as promptly as possible" following a vacancy.
The bill would prevent a special election from occurring after the state's spring election in even-numbered years. It would also prohibit a governor from scheduling a special election any sooner than four months after a seat opens — effectively ensuring that a legislative vacancy occurring in December of an odd-numbered year would not be filled until November of the following year.
Under current law, "any vacancy in the office of state senator or representative to the assembly occurring before the 2nd Tuesday in May in the year in which a regular election is held to fill that seat shall be filled as promptly as possible by special election."
Representing Walker, Assistant Attorney General Anthony Rossomanno argued that voters in the two open districts could be confused if they were to sign nominating papers for candidates after Walker calls the special elections on March 29, only to have those elections canceled due to a change in state law on April 4.
"You think the public interest weighs in favor of impinging on the rights of the voters in the 42nd Assembly district and 1st Senate district?" Niess asked Tuesday.
"We believe the public interest would be served by doing this in a way that’s not confusing," Rossommano replied.
But Niess said he has "great faith ... that this isn't going to be that confusing" for voters in the two vacant districts.
"It is certainly the Legislature’s prerogative to change the law, but until they do it is the obligation of the court to enforce the law," Niess said. "Right now (the law states that the) election shall be held as promptly as possible and ordered no later than Thursday at noon."
Walker plans to hold the special elections on June 12 with a primary election on May 15 "unless stopped by a legislative change or by a court," Rossomanno said.
A DOJ spokesman said the agency is discussing next steps and had no further comment Tuesday evening.
Fitzgerald said the hearing on the legislation will go on as scheduled on Wednesday.