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Scott Walker appeals special election case outside of Dane County

The Department of Justice filed a notice of appeal in the district that covers the conservative Milwaukee suburbs and Fox Valley, rather than liberal Dane County.

MARISA WOJCIK, EAU CLAIRE LEADER-TELEGRAM

Gov. Scott Walker won’t appeal to the Wisconsin Supreme Court an appellate decision denying his request for eight more days to call a special election in two vacant legislative seats.

Instead, he plans to call a special election for June 12, he told the audience at an event Wednesday night in Pewaukee sponsored by conservative radio station WTMJ 620 AM, the radio station reported.

The decision not to appeal was revealed in a high court filing by the Department of Justice, which represents Walker, Wednesday evening stating the governor would not ask the Supreme Court to overturn the appeals court decision. In an earlier court filing, DOJ indicated Walker planned to call the special elections for June 12 if his appeal was unsuccessful, but there was no official statement about the date of the elections late Wednesday.

Earlier Wednesday, 2nd District Appellate Court Judge Paul F. Reilly dismissed Walker’s argument that the court should allow time for the Legislature to rewrite state law that would effectively block the special elections. Reilly issued the one-page ruling hours after DOJ appealed two Dane County judges’ decisions ordering Walker to call the special elections.

“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’ to follow,” Reilly wrote.

Last week Dane County Judge Josann Reynolds ruled that state law compelled Walker to call the elections and set the Thursday deadline. On Tuesday another Dane County judge, Richard Niess, denied Walker’s request for a stay in Reynolds’ order.

The lawsuit was filed by a national Democratic group led by former U.S. Attorney General Eric Holder. Democrats have argued that Walker delayed calling the elections over fear Republicans would lose them; Walker has said he is saving taxpayers money.

The Wisconsin Elections Commission said Wednesday the cost to administer the last spring and fall elections was $235,000 and $389,000 in Senate District 1 and cost $72,000 and $122,000 in Assembly District 42.

The commission doesn’t have an estimate for how much a separate special election in January cost. Spokesman Reid Magney said the commission stopped tracking costs last year after commissioners discontinued the practice because state law doesn’t require it to do so.

Meanwhile Wednesday, lawmakers moved forward on legislation to change when a governor must call a special election. Senate Majority Leader Scott Fitzgerald, R-Juneau, who has pushed the legislation, could not be reached late Wednesday after Walker’s decision not to seek Supreme Court relief.

Outside of Dane County

DOJ had filed Walker’s appeal in the 2nd District Court of Appeals, which covers the conservative Milwaukee suburbs and the Fox Valley, rather than the 4th District, which covers liberal Dane County.

A 2011 change to state law required the appeal be heard outside the 4th District. Under that law, any action in which the sole defendant is the state of Wisconsin or certain state officers must be filed in an appeals court district other than the one that made the initial decision in the case.

Supporters of the change in the law said at the time that it would prevent cronyism by allowing appeals to be heard by judges from appeals courts outside the district where the case was originally heard, who would be more removed from the case. Parts of both affected legislative districts are located in the 2nd District.

Public hearing on bill

Also Wednesday, a Senate committee held a public hearing on an amended bill that seeks to preempt the court case by prohibiting the governor from calling a special election after the spring election in an election year. This year’s spring election is on Tuesday; the Legislature plans to convene on Wednesday to pass the bill.

It’s unclear what steps the Senate will take now that Walker has said he will call the special elections. It’s also unclear if legislation can cancel a previously called election.

The issue involves vacancies in Assembly District 42, which includes the town of Dane, and Senate District 1, which covers the Door County peninsula. The vacancies were created in late December when Rep. Keith Ripp, R-Lodi, and Sen. Frank Lasee, R-De Pere, took jobs in Walker’s administration.

Senate District 1 and Assembly District 42

Fitzgerald testified Wednesday that anywhere from 85 to 150 overseas voters, including some in the military, could be disenfranchised if the special elections proceed under the timeline set by current state law. He noted there were no overseas ballots cast in the Senate District 10 special election in January, which was called 10 weeks in advance of that election.

“This is a real group that could be disenfranchised if this bill doesn’t pass,” Fitzgerald said.

Sen. Mark Miller, D-Monona, challenged Fitzgerald’s concern about military voters, noting the Senate had a chance to pass a bill that would make absentee voting easier for military voters but didn’t during the regular session.

“The concern for military voters did not seem to be high on your radar and you’re a former military man yourself,” Miller said. “The election could have been scheduled for the spring election and there would have been none of this confusion you’re talking about.”

The absentee voting bill, which had been requested by the state Elections Commission and was passed by the Assembly, is being amended to include the changes Republicans want to make to the state’s special election law. Those changes include adding two months to the time between when a governor calls a special election to when the election is held, and expands the time between a primary and a general special election from four to eight weeks.

Filling legislative vacancies

The bill strips away statutory language that requires the governor to call an election “as promptly as possible,” which prompted Reynolds’ order. Fitzgerald said he is open to a Democratic proposal that would require the governor to call an election within 60 days of a vacancy.

Fitzgerald argued that there would be potential confusion because the special election would overlap with the start of the fall election cycle with nomination papers circulating at the same time. But Michael Haas, a lawyer for the elections commission, said if Walker calls the special elections Thursday as ordered, the election could take place as early as June 5 with nominating petitions due April 10, five days before the petitions begin circulating for the fall election. A June 12 election means the nominating petitions will be due April 17, overlapping with the fall election period.

State Journal reporter Ed Treleven contributed to this report.

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Matthew DeFour covers state government and politics for the Wisconsin State Journal.