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Kevin Kennedy GAB

Kevin Kennedy, director and general counsel for Wisconsin's Government Accountability Board

M.P. KING – State Journal

Wisconsin's elections chief told state senators Wednesday that any recall effort targeting lawmakers will be decided based on old district lines, unless the petition drive starts in May or later.

If it starts then, because the election likely wouldn't take place until after the fall 2012 election, the new boundaries would be in effect, said Government Accountability Board director Kevin Kennedy.

Kennedy walked through various scenarios related to how redistricting interacts, and complicates, efforts to recall lawmakers from office at a Senate elections committee hearing.

Adding to the potential chaos is a pending federal lawsuit over the new district boundary lines approved by the Republican-controlled Legislature earlier this year. That lawsuit, which is on track for a March trial, could result in new boundary lines which would throw recall drives into disarray.

"It's a double-edged sword, probably more than a doubled-edged sword, no matter how you cut this," Kennedy said. "We normally don't see recalls during redistricting years. This is an unusual time, this is unusual territory."

In addition to the redistricting lawsuit, other legal challenges related to the issue of which district boundaries are in effect for any recall efforts are likely.

Senators requested Kennedy discuss a memo he released last week that said lawmakers targeted for a recall election that takes place before Nov. 6, 2012, would have to run in their old district. Between now and then, however, lawmakers are representing people in the new districts, he said.

That's because the law as passed by the Republican-controlled Legislature and signed by Walker said the new lines weren't in effect for election purposes until the fall of 2012. But they are in effect before then when it comes to who lawmakers represent for constituent services and other issues, Kennedy said.

The opinion was a boon for Democrats, since the new district generally favor Republicans and any recall against an incumbent would be more difficult to win under the new lines. Republicans hoped any recalls would be in the new districts.

The state Democratic Party has said it intends to target incumbent Republicans for recall next year, but has not said who or how many. This summer, two Republicans were ousted in recalls while three Democrats and four other Republicans survived recall elections. That left Republicans with just a 17-16 majority in the Senate, making additional recalls more attractive to Democrats as they saw an opportunity to take over control by picking up just one seat.

Recalls of Democrats, as well as members of the state Assembly, are also possible.

Democrats, unions and others are also targeting Republican Gov. Scott Walker for recall next year, but redistricting changes won't affect that since it is a statewide race.

Recalls can proceed against any incumbent who has been in office for at least a year.

But because of the time it takes for a recall to move from a petition drive to the scheduling of an election, any effort that begins in May or later likely will have to be done under the new district boundary lines, Kennedy said. That's because the election likely would take place after Nov. 6, 2012.

It's impossible to know exactly when recall elections may be scheduled due to vagaries in the time it will take to review signatures, possible lawsuits and other delays. But Kennedy said holding a recall election on the same date as already scheduled elections next year would be create "considerable confusion" for election clerks as they'd have to maintain separate voting books.

There will also be problems if the elections are between April and August, Kennedy said. That's because vote results must be maintained for a certain period of time after the April spring and presidential primary election. If those memory devices have to be cleared sooner than planned to accommodate voting in a recall election, it could cost $250 or more per voting machine to transfer the data, Kennedy said.

The Government Accountability Board, which is comprised of six retired judges, planned to discuss the boundary line issue at its Nov. 9 meeting.

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