Marisa Wojcik:

Welcome to Noon Wednesday. Im Marisa Wojcik, a multimedia reporter with Here & Now. And joining me is Scott Gordon. Hes with WisContext, our partners. And hes a reporter and hes been focusing on Wisconsins special elections lawsuit. And hes here to talk to us more about it. Thanks for joining us.

Scott Gordon:

Yeah. Thanks for having me.

Marisa Wojcik:

So where did this all start and where did it end?

Scott Gordon:

Well, it began in late December when Scott Walker, the governor, hired away two state legislators to work in his administration. And he announced at that point that he wasnt going to hold special elections for those two vacant seats. And was just going to wait until the November 2018 election to fill them. And it all kind of ended, more or less, with a flurry of activity in the last couple of weeks of March. Its good that weve had a little bit of time to sit back and process it because quite a few things happened in that short time that were pretty unusual.

Marisa Wojcik:

So if the elections had been called right away, could they have happened by now?

Scott Gordon:

They could have happened in the regularly scheduled spring elections, yes.

Marisa Wojcik:

And would that have caused confusion like some people were saying?

Scott Gordon:

I know thats an argument that was made and Ive never been quite sure what to make of it. I mean one thing that weve found out in our coverage, really analyzing how this has played out over the last 50 years, special state legislative elections in Wisconsin. Its a pretty common occurrence. People in office take other jobs. They die. So its pretty routine for a special election to have to happen. And especially over the course of this decade, there have been a lot of periods where people in Wisconsin have been voting in a lot of elections at once. Especially if you look at 2011 and 2012 when there was a flurry of legislative recall elections and the gubernatorial recall. So Im sure some of the paperwork would have been confusing but I mean just given the publicity alone thats happened around these two districts, youd think people wouldnt be that confused but yeah, sure. Its hard to say.

Marisa Wojcik:

A word you use a lot in your reporting is unprecedented. A lot of what happened as the events rolled out was unprecedented. What was unprecedented?

Scott Gordon:

The first thing that was unprecedented about it is if you look at the history of legislative vacancies and special elections in Wisconsin and we analyzed that as best we could going back about 50 years. Its really unusual, in fact unheard of, to have a vacancy in the state legislature that goes on quite as long as these two would have. And even now with these elections now being called for June, theyll still be pretty extraordinarily long vacancies. You know usually we found theres a pretty quick interval in which governors call the elections. After that theres a certain amount of time that has to elapse before they can actually hold the elections. And when we analyzed all these time intervals, we found that what Walker was doing with these two seats broke from precedence with the previous seven governors but also with what hes done during his term, typically with special elections. You know, another thing that was unusual about this was that there havent been a lot of court cases in Wisconsin that deal with the specific questions that this was dealing with. You know, what does the statute actually require the governor to do? Does it actually give the governor this out that he was kind of claiming he had in the language of the law because of the timing of the vacancies? And you know, another thing that even the state had to admit was unprecedented, as this thing kind of wrapped up at the end of March, was that its really unusual or it actually couldnt cite an example of a time where a judge had suspended a court order to give a legislature time to change the law. The judges in this case all kind of said, Its our job to enforce the law as it is. Not to give you extra time to change the law.

Marisa Wojcik:

Sure. So how far did it make it in the courts and where it ended, did it create more clarity on when special elections must be called?

Scott Gordon:

Well the rulings in state court, state circuit court and appellate court, basically said, Look, the language of the law is pretty clear. You have to do this. It only got as far as the state appeals court. The governor decided not to appeal to the Wisconsin Supreme Court. You know but of course without that having gone up to higher state or federal courts, there wasnt necessarily really a broader, overarching legal resolution to the questions in all this. So, if later on, Walker or another future governor decides to kind of do something that arguably flies in the face of this law, that could set off another court challenge. And there wouldnt really be answers for this. Thered be a little bit of precedence but it still would be up to higher courts to potentially rule on it.

Marisa Wojcik:

So if the legislation had passed the way Walker and it was proposed, what would have happened to the way special elections are called? What would have been the results?

Scott Gordon:

Well there would likely have been a lot more of these long vacancies that were seeing in these two districts because it would have basically increased the intervals that you have to wait before holding a special election. It would have really changed the circumstances in which youre allowed to hold a special election. Of course legislators dropped plans to do that but theres no reason they couldnt take that up at a later date.

Marisa Wojcik:

How does this compare to other states?

Scott Gordon:

Well theres definitely been other states that weve looked at in our coverage that have seen controversies like this including Missouri. Including New York, where actually groups of republicans and bipartisan voters have sued democratic governors to call special elections. That kind of created these controversies that were this interesting, sort of partisan reversal of what we had here. And most states have a system like ours, where its up to the governor to call a special election to fill a state legislative seat when it becomes empty. Of course the wording of those state statutes and those states Constitutions is all going to be a little bit different. So a case that happens in one state isnt necessarily going to offer a lot of precedent for something happening in Wisconsin.

Marisa Wojcik:

So will we see this come up again?

Scott Gordon:

I guess if like I said, in the future, if another governor decides to kind of challenge the norms of whats happened generally with special elections law. Then yeah, certainly we could see a very similar controversy play out again.

Marisa Wojcik:

Very interesting. Well we look forward to seeing more of your reporting on this and other issues. To see more, visit WisContext.org. And be sure to check out Here & Now from Wisconsin Public Television. And visit wpt.org. Thank you for joining us on Noon Wednesday.