(AP Photo/Scott Bauer)
When Democrats flipped a Wisconsin state Senate seat in a January special election, Republican Governor Scott Walker was quick to sound the alarm. The Republican candidate's 11-point defeat in a district that Donald Trump had won by 17 points in 2016, Walker warned, should serve as a “wake-up call” to conservatives in his state as the 2018 midterms approached.
Evidently, “waking up,” as Walker envisioned it, did not entail a shift in the state party's messaging or strategy. Instead, it meant doubling down on the same tactics that Wisconsin Republicans have engaged in for years, in a state where they have enjoyed trifecta control of government since 2011.
The governor wasted little time in declaring he had no intention of filling two remaining vacancies in the state legislature, in the 42nd Assembly District and First Senate District. Walker argued that holding special elections in the two districts—also traditional Republican strongholds—would be a waste of taxpayer money and further claimed that state law did not require him to fill the seats this year.
“It's transparent. This was a power play,” Jay Heck, executive director of Common Cause Wisconsin, told the Prospect. “Everyone knew what was going on.”
Walker finally capitulated last Thursday, announcing he would call the special elections for June 12, but only after a protracted legal battle that saw state Republicans exhaust every procedural tool at their disposal to keep the seats vacant.
Wisconsin law states that any vacancy “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.” Walker argued that because the two vacancies had occurred on Dec. 29 of last year, he was under no legal obligation to call for special elections to fill them.
That specious interpretation of the statute drew loud objections from Democrats and public-interest groups in the state and around the country. They accused Walker of disregarding a crucial legal obligation simply because he was afraid Democrats might win the seats. In February, attorneys for the Eric Holder–led National Democratic Redistricting Committee (NDRC) sued Walker on behalf of voters in the two districts who rightly argued they were being disenfranchised by the governor's decision.
Walker's legal argument was “ludicrous,” according to Jon Sherman, senior counsel for the nonpartisan Fair Elections Legal Network—another group that considered filing their own lawsuit until the NDRC did. “The language of the statute compelled him to call the election,” Sherman tells the Prospect. “It was clear as day.”
The courts agreed. Dane County Circuit Judge Josann Reynolds pulled no punches when she rejected Walker’s defense on March 22 and ordered him to call the special elections by March 29. Reynolds, a Walker appointee, said the governor’s interpretation of the law “[flew] in the face of reason,” “violate[d] basic rules of grammar,” and was incongruous with Walker’s “very vocal and consistent policy advocating for strict constructionism.”
But instead of accepting that unambiguous ruling, Walker took the remarkable step of requesting a stay on Reynolds's order so that Republicans would have time to call an extraordinary session of the state legislature—specifically to pass a bill that would eliminate the requirement that the governor call for special elections “as promptly as possible.”
That request—in itself an admission that Walker's interpretation of the law was wrong—was promptly denied by a second Dane County judge, who stated plainly that “No court that I'm aware of is at liberty to ignore the law in order to facilitate the Legislature's consideration of bills that might become law.”
Only after yet another judge ruled against Walker's request for a stay—this time in the state's Second District Court of Appeals—did he give in, and Republicans legislators scrapped their plans to change the special elections statute.
“The state court ruled as they had to,” says Sherman. “Everything about this is so obvious; that's what's so painful about it. I have no idea why the governor picks this fight.”
Precisely why Walker and his allies went to such lengths to keep the two seats open is a reasonable question. Certainly, they worried they might lose the seats to Democrats, in light of their January special election loss. But to wage such a longshot legal battle—and actively deny representation to thousands of their constituents in the process—seems like an incredible expenditure of effort for a comparatively small return. Republicans hold majorities of 63 to 35 in the State Assembly and 18 to 14 in the Senate, so a loss in either district wouldn't have moved the needle.
In all likelihood, Walker was bent on avoiding another addition to the narrative that Democrats hold the momentum in his state heading into November, when he will face re-election. “This is Walker all the way,” says Heck.
The governor also had plenty of reason to believe his legal gambit—farfetched as it was—might succeed. Wisconsin Republicans under Walker have a long track record of success pushing through antidemocratic legislation in Wisconsin, from their war on the state’s unions to their hyperpartisan gerrymander of congressional districts and changes to campaign-finance law.
What may have tipped the balance in this instance, though, was the intense national scrutiny and the growing perception that Wisconsin Republicans were running scared.
“These arguments were getting enough blowback that they wound up sort of looking ridiculous,” says Kenneth Mayer, a University of Wisconsin, Madison, professor of political science.
But if Walker and his fellow Republicans learned anything from their defeat, they aren't showing it.
They displayed characteristic contempt for the state judiciary throughout the process, including labeling Reynolds “an activist Dane County judge” after her ruling. For his part, Walker lashed out on Twitter after he called for the special elections, attacking Holder’s NDRC and recycling the same arguments about the elections being a waste of taxpayer money. Now, the governor is supporting a move to eliminate an elected statewide office that represents another check on his authority.
These power plays amount to a continuation of Republicans' broader attack on democratic norms, not just in Wisconsin but around the country.
“There are guardrails in Wisconsin and nationally that [ensure lawmakers] don't seek to maximize and push every possible advantage for the purpose of moving policy in the direction you want and maintaining political power,” Mayer tells the Prospect. “And that’s something that has weakened everywhere, not just here.”
“They don't care,” says Heck of Republicans in his state. “They've done this on so many occasions over the last eight years that it's become commonplace to voters. And [Republicans] count on that.”
For a moment, the rule of law has withstood a concerted attack in Wisconsin. This latest saga—coming as it does in an era when Republicans from the top down are increasingly attacking our neutral arbiters—serves as another reminder that the judiciary is the last, most stalwart defense against bad-faith actors like Walker who are hell-bent on destroying democratic norms for political gain.
