The latest thing the Evers administration has screwed up is explained by the Wisconsin Institute for Law and Liberty:
Congressman Sean Duffy resigned from the House of Representatives effective September 23, 2019. Upon his resignation, Governor Tony Evers called a special election to fill the now vacant 7th Congressional District seat with a special general election date of January 27, 2020.
If more than one candidate from any political party runs and obtains the necessary nomination signatures, then pursuant to Evers’ schedule there will be a special primary election on December 30, 2019. Nomination signatures from potential candidates are due four weeks before the potential special primary election, on December 2, 2019.
A primary election is all but a certainty in the special election as two GOP candidates have already entered the race.
Issue: Federal law (called the Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”), 52 U.S.C. §§ 20301 et seq.) gives overseas voters like deployed servicemen and women the right to vote via absentee ballot. In 2009, UOCAVA was amended by the Military and Overseas Voter Empowerment (“MOVE”) Act, to add the mandate that such voters receive a ballot 45 days before an election. Evers’s scheduled dates violate this federal law for both the proposed primary date and the proposed general election date.
Evers has now admitted that his Executive Order setting these dates violates federal law and he is in the process of setting new dates.
Analysis: Evers appears to have followed the same timelines used by himself and former Governor Scott Walker to call special elections for state legislative seats, but why he did so for a federal election is unclear. UOCAVA imposes requirements for federal elections which make these timelines unlawful. As a result, and as Evers has now recognized, the originally proposed election dates are unlawful.
Courts have found violations of UOCAVA and issued declaratory and injunctive relief when States have established election schedules that did not allow military voters the federally mandated 45 days to vote. In United States v. Alabama, 778 F.3d 926, 929 (11th Cir. 2015) and United States v. Georgia, 952 F. Supp. 2d 1318, 1333 (N.D. Ga. 2013), for example, state laws required runoff elections to be held less than 45 days after the corresponding election. The courts held that these state laws violated the UOCAVA.
The governor has said he will change the dates to comply with the law, which is good because it is all but certain a court would have required that anyway. This is especially true given that Wisconsin had clear notice that our election laws violated UOCAVA: in June of 2018, the state entered a consent decree with the federal government requiring the state to “take such actions as are necessary to assure that temporary overseas voters will receive all of the protections of UOCAVA in all future elections for Federal office…” The current Wisconsin Elections Commission administrator actually signed that consent decree, and yet the Commission proceeded forward as if it was fully intending to have the election that plainly violated federal law. Why no one at the Election Commission blew the whistle on the unlawful dates set by Evers is a question worth asking.
Insofar as Wisconsin law conflicts with federal law with respect to election deadlines, Wisconsin law is preempted. Any special election for the Seventh Congressional District must comply with UOCAVA. It must also comply with any state law not in conflict with federal law.
Which prompts Dan O’Donnell to comment:
In his desperation to avoid holding a special election to replace the now-retired Sean Duffy in the 7th Congressional District on the date of the Spring Election, Evers spun a web of deceit in which he now finds himself tangled.
Either he can admit that he lied about when state law required him to hold that special election or he can admit that his Administration was too incompetent to read applicable federal law before issuing his executive order.
One might imagine that neither is especially appealing.
When Duffy officially resigned his seat on September 23rd, Evers issued the head-scratching order to hold a special election for the seat on Monday, January 21st instead of the more logical Tuesday, January 22nd.
State law, his office told WisPolitics.com, dictated that the earliest the primary election could be was Tuesday, December 24th. Since Evers didn’t want to hold a primary on Christmas Eve (or New Year’s Eve the following Tuesday), he had no choice but to move the election to Monday, December 30th.
Naturally, he didn’t realize that this date marks the final night of Hanukkah (and the fifth day of Kwanzaa), and Assembly Speaker Robin Vos “respectfully demanded” that the primary be moved.
“It is unnecessary to require Wisconsinites to exercise their civic duty to vote on a day they have set aside for a religious purpose,” Vos wrote in a letter to Evers on Friday. “Our Constitution allows us to freely practice a religion if we so choose and as public servants, we must treat people of all faiths with the same dignity and respect.”
Evers did not publicly respond to this, but on Monday was forced to confront an even more pressing challenge to his planned special election—a federal law requiring 45 days before a federal election for military and overseas voters to receive and return their ballots.
Since the congressional race is a federal election, the primary would need to be 45 days before the general. Moreover, state law provides that no special election can occur after February 1st unless it coincides with the Spring Election (held next year on April 7th).
Evers wanted to avoid a special election in the heavily Republican 7th Congressional District on the date of the Spring Election because it would provide a draw to the polls for conservative voters who might otherwise stay home.
After all, the Spring Election will feature Wisconsin’s presidential primary and since the Democratic Party has a wide open primary while President Trump doesn’t have a serious Republican challenger, conventional wisdom assumes that there will be significantly higher Democrat turnout.
This would tend to buoy the chances of liberal Wisconsin Supreme Court candidates Jill Karofsky and Ed Fallone as they try to unseat incumbent conservative justice Dan Kelly.
Assuming Kelly advances out of the primary on February 18th, either Karofsky or Fallone would have a significant inherent advantage against him in the general election because they will presumably have hundreds of thousands more Democrats than Republicans at the polls for the presidential primary.
That advantage would be somewhat muted, however, if 26 of the most conservative of Wisconsin’s 72 counties had a special congressional election in which to vote as well. Their votes might just be enough to counterbalance the expected overwhelming turnout in the heavily Democratic Milwaukee and Dane Counties and put Kelly over the top.
Evers couldn’t allow that, but he also couldn’t be seen as so Machiavellian in his political scheming, so he came up with a nonsensical reason that he just couldn’t hold the special election on April 7th: The constituents of the 7th Congressional District would be unrepresented in the House of Representatives for far too long—six months instead of four.
Those two extra months meant so much to Evers that he is now considering holding the special election on May 5th just so that he won’t have to hold it on April 7th. The Evers Administration has already demonstrated that it doesn’t examine the calendar closely enough to notice Jewish holidays, and now it’s apparently conveying that it doesn’t know that seven months is a longer time for residents of the 7th Congressional District to be unrepresented than is six months.
Of course, Evers actually does know this, but his lack of knowledge of federal law has revealed his dishonesty. Now that he is required to hold the special election on April 7th at the earliest, he is looking for a later date just so that his preferred candidate in the Supreme Court race can maintain a massive voter turnout advantage.
He never cared about residents going unrepresented at all; that was just the web he spun. Now, though, karma has tangled it and Evers is caught. Does he admit that all of his sanctimony was disingenuous and order the special election on May 5th, or does he stick to his supposed convictions and schedule the election for April 7th even though it might hurt him politically in the Supreme Court race?
The Evers (mis)administration is nine months old, and already is working hard to be the political equivalent of the Gang That Can’t Shoot Straight. Anyone who had any dealings with the Department of Public Instruction when Evers ran it should have known this was going to happen, but apparently none of Evers’ Madison and Milwaukee voters knew or cared.
Understand that we are not talking about such policy issues as Evers’ demands to raise taxes or his jonesing to ban guns. Evers and his minions can’t get the nonpartisan, nonideological political and nonpolitical things right either.
For instance, Evers decided to sneak into Platteville to visit UW–Platteville and a Platteville school without telling anyone in the news media, for reasons no one has even attempted to explain. When Scott Walker was governor, media were told at least 24 hours in advance via email, and then Walker’s media people followed up with a phone call to the media.
The corollary is Evers’ refusal to speak to unfavored news media, specifically the MacIver Institute, when he is perfectly fine with speaking to One Wisconsin Now, which meets no one’s definition of “news media.” MacIver is now suing the Evers administration for doing something Walker never did either.
It’s not as if Evers’ administration is trying hard in media relations outside of conservative media. Newspapers that used to get more detail than they could possibly use about the daily whereabouts of Walker, his wife Tonnette, or former Lt. Gov. Rebecca Kleefisch now get nothing from this governor or lieutenant governor. That is Media Relations 101, and given the number of ex-journalists working in state government as public information officers you’d think one of them might say something to the party hack who is supposedly handling Evers’ media relations.
Speaking of relations, or lack thereof, Evers’ office and appointees are apparently not on speaking terms with legislators (as in non-returned emails and phone messages) whose last names are not followed by the letter D. I got that piece of information from two of them, who interestingly represent an area of the state considered to be a swing political area.
This state used to have a fantastic tourism secretary, Stephanie Klett. Since tourism is one of the three biggest pieces of this state’s economy, one would think Evers would find someone competent. One would be wrong to think that. From what I’ve been told by people in the tourism industry, the new tourism secretary, a self-proclaimed world traveler, has not been to most of this state, and her department is uninterested in promoting most of this state, perhaps because of all of those unwashed Republicans who live outstate.
Remember, following Evers’ pledge to not raise taxes, Evers’ budget proposal to raise income taxes and gas taxes? Neither happened. In fact, the 2019–21 state budget, other than Evers’ budget vetoes, bears little resemblance to what Evers proposed. It’s as if Evers didn’t even attempt to negotiate with legislative Republicans, hoping that Democrats can take over both houses of the Legislature in 2020, when the tea leaves are not favorable for that happening, at least 13 months away from the election.
As far as the election date, this state has an attorney general whose office, one would think, should be cognizant of, or at least be able to research, federal election law. Or not, it seems.
This is what voters in Milwaukee and Dane County voted into office last November — not merely liberals, but liberals incompetent at the basic functions of state government, such as media and constituent relations. The administrations of Gov. Tommy Thompson — whose years in office had more Democrats than Republicans in charge in the Legislature — and James Doyle — who governed with a Republican Legislature six out of his eight years in Office — were nowhere near this incompetent.