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WILL: Why Evers found himself in an election mess

Empower Wisconsin | Oct. 3, 2019

By WILL’s Lucas Vebber and Luke Berg

Background: Congressman Duffy resigned from the House of Representatives effective Sept. 23. Upon his resignation, Gov. Tony Evers called a special election to fill the now vacant 7th Congressional District seat with a special general election date of Jan. 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 Dec. 30. Nomination signatures from potential candidates are due four weeks before the potential special primary election.

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’ 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: The governor appears to have followed the same timelines used by himself and former Gov. 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, and United States v. Georgia, 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 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 7th Congressional District must comply with UOCAVA. It must also comply with any state law not in conflict with federal law.

What to Look for Next: The governor has to set a new date for the special election that complies with federal law and any state law that is not in conflict with federal law. The question to be most discussed in the coming days will be whether Evers schedules the general election for the 7th Congressional District for April 7, 2020, which would align it with the spring general election already occurring that day, and thus save time and resources for municipal clerks and voters.

In addition, look for the legislature to take some action to update our laws. Wisconsin’s special election laws have been used to fill vacant state legislative seats without issue, but those laws fail to account for the additional requirements that come with federal elections. While special elections for federal office have been few and far between in Wisconsin, the laws still need to be updated to ensure we are never in this situation again.

The Wisconsin Institute for Law & Liberty is a Milwaukee-based public interest law firm dedicated to the promotion of free markets, individual liberty, and a robust civil society.

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