Wisconsin Gov. Tony Evers pulled a shady move the other day, with questionable legality, using an executive order to schedule a special election for the 8th Congressional seat being vacated by (sometime) Republican Mike Gallagher.
Yet you wouldn’t know that from most news reports, which mostly simply reported on his executive order, taking it at face value.
Evers scheduled the special election for the SAME election (August primary; November general) as the regular election for that seat. That means voters will have to vote twice for the same seat both in the primary and the general on the same ballot. The person who wins the special election would serve two months. The person who wins the regular would then serve.
It might be the same person. It might not be the same person. All of it’s incredibly confusing to voters and simply bizarre, although some people think Evers is trying to give Democrats a second shot at possibly seizing control of the U.S. House, even if it’s only for two months.
“There is a source for confusion present here, and it will be very difficult to avoid any voter confusion,” acknowledged Wisconsin Elections Commission attorney Brandon Hunzicker, according to the AP.
Gallagher owns this. He could have stayed through his term. He chose not to. So he gave Evers this opening. He at least tried to prevent a special election by timing his resignation to prevent one, following state law. So Evers used a sketchy and questionable executive order scheme instead.
But what does state law say?
Wisconsin State Law on Special Congressional Elections
Before Evers took this surprise action via executive order, people thought it was a done deal that state law meant a special election could not be held because of the timing of Gallagher’s resignation. The regular one would then suffice.
“Because of the timing of his resignation, there will be no special election,” CBS News emphatically wrote on April 4.
One of the few journalists to argue that state law appears to contradict what Evers did was JR Ross of the nonpartisan site Wispolitics.com.
“A reminder state laws says a vacancy in House seat ‘between the 2nd Tuesday in April and the 2nd Tuesday in May in the year of the general election shall be filled at the partisan primary and general election.’ @RepGallagher resignation took effect April 24,” wrote Ross.
If you do the math, that means that, because Gallagher resigned April 24, it was out of the time frame window that state law sets for a special election, rather than a regular one.
A reminder state laws says a vacancy in House seat "between the 2nd Tuesday in April and the 2nd Tuesday in May in the year of the general election shall be filled at the partisan primary and general election."@RepGallagher resignation took effect April 24. https://t.co/QoOLkM1z1V
— JR Ross (@jrrosswrites) May 14, 2024
The full passage in state law makes a clear distinction between a SPECIAL and a regular election.
The state statute reads,
“A vacancy in the office of U.S. senator or representative in congress occurring prior to the 2nd Tuesday in April in the year of the general election shall be filled at a special primary and election. A vacancy in that office occurring between the 2nd Tuesday in April and the 2nd Tuesday in May in the year of the general election shall be filled at the partisan primary and general election.”
That seems pretty clear to us that the legislative intent was NOT to do what Evers did; however, Evers is likely gaming that, if someone brings a legal challenge, then 1) a decision would come after the election (after all, the partisan liberals on the state Supreme Court seized calendaring powers from the chief justice); and 2) that the partisan liberals on the Court will do his bidding.
Some observers think Evers’ (flimsy) legal argument is that the law doesn’t say he COULDN’T do what he did so…
Now check out how the Associated Press characterized the state law. “Under state law, if Gallagher had quit before April 9, a special election before November would have had to be called,” AP wrote. “Gallagher quit on April 24, which required Gov. Tony Evers to call the special election on the same dates as the Aug. 13 primary and Nov. 5 general election.” Our bold.
Contrast the wording of state law with the wording of the AP article for yourself. AP is reporting an interpretation of the law – which coincidentally matches Evers’ interpretation – as if it’s a fact.
Most media outlets left the state law language out or mischaracterized what it says.
On top of it, there is still a lack of legal clarity on Evers’ plan to use the new maps for the election, which the liberal partisans on the state Supreme Court declined to weigh in on, when asked to do so by the Wisconsin Election Commission.
“From a legal standpoint, it’s still a little bit complicated,” attorney Bryna Godar of the University of Wisconsin Law School’s State Democracy Research Initiative told WPR.
This didn’t stop the governor’s fire-breathing PR person from declaring the governor was “required by law” to call a special election (note how her word choice matches the AP’s).
“He is following the law,” she wrote.
You can reread the exact statutory language above and decide for yourself whether Evers was “following the law” or ignoring it.
The governor is required by law to call a special election to fill the residual remainder of the unexpired term.
He is following the law. https://t.co/O41B6IX6bJ
— Britt Cudaback (@BrittCudaback) May 14, 2024
Has this happened before? According to the non-partisan Legislative Reference Bureau, “There have been at least three instances of a separate simultaneous special election to fill a congressional vacancy and a general election for the same seat:
· On November 6, 1894, the special election for the 7th Congressional District was held simultaneously with the general election for the 7th Congressional District. The election was held to fill the vacancy created by the death of George Shaw. The term ending March 4, 1895 was filled by Republican Michael Griffin. The simultaneous general election was also won by Michael Griffin.
· Simultaneous specials and generals were also held in the 6th and 11th congressional districts in November 1918. Republicans Florian Lampert (6th CD) and Adolphus P. Nelson (11th CD) won both the special and general elections in their districts.
· A special and general election for the 6th district was held in November 1930, with Democrat Michael K. Reilly winning the unexpired term and full 1931-33 term in separate elections.
A simultaneous special election to fill a congressional vacancy and general election for the same seat has not occurred since at least 1965.”
However, it’s not clear when the candidates died or stepped down in those cases. We also asked whether the current state law on the question predated those elections. The Bureau responded,
“You also asked if the provision outlined in Wis. Stat. § 8.50 (4) (b) dates back to the 1894 instance of a simultaneous special/general election for a congressional seat. Chapters 5 to 10, which pertain to elections, were repealed and recreated via Chapter 666, Laws of 1965. Unfortunately, we don’t know much of the legislative history of the specific provision in question prior to 1965, although there does seem to have been similar provisions regarding the timing of special elections in place around 1894 (see Chapter VI of the 1889 Wisconsin Statutes). The specific months in the current s. 8.50 (4) (b) were changed from July and September to April and May by 2011 Wisconsin Act 75.”
We asked the LRB whether the agency had any memo or analysis on the statute, but they said the LRB does not do legal interpretations of statutes.
Who’s Running?
Evers and the Democrats have an abortion doctor, Kristin Lyerly, who is running as a Democrat. The term “abortion doctor” is not hyperbole. CBS News called Lyerly “a doctor who performs abortions.” She also sued to keep abortions legal in Wisconsin after Roe v. Wade was overturned, and she moved to Minnesota briefly so she could keep performing abortions, CBS News reported.
Republicans have three candidates running, all conservatives- former state Sen. and Lt. Gov. candidate Roger Roth, state Sen. Andre Jacque and gas station owner Tony Wied (Trump endorsed). All are conservative.
Jacque told Fox Valley talk show host Regular Joe, “The Fact that WEC was unable or unwilling to answer simple clarifying questions regarding the special election and instead deferring questions on it and its legality to Gov. Evers tells you all you really need to know about who’s controlling WEC.”
Today I asked the candidates for #WI08 three questions about Governor Evers' surprise executive order regarding a special election:
1. Will you be running in the concurrent special election for #WI08?
2. Are you planning on pursuing any legal action against the executive order?… pic.twitter.com/mjySd30RPX— Regular Joe (@RegJoeShow) May 15, 2024
Asked whether he was “planning on pursuing any legal action against the executive order,” Wied told Regular Joe, “Weighing different options available.”
“The stakes of this race could not be greater,” Roth told WRN. “Democrats are doing everything in their power to flip the 8th, and we cannot let that happen. I will win this race and do everything I can to help Donald Trump and Eric Hovde dominate Northeast Wisconsin.”
Jacque, Wied, and the Roth Campaign all reiterated their intentions to run for the seat in response to Regular Joe.
Why Did Evers Do This?
Why did Evers do this?
Very odd. @GovEvers calling for a concurrent special election to fill final two months of former Congressman Gallagher’s #CD8 term.
Why hold two elections? What’s planned for the lame duck session that it’s so critical to fill this seat for two months? 🤔https://t.co/W0LL7TGhgA— Jake Curtis (@JacobJCurtis) May 14, 2024
Behind the scenes, many observers are baffled by Evers’ action. However, the most common theories for why Evers created the dual election are as follows:
- If the Democrats can get the abortion doctor through the special at least, they might be able to flip control of the U.S. House even if it’s only for two months. Can you say, House Speaker Hakeem Jeffries? But they could do a lot of damage in two months.
- Thus she will be incredibly well-financed (and won’t have a tough primary like the Republicans.)
- This gives them two shots at it. They may need them because this is a Trump district that tilts Republican.
- They want to create chaos.
- The abortion doctor can now raise double the contribution limits because she can raise money for two separate races at once.
- Republicans now have to run around and get more than 1,000 additional signatures in two weeks to even get on the special election ballot (as does Lyerly). Evers created a very tight time frame in the hopes he could knock some of the Republicans out of the special election or, minimally, distract them, some observers think.
“ICYMI – Governor Evers has called a special election for the 8th Congressional District, meaning our campaign will need to gather more than 1,000 additional signatures in just two weeks. Download our new papers and circulate to your friends and family!” Roth wrote on X.
ICYMI – Governor Evers has called a special election for the 8th Congressional District, meaning our campaign will need to gather more than 1,000 additional signatures in just two weeks. Download our new papers and circulate to your friends and family! https://t.co/eQLpcxA2TU
— Roger Roth (@Roth4Wisconsin) May 15, 2024
Jacque wrote, “Yesterday Governor Evers called a special election for the 8th congressional district. If we get 50 of you to print off one page and get your neighbors signatures, we’d be more than halfway to our goal!”
Although Evers would presumably argue, “But I just wanted folks to be represented for two months,” Republicans believed that, without the special election, the winner of the November regular election would assume office immediately.
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