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Republicans Have an Ingenious Plan to Stop Losing Special Elections

February 22,2018 11:19

Four days before the anniversary of Donald Trump's inauguration, voters in western Wisconsin sent a devastating message to the president's party. In a State Senate district that Trump won by a landslide in 2016, voters replaced a conservative ...



Illustration by Doug Chayka.

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Four days before the anniversary of Donald Trump’s inauguration, voters in western Wisconsin sent a devastating message to the president’s party. In a State Senate district that Trump won by a landslide in 2016, voters replaced a conservative Republican with a progressive Democrat. The district had been electing Republicans for the better part of two decades, and their nominee, Adam Jarchow, was a prominent member of the State House who had won previous elections in parts of the district. Republicans poured money into the contest. But in the end, it wasn’t even close. St. Croix County medical examiner Patty Schachtner won some 55 percent of the vote, swinging the district to the Democrats by almost 18 points.1

It was a stunning setback for Governor Scott Walker and a state Republican Party that had been on a winning streak since the “GOP wave” election of 2010. So stunning, in fact, that Walker tweeted: “Senate District 10 special election win by a Democrat is a wake-up call for Republicans in Wisconsin.” With the “Trump factor” damaging the GOP brand across the country, and with Walker’s own reelection prospects looking increasingly uncertain, the last thing he needed was this bad news. If Democrats could win in such a seemingly red district, there was no telling where else they could triumph. Two other Republican-held legislative seats were open in Wisconsin; losing either of them would confirm that the Republicans were vulnerable and strengthen the hand of Democrats in the Legislature and on the fall campaign trail.2
Luckily for Walker, he had that problem covered. The governor had already announced that he would not call special elections to fill those vacancies. That was a good thing for Walker and his party—but it was bad for representative democracy, as the 229,904 people living in those districts will go unrepresented for almost a full year.3
Governors in half of all states are empowered to call special elections to fill vacant state legislative seats. A number of them also have the power to call special elections to fill vacant US Senate seats, and all of them are supposed to call special elections to fill vacant seats in the US House. Historically, this awesome authority has been considered a duty that is best exercised quickly and without partisan calculation. But that’s not how the system works these days. Governors like Walker are leaving legislative seats open for months longer than need be—and, in many cases, for as much as a year. In Michigan, Republican Governor Rick Snyder is leaving a US House seat in a heavily Democratic district open for almost the entire second session of the 115th Congress. In Alabama, Republicans are busy rewriting election laws so that there will never be another special election like the one in December that handed Democrat Doug Jones the Senate seat once held by Jeff Sessions.4
“If you’re a Republican governor, what do you do when you can’t seem to win special elections?” asks Carolyn Fiddler, who follows legislative races with the Statehouse Action project. “You stop having them, of course!”5

In Alabama, Republicans are rewriting laws to ensure there will never be another special election like the one won by Doug Jones.

That’s not a calculus that Republican governors like Walker or Snyder or Florida’s Rick Scott would ever admit to. They gripe about the cost of organizing special elections; Snyder has also claimed that special elections don’t provide enough time for prospective candidates to prepare to run and be seated. Republicans note, correctly, that there have been Democratic abusers of this process as well. For the most part, however, it is Republican governors—the same officials who have embraced extreme gerrymandering, purged voter rolls, restricted same-day registration, narrowed the hours for early voting, and otherwise suppressed popular sovereignty—who are taking advantage of imprecise special-election laws to tip the balance in their favor. For example, when a state statute insists, as Wisconsin’s does, that a vacancy must be “filled as promptly as possible by special election,” what exactly does “promptly” mean?6
There’s no question that special elections are the outliers of American electoral politics, as they often require state and local officials to fire up the machinery of democracy at unexpected times. It can cost a lot of money to organize balloting for a relatively small number of voters, notes election-law expert Rick Hasen. With that said, however, special elections are a fundamental part of the infrastructure of representative democracy: They ensure that Americans retain a steady voice in the corridors of power when elected legislators resign or die.7
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Unfortunately, as Hasen explains, “just like any other discretionary election-related decision made by partisan actors, the scheduling of special elections can be subject to abuse.” That’s always been true. But in the new era of anything-goes, winner-take-all politics, the abuses are multiplying—especially now, when the political volatility of the moment has endowed special elections with statewide and even nationwide consequences.8
The most powerful signal that Donald Trump and his congressional enablers are ruining the Republican brand—not just for themselves, but for allies in statehouses across the country—has come from special elections in which traditional voting patterns have been upended in favor of the Democrats. Jones’s win in Alabama is the most high-profile example of this—and the most devastating for Republicans.9
So it should come as no surprise that the most aggressive assault on the guarantee of special elections is happening in the state where voters rejected Judge Roy Moore, embarrassed Trump—Moore’s most prominent backer—and narrowed the Republican advantage in the Senate to a razor-thin 51–49.10
What to do? The Republican-controlled Alabama House of Representatives voted on January 23 to overturn the state law that allows the governor to make a temporary appointment for a Senate vacancy but requires that a special election be held “forthwith” to fill the seat for the remainder of the term. Under the new proposal that the State House backed, the governor would appoint a senator to serve until the next general election.11

This means that a vacant seat could be filled with an appointed crony of the governor for almost one-third of a Senate term before voters are allowed to weigh in. As Alabama statehouse reporter Mike Cason explains it, the bill “says the election will be held at the next general election unless the candidate-qualifying period for that election has already started. In that case, it would move to the next general election, two years later.”12

“Governor Walker is running scared and playing politics with people’s right to be represented.” —Jennifer Shilling, Wisconsin Senate minority leader

Alabama Republicans claim that their plan brings the state into alignment with most others. Regrettably, there is truth in what they say: Two-thirds of American states allow Senate seats to be filled without a special election. But as former senator Russ Feingold (D-WI) explained in 2009, when he proposed a constitutional amendment that would require all US senators to be elected, allowing any senators to serve by appointment is “anti-democratic.” Former House Judiciary Committee chairman Jim Sensenbrenner (R-WI) supported the idea, saying, “Elected senators have a mandate from the people. Appointed senators have a mandate from one person: the governor.”13
Feingold and Sensenbrenner were seeking to bring the Senate into alignment with the House, where vacant seats can only be filled via special elections. “That’s the way it’s been for the House since the Constitution was written, and I don’t think the Senate should be any different,” Feingold explained.14
Unfortunately, governors are now meddling with House elections. In Michigan, Snyder chose to delay a special election to fill the Detroit-area seat of former congressman John Conyers Jr. until the already scheduled November 2018 election. “Most of Detroit to go 11 months without rep in Congress,” read the Detroit News headline after the governor announced his plan to abandon the historical model for filling congressional vacancies with punctual special elections. Some local Democrats accepted Snyder’s assault on representative democracy. But former Michigan Democratic Party chair Mark Brewer ripped into the governor. Referring to high-profile controversies over the takeover of Detroit and other Michigan cities by gubernatorial appointees as well as the water crisis in Flint, Brewer argued that Snyder “continues to give the back of his hand to urban areas whether it’s emergency managers, poisoned water, [or] now being denied representation in Congress for nearly a year.” Lonnie Scott, the executive director of Progress Michigan, denounced Snyder for “willfully taking away people’s right to elected representation in a prominent community of color.”15
Snyder’s move was particularly egregious given that Michigan has a long history of holding special elections for open US House seats—many of which have had national consequences. For example, when a Republican congressman from the Saginaw area resigned in February 1974, a special election to fill that seat, which had been held by the GOP since the 1930s, was set for April of that year. Everyone knew the race would be a referendum on President Richard Nixon and the Watergate scandal, and when Democrat Bob Traxler won, the story appeared at the top of page one of The New York Times. Nixon wasn’t pleased, but Republican Governor William Milliken never attempted to delay an election to fill a vacancy that occurred later in the term than Conyers’s did—just as Milliken didn’t hesitate to call an immediate special election to fill the seat vacated by Michigan Congressman Gerald Ford when he became Nixon’s vice president. A Democrat won that race as well, making even more news and sending a powerful signal about the shifting mood of the country.16
Snyder isn’t leaving only the Conyers seat vacant for 11 months; he’s also leaving open a reliably Democratic seat in the State House, representing the capital city of Lansing, for the same amount of time. Lansing voters were sidelined as the Republican-led Legislature engaged in a highly contentious session during which it overrode Snyder’s veto of a tax measure and held intense debates over how officials at Michigan State University in East Lansing handled sexual-abuse charges involving the gymnastics doctor Larry Nassar.17
But even when special elections don’t make national news, even when they don’t shift control of legislative chambers, they provide voters with representatives in government when decisions that matter to them are made. That’s why there was such an outcry in New York, where Democratic Governor Andrew Cuomo failed to schedule prompt elections to fill 11 vacant State Senate and Assembly seats before this spring’s budget deliberations. Blair Horner, the executive director of the New York Public Interest Research Group, calculated that Cuomo’s delay would leave 625,484 people unrepresented in the Senate, and more than 1.1 million in the Assembly, during the budget debates.18
“The governor has a responsibility to his constituents to call a special election immediately,” Susan Lerner, the executive director of Common Cause New York, said in January. “There’s no excuse to delay.” Actually, there was an excuse—it was just a bad one. Though Democrats were likely to win a lot of the seats, statehouse watchers knew that Cuomo didn’t want to upset the delicate budget negotiations with mainstream Democrats, independent Democrats, and Republicans in a closely divided Senate. Notably, once the timeline made it unlikely that new senators would complicate things for him, Cuomo scheduled the special election for April 24.19
At least New Yorkers will get to vote before November. That won’t happen in Florida, where Republican Rick Scott’s gaming of the election schedules so frustrated leaders of the state Democratic Party that they sued the governor last fall to force him to arrange votes to fill two seats vacated by Democratic legislators. Scott finally relented, but now he’s refusing to move to fill a pair of Republican-held seats that went vacant in December 2017 and January of this year. The governor maintains that election supervisors told him it would cost a lot of money to hold prompt special elections. So, he announced in January, “we’re not.”20

But organizing fair and functional elections will always be expensive, so that’s an awfully lame—not to mention disturbing—excuse for refusing to fill vacancies for most of a year. The same goes for the claim that seats can be left open because nothing much happens in legislative chambers during an election year, which was Walker’s excuse in Wisconsin—despite the fact that his own political career began with a special election to the State Legislature 25 years ago. Some of the governor’s allies claimed at one point that he didn’t have to call elections because of confusing language regarding the need to fill vacant seats if the Legislature wasn’t in special session. But then Walker called a special session to deal with welfare reform. And as the regular session chugged along through January and February, the Legislature weighed tax policy, toll roads, and, ironically, a Republican-led effort to remove the head of the nonpartisan state election commission. The truth, says Wisconsin Senate minority leader Jennifer Shilling (D–La Crosse), is that “Governor Walker is running scared and is playing politics with people’s right to be represented in the State Capitol.”21
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By contrast, the evidence from neighboring Minnesota is pretty compelling. Even as Walker was refusing to call special elections for seats vacated in December, Minnesota’s Democratic governor, Mark Dayton, scheduled a special election for a State Senate seat that went vacant the same month and had it filled by February 12—in time for the legislative session that started a week later.22
Shilling says Wisconsin should have done the same. Along with Assembly Democratic leader Gordon Hintz, she’s sponsoring legislation that would require Wisconsin’s governor to schedule a special election within 60 days after a legislative seat becomes vacant. Hintz says “this bill safeguards our electoral system from the short-term political motives of any sitting governor.” Actually, it does more than that: It safeguards representative democracy, which will remain under threat so long as governors abuse their authority and leave Americans unrepresented in state legislatures and in Congress.23

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