One Wisconsin Now and some bloggers seem to think it is illegal for the Republicans to run "fake" or "placeholder" candidates in the Democratic primaries. One blogger, Chris Liebenthal, cites Democratic election lawyer Jeremy Levinson in support of that position.
I know and like Jeremy Levinson. I respect him and, in fact, he was gracious enough to accept my invitation to speak to my Election Law class last week. But he's wrong about this. Very wrong - as the GAB seems to recognize.
The argument is that filing nomination papers to appear on the ballot to force a primary violates Wis. Stat. sec. 12.13 (3) (a) which provides that no person may "falsify any information in respect to ... [a] declaration of candidacy", and sec. 12.13 (3)(am) stating that no person may "... file a false declaration of candidacy or amended declaration of candidacy." Filing for a Democratic Party primary when one is not a Democrat and doesn't intend to campaign is, on this view. "falsification."
But it's not. The declaration of candidacy to be filed by these candidates is not due until tomorrow. But, based on press reports, there is no reason to believe that anything on those statements will be false. In other words, the filing candidates will be who they say they are, live where they say they live, be qualifed to run, etc. On the GAB form, one simply avers that he or she is a candidate for an office representing a particular political party, i.e., that one is a candidate for that parties' nomination. These documents do not include any representation that the candidate supports the party, its principles or even that he or she does not belong to or support another party. Indeed, the statute requires nothing more in this regard than an affirmation of candidacy.
Isn't the fact that someone is a "real Democrat" implied?
No - at least not as the law is concerned. Criminal statutes are to be strictly construed. There is no chance that prosecuting these candidates would be successful. There are ways in which Wisconsin could try to protect parties from "outsiders" - and there are some states who employ such devices, e.g., closed primaries. But Wisconsin does not.
So, even if it is "legal," isn't it "wrong?"
No. I fail to see what is intrinsically wrong with the Republicans' strategy. Running candidates in the Senate primaries can be seen as a response to the extraordinary - and arguably unanticipated - use of recall elections as a devise to accelerate the election cycle and flip partisan control of the legislature.
We usually hold primaries and general elections on different days - even if there are not contested primaries for a particular office. One of the reasons this makes sense is to prevent a primary in one party from distorting the result in down ballot races. Assume, for example, that there is a heated race for the Republican Senate nomination this fall and no contested contested primaries of any significance on the Democratic side. If we accelerated the general election for, say, Secretary of State because neither party has a primary, we would distort the outcome of that race. People are far less likely to turn out for that office than for a contested primary at the top of the ballot. The electorate will be more heavily Republican than it will be on the day of the general.
The recall statute doesn't do that because it is predicated on the assumption that recalls will be directed at a particular office holder for something that he or she has done or failed to do and not as a generalized effort to accelerate the partisan election cycle based on policy disagreements.
But even if that is not the assumption, the fact remains that, if there are no primaries in the Senate recalls, then there will be "general" elections for the Senate at the same time that there is a a primary in only one party in much higher profile race in which it is far easier to turn out voters.
This gives the Democrats an advantage that a party would normally not enjoy. We generally do not hold primaries on the same day as general elections. I understand why the Democrats want to hold on to that advantage. I understand why the Republicans don't want to let them have it.
The law permits the Republicans to take that advantage away and I fail to see what is unfair or mischievous about it. The upshot is that we will have a primary day and a general election day. That is how we normally conduct elections in this state. Acting to make that so does not unfairly "disadvantage" Democratic candidates.
Running candidates for Governor and Lt. Governor seems superfluous given that there is going to be a Democratic primary. One reason to do that would be to ensure there is a primary if, for some reason, you want more time before the general election. That may serve some strategic advantage for the Republicans but hardly seems to disadvantage Democrats in an intrinsically unfair way.
It will also present the type of gamesmanship that we have saw last summer when the Democrats had candidates register and file nomination petitions and declaration of candidacies, but then (after nominations are closed) fail to file statements of economic interest so that they could not be certified on the ballot. That would have the effect of unexpectedly accelerating the recall election.
If that suggests to you a bit of inconsistency in the complaints about fake candidates from the Democratic Party, it should.