If the Democrats’ pending attempt to recall governor Scott Walker isn’t crazy enough, Democrat Party of Wisconsin chair Mike Tate promised to use the recall process to make a second attempt to seize control of the state Senate between the regularly-scheduled 2010 and 2012 elections. For his part, Senate Republican Leader Scott Fitzgerald said he hasn’t ruled out recalling Democrats, including those who had efforts against them last year fizzle out due to lack of sufficient signatures.

There is an interesting tidbit at the end of the linked Milwaukee Journal Sentinel story that puts into question which version of the legislative districts would be used to conduct the recall process; the districts put into place by a federal judge after the 2000 census or the districts that were redrawn last month. That stems from the last section of 2011 Act 43, which redrew the districts following the 2010 census. Specifically, it reads:

Section 10. Initial applicability.
(1) This act first applies, with respect to regular elections, to offices filled at the 2012 general election.
(2) This act first applies, with respect to special or recall elections, to offices filled or contested concurrently with the 2012 general election.

The Government Accountability Board did not have an immediate answer to the question of which set of maps would be used. That leaves the door open for me to explore the possibilities.

Before I do, however, I need to outline (once again) the statutory timeline of the recall process as it relates to the Legislature:

  • Once a recall committee registers with the GAB, it has up to 60 days to collect and submit for filing a petition for recall with a number of signatures equal to at least 1/4th of those who voted in the most-recent gubernatorial election in that district.
  • The GAB has up to 31 days after that submission to determine the petition is sufficient. If the GAB determines it is not sufficient, the recall committee has up to an additional 5 days to correct the identified deficiencies, with the GAB taking up to an additional 2 days after correction to determine sufficiency.
  • If the recall petition is deemed to be sufficient, a recall election is scheduled for the 6th Tuesday after the day the recall petition is deemed sufficient, and candidates may begin circulating nomination papers in a rather truncated timeframe.
  • If there is only one candidate per “recognized” party (i.e. a party with a candidate who received 1% of the vote in a statewide election in the most-recent election cycle with a gubernatorial election), that scheduled date is recall general election. If there is more than one candidate in a “recognized” party, that party has a recall primary on that date and the recall general election is 4 Tuesdays after that point.

Do note that this is the second (and only second) time the Legislature addressed the recall process when they conducted redistricting; the exact same initial applicability section (with the exception of the date, 2002 was substituted for 2012, and a different section number) appeared in 2001 Act 46, which redrew the Congressional districts after the 2000 census. The other legislative redistricting acts, both before and after a 1982 opinion from Democrat Attorney General Bronson La Follette addressing potential recalls, did not mention recall elections. That opinion, interpreting a court-ordered redistricting that was later superceded by Democrats when they seized complete control of the lawmaking process, said that the court ruling, issued in the middle of the 1982 ballot-access process, immediately applied to any potential recall process, including those Senators who were not up for re-election in 1982.

The normal partisan election ballot-access process, at least under current law, begins on June 1 of the election year when candidates can start collecting signatures, which must be back to the GAB (or, for county partisan offices other than district attorney, the county clerk) by the end of business on the second Tuesday in July (this time around, July 10, 2012). While the 2012 primary date is still in flux as the current second-Tuesday-in-September date, with respect to federal elections, is not in compliance with federal law, the 2012 general election will be November 6.

There were no recalls launched in 2002, but the former State Elections Board used the redrawn Congressional districts to conduct the entire 2002 election process, beginning with the circulation and submission of nomination papers on June 1, 2002, extending through the September partisan primary, and culminating with the 2002 partisan general election.

With all that background out of the way, we can explore the meaning of “concurrently with the 2012 general election”. There are 5 major possible definitions; I’ll present them in reverse chronological order and assume in all cases the full 60 days are used to collect signatures, the full 38 days (including the 7 days allowed to correct any deficiencies) are used to determine sufficiency of the petitions, and the minimum of 36 days between the finding of sufficiency and the scheduling of the recall election occur:

“Concurrently” means the date of the regularly-scheduled general election and the scheduled recall election are the same: If this definition is operative, that would put the latest date this time around a recall could start using the old distrcts at 6/18/2012. That is clearly in conflict with both the 1982 AG opinion and subsequent precedent set by the former State Elections Board establishing the start of the election season as June 1.

It also would, if the last-Tuesday-in-October date set for the recall turns out to be a primary, push the recall general election past the regularly-scheduled 2012 election. Just as an example, if Van Wanggaard (Republican Senator in the 21st District) were to face a recall (the Democrats have said they will be targeting him), a resident of Racine would be voting for Senator in the freshly-redrawn 22nd District in the beginning of November and voting on Waangard’s recall in the 21st at the end of November.

“Concurrently” means the date of the regularly-scheduled general election and a possible recall general election after a recall primary are the same: The latest a recall could start using the old districts under this definition is, this time around, 5/21/2012. It would still put the scheduled recall election date (this time around, 10/2/2012) later than the regularly-scheduled September primary (not to mention later than any potential August date). Also, it would put the start of the circulation of nomination papers for the recall election well after those for the succeeding general election are due and likely past any regularly-scheduled August primary (specifically this time around, 8/27/2012).

“Concurrently” means the date of the beginning of nomination papers for the regularly-scheduled election and the recall election are the same: Using this definition, the latest a recall could be initiated using the old districts is, this time around 2/23/2012. While, in most cases, any potential recall general election following a recall primary would happen prior to any potential regularly-scheduled August primary (this time 8/7/2012 versus the earliest-talked-about date of 8/14/2012 as the second Tuesday in August), the circulators of the two sets of nomination papers would be out and about at the same time. Given one can only sign one canidate’s nomination papers per election, this could prove confusing.

“Concurrently” means the time periods of the circulation of nomination papers overlap: Using this definition, the latest a recall could be initiated using the old districts is, this time around, 2/7/2012. As nomination papers are always due on a Tuesday, that means the papers for the recall election would have to be in by the last Tuesday in May (5/29/2012) to avoid conflict.

“Concurrently” means any part of the recall process and any part of the regularly-scheduled election process overlap: Under the earliest of the definitions, the latest a recall could be initiated using the old districts is, this time around, 12/19/2011. Recall elections are held on Tuesdays (excepting holidays), so the same 5/29/2012 final date holds.

Revisions/extensions – I somehow misspelled Van Wanggaard’s name. Sorry about that.

Steve blogs over at @steveegg

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