Language Politics

By Nicholas Fleisher

All rule, no law

At the heart of Wisconsin’s current special elections dispute is a syntactically ambiguous text. The first sentence of Wis. stat. § 8.50(4)(d) currently reads as follows:

Any vacancy in the office of state senator or representative to the assembly occurring before the 2nd Tuesday in May in the year in which a regular election is held to fill that seat shall be filled as promptly as possible by special election.

The ambiguity turns on the prepositional phrase (PP) in the year in which a regular election is held to fill that seat: specifically, on its syntactic position of attachment and its associated semantic import. Does the PP attach low, to May (or, equivalently for present purposes, to 2nd Tuesday in May; in either case forming part of the definite description headed by the), thereby telling us which year’s month of May we are talking about, in order to specify the point before which vacancies obligatorily trigger special elections? Or does the PP attach higher, at the level of the verb phrase, thereby providing an additional restriction on the event introduced by occurring, so as to limit the range of vacancies for which special elections must be called?

The grammatical structure of the text cannot tell us the answer. There are competing interpretations because the text is the (externalized, flattened) residue of at least two distinct grammatical structures. The pure textualist train runs out of track before we reach our destination. Nor will it help to appeal to canons of construction here, since the canons that deal with syntactic ambiguity are little more than labels for the competing readings. In order to rule one way or the other, we must look outside the text.

And we don’t have to look far before we find well-nigh dispositive interactions between the entailments of each reading and the legislative intent behind the statute. On the first (low-attachment) reading, the statute sets an upper limit on the date when vacancies trigger special elections. On the second (high-attachment) reading, it sets both upper and lower limits: in particular, a vacancy does not automatically trigger a special election if it occurs prior to January 1 of the year in which the seat would be regularly up for election. So, for example, on this reading the governor would be within his rights to leave a state senate seat open for as much of its four-year duration as he saw fit, provided the vacancy occurred prior to January 1 of the regular election year for the seat.

The second (high-attachment) reading of the statute plainly conflicts with legislative intent. The statute emphasizes that special elections should be called as promptly as possible, a clear indication that the purpose of the statute is to ensure that legislative seats not remain empty and that the people of the affected districts not remain unrepresented. While the grammatical structure of the statutory text is indeed ambiguous, only the first (low-attachment) reading leads to a sensible interpretation. This is enough to settle the question of the statute’s meaning. It’s not a close call.

The special election dispute has arisen, of course, because the governor has chosen not to call elections for two seats vacated in late December 2017, relying on the indefensible second (high-attachment) reading of the statute as his justification. It’s an obvious violation of the law as written, and it has now been duly laughed out of court. (Update: twice.) Notably, the DOJ recognized the absurd consequences of their chosen interpretation in a March 7 brief (h/t Jordan Ellenberg), where they insist that the special elections called by the governor to fill vacancies in 2017 were exercises of his discretionary authority, not fulfillments of his plain and positive duty under the law. They likewise fail to acknowledge or address the grammatical ambiguity of the statutory text, instead simply claiming that the second (high-attachment) reading is the operative meaning.

The reaction of Wisconsin Republican leaders is telling. The governor failed to fulfill his duty under the law, in obvious violation of the plain meaning of the statute. Plaintiffs went and got a court order (from a judge appointed by this governor, no less!) demanding that the governor call special elections by this Thursday. Legislative Republicans’ response? Change the law! The proposed changes to Wis. stat. § 8.50 would prevent the governor from calling special elections for the currently empty seats, and the bill text explicitly seeks to override the court order issued last week. At a minimum, this tees up another round of litigation, if not an outright constitutional crisis. All ostensibly to save the public the monetary expense of holding two small local elections.

There is no shortage of theories about the governor’s motivations for refusing to hold these special elections, and no shortage of irony in the legislature calling an extraordinary session to prevent special elections at a time of supposed legislative inactivity. The broader point, and the bigger concern, is the relationship between the exercise of political power and the restraints of the rule of the law. The governor has chosen to ignore the law in a case where it is contrary to his political will. The Wisconsin Department of Justice has been enlisted to defend the governor in flouting the law. His legislative allies have chosen to ignore the plain meaning of the law, to impugn the character of the judge who insisted that the law means what it does, and finally to change the law that they do not wish to be bound by.

Such is the law under organized one-party rule.

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