Judge keeps 2 disqualified Milwaukee County executive candidates off the ballot

A Milwaukee County judge on Friday refused to reinstate two disqualified candidates for Milwaukee County executive to the ballot for a Feb. 18 primary.

The two candidates, former state Sen. Jim Sullivan and Glendale Mayor Bryan Kennedy, asked the court to intervene Wednesday, a day after the Wisconsin Elections Commission ordered that their names be removed from the ballot for both the primary and the April 7 general election because of a problem with their nomination papers.

They asked Milwaukee County Circuit Judge Kevin Martens to find that Tuesday's decision from the Wisconsin Elections Commission violated state law and order that their names appear on the Feb. 18 ballot.

Martens late Friday backed the elections commission decision.

"People that are running for an office that includes enforcing and passing laws should at the very least when they're running for that office comply with the laws, and that's what this is about," said Michael S. Maistelman, the attorney for Milwaukee County Board Chairman Theodore Lipscomb Sr. Lipscomb, a candidate for county executive, brought the original complaint against Kennedy and Sullivan.

After the hearing, Kennedy criticized the move by Lipscomb.

"This is really just an example of Chicago-style politics. It's gutter politics, and I'm so sorry to see that this is how Milwaukee County is evolving," Kennedy said after the verdict. "I would have expected better. I've never challenged any of my opponents' nomination papers, and I'm frankly quite shocked by the result of all of this."

Sullivan said the people who signed the nomination papers for himself and Kennedy are being disenfranchised. He also said that the campaigns asked the right questions. 

"Unfortunately, we had four signature gatherers who turned out to be circulating for other candidates, unbeknownst to any of the different candidates in the race," he said. "It's just an unfortunate result."

He said an appeal is unlikely, given the timeline to get ballots printed.

Milwaukee County Clerk George Christenson said Friday that the county had not yet started printing ballots, after the county's corporation counsel advised waiting for a court decision. The county originally planned to start printing some ballots before Friday's hearing.

Ballots will be sent to the printer at 4 p.m. Monday and delivered to municipal clerks as soon as possible, unless the Court of Appeals orders otherwise. It takes five business days to print the ballots. 

Martens was appointed by a Republican governor in 2001 and has been reelected since then. Both Kennedy and Sullivan are Democrats.

Sullivan and Kennedy argued that the state law dealing with the collection of nominating signatures is discretionary, not mandatory; that the Wisconsin Elections Commission erroneously interpreted state law; and that the commission violated Sullivan's and Kennedy's constitutionally guaranteed right to due process by not giving them the opportunity to participate in the proceedings.

The campaigns also argued that they had been assured the circulators hired to collect signatures were not working for any other Milwaukee County executive candidates, the circulators were not aware of any law limiting the ability to circulate nomination papers for only one candidate, and that the contested signatures are from qualified voters who followed the nomination process correctly.

Wisconsin Assistant Attorneys General Clayton Kawski and S. Michael Murphy represented the Wisconsin Elections Commission.

In a brief filed Thursday, they contended that the interpretation of state law in the case is "remarkably simple" and that the issue is whether Sullivan and Kennedy met the mandatory requirements for being on the ballot. The law, they wrote, is mandatory, but even if that were not the case, the Wisconsin Elections Commission decision is still proper.

"Plaintiffs used commercial signature-gatherers to circulate their nomination papers," they wrote. "Earlier, those same signature-gatherers had gathered signatures for another candidate for the same office. There is a state statute that says exactly what happens under those circumstances; the earlier paper is valid, and the later paper is invalid," they wrote.

The lawsuit named as defendants the Wisconsin Elections Commission, the Milwaukee County Election Commission and Lipscomb. Lipscomb argued their campaigns had violated state law by using the same people to collect signatures as had state Rep. David Crowley. Lipscomb pushed for their removal from the ballot.

The three campaigns had outsourced the task of gathering signatures, all  giving part of the job to community organizer Simon Warren, owner of the Sweet Black Coffee shop. Warren then paid the same individuals to go out and collect signatures for the different campaigns.

Circulators collected nomination papers for Crowley's campaign first, so a complaint was not filed against him. The law says if a circulator collects nomination papers for two candidates for the same office, the papers with earlier signatures are considered valid. The later ones are rejected.

The Wisconsin Elections Commission struck enough signatures to put Sullivan and Kennedy below the threshold of 2,000 valid signatures needed to get on the ballot.

Kennedy said he wished he and Sullivan had been able to present their cases to the Wisconsin Elections Commission.

"Mr. Sullivan and I ran good, solid campaigns and collected far more than the threshold of signatures that were necessary," Kennedy said. " We had no idea what the vendor was up to."

He plans to run again for mayor of Glendale.

Four Milwaukee County Circuit Court judges — Timothy Witkowiak, Mary Triggiano, William Pocan and Jeffrey Conen — recused themselves on Wednesday.

Witkowiak wrote in a court filing that he was recusing himself "because of the appearance in the fact that the judge signed a nomination paper." Pocan wrote that he knows one of the parties. Conen and Triggiano did not list a reason for recusing themselves. 

Sullivan and Kennedy were among six candidates who filed to replace outgoing County Executive Chris Abele. The Feb. 18 primary will narrow the remaining field of four candidates to two candidates for the April 7 general election.

In statements, state Sen. Chris Larson and state Rep. David Crowley, who also are  running for county executive, expressed disappointment in the outcome. 

Larson said the ruling was understandable given the clarity of the statute. But he also said, "Since day one of this campaign, I've said that the people should decide this election, not outside influences or people looking to rig the system."

"I’m disappointed that the voters won’t be able to make a choice from the full range of candidates, and that my friends Jim and Bryan will not be on the ballot," Crowley said in a statement that also called for unity.

Contact Alison Dirr at 414-224-2383 or adirr@jrn.com. Follow her on Twitter @AlisonDirr.