Wisconsin Supreme Court (Creative Commons attribution 2.0)
The Wisconsin Supreme Court overturned Gov. Tony Evers’ executive order delaying the April 7 election and in-person voting until June 9 in a 4-2 ruling. Conservative justices voted with the majority. (Justice Daniel Kelly, who is on the ballot, recused himself.)
That means the polls are once again set to open on Tuesday morning — unless a federal court intervenes in the few hours that remain before Election Day.
On Monday evening, the U.S. Supreme Court ruled on a separate emergency appeal, brought by the Republican National Committee and the Republican Party of Wisconsin, overturning a District Court Judge William Conley’s order that absentee voting be extended until April 13. In effect, this ruling means that voters who have not yet received an absentee ballot will have to go to the polls on Tuesday to cast a vote.
Explaining the legal reasoning behind the Republican legislators’ emergency appeal to the Wisconsin Supreme Court, Rick Esenberg of the Wisconsin Institute for Law & Liberty said, “I think the order violates both the separation of powers and the right to vote. We can disagree with whether the election should be held but we can’t have governors — who are all partisan actors — unilaterally deciding to postpone elections. And people on the left should agree. They certainly wouldn’t have wanted Scott Walker to exercise this type of power.”
In their brief to the court, the lawyers for the Legislature argued: “The Governor does not have constitutional or statutory authority to modify, suspend or otherwise alter the statutes. Nor does the Governor have the constitutional or statutory authority to set the time, place and manner of elections. That authority belongs to the Legislature.”
But when called into special session to debate a proposal to extend voting during the pandemic, and to provide absentee ballots to all Wisconsin voters, the Legislature repeatedly refused to act.
“How do you let the Legislature come and seek relief [from the Supreme Court] when they had an opportunity today to come and act on their own?” says attorney Lester Pines, who has represented Evers before the Supreme Court in the past.
“The governor has authority to act in the public interest for the safety of the people,” Pines added.
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Evers himself has argued both sides of the issue of whether he had the authority to issue his order. On April 1, he tweeted: “We have three branches of government to ensure a system of checks and balances, and questions about our elections typically rely on all three playing a role. If I could have changed the election on my own I would have but I can’t without violating state law.”
But in issuing his order, he said that, as the pandemic worsened, “there is no shame in changing course to keep people safe.”
U.S. District Judge Conley, in his earlier decision extending the absentee voting deadline to April 13, but declining to postpone the election date, left open the door for a later argument on the issue of voter disenfranchisement.
“We really won’t know until Election Day” if large numbers of voters will not able to vote, he said.
The chaos around the April 7 election will no doubt lead to more lawsuits.
The plain language of the governor’s powers during a public-health emergency appear quite broad. These include:
- Issuing such orders as he or she deems necessary for the security of persons and property.
- Suspending the provisions of any administrative rule if the strict compliance with that rule would prevent, hinder or delay necessary actions to respond to the disaster.
- Declaring priority of emergency management contracts over other contracts, allocating materials and facilities in his or her discretion, and taking, using and destroying, in the name of the state, private property for emergency management purposes.
Calling it a “watershed moment,” for the Supreme Court, Pines added, “We’re all staying at home. They’re staying at home. But for people to vote, they have to go and risk their lives?”
The Supreme Court had already taken action to stop jury trials and oral arguments, and the justices are working from home.
All seven Wisconsin Supreme Court justices voted absentee, a search of myvote.wi.gov confirms.
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