Acknowledging that Judge Jill Karofsky won the election “by a margin which I suspect exceeds the ability of anyone to challenge the results through litigation,” Rick Esenberg, director of the Wisconsin Institute for Law & Liberty, which has frequently sided with Republicans in challenging Gov. Tony Evers’ administration before the state Supreme Court, told participants in a video chat on Tuesday that it is time to reflect on the April 7 election, “what happened and what we learned.”
WILL took no position on whether or not the election should be delayed, Esenberg pointed out, “The only position we took is that the governor cannot — does not have the authority — to do it unilaterally.”
And in Esenberg’s opinion, the election went off without much of a hitch:
“We’ve seen a lot of the national press about the fiasco in Wisconsin. I don’t think it was a fiasco — in fact, I have to say that I think Wisconsin voters did a pretty good job of figuring out that they needed to get absentee ballot requests in. And I think for the most part municipal clerks did a pretty good job of filling them.”
There were “some problems on Election Day,” Esenberg said, but they were “isolated,” not statewide.
As for those long lines at polling places in Milwaukee, Esenberg blamed the city: “If I were a resident of the City Milwaukee I would ask my local officials why it was not possible to open more than five polling places on election day,” Esenberg said, noting that there are plenty of essential businesses that are still open. “If those private businesses can staff themselves, why couldn’t the City of Milwaukee staff more than five polling places?”
Among the long term policy issues raised by the election, Esenberg said, is the question of whether judicial races ought to be held on the same day as contested presidential primaries that tend to bring out partisan voters on one side. Judicial elections were originally held in the spring, along with other nonpartisan races, he pointed out: “The thinking was … they shouldn’t be tainted by the dynamics of a partisan election.”
Last year, during the lame duck session, Republicans in the state Legislature proposed moving the state Supreme Court race off the date of the Democratic presidential primary. Senate Majority Leader Scott Fitzgerald told reporters that moving the date would probably give Karofsky’s conservative opponent, Justice Daniel Kelly (a former board member of WILL), an advantage. Across the country, Republicans have admitted that they do better in low-turnout elections.
Esenberg’s suggestion of another, more benign reason to hold nonpartisan elections in the spring signals that the issue might come up again.
“That is something for the Legislature to consider, and to consider it at a time when they don’t know whose ox is going to be gored,” he said. “It became impossible to change it, this time around, because, you know, one side understood that they were likely to be advantaged by this, and the other side understood that they were likely to be disadvantaged by this.”
Another issue that is likely to come up soon is the duration of the governor’s stay-at-home order, which has to be ratified by a joint resolution of the Legislature — with a possible exception if the head of the Department of Health issues an order banning public gatherings because of a health emergency. If the Legislature refuses to ratify an extension, and the secretary-designee of the Department of Health acts, things could get messy, Esenberg said.
“If the governor and the Legislature cannot agree on what phase two of this looks like … we could see some very, very significant litigation,” Esenberg said. “I don’t want to throw out terms like constitutional crisis, but it’s gonna be a big deal.”
Esenberg takes no position on a proposed all-mail election in November — an idea floated by Democrats and voting rights groups, and vehemently denounced by President Donald Trump, who tweeted that Republicans don’t do well with absentee voting.
Esenberg says of Evers’ failed proposal that Wisconsin’s spring election be done entirely by mail, “I don’t think that was serious,” because of the short timeline and the complicated logistics involved.
If there is going to be an all-mail vote in the fall, the governor and the Legislature are “going to have to come to some type of an agreement on what that’s supposed to look like,” he added. “We better start working on it now, because it’s not a simple thing to do.”
Esenberg concluded by reflecting on the value of same-day, in-person voting as a civic exercise: “I do think there’s something to be said about a system in which the country gets together and the state gets together and municipalities get together and they cast votes on this, on the same day.”
Such elections model “a kind of public deliberation,” he added. “I think we should not be too eager to throw them out.”