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Fate of Spring Election in Supreme Court’s Hands
By Wisconsin School Administrators Alliance staff | April 6, 2020
From WisPolitics.com …
The fate of Wisconsin’s spring election hung in the balance late today as GOP lawmakers asked the conservative-dominated state Supreme Court to overturn Dem Gov. Tony Evers’ order to push back in-person voting until June amid a national COVID-19 pandemic.
Republicans filed an emergency appeal with the court hours after the guv issued his order. Evers said he needed to protect the public and poll workers after Republican legislators rejected his last-minute request to push back the date.
But Senate Majority Leader Scott Fitzgerald, R-Juneau, and Assembly Speaker Robin Vos, R-Rochester, rejected the order as an unconstitutional overreach and chided Evers for taking the step after until recently saying the election should proceed tomorrow as originally planned.
Fitzgerald and Vos said local clerks should “stand ready” to proceed with the election.
“This is another last minute flip-flop from the governor on the April 7th election,” the Republicans said. “The governor himself has repeatedly acknowledged he can’t move the election. Just last week a federal judge said he did not have the power to cancel the election, and Governor Evers doesn’t either. Governor Evers can’t unilaterally run the state.”
Their suit seeks an immediate stay of Evers’ order, calling it an “invasion by the Executive into the Legislative arena: setting the time, place, and manner of elections, as well as the terms of local officials.”
The filing also argues, unlike in other states, Wisconsin’s emergency management statutes don’t give the guv or any agency the power to suspend legislatively enacted statutes, including election laws.
The suit adds another layer of legal drama to a spring election that has already seen a federal judge push back to April 13 the deadline to return absentee ballots, an appeals court uphold most of that order and the possibility the U.S. Supreme Court could weigh in on whether it should stand. The justices had yet to release a decision on that request late this afternoon despite state and national Republicans asking them to rule by today on their appeal.
Evers told reporters today he took the unprecedented step of ordering the election delayed, because “somebody has got to stand up for those folks” who are afraid to go to the polls.
The order comes after Republicans again declined to take action legislatively as they gaveled out of the special session Saturday and today. Evers called the special session late last week to overhaul how the election will be operated.
Along with the presidential primary and hundreds of local offices, a seat on the state Supreme Court is up for grabs in the spring election. The last-minute wrangling over the election’s procedures has sparked debate over whether it benefits conservative Justice Daniel Kelly or liberal challenger Jill Karofsky, a Dane County judge.
Evers said he’s “a politician as much as anybody else,” but his order was about public safety, not who’s “getting the upper hand here.”
“It’s about the people of the state that are afraid of their future, afraid of their own personal safety and I believe that I have an obligation to stand up for them,” Evers said.
His order sets June 9 as the date for in-person voting unless “the Legislature passes and the Governor approves a different date for in-person voting.” In the interim, voters can continue asking for absentee ballots until 5 p.m. on the fifth day immediately preceding the new in-person election date.
The order also includes a call for a special session to begin at 2 p.m. tomorrow for the Legislature to take up legislation setting a new in-person voting date.
In the first weeks of the pandemic, Evers repeatedly said he wanted to move forward with the original date for the spring election because of the hundreds of local offices on the ballot. With the terms for many of those offices expiring in the weeks after the spring election, he raised concerns about possibly leaving them vacant during a public health crisis.
In today’s order, Evers extends the terms for those currently in office until results of the spring election results are finalized. Those who win terms in the spring election would still see them expire as if there had been no delay in the election.
The GOP filing with the state Supreme Court argues Evers lacks the power to push back the election or to extend the terms of local officials.
The guv’s office said ballots already cast will remain valid and be tallied in conjunction with the new in-person voting date.
While Evers and others have said in the past he didn’t have the authority to move the date on his own, the guv’s order cites the Wisconsin Constitution and state statute in making the move.
The statute cited gives the power during an emergency to “Issue such orders as he or she deems necessary for the security of persons and property.”
Not long after the guv’s order, Elections Commission Administrator Meagan Wolfe sent a message to local clerks that “we must continue” to make preparations to go through with tomorrow’s vote, citing fast-moving legal action.
“If the election is moved to the 9th we will adjust accordingly, but all we can do today is prepare for tomorrow,” Wolfe wrote.
The guv’s filing in response to the GOP motion argues there is no statute “specifically addressing what should occur if a public health emergency renders the polling place a danger.” But it argues the guv’s emergency powers apply to the current circumstances.
“In these extraordinarily rare, narrow circumstances — where the sanctity of the polling place has collided with the safety of the people, and time is of the essence — the Governor had to act, and he did,” the filing argues.
The filing comes weeks after the state Supreme Court ordered a suspension of all jury trials that had been scheduled through May 22 with plans to reschedule them at a later date. Justice Rebecca Bradley issued a stinging dissent to that order, arguing it violated the Sixth Amendment right to due process and opened the door to suspending other rights by judicial decree.
In recent weeks, Bradley has tweeted a series of quotes from historical and legal figures that have suggested to legal observers she’s itching for a fight over the extent of executive powers in a public health emergency. That includes a 1934 quote from then-U.S. Chief Justice Charles Evans Hughes, “The Constitution was adopted in a period of grave emergency. Its grants of power to the federal government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency.”
See Evers’ release on the order here.
See the order here.
See the GOP petition for original action here.
See the GOP motion for a temporary injunction here.
See the memorandum accompanying the GOP filings here.
See the guv’s response here.
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