MADISON — The Wisconsin Supreme Court, in a 4-2 vote with conservative judges voting in the majority and liberal-backed justices dissenting, said Monday evening that Gov. Tony Evers’ emergency powers do not allow him to delay Wisconsin’s election scheduled for Tuesday.
Evers on Monday ordered in-person voting for the April 7 election to be moved to June 9 and, minutes after, Wisconsin GOP leaders said they were “immediately challenging this executive order in the Wisconsin State Supreme Court.”
The Supreme Court came out with its decision just after 5 p.m. Monday.
“More than a dozen other states have been able to postpone their elections … whether they’re governed by a Republican or a Democrat,” Racine Mayor Cory Mason told The Journal Times in a phone call Tuesday. “We’re literally the only state that’s going to have an election tomorrow.”
Racine County Communications Director Mark Schaaf said in an email late Monday afternoon: “Racine County is preparing for in-person voting Tuesday, per the Supreme Court decision. All our efforts have been on helping ensure the election is conducted as safely and smoothly as possible.”
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The Tuesday election is a big one for Wisconsin. It includes an election for a Wisconsin Supreme Court justice as well as the presidential primary. And in Racine County, there is a $1 billion 30-year Racine Unified referendum. That is in addition to key county and municipal races.
Minutes after the state Supreme Court’s ruling was published, Lt. Gov. Mandela Barnes tweeted “Courts matter. Who’s on the bench matters.” In last year’s spring election, liberal-backed Judge Lisa Neubauer, a Racine resident, lost a close election to conservative-backed Brian Hagedorn, effectively ensuring a conservative majority on the Wisconsin Supreme Court for a decade.
In a co-written statement published following the Supreme Court decision, Senate Majority Leader Scott Fitzgerald, R-Juneau, and Assembly Speaker Robin Vos, R-Rochester, said: “The state’s highest court has spoken: the governor can’t unilaterally move the date of the election ... This election will proceed as planned.”
Justice Daniel Kelly, an incumbent conservative judge who is currently locked in a race against liberal-backed Jill Karofsky, did not participate in the decision the Supreme Court made Monday.
A hectic five hours
Fitzgerald and Vos have repeatedly said they trust Wisconsin’s clerks to do enough to protect poll workers and voters on Election Day, and thus in-person voting should be allowed to go on as planned.
That’s why, minutes after Evers ordered to have Tuesday’s election called off, they issued a statement saying they would try to stop the order, at around 1 p.m. Monday.
“The clerks of this state should stand ready to proceed with the election. The governor’s executive order is clearly an unconstitutional overreach,” Vos and Fitzgerald said upon asking the Supreme Court to overrule Evers. “This is another last minute flip-flop from the governor on the April 7 election. 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.”
That federal judge, U.S. District Judge William Conley, still noted in his decision that it may be “ill-advised” for in-person voting to occur because of the coronavirus epidemic, while also noting that it appeared unlawful for he or the governor to order the election changed.
Conley did extend the deadline for absentee ballots to be submitted to April 13, a decision Republicans have challenged in the Supreme Court, but for which no decision had been made as of press time Monday.
Evers responded to Vos’ and Fitzgerald’s criticisms during a virtual press conference Monday, saying “We expect more cases. We expect more deaths. We expect more tragedies. With that in mind, I can’t in good conscience allow any gathering that would further the spread of this disease and to put more lives at risk ...
“Despite the heroic efforts and good work of our local election officials, poll workers and National Guard troops,” the governor continued, “there is not a safe way to safely administer in-person voting tomorrow.”
Department of Health Services Secretary-designee Andrea Palm added: “In-person voting, by definition, inhibits our ability to physically distance. And the recent consolidation of polling locations in many parts of Wisconsin would result in mass gatherings. In-person voting would, without question, accelerate the transmission of COVID-19 and increase the number of cases. And an increase in the number of cases in Wisconsin would result in more deaths.”
Mason added “You can’t have a Safer at Home order to enforce social distancing and then at the same time encourage millions of people to go out, stand in line in close proximity and vote.”
Is it a ‘flip-flop’?
Over the past month, the governor has repeatedly said he was not able to delay the election unilaterally, even in the face of COVID-19.
On April 1, Evers 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.”
It appeared Monday that his mind had changed. Evers retained the support of at least 26 state health officials and 10 mayors who published a letter Sunday begging for the election to be delayed because of COVID-19. Two of the signers were Mason and Racine Public Health Officer Dottie-Kay Bowersox.
Evers said he was forced to make the order after “the situation in Wisconsin and in our nation has gotten worse” and the Legislature did not act.
On Monday, Wisconsin’s death count from COVID-19 was up to 77. On April 3, three days prior, the number was only 37. A second Racine County coronavirus death was reported Monday.
In a filing with the Wisconsin Supreme Court filed just before 4 p.m. Tuesday, Evers’ legal team argued that the governor had the ability to suspend the election under his broad emergency powers, which are currently in effect.
Wisconsin statute 323.12(4)(b) says that the governor, during a state of emergency, may “Issue such orders as he or she deems necessary for the security of persons and property.”
Susan Johnson, an assistant dean at the University of Wisconsin-Whitewater who holds a doctorate in political science and government, told The Journal Times the following in an email, received hours before the Supreme Court made its ruling: “I don’t know that I would be able to provide a legal analysis of the current situation. It seems unclear as to who would have the legal authority to move an election ... I don’t know that there is much legal precedent to go on.”
Evers’ Executive Order No. 74 directed the Legislature to meet in special session on Tuesday to address the election date and solidify election plans, a follow-up on the special session Evers ordered that occurred on Saturday, April 4, when no action was taken. The Wisconsin Supreme Court did not overrule that part of Evers’ order, and thus the Special Session is still expected to take place.
Local leaders’ thoughts
State Rep. Greta Neubauer, D-Racine, said in a statement issued before the Supreme Court’s ruling that she supports the postponement of in-person voting.
“As elected officials, it is our responsibility to protect the lives of our constituents and the integrity of our democracy,” she said. “Forcing voters to decide between their health and their right to vote is not free or fair. The choice to delay an election is not easy, but it was necessary in the midst of this unprecedented crisis.”
Bowersox, the City of Racine’s top health official, added: “I have been advocating for canceling in-person voting for weeks. It is by far the safest thing we can do to mitigate the spread of coronavirus.”
Ohio and Michigan analogs
In Ohio, a judge on March 16 said that Gov. Mike DeWine could not order polls to close, even though DeWine had ordered just that. Polls remained shuttered on March 17 by the governor’s order anyway, a decision that was later affirmed by the Ohio Supreme Court.
Some believe that DeWine’s decision to call off his state’s election while neighboring Michigan still held its election on March 3 led to Michigan’s COVID-19 outbreak being far more severe than Ohio’s.
The Bridge, a Michigan-based nonprofit news source, reported on March 31: “The virus came to the Great Lakes states around the same time, with Michigan confirming its first two cases on March 10, when Illinois had 19 cases and Ohio had three. Now, the numbers are vastly different: As of Tuesday (March 31), Michigan had 7,615 cases, Illinois had just under 6,000, and Ohio, Indiana and Wisconsin all have less than 2,200.”
WEC tells clerks to prep
Monday afternoon, the Wisconsin Elections Commission ordered clerks to continue preparing for a Tuesday election, even though in-person voting was still at risk of being called off.
“I know too much has already been asked of you, but we ask you to proceed with your Election Day preparations as we do not know the outcome of any possible litigation and we need to be prepared if the election is held tomorrow,” the WEC said in a letter to Wisconsin clerks.
“If the election is moved to (June) we will adjust accordingly, but all we can do today is prepare for tomorrow,” Patricia Campbell, clerk for the Town of Norway, told The Journal Times in an email Monday, quoting from the WEC’s letter.
If Wisconsin’s spring election was delayed until June (or later), local elected officials would remain in office for a couple months after their terms were supposed to expire, Evers said Monday. If the election goes on as planned, as the Supreme Court has ordered, then they should be leaving office at the same time they normally would.
All 21 members of the Racine County Board and seven aldermen on Racine’s City Council are supposed to see their terms end sometime in the next month, although only six county supervisors and four city aldermen are facing challenges.
It’s a similar situation in the rest of the county, with one Mount Pleasant trustee, one Union Grove trustee, two Caledonia trustees and multiple school board members throughout the county facing challenges.
Regarding the unilateral extension of thousands of elected officials’ terms throughout the state, Evers said Monday, “There is no shame in changing course to keep people safe ... This is an unprecedented moment in time.”
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