Wisconsin High Court Overrules Order to Delay Primary

The sole polling location for Waukesha, Wis., residents. (Scott Trindl via AP)

MADISON, Wis. (CN) — Wisconsin’s highest court on Monday reinstated in-person voting for Tuesday’s primary election less than six hours after the state’s Democratic governor issued an executive order postponing the primary as a safety precaution to mitigate the spread of Covid-19.

The Wisconsin Supreme Court’s brief 4-2 decision enjoined Governor Tony Evers’ executive order from earlier in the day, which called off in-person polling for the April 7 election and rescheduled the primary for June 9. The justices granted the GOP-controlled Legislature’s petition challenging the governor’s order.

The high court’s order puts the state back on track for in-person voting on Tuesday, but it also leaves in place a provision of Evers’ order calling for a special legislative session to start at 2 p.m. Tuesday to consider legislation to set a new in-person voting date.

Conservative Justice Daniel Kelly did not participate in the ruling, as he is in a fiercely competitive contest for his seat on the high court against liberal Dane County Circuit Court Judge Jill Karofsky featured on Tuesday’s ballot.

Justices Ann Walsh Bradley and Rebecca Dallet, who comprise the high court’s liberal-leaning faction, dissented from the majority decision. Dallet has endorsed Karofsky in her race against Kelly for a seat on the high court.

The state high court’s Monday ruling did not lay out any rationale for overturning Evers’ executive order, although it did note that more comprehensive opinions were coming at an unspecified time.

Assembly Speaker Robin Vos, R-Rochester, and Senate Majority Leader Scott Fitzgerald, R-Juneau, issued a joint statement applauding the Supreme Court’s ruling, which they say affirms the separation of powers outlined the Wisconsin Constitution.

“The state’s highest court has spoken: the governor can’t unilaterally move the date of the election,” the legislators said.

The two Republican leaders stressed that “the safety and health of our citizens have always been our highest concern; that’s why we advocated for everyone to vote absentee.”

Despite a flood of roughly 1.3 million absentee ballots being cast as of Monday, as well as a broad chorus of state and national officials pleading for a cancellation of in-person voting to prevent the spread of Covid-19, the legislators “continue to believe that citizens should be able to exercise their right to vote at the polls on Election Day, should they choose to do so.”

“This election will proceed as planned,” they proclaimed.

As of Monday, the Badger State had tallied nearly 2,500 confirmed cases of the coronavirus, including 85 deaths.

The governor’s office could not be immediately reached for comment on the high court’s move Monday evening.

The continuing whirlwind of action over Wisconsin’s pivotal primary election began anew midday Monday with Evers’ executive order, which called off all in-person voting for the primary and rescheduled it for June 9.

Evers had already called the Legislature into special session with a separate executive order on Thursday to work on canceling in-person voting on its own terms. That special session was supposed to take place on Saturday, but both chambers of the GOP-controlled Legislature convened and adjourned the special session within seconds without any discussion, a move they repeated Monday morning.

Citing the unprecedented challenges municipalities have had organizing a safe, secure primary in light of Covid-19’s spread, Evers said that “absent legislative or court action, I cannot in good conscience stand by and do nothing.”

“I have been asking everyone to do their part to help keep our families, our neighbors, and our communities safe, and I had hoped that the legislature would do its part — just as the rest of us are — to help keep people healthy and safe,” the governor said. “The bottom line is that I have an obligation to keep people safe, and that’s why I signed this executive order today.”

Within minutes of Evers’ order, Republicans in control of the Wisconsin Legislature, who have steadfastly resisted cancelling in-person voting, promptly declared their intention to challenge Evers’ executive order Monday, which they considered “unconstitutional overreach.”

Making good on its promise, the Legislature filed an emergency petition with the state high court Monday afternoon, claiming Evers exceeded his constitutional and statutory authority by unilaterally changing the election date at the eleventh-hour in defiance of Wisconsin statutes and well-established separations of powers.

It was only in the last week or so that Evers had broken with the Legislature on canceling in-person voting for Tuesday’s primary. Until then, a loose consensus existed between the two entities which routinely snipe at each other over partisan policy, cultivating a working relationship that is at best icy and at worst outright acrimonious.

The Covid-19 pandemic, which tanked global markets and upended civic life around the world, has cast the closely watched Wisconsin primary election into a state of doubt and heaved upon state officials, election personnel and citizens an unprecedented dilemma.

Evers’ initial responses to the pandemic were to declare a public health emergency on March 12, followed by a March 24 safer-at-home order shuttering nonessential businesses and requiring residents to stay in their homes and limit interactions with others as much as possible. Last week, the governor mobilized the Wisconsin Army National Guard to assist poll workers and help with serious shortages of personnel and supplies reported by more than 100 state jurisdictions.

The stridently partisan fight over carrying out the Wisconsin primary while enacting safety measures to prevent spreading Covid-19 has resulted in no less than half a dozen lawsuits filed since mid-March.

A consolidated action originally presided over by U.S. District Judge William Conley, a Barack Obama appointee, was appealed to the Seventh Circuit in Chicago by state and national Republicans after Conley changed the absentee ballot receipt deadline from April 7 to April 13 and waived a rule requiring a witness signature on absentee ballots, provided that the voter include written affirmation of their inability to secure a witness due to Covid-19 and the ballot is otherwise valid.

Late Friday, a three-judge panel of the Seventh Circuit upheld the absentee voter deadline extensions but said in an unsigned order that Conley went too far with his rule change regarding witness signatures, finding that those changes are the purview of the six-member bipartisan Wisconsin Elections Commission.

Further complicating matters, the U.S. Supreme Court issued an order late Monday striking down the extension to absentee voting first ordered by Judge Conley and later affirmed by a three-judge panel of the Seventh Circuit.

The high court majority, led by the Trump-appointed Justice Brett Kavanaugh, found “extending the date by which ballots may be cast by voters — not just received by the municipal clerks but cast by voters — for an additional six days after the scheduled election day fundamentally alters the nature of the election,” relief that the parties bringing the suit never specifically asked for.

“By changing the election rules so close to the election date and by affording relief that the plaintiffs themselves did not ask for in their preliminary injunction motions, the district court contravened this court’s precedents and erred by ordering such relief,” the 5-4 majority opinion states.

The opinion, which arrived roughly 12 hours before Wisconsin polls open, makes it so that any ballot to be counted in the election must be postmarked by the April 7 election day and received by clerks by 4 p.m. April 13.

Justice Ruth Bader Ginsburg, a Bill Clinton appointee, penned a scathing dissent, writing the court’s ruling puts Wisconsin voters in an untenable position.

“Either they will have to brave the polls, endangering their own and others’ safety,” Ginsburg wrote, “or they will lose their right to vote, through no fault of their own. That is a matter of utmost importance — to the constitutional rights of Wisconsin’s citizens, the integrity of the state’s election process, and in this most extraordinary time, the health of the nation.”

Vos and Fitzgerald welcomed the intervention from the nation’s highest court, saying in a joint statement that “this prudent action by the United States Supreme Court addresses our concerns over ballot security in tomorrow’s election.”

Among the parties bringing legal challenges, whose arguments run the gamut from suspending or waiving certain elections rules to delaying the primary whole cloth, have been voter mobilization groups, black and Latino advocacy groups, unions, the League of Women Voters and other state officials.

Green Bay, home of the NFL’s Packers, and its city clerk sued on March 24 in Green Bay federal court to cancel in-person voting and delay the election, but that suit was dismissed by U.S. District Judge William Griesbach, a George W. Bush appointee, because the parties did not have standing to sue in their official capacities.

Wisconsin state Senator and mayoral candidate Lena Taylor, D-Milwaukee, sued in Milwaukee federal court last Thursday seeking to delay the primary until September, arguing that even absentee voting and online election procedures preclude poorer, largely black voters with technological hurdles from casting their ballot. That case was dismissed without prejudice on Sunday by Chief U.S. District Judge Pamela Pepper, another Obama appointee.

The race for Milwaukee’s mayor and county executive are on the primary ballot, along with Wisconsin’s presidential primary and the race between Kelly and Karofsky for Kelly’s high court seat.

Wisconsin clerks and poll workers attempting to execute a sound election, assailed by mixed messages and political posturing from state officials, have been besieged in recent days by unclear directives, lack of healthy bodies to work the polls, supply shortages and roughly 1.3 million absentee ballot requests statewide.

For its part, the Milwaukee Election Commission announced late last week there would only be five polling places open for the entire city of nearly 600,000 instead of the usual 180, in part due to there being less than 400 poll workers available instead of the 1,400 the city normally has.

The Democratic National Committee, which brought one of the lawsuits in Madison federal court over the election on March 18, announced last week that the Democratic National Convention scheduled for July 13-16 in Milwaukee had been postponed until mid-August due to the coronavirus.

DNC Chair Tom Perez condemned the implications of the courts’ decisions late Monday.

“Governor Evers and Wisconsin are focused on protecting the people of their state and the integrity of our democracy,” he said. “Republican leaders are focused on political gain, and they will stop at nothing to get it – no matter the consequences to public health and our democracy.”

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