Wisconsin High Court Overrules Order to Delay Primary

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.”

Follow @cnsjkelly

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