Wisconsin voters will cast ballots in person Tuesday, despite government orders to stay at home to stop the spread of the novel coronavirus, after the Wisconsin Supreme Court acted to overrule Gov. Tony Evers’ order to postpone the election until June.
The 4-2 decision was issued 14 hours before polls were set to open statewide in Wisconsin for the spring general election and presidential primary. It’s the latest move in a jam-packed day that consisted of a four-hour block in which in-person voting was barred Tuesday — though clerks across the state were advised to continue preparing for the election as they awaited the ruling.
The activity and mixed signals were sure to have caused at least some confusion across the state, as a few local clerks issued their own orders closing the polls Tuesday in Milwaukee County, Outagamie County and Green Bay to align with Evers’ directive.
The court split along ideological lines in the decision, with Justice Ann Walsh Bradley and Rebecca Dallet dissenting. The ruling -- which didn't include the court's reasoning but noted "more comprehensive opinions will follow" -- enjoins most of the order, save for governor’s call to convene a special session at 2 p.m. Tuesday.
Conservatives typically have a 5-2 majority on the court, though conservative Justice Dan Kelly, who's on the spring ballots seeking a full 10-year term on the court, recused himself from the case, reducing it to a 4-2 majority.
Evers’ directive delayed the election, extended term limits for local officials and called on the Republican-led Legislature to meet in special session Tuesday to find a new date. Leaders rebuffed Evers’ last special session call from Friday, on legislation to move the election to almost an entirely mail-in on, deciding to convene for mere seconds without acting on Evers’ bill.
In their briefs, Republicans — who bypassed lower courts to file a challenge directly with the Supreme Court Monday afternoon — argued Evers’ directive was invalid because he lacked the “authority to unilaterally suspend or otherwise alter the Wisconsin election statutes” that such a move would “result in widespread voter confusion.”
“This case involves 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,” one emergency petition read.
Evers himself last week acknowledged he doesn’t have the authority to move an election, writing in a tweet: "If I could have changed the election on my own I would have but I can’t without violating state law."
But the state Department of Justice, representing Evers, countered in its response that the governor’s move came as he sought to protect public health and safety amid the pandemic, and it argued the Legislature and judiciary had failed to act.
“During an emergency, our statutes impose a duty on the Governor to protect the state and its residents, and they empower him to issue those emergency orders he deems necessary for the security of the people,” DOJ attorneys argued.
Meanwhile, the state’s Elections Commission is poised to meet again Monday night to discuss the ruling, following an earlier meeting this afternoon.
In Wisconsin, a flurry of separate federal lawsuits sought to delay the election or add more flexibility to those seeking to vote absentee. A federal judge last week ruled to extend the deadline to turn in absentee ballots until April 13 and waive the witness signature requirement, though the latter was rolled back after Republicans appealed the decision Friday.
Over the weekend, legislative Republicans again appealed the federal judge’s absentee ballot extension to the U.S. Supreme Court, requesting the justices act on it Monday. That action is still pending.
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