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Wisconsin Supreme Court blocks Gov. Tony Evers order to shut down election amid pandemic

Milwaukee Journal-Sentinel logo Milwaukee Journal-Sentinel 4/6/2020 Molly Beck and Patrick Marley, Milwaukee Journal Sentinel
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MADISON - Gov. Tony Evers sought to shut down Tuesday's election in a historic move Monday that was swiftly rejected by the conservative majority of the Wisconsin Supreme Court by the end of the day.

A little over an later, the U.S. Supreme Court delivered a second blow to the Democratic governor by tightening limits on which absentee ballots can be counted. Under that order, voters who haven't received absentee ballots by Tuesday will have to brave the polls or give up their opportunity to vote.

Evers issued an executive order Monday afternoon — 18 hours before polls were set to open — to avoid causing more illness and deaths in Wisconsin as the number of coronavirus infections surges. 

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But the state's highest court reinstated Tuesday's election within hours, capping off nearly six hours of chaos as election officials told clerks to continue preparing for an election because they did not know whether the polls would open.

And before the court acted, at least three local government leaders as of Monday afternoon issued their own orders to block in-person voting. 

Tony Evers sitting at a table with wine glasses: Gov. Tony Evers. © Molly Beck, Milwaukee Journal Sentinel Gov. Tony Evers.

Meanwhile, clerks were stuck in the middle without clear guidance the day before the election officials were supposed to pull off an election in the middle of a pandemic. 

"I am so frustrated with our entire state leadership right now I can barely stand it," Carey Danen, De Pere's city clerk, said before the court ruling. "They don’t realize the stress they’ve put us under with all of this back and forth.”

The governor's executive order would have barred in-person voting Tuesday and moved the state's spring election to June 9. His order also called lawmakers back into session this week to deal with how to handle the election, and the Supreme Court allowed that part of his order to stand.

Evers acknowledged as he issued the order that it could be thrown out but said he wanted to try everything he could. 

"It could end up in the Supreme Court yet today, but the bottom line is the people of Wisconsin, they don’t care about the fighting between Democrats and Republicans — they're scared," Evers said in an interview with the Milwaukee Journal Sentinel before issuing the order. "I'm standing up for them. I'm standing up for those people who are afraid and that's why I'm doing this." 

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Evers made his move four days after he said he had no legal authority to change the election. Republicans used the governor's own words against him as they took their case to the state Supreme Court.  

The Legislature's Republican leaders, Assembly Speaker Robin Vos of Rochester and Senate Majority Leader Scott Fitzgerald of Juneau, called Evers' order an unconstitutional action and urged clerks to continue to prepare to work Tuesday before the Supreme Court blocked the order.    

"The state’s highest court has spoken: the governor can’t unilaterally move the date of the election," Fitzgerald and Vos said after the court's ruling. “The safety and health of our citizens have always been our highest concern; that’s why we advocated for everyone to vote absentee."

The GOP leaders are also seeking to block a recent federal court ruling ordering state and local election officials to accept absentee ballots in Wisconsin until April 13 amid an unprecedented number of requests of mail-in ballots: 1.3 million by Monday. 

A number of voters have reached out to the Journal Sentinel saying they have experienced problems voting absentee, however. Some requested their ballot and haven't received it, or they have asked for it but the state's public ballot tracking website says there's no record of their request.

As of Monday, the Wisconsin Elections Commission reported 57% of requested absentee ballots had been returned. Republicans want to limit absentee voting by keeping Tuesday's deadline to receive ballots. 

Monday began with the Legislature quickly adjourning without taking action on a plan Evers released Friday to delay the election. They took a similar step on Saturday, saying they wanted to keep the polls open.

The high court's ruling capped off the day and fell along ideological lines. Four conservatives — Chief Justice Patience Roggensack and Justices Rebecca Bradley, Brian Hagedorn and Annette Ziegler — were in the majority. Liberal Justices Ann Walsh Bradley and Rebecca Dallet were in dissent. 

Conservative Justice Daniel Kelly did not participate. He's on Tuesday's ballot and faces a challenge from liberal Dane County Circuit Judge Jill Karofsky. 

The decisions by the governor and state's high court came a day after U.S. Surgeon General Jerome Adams warned this week will be the nation's worst as it battles the virus outbreak, which has already infected more than 300,000 people and killed more than 10,000 in the U.S.

"This is going to be the hardest and the saddest week of most Americans’ lives, quite frankly," Adams told "Fox News Sunday" host Chris Wallace. "This is going to be our Pearl Harbor moment, our 9/11 moment, only it’s not going to be localized. It’s going to be happening all over the country. And I want America to understand that." 

Evers admitted he held a different position on whether he could delay the state's spring election and said the outbreak's scope and effects on recruiting poll workers now gives him the authority. 

"It's clear we weren't going to have a legislative solution, so following science like I always have, it became clear the safety of people was jeopardized and will be jeopardized at the polls," Evers said. "We only have five (polling locations) open in Milwaukee. It doesn't take a rocket scientist to figure out that's not going to work." 

On Monday, the number of positive coronavirus cases in Wisconsin topped 2,400 and 85 people had died. 

In Milwaukee, where more than half of the state's cases exist, fears of infection have resulted in a massive shortage of poll workers prompting the city's election commissioner to reduce polling places to five for the 40,000 to 50,000 people expected to vote in person.

Evers said he was seeking to prevent an unnecessary gathering that he and Department of Health Services Secretary Andrea Palm said would make the spread of the virus worse in the state. 

In his order, Evers cited a portion of the state constitution that "establishes the purpose of State Government is to insure domestic tranquility and promote the general welfare."

He also cited a state law that gives the governor powers during an emergency to "issue such orders as he or she deems necessary for the security of persons and property."  

On Friday Evers said he couldn't make changes without lawmakers — saying "my hands are tied." He said Monday he now believes he can make the call on his own.

"Circumstances have changed," Evers said in response to why he believes he now has the power to issue such an order. "We've seen a dramatic increase in the number of deaths have increased as well as the number of people who are determined to be positive."

But the GOP leaders said Evers was right when he said on Friday he couldn't change elections on his own.  

The governor's order is likely the last move he can make to try to stop in-person voting Tuesday. "There's not a Plan B. There's not a Plan C," Evers said before the Supreme Court ruled. 

Wisconsin's situation nearly mirrors the day before Ohio's May 17 presidential primary election. Ultimately, the state's health secretary stepped in the night before the election and closed polling places. State lawmakers convened to decide the new election date. 

On the Wisconsin ballot is the presidential primary, a referendum on a crime victims rights and races for state Supreme Court and local offices across the state, including Milwaukee mayor and Milwaukee County executive.

Meanwhile, throughout Monday the head of the state Elections Commission advised clerks to continue to prepare for Tuesday's election.

"... we must continue making preparation in earnest for tomorrow," she said in a memo posted after Evers' order and before the court ruling blocking it. "If the election is moved to the 9th we will adjust accordingly, but all we can do today is prepare for tomorrow."

To add to confusion for clerks within the six chaotic hours on Monday, at least three local government leaders issued their own orders to echo Evers' order — Green Bay Mayor Eric Genrich, Outagamie County Executive Tom Nelson and Milwaukee County Executive Chris Abele, all Democrats.

By the end of Monday, after the court's ruling, the local leaders backed off their orders.

Governor's powers unclear

Legal experts have split over whether Evers has the power to halt an election that is set by law for the first Tuesday in April.

Last month attorneys Jeffrey Mandell and Douglas Poland told the Milwaukee Journal Sentinel they did not believe Evers could suspend the election on his own even though governors have broader powers during emergencies. (Mandell is now advising the governor and Poland now represents groups that went to court to try to delay the election.) 

Rick Esenberg, president of the conservative Wisconsin Institute for Law & Liberty, said last month it appeared the governor could delay the election if he determined it was necessary to protect public health. But he noted then that those powers might clash constitutional rights and he said in a statement Monday that "what the governor did today is the stuff of a banana republic.” 

Evers for weeks has said he didn’t believe he could suspend the election, but in the last day or so he concluded he could because of the scope of the pandemic.

Last week U.S. District Judge William Conley declined to delay in-person voting, saying doing so was beyond his authority. That power belongs to Evers and lawmakers, he ruled, and he signaled they should prevent in-person voting because of the pandemic.

While Conley didn’t delay the election, he gave people until April 13 to return absentee ballots, provided they had requested them before the election. That part of his decision has been appealed to the U.S. Supreme Court.

In a briefing for the media, the state Election Commission’s Wolfe described an election day that would be unlike any Wisconsin voters have seen before. 

At many locations, poll workers will be wearing masks. At others, they will be behind Plexiglass screens. Voters will be told to stay six feet away from others and use sanitizer before and after they voted.  

Some communities were planning curbside voting, where voters will hold their IDs up to the window and poll workers will slide a ballot to them through a crack in the window. 

Alison Dirr and Haley BeMiller of the USA TODAY NETWORK-Wisconsin contributed to this report. 

Contact Molly Beck at molly.beck@jrn.com. Follow her on Twitter at @MollyBeck.

This article originally appeared on Milwaukee Journal Sentinel: Wisconsin Supreme Court blocks Gov. Tony Evers order to shut down election amid pandemic

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