Supreme Court Reinstates In-Person Voting for Tomorrow
By Wisconsin School Administrators Alliance staff | April 6, 2020
From WisPolitics.com …
The state Supreme Court this afternoon overturned Tony Evers’ order pushing back in-person voting until June, putting the spring election back on hours after he sought to delay it amid the COVID-19 pandemic.
Evers’ order was enjoined in its entirety in the 4-2 ruling other than a provision calling the Legislature into a special session tomorrow to pick a new date for in-person voting. That provision is now moot with the election moving forward.
The order didn’t include the court’s reasoning, saying a more comprehensive opinion will follow.
Liberal justices Ann Walsh Bradley and Rebecca Dallet dissented.
Conservative Daniel Kelly didn’t participate.
Read the order here.
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Fate of Spring Election in Supreme Court’s Hands
By Wisconsin School Administrators Alliance staff | April 6, 2020
From WisPolitics.com …
The fate of Wisconsin’s spring election hung in the balance late today as GOP lawmakers asked the conservative-dominated state Supreme Court to overturn Dem Gov. Tony Evers’ order to push back in-person voting until June amid a national COVID-19 pandemic.
Republicans filed an emergency appeal with the court hours after the guv issued his order. Evers said he needed to protect the public and poll workers after Republican legislators rejected his last-minute request to push back the date.
But Senate Majority Leader Scott Fitzgerald, R-Juneau, and Assembly Speaker Robin Vos, R-Rochester, rejected the order as an unconstitutional overreach and chided Evers for taking the step after until recently saying the election should proceed tomorrow as originally planned.
Fitzgerald and Vos said local clerks should “stand ready” to proceed with the election.
“This is another last minute flip-flop from the governor on the April 7th election,” the Republicans said. “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.”
Their suit seeks an immediate stay of Evers’ order, calling it 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.”
The filing also argues, unlike in other states, Wisconsin’s emergency management statutes don’t give the guv or any agency the power to suspend legislatively enacted statutes, including election laws.
The suit adds another layer of legal drama to a spring election that has already seen a federal judge push back to April 13 the deadline to return absentee ballots, an appeals court uphold most of that order and the possibility the U.S. Supreme Court could weigh in on whether it should stand. The justices had yet to release a decision on that request late this afternoon despite state and national Republicans asking them to rule by today on their appeal.
Evers told reporters today he took the unprecedented step of ordering the election delayed, because “somebody has got to stand up for those folks” who are afraid to go to the polls.
The order comes after Republicans again declined to take action legislatively as they gaveled out of the special session Saturday and today. Evers called the special session late last week to overhaul how the election will be operated.
Along with the presidential primary and hundreds of local offices, a seat on the state Supreme Court is up for grabs in the spring election. The last-minute wrangling over the election’s procedures has sparked debate over whether it benefits conservative Justice Daniel Kelly or liberal challenger Jill Karofsky, a Dane County judge.
Evers said he’s “a politician as much as anybody else,” but his order was about public safety, not who’s “getting the upper hand here.”
“It’s about the people of the state that are afraid of their future, afraid of their own personal safety and I believe that I have an obligation to stand up for them,” Evers said.
His order sets June 9 as the date for in-person voting unless “the Legislature passes and the Governor approves a different date for in-person voting.” In the interim, voters can continue asking for absentee ballots until 5 p.m. on the fifth day immediately preceding the new in-person election date.
The order also includes a call for a special session to begin at 2 p.m. tomorrow for the Legislature to take up legislation setting a new in-person voting date.
In the first weeks of the pandemic, Evers repeatedly said he wanted to move forward with the original date for the spring election because of the hundreds of local offices on the ballot. With the terms for many of those offices expiring in the weeks after the spring election, he raised concerns about possibly leaving them vacant during a public health crisis.
In today’s order, Evers extends the terms for those currently in office until results of the spring election results are finalized. Those who win terms in the spring election would still see them expire as if there had been no delay in the election.
The GOP filing with the state Supreme Court argues Evers lacks the power to push back the election or to extend the terms of local officials.
The guv’s office said ballots already cast will remain valid and be tallied in conjunction with the new in-person voting date.
While Evers and others have said in the past he didn’t have the authority to move the date on his own, the guv’s order cites the Wisconsin Constitution and state statute in making the move.
The statute cited gives the power during an emergency to “Issue such orders as he or she deems necessary for the security of persons and property.”
Not long after the guv’s order, Elections Commission Administrator Meagan Wolfe sent a message to local clerks that “we must continue” to make preparations to go through with tomorrow’s vote, citing fast-moving legal action.
“If the election is moved to the 9th we will adjust accordingly, but all we can do today is prepare for tomorrow,” Wolfe wrote.
The guv’s filing in response to the GOP motion argues there is no statute “specifically addressing what should occur if a public health emergency renders the polling place a danger.” But it argues the guv’s emergency powers apply to the current circumstances.
“In these extraordinarily rare, narrow circumstances — where the sanctity of the polling place has collided with the safety of the people, and time is of the essence — the Governor had to act, and he did,” the filing argues.
The filing comes weeks after the state Supreme Court ordered a suspension of all jury trials that had been scheduled through May 22 with plans to reschedule them at a later date. Justice Rebecca Bradley issued a stinging dissent to that order, arguing it violated the Sixth Amendment right to due process and opened the door to suspending other rights by judicial decree.
In recent weeks, Bradley has tweeted a series of quotes from historical and legal figures that have suggested to legal observers she’s itching for a fight over the extent of executive powers in a public health emergency. That includes a 1934 quote from then-U.S. Chief Justice Charles Evans Hughes, “The Constitution was adopted in a period of grave emergency. Its grants of power to the federal government and its limitations of the power of the States were determined in the light of emergency, and they are not altered by emergency.”
See Evers’ release on the order here.
See the order here.
See the GOP petition for original action here.
See the GOP motion for a temporary injunction here.
See the memorandum accompanying the GOP filings here.
See the guv’s response here.
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More on Evers Moving Election to June 9th
By Wisconsin School Administrators Alliance staff | April 6, 2020
Governor Evers signed Executive Order #74, suspending in-person voting for the April 7 spring election and moving it to June 9, 2020. The Executive Order does the following:
- Suspend in-person voting for April 7, 2020, until June 9, 2020, unless the Legislature passes and the Governor approves a different date for inperson voting. In the interim, registered Wisconsin voters may continue to request absentee ballots until 5:00 p.m. on the fifth day immediately preceding the new in-person election date, consistent with Wis. Stat. § 6.86(1)(b); clerks shall continue to provide absentee ballots within one business day of the time each elector’s request is received, consistent with Wis. Stat. § 7.15(1)(cm); and eligible voters may continue to cast mail-in absentee ballots as long as they are returned so that they are delivered to the polling place no later than 8 p.m. on the new election date, consistent with Wis. Stat.§ 6.87(6). All ballots already cast in the 2020 Spring election will remain valid, will be tallied in conjunction with in-person voting on the new date, and will be included in all relevant canvasses for the Spring 2020 election.
- Require the convening of a special session of the Legislature at the Capitol in the City of Madison, to commence at 2:00 p.m. on April 7, 2020, solely to consider and act upon legislation to set a new in-person voting date for the 2020 Spring election.
- Provide that, given the necessary delay in the Spring 2020 election, those individuals currently serving in an office to be filled based upon the results of the Spring 2020 election ballot are authorized to continue fulfilling the duties of those offices, and exercising the privileges of those offices, until three business days after county, municipal, and school district clerks issue certificates of election, pursuant to Wis. Stat. §§ 7.53(4), 7.60(6), and 120.06(10), once the deadline to file a petition for recount and appeal of recount has passed. On the third business day after issuance of the certificate of election for any given office on the Spring 2020 election ballot, the term of the newly elected official in that office shall begin. Notwithstanding the delayed beginning of the term for such offices, the terms of all such offices shall expire as if the Spring 2020 election occurred as initially scheduled and all terms of office began as would be anticipated under such circumstances.
In response, Speaker Vos and Senate Majority Leader said, “We are immediately challenging this executive order in the Wisconsin State Supreme Court. The clerks of this state should stand ready to proceed with the election. The governor’s executive order is clearly an unconstitutional overreach.”
In his Executive Order, and in his opening remarks on a media conference call Governor Evers highlighted the following things:
- The Federal Emergency Management Agency (FEMA) granted Wisconsin a major disaster declaration for the entire state.
- The United States Surgeon General said this week the United States will have “our Pearl Harbor moment, our 9/11 moment, and it’s not going to be localized, it’s going to be happening all over the country and I want American to understand that.”
- Dr. Deborah Brooks, the White House’s Coronavirus Coordinator said this is the moment for people to be staying at home, not going to the grocery store, or the pharmacy or anywhere else. She said people should stay at home for the next seven days.
- President Donald Trump said this week the United States is “going to have a lot of death.”
Governor Evers was asked why a week ago he didn’t believe he had the authority to unilaterally change the election and today he does. Evers responded, “Circumstances have changed.” Evers went on to explain that Wisconsin has seen an increase of cases over the weekend, an increase of deaths, and that the continued shortage of poll workers and consolidation of polling places makes it unsafe for people to have in-person voting.
Evers repeated several times throughout the media call that he is responsible for the welfare of the citizens of Wisconsin and he is not playing a game.
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Evers Moves Spring Election to June 9
By Wisconsin School Administrators Alliance staff | April 6, 2020
From WisPolitics.com …
Gov. Tony Evers, who has in the past suggested he doesn’t have the power to change tomorrow’s spring election date on his own, today issued an executive order pushing back in-person voting to June 9 to avoid exposing voters and poll workers to COVID-19.
Evers’ move comes after GOP lawmakers rejected his last-minute request to meet in special session to conduct the spring election by mail and push back deadlines to May to request and receive an absentee ballot.
It also comes amid a flurry of federal court action impacting the spring election and growing attention nationally to the possibility of Wisconsin moving forward with its election amid a growing public health emergency.
In a statement, Evers bemoaned GOP lawmakers declining to act on his request.
“But as municipalities are consolidating polling locations, and absent legislative or court action, I cannot in good conscience stand by and do nothing,” Evers said. “The bottom line is that I have an obligation to keep people safe, and that’s why I signed this executive order today.”
The guv’s office said ballots already cast will remain valid and be tallied in conjunction with the new in-person voting date.
See the release here.
See the order here.
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Open Meetings Compliance in the COVID-19 Era — A Continuing Challenge
By Wisconsin School Administrators Alliance staff | April 6, 2020
From the Legal Side…
In its most recent School Law FYI, the BoardmanClark Law Firm revisits the continuing challenge of how school boards work to find the safest and most efficient ways to conduct their meetings during Wisconsin’s Safer at Home order.
The SAA regularly receives these legal updates and we believe this is valuable information for SAA members. We are distributing this update to SAA members with the permission of the BoardmanClark Law Firm. The information in this update is no substitute for consulting with your district legal counsel, and we encourage you to do so.
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