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Wisconsin election back on for Tuesday after state Supreme Court overrules governor’s order to postpone it

Before the executive order to postpone Wisconsin's election, Jim Carpenter protests April 6, 2020, in downtown Milwaukee.
Before the executive order to postpone Wisconsin's election, Jim Carpenter protests April 6, 2020, in downtown Milwaukee. (Morry Gash / AP)

In the span of four hours Monday, the whiplash saga of Wisconsin’s election swung from one extreme to the other, with a Democratic governor postponing Tuesday’s voting only to have the state’s conservative Supreme Court majority overrule him.

To add to the drama, the U.S. Supreme Court’s ruled 5-4 Monday evening to overturn a lower court decision made last week to give Wisconsin voters more time to receive and send mail-in absentee ballots in the chaotic election. Under the ruling, ballots must be postmarked by Tuesday or dropped off in person by 8 p.m., despite the fact that election officials across the state were still mailing out thousands of the unprecedented 1.2 million ballots requested.

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The result of it all: Thousands of voters will venture out to a dramatically reduced number of election sites Tuesday amid a statewide poll worker shortage and a coronavirus pandemic that had health officials warning that casting ballots in person could lead to more illness and death across Wisconsin. Plus, voters who requested the mail-in ballots but haven’t received them will face a stark choice: Go to the polls amid a statewide stay-at-home-order or don’t vote at all.

The court rulings, both falling along partisan lines, laid bare Wisconsin’s often toxic political divide, with Democrats arguing Republicans were willfully putting people’s lives at risk and the GOP contending the governor had made an unconstitutional overreach and cast aside the rights of voters.

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The decisions marked back-to-back defeats for Tony Evers, the first-term Democratic governor of a battleground swing state that was key to President Donald Trump’s election victory four years ago. Evers had been unable to convince the Republican-controlled state legislature to take any action to alter the election.

“Thousands will wake up and have to choose between exercising their right to vote and staying healthy and safe,” Evers said in response to the ruling. "In this time of historic crisis, it is a shame that two branches of government in this state chose to pass the buck instead of taking responsibility for the health and safety of the people we were elected to serve.”

An order overturned

The Wisconsin Supreme Court quickly ruled 4-2 late Monday afternoon to block Evers’ executive order to postpone the election until June 9. In an expedited ruling, the court rejected the first-term governor’s contention that it was his constitutional duty to protect the safety of the state’s residents and thus postpone in-person voting.

Conservative Justice Dan Kelly, who is on the ballot for retention Tuesday, abstained from the decision but made his feelings known on Twitter prior to the ruling: “We can do two things at the same time,” he wrote, “maintain the foundations of our democracy while taking reasonable precautions to keep people safe.”

Late Monday, the court had yet to issue a written opinion on the decision, just a brief order. The state’s Republican leaders, Assembly Speaker Robin Vos, R-Rochester, and Senate Majority Leader Scott Fitzgerald, R-Juneau, lauded the decision.

“The state’s highest court has spoken: the governor can’t unilaterally move the date of the election,” they said in a joint statement. “The safety and health of our citizens have always been our highest concern. That’s why we advocated for everyone to vote absentee.”

Even Trump joined in the victory lap, tweeting, “The Wisconsin Supreme Court ruled that tomorrow’s election will proceed as scheduled. VOTE for Justice Daniel Kelly tomorrow, and be safe!”

Democrats accused Republicans of pushing forward in a bid to suppress voter turnout to their advantage in the election, which includes a highly charged state Supreme Court contest between Kelly, whom former Republican Gov. Scott Walker appointed to finish a term, and Judge Jill Karofsky, who is backed by Evers.

“Republican leaders are putting an untold number of lives on the line so they can disenfranchise voters and win an election," said Courtney Beyer, spokeswoman for the Wisconsin Democratic Party. “They’re morally bankrupt and unwilling to do what’s right for our state.”

Evers issued the executive order shortly before 1 p.m. Monday after he called a special session of the state legislature Saturday afternoon in an eleventh-hour bid to have state lawmakers move the election entirely to absentee vote-by-mail ballots. Republicans refused to take up Evers’ proposal and insisted that the polls open as scheduled.

Given the continued uptick in COVID-19 cases and deaths in the state, Evers told the Tribune in an interview Monday that he had no choice but to issue the order.

“The people of the state deserve better than what they’ve been receiving, which has been on the path of the Republicans’ unwillingness to do something,” Evers said. “We’ve fought enough on this issue. We haven’t reached a conclusion, unfortunately, and the majority of the people of Wisconsin don’t care about political fighting, they’re just scared and the governor has to stand up for them.”

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Wisconsin’s Republican legislative leaders immediately challenged the order in Madison at the state Supreme Court, calling the governor’s move “clearly an unconstitutional overreach.”

The court’s ruling to strike down the order came after 15 other states had moved to delay their elections because of the pandemic, either pushing back voting for several weeks or converting the election entirely to mail. Unlike most of those states, Wisconsin’s election features far more than just a presidential primary between former Vice President Joe Biden and Vermont Sen. Bernie Sanders.

On the ballot are general election races for 3,831 local offices — including Milwaukee mayor, Milwaukee County executive and the state Supreme Court seat — where elected officials’ terms are set to expire in a matter of weeks. That’s part of the reason Evers had been so hesitant to delay the election. His order would have extended those terms until after the June election.

As the impact of the pandemic became more widespread across the state, thousands of poll workers — many of them elderly and more at risk of dying from the highly contagious COVID-19 — have said they wouldn’t work Tuesday, leading the governor to direct the Wisconsin National Guard to help staff election sites. Numerous elected leaders, including longtime Milwaukee Mayor Tom Barrett, have urged voters not to go to the polls and instead try to vote absentee.

Milwaukee’s typical 180 election sites have been cut to just five. Suburban Waukesha’s 15 locations have been consolidated to one. Green Bay’s 31 polling sites have been reduced to a pair of high school gymnasiums.

A tent outside the Town Hall allows people to vote early without entering the building in Dunn, Wisconsin, on April 1, 2020.
A tent outside the Town Hall allows people to vote early without entering the building in Dunn, Wisconsin, on April 1, 2020. (Lauren Justice/The New York Times)

“You think about the city of Milwaukee being down to five polling places there, and there could be thousands of people at each polling place. That makes no sense,” Evers told the Tribune. “I’m fearful of the possibility of the transmission of the virus at the polls."

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State election commissioners tried to assuage some concerns by training poll workers in social distancing and other health precautions while acquiring supplies for the polling locations, including 6,000 liters of hand sanitizer, 10,000 spray bottles of sanitizer, 750,000 isopropyl wipes and 1 million ballpoint pens — enough for each voter to use their own.

The governor’s executive order came after the Wisconsin Democratic Party, the Democratic National Committee and a host of civil rights groups had filed various lawsuits in federal court seeking changes and delay the election.

U.S. District Court Judge William Conley ruled to leave the election date in place but extended the amount of time voters had to receive and return mail-in absentee ballots by six days until April 13. Conley, who was appointed by former President Barack Obama, did not require the ballots have a postmark by Election Day.

Democrats lauded the decision as a victory for “thousands of Wisconsin voters who feared they would be silenced.” Republican leaders appealed to the 7th U.S. Circuit Court of Appeals in Chicago, which late Friday declined to stay the lower court’s ruling on the absentee ballots. That led GOP lawmakers to file an emergency request with the U.S. Supreme Court.

In the majority opinion, conservative Justice Brett Kavanaugh wrote that the question before the court was not whether the election should be held but a “narrow, technical question about the absentee ballot process.”

Kavanaugh noted the lawsuits did not ask the lower court to allow ballots to be mailed and postmarked after the election. He contended that no evidence had been provided to suggest that this election would be “substantially different” with regard to the timeliness in which voters would receive their absentee ballots.

“Extending the date by which ballots may be cast by voters — not just received by municipal clerks but cast by voters — for an additional six days after the scheduled election day fundamentally alters the nature of the election,” Kavanaugh wrote on behalf of the court’s conservative majority. The court, however, did maintain Conley’s decision that no unofficial election results should be released until next Monday, meaning there will be no vote totals released Tuesday night.

In her dissenting opinion, liberal Justice Ruth Bader Ginsburg pointed to data from the Wisconsin Elections Commission that showed 150,000 absentee ballots had been processed since Thursday and a backlog of 12,000 remained Sunday. The commission’s data Monday morning showed a backlog of at least 11,000 ballots yet to be sent out.

“The court’s suggestion that the current situation is not ‘substantially different’ from ‘an ordinary election’ boggles the mind," wrote Ginsburg. The decision, she warned, “will result in massive disenfranchisement. A voter cannot deliver for postmarking a ballot she has not received. Yet tens of thousands of voters who timely requested ballots are unlikely to receive them by April 7."

Evers evolution

The governor’s executive order marked the final step on whether to hold the election.

Initially, Evers agreed with Republican leaders that in-person voting should move forward Tuesday. Then he proposed every voter in the state be mailed an absentee ballot while maintaining in-person voting. When election officials deemed that unworkable, Evers followed with his call for the weekend special session to shutter polling places and extend the election into May.

After lawmakers ignored that proposal, Evers decided issued the executive order even though he had said last week, “I can’t move this election on my own. My hands are tied.”

On Monday, Fitzgerald and Vos seized on the governor’s previous statements. The GOP leaders called it a “last-minute flip flop” and a insisted "Gov. Evers can’t unilaterally run the state.”

In his executive order, however, Evers wrote that “the Wisconsin Constitution establishes the purpose of state government is to insure domestic tranquillity and promote the general welfare, and, as governor, I made an oath to uphold the Wisconsin constitution.”

The Tribune first reported Saturday that Evers had considered issuing an emergency order to close Wisconsin’s polling places and delay the election. The governor, his top aides and attorneys remained concerned about the possible precedent of the order.

The attorneys had stressed that there was no state case law to suggest the governor’s emergency powers superseded the legislature. They warned a Republican lawsuit before a friendly state Supreme Court could risk a precedent that would hamstring other future executive orders Evers might issue in response to the pandemic, said a source close to the governor who was not authorized to speak publicly about the deliberations.

In the end, Evers decided the risks to members of the public contracting COVID-19 was a greater concern than all others, with the state’s number of known cases sharply increasing over the last five days to 2,267 and the number of deaths rising to 73.

“The public health outcomes kept getting worse over the weekend," said the source close to Evers. “The scales tipped to the point where which is worse, the court precedent or letting people die?”

Asked Monday whether he worried about his executive powers being struck down in court, Evers replied, “that’s of no consequence to me.”

“The people of Wisconsin are fearful around this election, and it’s my job to take this on as governor of the state,” Evers said. “The ramifications of other things happening to me or this office are irrelevant.”

The governor also projected confidence he would win in court, noting the grave circumstances and that he first had tried to get the legislature to act.

“We’re on the strongest legal ground possible,” Evers said. “We believe we have a good argument. We believe that no matter which court it’s in front of, they will understand the uniqueness of this situation.”

The justices may have understood, but they ruled against him.

Twitter @BillRuthhart

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