Empower Wisconsin | April 7, 2020
By M.D. Kittle
MADISON — In arguably one of the wildest days in Wisconsin election law history, Gov. Tony Evers issued an executive order postponing Wisconsin’s spring election only to have the Wisconsin Supreme Court toss out his edict.
The U.S. Supreme Court then later handed liberal activists another defeat in a 5-4 decision declaring absentee ballots must be postmarked by today — election day — at 4 p.m. Voters have until 8 p.m., the close of the polls, to hand in absentee ballots to local clerks. The court did allow absentee ballots to be accepted at clerks’ offices until April 13 — six days after the election.
Evers, having another last-minute change of heart, issued his order suspending in-person voting until June 9. The governor cited the “serious challenge to controlling the spread of COVID-19” and a lack of poll workers at polling stations around the state in moving to change Wisconsin election law.
“(T)he Wisconsin Constitution establishes the purpose of State Government is to insure domestic tranquility and promote the general welfare, and, as Governor, I made an oath to uphold the Wisconsin Constitution,” Evers’ order states.
In unilaterally deciding when Wisconsin’s spring election would take place, however, Evers exceeded his authority, constitutional law experts said.
“After insisting that he had no authority to do so, Governor Evers has suddenly reversed his position and unilaterally delayed Wisconsin’s election. The right to vote is protected by our Constitution and Governors have no ability to postpone elections,” Rick Esenberg, president of the Wisconsin Institute of Law & Liberty, said in a statement. “
“Whether or not you believe that the election should have been rescheduled, what the Governor did today is the stuff of a banana republic. Fear and uncertainty, while understandable in the present circumstances, do not suspend the rule of law.”
Republican legislative leadership vowed to instantly appeal Evers’ order to the state Supreme Court.
The court moved swiftly. A few hours later it issued a 4-2 ruling declaring the order unconstitutional. Justice Daniel Kelly, who is on today’s ballot, did not participate. The court’s two liberal justices dissented.
“We agree with the state Supreme Court’s ruling that affirms the separation of powers spelled out in our Constitution,” Assembly Speaker Robin Vos (R-Rochester) and Senate Majority Leader Scott Fitzgerald (R-Juneau) said in a joint statement. “The state’s highest court has spoken: the governor can’t unilaterally move the date of the election.”
Less than two hours later, the U.S. Supreme Court issued an emergency ruling that absentee ballots must be mailed and postmarked by election day, “as state law would necessarily require.” The conservative majority decided that question 5-4.
The high court did allow lower court rulings that extended to April 13 the timeline that clerks may receive absentee ballots. It made clear that it was not in a position to decide the “wisdom” of Wisconsin’s decision to proceed with today’s spring elections, but rather a “narrow, technical question.”
In short, it ruled on the side of the law, that neither courts nor governors may go about changing the laws of states without the approval of legislatures.
“Extending the date by which ballots may be cast by voters — not just received by 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. And again, the plaintiffs themselves did not even ask that relief in their preliminary injunction motions,” the court scolded the federal district court, which, too, overstepped its authority.
After agreeing with Republicans for weeks that in-person voting must go on as scheduled, Evers caved in to Democrats and left-wing activists that sought to delay the election, specifically with an all-mail election. On Friday, the governor ordered the Republican-controlled Legislature into special session on Saturday to change election law. Rejecting the governor’s request, the Legislature gaveled in and gaveled out.
Today’s election features the Democratic Party’s presidential primary, a state Supreme Court race, a proposed referendum to the state constitution, 132 county, school district and local referenda, and hundreds of contests for local offices, among others. Postponing the spring election would deny the constitutional filling of those elected offices.