Wisconsin justices block Tony Evers' order to shut down election, U.S. Supreme Court restricts absentee voting
MADISON - Wisconsin voters will head to the polls Tuesday after Gov. Tony Evers failed to shut down Tuesday’s election in a historic last-minute move that was swiftly rejected by the conservative majority of the Wisconsin Supreme Court.
The spring election will take place with polls opening at 7 a.m. statewide in the face of a warning from the state's top health official who said voting in person will “without question” lead to more illness and death as coronavirus spreads through the state.
Six chaotic hours on Monday during which state leaders fought in court over whether to hold the election ended with a U.S. Supreme Court decision requiring all absentee ballots to be postmarked by Tuesday, reversing a federal judge's order to extend absentee voting by a week and forcing thousands who hadn't yet received their ballots to vote in person or not at all.
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"People have bled, fought, and died for the right to vote in this country. But tomorrow in Wisconsin, thousands will wake up and have to choose between exercising their right to vote and staying healthy and safe," the Democratic governor said in a statement.
"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."
But Republicans who control the Legislature and sued to block Evers' order and to bar extended absentee voting said keeping the state's election laws in place preserves democracy and ensures government at all levels continues to function.
"The state’s highest court has spoken: the governor can’t unilaterally move the date of the election," Senate Majority Leader Scott Fitzgerald of Juneau and Assembly Speaker Robin Vos said in a statement. "The safety and health of our citizens have always been our highest concern; that’s why we advocated for everyone to vote absentee. Wisconsin has responded in droves."
The governor's order came after Evers said for weeks he wanted to keep the April 7 election in place. Meanwhile, election clerks were stuck in the middle without clear guidance the day before they were supposed to pull off an election during 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 Wisconsin Supreme Court's ruling. "They don’t realize the stress they’ve put us under with all of this back and forth.”
A record 1.3 million Wisconsin voters requested absentee ballots by Monday but 43% of the voters who made requests hadn't yet returned ballots, according to the Wisconsin Elections Commission.
Ballots hadn't even been mailed yet to more than 11,000 voters by clerks facing a task never seen before as they managed more absentee voting than ever before while also losing workers over fears of coronavirus infection.
Wisconsin Elections Commission administrator Meagan Wolfe said at an emergency meeting late Monday that figure could be fewer because the number of ballots that haven't been mailed rely on reporting by local clerks.
A number of voters also have reached out to the Milwaukee Journal Sentinel in recent days saying they requested absentee ballots up to three weeks ago and still have not received them. Some say clerks have told them there's no record of the request.
Six chaotic hours
Evers issued an executive order Monday afternoon — 18 hours before polls were set to open — to bar in-person voting as a massive shortage of poll workers prompted some election officials to reduce polling locations, including in Milwaukee which will have just five instead of 180.
But the state's highest court reinstated the election within hours, capping off nearly six hours of confusion as election officials told clerks to continue preparing for an election because they did not know whether the polls would open Tuesday.
A little over an hour 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 5-4 order, voters will have to mail back their absentee ballots by Tuesday, go to the polls that day or give up their opportunity to vote.
On the 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.
Evers acknowledged as he issued the order that it could be thrown out but said he wanted to try everything he could to block in-person voting.
"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."
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 called Evers' order an unconstitutional action.
"We continue to believe that citizens should be able to exercise their right to vote at the polls on election day, should they choose to do so," Fitzgerald and Vos said.
Health secretary: Voting 'would result in more deaths'
Monday's developments 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."
GOP legislative leaders blasted Evers for creating uncertainty by switching positions at the last minute, driving two messages over the last couple weeks.
"The Governor’s authoritarian move has left Wisconsin in chaos as our local clerks struggle to continue their election preparation and voters continue to wonder what information can be trusted coming out of the Evers administration," Senate President Roger Roth, R-Appleton, said.
Evers said he was seeking to prevent an unnecessary gathering that he and Health Services Secretary Andrea Palm said would make the spread of the virus worse in the state.
"In-person voting would, without question, accelerate the transmission of COVID-19 and increase the number of cases," Palm told reporters before the courts intervened. "And an increase in the number of cases in Wisconsin would result in more deaths."
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.
The Wisconsin National Guard has helped fill worker shortages at many polling places, according to Wolfe, who said she hasn't received any reports of being critically understaffed since the guard's soldiers and airmen were asked to help act as poll workers.
Guard spokesman Capt. Joe Trovato said 2,400 soldiers were placed on active duty to help on Election Day and Wolfe said about 500 are on standby tomorrow to help.
Absentee changes ordered
Monday's decision by the U.S. Supreme Court reverses parts of last week's order by U.S. District Judge William Conley, which gave voters until April 13 to return absentee ballots provided they had requested them before the election.
Conley said that was essential because tens of thousands of voters likely won't receive their absentee ballots until after Tuesday.
But the nation's highest court blocked Conley's order late Monday, saying ballots must be back in the hands of clerks by Tuesday or postmarked by then to be counted.
Voters who have not yet received absentee ballots by Tuesday will have to either go to the polls to vote in person or pass on the chance to vote. Conley's order also allowed voters to return ballots without a witness signature briefly, before Republicans challenged his decision in an appeal.
Wolfe said Monday ballots of voters who followed state law under Conley's order in that small window and returned a ballot without a witness signature could not be counted, even if those voters showed up at the polls on Tuesday.
In the majority of the U.S. Supreme Court ruling were the court's conservatives, who noted courts tend not to make major changes to voting rules just before an election.
“Extending the date by which ballots may be cast by voters — not just received 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,” the majority wrote in the unsigned opinion.
Writing for the court's liberals in dissent, Justice Ruth Bader Ginsburg concluded thousands would be "left quite literally without a vote" because their absentee ballots wouldn't arrive at their homes until after election day — too late to cast them.
"If a voter already in line by the poll’s closing time can still vote, why should Wisconsin’s absentee voters, already in line to receive ballots, be denied the franchise?" she wrote.
Wisconsin clerks have been flooded with an unprecedented number of requests for mail-in ballots: 1.3 million by Monday. That's more than all of the early votes cast, both by mail and in person, in the 2016 general election for president.
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.
Their brief meeting was followed by Evers' order, the state Supreme Court's rejection of it and the U.S. Supreme Court's ruling on absentee ballots.
The state high court's ruling 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.
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 believed he could make the call on his own.
"Circumstances have changed," Evers said in response to why he believed he now had the power to issue such an order. "We've seen a dramatic increase in the number of deaths 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 state Supreme Court agreed.
"Even if the Governor’s policy judgments reflected in the order are well-founded, and even if we agreed with those policy judgments, none of the authorities cited in the order support this broad sweep of power," the majority wrote.
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 March 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.
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," commission administrator Meagan Wolfe wrote 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 Monday, at least three local government leaders issued their own orders to echo Evers' edict — 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 had been unclear
Before the ruling, legal experts had split over whether Evers had 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 with 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.
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 Plexiglas screens. Voters will be told to stay 6 feet away from others and use sanitizer before and after they vote.
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.
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.