/ Articles / Evers’ election maneuver calls his emergency powers into question

Evers’ election maneuver calls his emergency powers into question

Court appears to deny governor an emergency power to suspend statutes

April 17, 2020 by Richard Moore

For weeks, Gov. Tony Evers insisted the April 7 spring election should proceed, only to backtrack days before the scheduled balloting and then throw the state into chaos on election eve when he dramatically issued an executive order to move the election to June 9.

His Monday, April 6, maneuver followed a failed attempt over the preceding weekend to convince the Legislature to move the election to May and convert it into an all-mail election.

In the end, Evers might have outmaneuvered himself. Just five hours after his executive order on April 6, the state Supreme Court, on a 4-2 vote, voided the order, directing the election to be held as scheduled, and, in the process, the high court might have brought an abrupt end to what the governor argued, albeit belatedly, was one of his most important emergency powers.

Four of the court’s conservative justices — chief justice Patience Roggensack, and justices Rebecca Bradley, Brian Hagedorn, and Annette Ziegler — voted to nix the executive order. Liberal justices Ann Walsh Bradley and Rebecca Dallet dissented, while conservative justice Dan Kelly, who was on the April 7 ballot, did not participate.

After the decision, Evers cast blame on the Legislature and the Supreme Court for holding an in-person election during a pandemic in which he had issued a stay-at-home order.

“There are few things we hold more sacred and that are more American than the right to vote,” he said. “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. 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.”

However, Evers failed to mention his own desire to hold the election on April 7 persisted even after his administration issued a safer-at-home order on March 24.

“This is not a Republican issue or a Democratic issue,” Evers tweeted March 27 in a call for every registered voter to be mailed an absentee ballot. “This is an issue of democracy. I don’t care who gets the credit, I just want to make sure that everyone has the chance to vote this April. We don’t have time for politics — we have to get this done, folks.”

What’s more, in an amicus brief filed in federal court March 31, the administration emphasized the safer-at-home order was not intended to eliminate in-person voting on April 7: “The governor’s office has publicly explained that the Safer at Home Order is not intended to eliminate in-person absentee voting for the April 7, 2020, election. … Additionally, the governor’s office does not interpret the Safer at Home order as prohibiting in-person voting on the scheduled election date, or prohibiting any work necessary to facilitate the election or to determine its results.”

By April 3, the governor had changed his mind, and tried to convince the Legislature, in a Saturday, April 4 special session, to move the election to May and to hold an all-mail election. The effort failed, as the session was gaveled in and gaveled out in a matter of seconds.

Perhaps Evers’ biggest change of mind — and the one that might have the most lasting consequences — came over the powers he has as governor under the state of emergency declaration. 

Until his order Monday, the governor insisted he had no authority to change the election date.

“We have three branches of government to ensure a system of checks and balances, and questions about our elections typically rely on all three playing a role,” he tweeted on April 1. “If I could have changed the election on my own I would have, but I can’t without violating state law.”

On the day before the election, though, he said the changing circumstances around the pandemic gave him that authority. Specifically, his executive order cited the increasing number of cases and the rising COVID-19 death toll, polling staff shortages, and what the Surgeon General called our “Pearl Harbor moment.”

But Evers had also been pressured by a number of Democratic politicians to delay the election, including such Democratic powerhouse mayors as Tom Barrett of Milwaukee, John Antaramian of Kenosha, Cory Mason of Racine, and Satya Rhodes-Conway of Madison.

The Democratic Party of Wisconsin had also called for the election to be delayed. Party leaders increasingly feared that a low voter turnout would ruin their chance to win Tuesday’s election, in which a Supreme Court seat was considered critical.

Republican leaders immediately challenged the order and asked the state Supreme Court to step in.

“The governor himself has repeatedly acknowledged he can’t move the election,” Senate majority leader Scott Fitzgerald (R-Juneau) and Assembly speaker Robin Vos (R-Rochester) said. “Just last week a federal judge said he did not have the power to cancel the election and Gov. Evers doesn’t either. Gov. Evers can’t unilaterally run the state.”

Enter the Court

That set the stage for a last-minute Supreme Court showdown.

In their arguments, Vos and Fitzgerald challenged the idea that, under the broad powers given to a governor in a state of emergency, the governor can suspend state statutes, which was exactly what he was trying to do with the attempt to move the election date.

The emergency statute does give the governor broad authority. In his response to the court, Evers pointed to emergency statutes that provide that, during an emergency, the governor “may” “(i)ssue such orders as he or she deems necessary for the security of persons and property.”

Whether that included the power to suspend statutes has been a bone of contention. When they went to court Monday, Republicans argued it did not and asked the court for clarification.

In a memo supporting the Legislature’s emergency petition, Republicans contended that nothing in the statute suggested the governor had the authority to “suspend,” “amend,” or otherwise alter statutes. There is also no dispute the Legislature can amend those statutes if it believes such changes are necessary, the memo continued. 

“Indeed, the governor called the Legislature into an emergency session on Saturday, April 4, 2020, to request that it do just that, but the Legislature declined,” the memo states. “Apparently dissatisfied with the Legislature’s decision, the governor issued executive order #74, which purports to amend the state’s election statutes, suspending in-person voting until June 9, 2020, and thus changing the date by which all votes must be received. By attempting to rewrite duly enacted statutes, the governor has unlawfully intruded on one of the Legislature’s ‘core constitutional powers.’”

Of course, the memo cited the broad language of the emergency powers’ statute, but it also said other language in the statute imposed significant limits on that power.

For instance, the memo asserts, language following the provision that the governor may “issue such orders as he or she deems necessary for the security of persons and property” further gives the governor the power order to suspend an administrative rule “if the strict compliance with that rule would prevent, hinder, or delay necessary actions to respond to the disaster.”

That the statutory language does not explicitly give the governor the power to also suspend statutes means the Legislature did not intend the governor to have that power, the memo asserts

“For example, the statute specifically authorizes the governor to ‘(s)uspend the provisions of any administrative rule’ during a state of emergency,” the memo states. “The Legislature’s inclusion of this ‘suspen(sion)’ language for administrative rules, but not statutes, indicates the Legislature’s intent to withhold such authority.”

Moreover, the memo continued, if the governor’s emergency power to issue orders were so broad as to include the power to suspend statutes, it would also include the power to suspend administrative rules, rendering the provision explicitly giving the governor the power to suspend administrative rules surplusage. 

“If the Legislature had wished to confer such sweeping authority on a single person, it certainly could have said so,” the memo stated. “For example, Connecticut’s statutes provide that, during an emergency, ‘the governor may modify or suspend in whole or in part, by order as hereinafter provided, any statute, ... or part thereof.’ Examples from other states abound. Wisconsin could have taken the same path, but it deliberately did not.” 

Evers answers

On the other hand, the Evers’ administration argued the statutes did give him the power to act.

“During an emergency, our statutes impose a duty on the Governor to protect the state and its residents, and they empower him to issue those emergency orders he deems necessary for the security of the people,” the governor’s response stated. “ … The effect of the order is the extension of the normal election date to a safer date, and a plain-language reading of the governor’s statutory emergency-order authority shows that the governor’s emergency powers must allow this in these circumstances.”

The administration’s brief spent a lot of time explaining why in-person voting was a bad idea before delving into whether the governor had the authority to do anything about it.

“In-person voting on April 7 would pose two intractable problems, given the COVID-19 pandemic: First, given the unavoidable close physical proximity among poll workers, election officials, and voters at polling locations on election day, and the virtual certainty that some individuals will be infected with COVID-19 when they come to the polls, it is inevitable that COVID-19 infections will spread more rapidly than they otherwise would, absent an in-person election,” the brief stated. “Second, given the heightened health risks of voting in person, municipalities are facing critical shortages of poll workers to administer an in-person election on April 7.”

As to his authority to act, Evers argued that the statutory provision in question — to “issue such orders as he or she deems necessary for the security of persons and property” — expressly gave him that authority.

“The plain language shows that the governor had express power to issue executive order 74 to move the election — when it became increasingly clear that an April 7 election would pose a direct, clear, and imminent threat to public safety,” the response stated. “In the present, narrow context, that is the most reasonable meaning of that provision. The language empowers the governor to issue orders ‘necessary for the security of persons and property.’ And, importantly, the statutory language gives the governor discretion to determine what is ‘necessary’ to protect the public.”

As to that last point, the administration argued that the action became necessary when it became increasingly clear that in-person voting could not be safely held on April 7, and that no other governmental action would be taken to address the danger. 

“The number of Wisconsinites infected, hospitalized, and dead from COVD-19 has continued to skyrocket (with the Surgeon General predicting that the week of April 7 will be the most devastating to the nation overall thus far); the ever-growing pandemic has understandably caused a massive shortage in poll workers; that shortage has, in turn, caused the necessary consolidation of many polling places; and that, in turn, risks bringing even more people together, on top of the already-present threat posed by in-person April 7 voting in any polling place in Wisconsin,” the brief stated. “So, when it became clear that postponing the election was necessary to protect the public, the governor acted in accordance with Wis. Stat. § 323.12(4)(b) by issuing executive order 74.”

The GOP’s viewpoint would also create an absurd situation, the administration argued.

“Beyond adding non-existent limitations into the language of the statute, such a conclusion would also create a profound mismatch between the statute’s text and its purpose, depriving the governor from protecting the public in the rare but present situation where operation of another law poses an imminent harm to public safety,” the brief asserted. “If such a limitation were read into the statute, the governor would be prohibited from, among other things, doing the following in other emergencies: … ordering the immediate replenishment or stockpiling of food supplies, where doing so would violate statutory licensing requirements for food warehouses; or ordering the widespread distribution of prescription drugs to treat anthrax, other bioterrorism agents, radiation or nuclear fallout, and chemical emergencies, violating statutes …  governing licensing, dispensing, and labeling of prescription drugs …”

While state statutes themselves do not normally create a risk to public safety, there are extraordinary circumstance where that proves true, as the examples showed, and binding the governor to every existing statute would negate his express power to take the “necessary” action to protect Wisconsinites, the administration asserted.

But the majority of the Supreme Court was having none of the administration’s argument, striking down the entire order save a provision requiring the convening of a special session of the Legislature.

According to the court’s order, more comprehensive opinions will follow.

Richard Moore is the author of the forthcoming “Storyfinding: From the Journey to the Story” and can be reached at richardmoorebooks.com.

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