‘Broad sweep of power’ or within public interest? How justices argued provisions in the state election order

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Wisconsin is the only state in the U.S. with an April election proceeding as planned, the result of an order the state Supreme Court issued on Monday.

The court’s ruling countermanded an executive order that Gov. Tony Evers had issued earlier in the day in an attempt at postponing in-person voting for two months. Hours later, the state Supreme Court sided with Republicans who said Evers didn’t have the authority to reschedule the race on his own. Conservative justices on the U.S. Supreme Court quickly followed with a ruling blocking Democratic efforts to extend absentee voting.

The state Supreme Court ordered the election to proceed 4-2. Chief Justice Pat Roggensack and Justices Rebecca Bradley, Brian Hagedorn and Annette Ziegler made up the majority.

The high court assessed several general constitutional provisions and one statute that Evers cited in support of his order: the Preamble; art. IV, § 11; art. V, § 1; and art. V, § 4 of the state Constitution; and Wisconsin Stat. § 323.12(4)(b).

The majority found none of the provisions could authorize Evers to issue the directives in his executive order, with the sole exception of one requiring the Legislature to convene in special session on April 7. The order noted that Article V, Section 4 references danger from contagious disease, but “specifies that this circumstance gives the Governor the power to convene the Legislature at another ‘suitable place.'”

Wis. Stat. § 323.12(4)(b) grants the governor the authority to “issue such orders as he or she deems necessary for the security of persons and property.” The majority said the provision must be read in the light of the entire statute, and the justices concluded nothing in subsection 4 grants him the power to suspend or rewrite statutory provisions governing mandatory election dates, procedures and terms of elected office.

“(T)he logical inference with respect to paragraph (4)(b) is that the Legislature has not granted him the authority to suspend or rewrite statutes in the name of public safety,” the majority wrote.

The court issued temporary injunctive relief, writing the petitioners were likely to succeed on their claims that the executive order was unlawful.

“The only remedy for this is a temporary injunction, and the failure to enjoin this action would irrevocably allow the Governor to invade the province of the Legislature by unilaterally suspending and rewriting laws without authority,” the majority wrote.

Justices Ann Walsh Bradley and Rebecca Dallet dissented, calling the majority’s orders “misguided” with “scant rationale.”

“The majority gives Wisconsinites an untenable choice: endanger your safety and potentially your life by voting or give up your right to vote by heeding the recent and urgent warnings about the fast growing pandemic,” Bradley wrote.

Bradley said the plain language of Wis. Stat. § 323.12(4)(b) includes COVID-19 as a danger to the security of persons.

“Paying no heed to the warnings or the science, the majority circumvents the law, while disenfranchising voters and putting at risk the health and safety of our fellow Wisconsinites,” Bradley wrote.

The majority said the dissent’s arguments were about whether the policy choice to hold the election is “good or bad, or otherwise in the public interest,” rather than the issue presented to the court — whether the governor has authority to suspend or rewrite state election laws.

“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.

Justice Dan Kelly did not participate. Follow @WLJReporter