Jurisprudence

Updated: State Supreme Court Blocks Wisconsin Governor’s Attempt to Postpone Election

“People shouldn’t have to choose between their safety and their right to vote,” said one election commissioner.

Evers speaks to the crowd, holding a mic in one hand and a clipboard in the other
Wisconsin Gov. Tony Evers at the 48th annual Juneteenth Day Festival on June 19, 2019, in Milwaukee.
Dylan Buell/Getty Images

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Update, April 6, 2020, at 6:10 pm: By a 4–2 vote, the Wisconsin Supreme Court’s conservative majority blocked Evers’ order, allowing the election to take place. Justice Daniel Kelly, who is on the ballot, recused; both liberal justices dissented. In-person voting will take place on Tuesday.

Original story: On Monday, Gov. Tony Evers canceled Wisconsin’s election just one day before it was set to occur. He also called the Legislature into a special session to reschedule the election in June and extend elected officials’ authority until then. Evers’ eleventh-hour postponement throws voting in Wisconsin into further chaos, sparks yet another legal battle between the governor and the Legislature, and leaves Wisconsinites wondering if their votes will count.

The Wisconsin Legislature has appealed Evers’ order, ensuring that the right-wing state Supreme Court will have final say over the date of the election. No matter when it occurs, it will be critically important. In addition to the presidential primary, there are more than 3,800 seats on the ballot, including county supervisors, school district board members, and state judges. By far the most important race is a contest for the state Supreme Court between the ultraconservative incumbent, Daniel Kelly, and his liberal challenger, Jill Karofsky. Democratic legislators have demanded that Wisconsin, like many other states, delay the election until June. Republican leaders of the GOP-controlled Legislature refused. Evers, a Democrat, sought a compromise: He called the Legislature into a special session on April 3, urging it to relax absentee voting restrictions so everyone could vote by mail. Republican leaders refused, adjourning the Legislature seconds after it convened. They appear convinced that more Democratic votes will be suppressed by coronavirus-related issues than Republican votes.

Previously, Evers indicated that he preferred to have the Legislature move the election to avoid a legal dispute over the scope of his powers. Now that it has declined, Evers has issued an executive order that eliminates in-person voting on April 7, citing his authority to safeguard “the security of persons and property.” His decision effectively defers the election until June. Evers cited the health risk, noting that COVID-19 infections are surging in the state. He also pointed out that a huge number of poll workers refused to do their jobs for fear of contagion, which has already forced widespread poll closures. Milwaukee, for instance, consolidated its polling locations from 182 to five; Green Bay consolidated its polling locations from 31 to two. Ann Jacobs, a member of the Wisconsin Elections Commission, told Slate that 111 municipalities did not have enough workers to staff a single polling location.

“We did not believe we had the ability to fairly and safely administer the election,” Jacobs said. In preparation for Tuesday, her commission had obtained 2 liters of hand sanitizer from a distillery—“vodka in a bottle”—for each polling location from a distillery. The state was “down about 7,000 poll workers” and planned to dispatch 2,000 members of the National Guard to staff the polls instead. It still wasn’t enough.

Monday’s order arrived against the backdrop of one court battle, and it has already spurred another one. Because of the coronavirus, Wisconsin has experienced a massive, unprecedented spike in requests for mail-in ballots. Election officials have testified that they lack sufficient personnel to process all these ballots in time. As a result, a federal court extended the deadline by which the state must receive mail-in ballots by one week. It also allowed voters to forgo the requirement that a “witness” sign the ballot to verify its authenticity. An appeals court reinstated the witness signature requirement but upheld the extended deadline. The U.S. Supreme Court was poised to issue a final decision on this matter when Evers issued his order.

If Evers successfully delays the election, then the previous deadline will become irrelevant, because voters will have plenty of time to return mail-in ballots. But Republican legislators already announced that they will challenge the governor’s order at the state Supreme Court. While Ohio’s governor canceled his state’s election using a similar power, the Wisconsin Supreme Court is extremely hostile to Democrats. (Hence their zeal to win this state Supreme Court race.) There is a strong chance that the court will reinstate the election—even with a fraction of polling places operating under the threat of a pandemic.

Shortly after Evers’ order came down, Jacobs, the elections commissioner, told me she was hopeful the court would uphold it. She and a fellow commissioner sent two letters to legislators, one on March 19 and another on April 5, pleading with them to postpone the election. “People shouldn’t have to choose between their safety and their right to vote,” Jacobs told me. “John Lewis is a hero because he risked his life to vote. That is not the standard to which the ordinary citizen should be held to exercise the franchise.”

“I don’t know how this is going to end,” Jacobs continued, “but I am thankful the governor took this step and disappointed it had to be unilateral. Hopefully it’ll settle down, and we’ll have a conversation about how to have a safe and genuine election in the face of a pandemic.”