[EL] The WI situation

[Barry Burden]

There's not much to post at this point:

https://s3-us-east-2.amazonaws.com/wisconsinpublictv/wp-content/uploads/2020/04/2020AP608o2-Order-granting-orig-action-pet-and-injunction-04-06-20.pdf

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Barry C. Burden
Professor, Department of Political Science
Director, Elections Research Center (elections.wisc.edu)
University of Wisconsin-Madison
Twitter: @bcburden
Web: faculty.polisci.wisc.edu/bcburden
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________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Marty Lederman <Martin.Lederman at law.georgetown.edu>
Sent: Monday, April 6, 2020 5:12 PM
To: Pildes, Rick <rick.pildes at nyu.edu>
Cc: Election Law Listserv <law-election at uci.edu>
Subject: Re: [EL] The WI situation

Wisconsin Supreme Court has reversed Evers's order by a partisan 4-2 vote.  If anyone comes across a copy of the order or opinion, please post.

On Mon, Apr 6, 2020 at 3:27 PM Marty Lederman <Martin.Lederman at law.georgetown.edu<mailto:Martin.Lederman at law.georgetown.edu>> wrote:
Let me preface this by saying that I HAVE NO IDEA HOW WISCONSIN EMERGENCY AUTHORITIES HAVE HISTORICALLY BEEN INTERPRETED AND EXERCISED.

That said, Prof. Morley's two bases for suggesting that Evers acted w/o authority don't seem, at least at first glance, entirely convincing.  First, he notes that a cognate provision expressly authorizes the Governor to suspend the provisions of any administrative rule if strict compliance would hinder disaster response--which according to Prof. Morley "strongly suggests that 323.12(4)(b)'s general grant of authority doesn't include the power to suspend/ignore statutory requirements."  Perhaps, but that's hardly obvious from the plain face of 323.12(4)(b).

Second, he writes that "many other similarly worded/structured state-of-emergency laws in other states DO expressly confer authority on governors to suspend state statutes or statutory deadlines during declared emergencies."  And from that concludes that "the omission of authority to suspend state laws from Wisconsin's general state of emergency statute is likely significant & intentional, and should be given effect."

Is this a common method of state statutory construction?  A broadly worded statutory provision in State A should be construed not to convey power X--even though it falls within the plain terms of the provision--because it does not expressly name a power that is expressly specified in other states' laws?

Again, perhaps these two arguments are very strong under Wisconsin law--I don't know.  But they aren't intuitively obvious.

On Mon, Apr 6, 2020 at 3:09 PM Pildes, Rick <rick.pildes at nyu.edu<mailto:rick.pildes at nyu.edu>> wrote:

Michael Morley, an expert on the power that Governors do and do not have under state laws to suspend election laws in emergencies, has a series of tweets here on the Wisconsin Governor’s action today:



https://twitter.com/michaelmorley11/status/1247232619277934593





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--
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937



--
Marty Lederman
Georgetown University Law Center
600 New Jersey Avenue, NW
Washington, DC 20001
202-662-9937

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