[EL] Evers postpones Wisconsin election; more litigation likely to follow

Mon Apr 6 15:23:56 PDT 2020

It seems that "administrative rule" pretty consistently refers to an agency
rule in Wisconsin law under Subchapter II, Chapter 227, Revised Statutes.
Given what I know of Jack Stark, I would be surprised if "administrative
rules" is not an accurate statement of the type of authority referred to in
the statute. And I would daresay that's the case in just about every state.
On the other hand, it seems well-settled in Wisconsin that rules are
accorded that same status as laws because of their nature as delegated
legislation so maybe that helps your argument. If that's the case, and
without getting into all the nuances, the problem then seems to be the
Wisconsin AG has consistently held that rules cannot be suspended (except
on a very limited temporary basis not applicable here) except by a bill
that satisfies the constitutional requirements of bicameral passage and
presentment to the governor -- this appears to be the basis on which the
trial court enjoined the GOP legislature's attempt to strip the governor of
a lot of authority before Evers took office because one of the bills would
have permitted unlimited "temporary suspensions" of agency rules.

On Mon, Apr 6, 2020 at 2:10 PM Marty Lederman <
Martin.Lederman at law.georgetown.edu> wrote:

> Evers has invoked
> <https://content.govdelivery.com/attachments/WIGOV/2020/04/06/file_attachments/1420231/EO074-SuspendingInPersonVotingAndSpecialSession.pdf>
> not only the Wisconsin Constitution but also Wisconsin Stat. 323.12(4)(b),
> which provides that "during a state of emergency declared under section
> 323.10," the Governor may "Issue such orders as he or she deems necessary
> for the security of persons and property."
>
> Section 323.10, in turn, provides in pertinent part:  "If the governor
> determines that a public health emergency exists, he or she may issue an
> executive order declaring a state of emergency related to public health for
> the state or any portion of the state and may designate the department of
> health services as the lead state agency to respond to that emergency. . .
> . A state of emergency shall not exceed 60 days, unless the state of
> emergency is extended by joint resolution of the legislature. A copy of the
> executive order shall be filed with the secretary of state. The executive
> order may be revoked at the discretion of either the governor by executive
> order or the legislature by joint resolution."
>
> On March 12, 2020, in Executive Order #72
> <https://evers.wi.gov/Documents/EO/EO072-DeclaringHealthEmergencyCOVID-19.pdf>,
> Evers declared a public health emergency .
>
> On Mon, Apr 6, 2020 at 2:19 PM Rick Hasen <rhasen at law.uci.edu> wrote:
>
>> Correction and update:
>>
>> The correction is that the special session is called for April 7
>>
>> The update is that the Republican legislative leaders have announced they
>> will sue: https://twitter.com/jessieopie/status/1247224028651294720
>>
>>
>>
>>
>>
>> *From: *Rick Hasen <rhasen at law.uci.edu>
>> *Date: *Monday, April 6, 2020 at 11:03 AM
>> *To: *Election Law Listserv <law-election at uci.edu>
>> *Subject: *Evers postpones Wisconsin election; more litigation likely to
>> follow
>>
>>
>> Wisconsin Update: What to Expect Today and Tomorrow. NOW UPDATED with
>> Governor Evers Cancelling in Person Voting, Another Special Legislative
>> Session, and Likely Litigation <https://electionlawblog.org/?p=110434>
>>
>> Posted on April 6, 2020 9:08 am <https://electionlawblog.org/?p=110434>
>> by *Rick Hasen* <https://electionlawblog.org/?author=3>
>>
>> The Wisconsin legislature ended the special session
>> <https://www.jsonline.com/story/news/2020/04/06/coronavirus-wisconsin-latest-updates-cases-cancellations/2952455001/> without
>> taking action to postpone tomorrow’s primary. There will be in-person
>> voting tomorrow, but it is not clear how badly turnout will be down. Last I
>> heard, all but 5 of 180 polling places in Milwaukee will be closed.
>>
>> There are still about 10,000 absentee ballot
>> <https://twitter.com/cstewartiii/status/1247162387570008064> requests
>> that the state has not yet processed, meaning that if the Supreme Court
>> reverses the lower court order, those people will almost certainly have to
>> vote in person or be disenfranchised. (The district court order would allow
>> absentee ballots received by April 13 to count in the election; if the
>> Supreme Court reverses they will have to be postmarked tomorrow.)
>>
>> The Supreme Court could act any time
>> <https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/19a1016.html> on
>> the Republicans’ request to go back to the April 7 date. The Court almost
>> certainly will act today, so those people without ballots (and election
>> officials) will know what the rules are for tomorrow. It is hard to game
>> out what the Court will do. I think that ordinarily the conservatives would
>> bristle at a last-minute court ordered change to extend the time for
>> receipt of ballots. But these are not ordinary times, and the *Purcell *
>> Principle seems to have a different application
>> <https://electionlawblog.org/?p=110420> when a federal court is
>> responding to an unforeseen natural disaster like this.
>>
>> UPDATE (10:55 am Pacific time): Governor Evers has just issued a
>> proclamation
>> <https://content.govdelivery.com/attachments/WIGOV/2020/04/06/file_attachments/1420231/EO074-SuspendingInPersonVotingAndSpecialSession.pdf>delaying
>> in person voting until June 9 and extending the time to request an absentee
>> ballot. He has also scheduled another special session of the Legislature
>> for 2 pm today.
>>
>> I’m not an expert in Wisconsin state law. I do not know whether Governor
>> Evers has the ability to do this unilaterally or not, but I do know he has
>> changed his position at the last minute on whether or not he has this power
>> (much like Gov. DeWine did in Ohio last month). As sympathetic as I am to
>> the idea that you should not both tell people to stay at home as much as
>> possible for health reasons and tell them in-person voting is open (despite
>> health officials advising not to vote), it is awful that the governor
>> waited until the last minute to do this. This does not make the legislature
>> blameless. There is plenty of blame to go around.
>>
>> State legislative leaders might try to go to the state Supreme Court to
>> reverse this, where they will face a Republican-dominated state supreme
>> court. This presents a state law question, meaning that an appeal to the US
>> Supreme Court on whether Evers has this power to delay is unlikely.
>>
>> And what of the pending U.S. Supreme Court decision on the delay on the
>> receipt of absentee ballots. It is moot for the moment but not if the state
>> Supreme Court reverses Evers’ order. Perhaps SCOTUS holds onto it and wait
>> to see if there is state case coming that could keep this issue moot.
>>
>> To echo Justice Stevens in his Bush v. Gore dissent, we don’t know who
>> the winners are of all of these machinations, but we know the losers: the
>> voters of Wisconsin, who should have expected more of their elected
>> officials, both Democrat and Republican, to work this out and not create
>> this chaos.
>>
>> [image: Share]
>> <https://www.addtoany.com/share#url=https%3A%2F%2Felectionlawblog.org%2F%3Fp%3D110434&title=Wisconsin%20Update%3A%20What%20to%20Expect%20Today%20and%20Tomorrow.%20NOW%20UPDATED%20with%20Governor%20Evers%20Cancelling%20in%20Person%20Voting%2C%20Another%20Special%20Legislative%20Session%2C%20and%20Likely%20Litigation>
>>
>> Posted in election administration <https://electionlawblog.org/?cat=18>
>>
>>
>>
>>
>>
>> --
>>
>> Rick Hasen
>>
>> Chancellor's Professor of Law and Political Science
>>
>> UC Irvine School of Law
>>
>> 401 E. Peltason Dr., Suite 1000
>>
>> Irvine, CA 92697-8000
>>
>> 949.824.3072 - office
>>
>> rhasen at law.uci.edu
>>
>> http://www.law.uci.edu/faculty/full-time/hasen/
>>
>> http://electionlawblog.org
>>
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> https://department-lists.uci.edu/mailman/listinfo/law-election
>
>
>
> --
> Marty Lederman
> Georgetown University Law Center
> 600 New Jersey Avenue, NW
> Washington, DC 20001
> 202-662-9937
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu
> https://department-lists.uci.edu/mailman/listinfo/law-election
> >> This message is from an external sender. Learn more about why this <<
> >> matters at https://links.utexas.edu/rtyclf.                        <<
>

-- 
Hugh L. Brady
T (512) 289-0535 | F (512) 857-1016
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20200406/fc2ca021/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 2022 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20200406/fc2ca021/attachment.png>