[EL] The WI situation

[Jeff Hauser]

Morley's twitter thread had a really weird tweet in it:
https://twitter.com/michaelmorley11/status/1247242785410945026

I can't imagine how you can construe the Dem presidential primary as
occurring "under the Presidential Electors Clause," which... is not about
primaries.



On Mon, Apr 6, 2020 at 6:24 PM Barry Burden <bcburden at wisc.edu> wrote:

> 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
>
> ------------------------------------------------------------------------
> 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
> ------------------------------------------------------------------------
>
> ------------------------------
> *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> 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> 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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