I finally found the Wisconsin Supreme Court decision that overruled the governor's executive order pushing back the elections for about six weeks. The decision was issued Monday evening; however, the initial news reports did not provide a link to the decision. I checked at least ten sources and found nothing. As one may see in the link, the Wisconsin Supreme Court, in a 4-2 vote (with a recusal from the right wing justice up for election, and who undoubtedly would have sided with the four person majority), granted the Republican majority legislature's motion to overrule the governor's executive order.
It is initially noteworthy the Wisconsin Supreme Court did not physically meet to hear arguments or read its decision. They did this all remotely--while telling voters in WI they had to vote in-person if they had not received an absentee ballot before election day. And this decision was reached in the context where the state had been inundated with absentee ballot requests and the state had been unable to get such ballots to all who requested the absentee ballots.
I read the majority and dissenting opinions. The majority are horrific in their shrug-of-the-shoulders reasoning to overrule the governor's executive order. The majority admit there is a statute, Wisconsin statute 313.12(4)(b), which states the governor has authority to "issue such orders as he or she deems necessary for the security of persons or property." However, they blithely claim, while ignoring this emergency moment, the language is somehow too broad to allow the governor to suspend the election. I find that outrageous in light of the fact of a shelter-in-place order the court has already recognized is valid, and which the justices themselves were following by not physically convening.
The dissent compellingly noted the State's Department of Health Services, a department under the authority of the executive/governor, has the statutory right to forbid gatherings in public places. The dissenting justice writes:
Underscoring the executive branch's ability to take action in circumstances such as these, even the Secretary of the Department of Health Services is authorized to act. Specifically, Wis. Stat. § 252.02(3) provides that "[t]he department may close schools and forbid public gatherings in schools, churches, and other places to control outbreaks and epidemics." Even more broadly, Wis. Stat. § 252.02(6) sets forth that "[t]he department may authorize and implement all emergency measures necessary to control communicable diseases" (emphasis added). If the Secretary of the Department, part of the executive branch, has the power to forbid public gatherings to control outbreaks and epidemics, then surely the Governor as the head of the executive branch has such power. Nevertheless, the majority takes the decision away from the executive branch despite the statutes that place such a decision within its purview.
To this argument, the majority said, Well, the governor did not cite to this in his order, so tough luck. Here is precisely what they said in their majority opinion:
The dissent raises new arguments regarding the authority of the Department of Health
Services to issue such an order. Setting aside that Executive Order No. 74 was issued by the
Governor (not DHS), and the incredibly broad and unsupported claim that DHS has authority to
postpone elections, none of these arguments were cited or raised by the Governor here, so we do
not consider them further.
That's a wow. Instead of recognizing 313.12(4)(b) should reasonably include what an executive (governor's office) department has the right to do in an emergency situation, and cynically demanding technical perfection in a fast moving emergency situation, the Court majority showed its partisan hackery. The reason the Court wanted to make sure this election occurred was to help its fellow conservative justice win re-election, knowing the more Democratic Party voting black population in Milwaukee would be most adversely affected. There is truly bad faith on the part of the Wisconsin Supreme Court majority in reaching its decision. There was grave risk to public health and safety, and no substantive or procedural due process rights undermined by a mere six-week delay in voting. There was no honestly compelling need to go forward with the election with no delay. The reason we have people, not machines, in the judiciary is to ensure there is important human reasoning which recognizes exigent circumstances, and to avoid mechanical, unfeeling decision-making. The Wisconsin Supreme Court's majority opinion fails that humanity test. They revealed themselves to the entire nation as cynical hacks. Oh, and of course, the conservative justice won re-election yesterday. No surprise. UPDATE 4/13/2020: I guess there was a surprise, and despite the cynical antics of the Wisconsin Supreme Court, the incumbent right wing judge, Daniel Kelly, lost to the liberal upstate, Jill Karofsky.
I was going to discuss the US Supreme Court's decision from Monday, whereby the five person majority overruled a federal district court judge who had dared to extend by a week the time for absentee voters to get in their votes, which drew a four person dissent, written by or on behalf of Justice Ginsburg. Anyone who has any sense of fair play and due process, particularly during a pandemic, can see Ginsburg's dissent is absolutely correct--and, if anything, Ginsburg was being too nice to assume "good faith" on the part of the five person majority.
My only other point is Democratic Party Governor Tony Evers was not free of cynicism, either. Even after issuing his shut-down orders in early to mid March, he refused to do what governors in other states did, which was postpone elections. He was clearly siding with Biden's campaign and the DNC in doing so (Bernie Sanders supported postponing election). He even had the cynical temerity to say he did not have the power, when the dissenting opinion shows how clearly he did. After being publicly shamed by various news outlets, and standing nearly alone among governors in not trying to postpone the election, he finally issued the executive order. There is not much in the way of Profiles in Courage going around in the judiciary or many executive branches. It is part of the rot in our nation.
My only other point is Democratic Party Governor Tony Evers was not free of cynicism, either. Even after issuing his shut-down orders in early to mid March, he refused to do what governors in other states did, which was postpone elections. He was clearly siding with Biden's campaign and the DNC in doing so (Bernie Sanders supported postponing election). He even had the cynical temerity to say he did not have the power, when the dissenting opinion shows how clearly he did. After being publicly shamed by various news outlets, and standing nearly alone among governors in not trying to postpone the election, he finally issued the executive order. There is not much in the way of Profiles in Courage going around in the judiciary or many executive branches. It is part of the rot in our nation.
