BREAKING: U.S. Supreme Court weighs in on Wisconsin election

Tuesday primary appears to be back on based on latest ruling

UPDATE 8:30 P.M.:

Voters in Wisconsin will face a choice Tuesday of participating in a presidential primary election or heeding warnings from public health officials to stay away from large crowds during the coronavirus pandemic.

Hours after Democratic Gov. Tony Evers issued an order postponing the election for two months, the conservative-controlled Wisconsin Supreme Court on Monday sided with Republicans who said he didn't have the authority to reschedule the race on his own. Conservative justices on the U.S. Supreme Court quickly followed with a ruling blocking Democratic efforts to extend absentee voting, The Associated Press reported.

The Wisconsin Supreme Court ruled 4-2, with four conservatives in support and two liberals against, that Evers lacked the authority to move the election on his own.

The U.S. Supreme Court split 5-4, with the five Republican-appointed justices siding with the national and state party to overturn a lower court ruling that expanded absentee voting. In an unsigned opinion, the court said absentee ballots must be hand-delivered by Tuesday evening or postmarked by Tuesday, although they can arrive at clerks’ offices as late as April 13.


The Wisconsin Supreme Court reportedly blocked Gov. Tony Evers’ executive order Monday to postpone the state’s presidential primary for two months because of the coronavirus pandemic, according to reporter Molly Beck of the Milwaukee Journal Sentinel.

Beck said the state Supreme Court voted 4-2, with the conservative justices in favor and the liberal justices dissenting.


The executive order from Evers, a Democrat, would have delayed in-person voting until June 9. Republicans asked the state Supreme Court to block the order, saying he didn’t have the legal authority to block the election and that such “sweeping changes” now would cause “widespread voter confusion.”

The governor said his order was the last hope for stopping the election. A spokeswoman for the state Department of Justice, which represented Evers, did not immediately respond to a message about possible further legal action.

Other states that were scheduled to vote this month have postponed their elections until May or June, but Republicans in Wisconsin have refused to delay.

A separate legal fight over absentee ballots was pending before the U.S. Supreme Court.

At the presidential level, Joe Biden already has a commanding delegate lead over Bernie Sanders, and the Wisconsin results aren’t likely to dampen his march to the Democratic nomination. But the tumult in one of the most critical general election battlegrounds underscored the challenge of voting during a pandemic when public health officials are discouraging groups from gathering for virtually any reason to prevent the spread of the virus.

Evers himself has questioned whether he has the power to reschedule the election, but said the worsening situation, including an increase in COVID-19 deaths from 56 on Friday to 77 on Monday, made it clear there was no way to safely move forward. Evers said he was motivated by protecting public health, not politics.

“The people of Wisconsin, the majority of them, don’t spend all their waking hours thinking about are Republicans or Democrats getting the upper hand here,” Evers said. “They’re saying they’re scared. They’re scared of going to the polls. They’re scared for their future. At the end of the day, someone has to stand up for those folks.”

Republicans quickly took their case to the Wisconsin Supreme Court, which is controlled 5-2 by conservative justices. Dan Kelly, one of the conservative judges who is also on the ballot Tuesday, recused himself from the case and then commented on Twitter that the election can be done safely and should be allowed to proceed.

"We urge clerks, poll workers, and voters to stand ready to conduct the election tomorrow," Kelly tweeted.

Several states have postponed elections or shifted to all mail in the face of the pandemic. Last week, Sanders called for Wisconsin to postpone the election.

But the presumptive Democratic nominee, former Vice President Biden, said Thursday it is up to Wisconsin courts to decide what to do, but he didn’t have a problem with voting proceeding.

The Democratic National Committee has announced it is pushing back its national convention in Milwaukee from mid-July to mid-August.

Republicans asked the high court to undo a federal judge’s ruling that declined to postpone the election but added six days, to April 13, for people to submit absentee ballots.

But Marc Elias, a lawyer for the Democrats, said there is already a backlog of 21,590 requested ballots that haven’t been mailed out.

»MORE: Wisconsin primary still on despite coronavirus pandemic

The GOP argued in its brief to Justice Brett Kavanaugh that the absentee extension is “a deeply consequential and disruptive change” that risks confusing voters, comes too close to the election and unfairly creates two different deadlines for voters — one for in-person voting and one for absentees.

“Absentee voting should not be a procedure that gives some voters dramatically different incentives and information than others, permits advocacy groups to strategically chase down ballots that were not cast on election day, and otherwise disrupts Wisconsin statutes that aim to separate cleanly the time for ballot casting and ballot counting,” their filing said, requesting a stay by Monday.

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Wisconsin stands apart from other states in trying to hold to its April election date even though Evers has issued a statewide stay-at-home order. It also comes as Wisconsin’s chief medical officer has credited the order for helping slow the rate of infections in the state.

The Democratic governor initially joined Republican leaders in seeking to hold the primary as planned Tuesday, but he now favors an all-mail election with absentee voting well into May. Republicans maintain that Tuesday’s in-person voting should go on as planned.

The election features the Democratic presidential primary between Biden and Sanders, but a bigger concern for Republicans is a high-stakes state Supreme Court race featuring a conservative incumbent against a liberal challenger.

Liberal groups have taken the matter to the courts and won a partial victory when Judge William Conley declined to postpone in-person voting while extending absentee voting until April 13. The 7th U.S. Circuit Court of Appeals late Friday rejected Republicans’ appeal of that decision.

Assembly Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald, both Republicans, said in a statement late Friday announcing their Supreme Court appeal that they “still have grave concerns about election security” by allowing votes to be submitted beyond Election Day.

Evers has said he can’t move or change the election on his own. He called a special session for Saturday afternoon, asking Republicans to take up bills that would convert the election to all-mail and give voters until May 26 to return ballots. Vos and Fitzgerald said they wouldn’t do it. They met Saturday as required but immediately adjourned until Monday.

Local races are also on Tuesday’s ballot, and both Republicans and Evers cited the need to fill those offices as one reason to keep the election on track. They also said there was no guarantee the virus crisis would fade if the election was pushed back by weeks or months.

A key race on the ballot is for a seat on the bitterly partisan Wisconsin Supreme Court, where conservatives hold a 5-2 advantage. Incumbent Judge Daniel Kelly, a conservative, faces a challenge from Dane County Circuit Court Judge Jill Karofsky, a liberal, for a 10-year term.

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Fears about in-person voting and a curtailed absentee period may hit Democratic-leaning Milwaukee hardest. City officials there have said they have so few poll workers available that they can operate only five polling sites, creating the prospect of many voters funneled to just a few locations.

Other states have delayed their primaries to protect voters and poll workers from the virus. Alaska, Wyoming, Hawaii and Louisiana were set to hold elections Saturday, but they’ve pushed back those contests. Louisiana’s presidential primary is now set for June 20. Democrats in Alaska and Wyoming have decided to hold their party-run contests by mail only and have pushed back the deadline for turning in ballots.

The Associated Press contributed to this report.