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April 6, 2020
2020AP608-OA
Wisconsin Legislature v. Evers
those purposes. We conclude none of these constitutional provisions authorize the Governor’s
directives in Executive Order No. 74.
The Governor also relies on Wis. Stat. § 323.12(4). Chapter 323 of the Wisconsin Statutes
governs emergency management, and subchapter II of Chapter 323 sets forth the powers and duties
in the event of an emergency. Wisconsin Stat. § 323.12 is addressed specifically to the duties and
powers of the Governor. In particular, subsection (4) enumerates the Governor’s powers when he
declares an emergency under Wis. Stat. § 323.10, which he has done here. Paragraphs (4)(a) and
(c) grant him power to prioritize or engage in certain contracts. Paragraph (4)(e) grants him power
to waive fees for permits, licenses, approvals, and other similar authorizations.
In Executive Order No. 74, the Governor relies specifically on paragraph (4)(b), which
grants the Governor authority to “issue such orders as he or she deems necessary for the security
of persons and property.” Wis. Stat. § 323.12(4)(b). While broadly worded, this provision must
be read in light of the whole statute. Notably, in paragraph (4)(d), the Governor is granted the
power to “[s]uspend the provisions of any administrative rule” if certain conditions are met. In
contrast to this power, nothing in subsection (4) grants the Governor the power to suspend or
rewrite statutes in the broad fashion asserted here, what amounts to ignoring or rewriting statutory
provisions governing mandatory election dates, mandatory election procedures, and terms of
elected office. Since the Legislature provided the Governor the authority to suspend administrative
rules in paragraph (4)(d), the logical inference with respect to paragraph (4)(b) is that the
Legislature has not granted him the authority to suspend or rewrite statutes in the name of public
safety. To conclude otherwise would be to render the administrative rules provision in paragraph
(4)(d) pure surplusage. Therefore, Wis. Stat. § 323.12(4)(b) does not support the governor’s broad
assertion of power.
The Legislature could have granted the Governor broader emergency powers to suspend
elections or statutory mandates. The Governor’s brief to this court represents that many other state
legislatures explicitly give their Governor this very kind of clear, broad power. The Wisconsin
Legislature has not done so. The Legislature and Governor also could have moved this election
or changed the rules governing it through the ordinary legislative process. They have not done so.
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.
The question presented is not whether the policy choice to continue with this election is
good or bad, or otherwise in the public interest. The dissent’s arguments are focused largely on
this policy rationale. Rather, the question presented to this court is whether the Governor has the
authority to suspend or rewrite state election laws. Although we recognize the extreme seriousness
of the pandemic that this state is currently facing, we conclude that he does not.