The court sided with Republicans who control the state legislature and opposed Evers’ executive order Monday that sought to delay the election until June 9. The decision was 4-2, with the court’s conservative majority backing the GOP’s position.
It was the latest twist in a legal battle that has thrown the primary into chaos as state and local elections officials have consolidated polling places and scrambled to find workers and supplies for those that will open.
“I cannot in good conscience allow any types of gathering that would further the spread of this disease and to put more lives at risk,” Evers said at a news conference after he signed the order. “I have been advised by public health experts at the Department of Health Services that despite the heroic efforts and good work of our local election officials, poll workers, and national guard troops, there is not a sufficiently safe way to administer in-person voting tomorrow.”
Evers had previously argued that he did not have the authority to unilaterally move the election. His order casts more doubt on whether, and how, Wisconsin’s election will take place.
In a joint statement, state Assembly Speaker Robin Vos and Senate Majority Leader Scott Fitzgerald, both Republicans, said they were challenging Evers’ executive order in the Wisconsin Supreme Court and that local clerks should “stand ready to proceed with the election.”
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“The governor’s executive order is clearly an unconstitutional overreach,” Vos and Fitzgerald said. “This is another last minute flip-flop from the governor on the April 7th election. The governor himself has repeatedly acknowledged he can’t move the election. Just last week a federal judge said he did not have the power to cancel the election and Governor Evers doesn’t either. Governor Evers can’t unilaterally run the state.”
Asked at a news conference Monday about why he believed he now had the legal authority to move the primary, Evers said circumstances had changed.
“We’ve had significant retraction as far as the number of polling places that are open. Clearly, anybody that can do basic math understands if you have fewer places to serve voters, you will have larger numbers at those sites — numbers that will easily strain the system and frankly cause more … negative results for people who are there,” Evers said.
If courts allow Evers to delay the primary, his move could avert the need for the Wisconsin National Guard to man polling places Tuesday as poll workers quit due to the coronavirus pandemic.
The state has already seen record-breaking requests for more than 1.2 million absentee ballots. The state elections commission’s tally updated Monday morning showed that about 550,000 absentee ballots had been requested but not yet returned.
Evers’ office said Monday that all absentee ballots would remain valid and be counted on June 9 under his order.
Wisconsin had been the only one of 11 states with April primaries that was moving forward with in-person voting, after the other 10 either delayed their primaries or shifted to by-mail only voting.
Evers and Republican leaders of the state legislature had long resisted calls to move the state’s election, which also features a battle for a state Supreme Court seat that could determine the outcome of a voting rights case in which more than 240,000 voters could be removed from the state’s rolls ahead of November’s general election.
But 11 days before the election, Evers reversed course and asked the legislature to quickly pass a law that would send an absentee ballot to every one of the state’s voters.
After Republicans refused, Evers late last week called them into a special session and asked them to postpone the primary. But the Senate and Assembly adjourned on Saturday without taking a vote on Evers’ proposal.
US District Judge William Conley last week ruled that absentee ballots could be returned through April 13 — six days after the in-person portion of the primary — and that votes couldn’t be counted until then.
He also implored state officials to move the primary — but said he didn’t have the power to order them to do so.
“This is a public health crisis that the state legislature and the governor have refused to accept as severe enough to stop this statewide election,” Conley said in a hearing with lawyers in the case conducted last week via Zoom.
In an urgent letter over the weekend, the mayors of 10 of Wisconsin’s biggest cities, including Milwaukee and Madison, wrote a letter to Andrea Palm, the state’s top health official, urging her to “step up” and do what Ohio had done: Use her emergency powers to cancel in-person voting and send every voter a ballot by mail.
“EVERY other state that faced this issue during the pandemic has crafted a solution that respects democracy and protected the health of their citizens. We must do the same,” the mayors wrote. “The lives of our constituents depend on it.”
This story has been updated.
CNN’s Adam Levy contributed to this report.