April 7, 2020
By Timothy Sandefur
Americans pride themselves on their democratic form of government—a principle so strong that even during the darkest days of the Civil War, the presidential election went forward without hindrance. But state elections are subject to state law, and state officials often have broad power to waive certain laws, including election laws, in times of emergency. As this article explains, some state laws specify precisely how to handle emergencies that might interfere with elections—but many have not, and that sets the stage for potentially dangerous collisions between emergency authority and the constitutional rule of law.
Such a collision has already occurred in Wisconsin, where Governor Tony Evers issued an order suspending in-person voting in the coming primary election until (at least) June. This is disturbing because Governor Evers had no legal authority to do that.
His proclamation cited five laws as the basis for his proclamation, but not of them permit his action. They are: (1) the Preamble of the Wisconsin Constitution, as well as (2) Article IV, Section 11, (3) Article V, Section 1, and (4) Article V, Section 4 of the state Constitution, and (5) Section 323.12(4)(b) of the Wisconsin Statutes. But none of these authorize the governor to change how state elections operate.
The Preamble says “We, the people of Wisconsin, grateful to Almighty God for our freedom, in order to secure its blessings, form a more perfect government, insure domestic tranquility and promote the general welfare, do establish this constitution.” Nothing in here addresses the purported authority of the governor to suspend an election.
Article IV, section 11 says “The legislature shall meet at the seat of government at such time as shall be provided by law, unless convened by the governor in special session, and when so convened no business shall be transacted except as shall be necessary to accomplish the special purposes for which it was convened.” This allows the governor to convene the legislature for an emergency—which his proclamation also does—but it doesn’t address the governor’s power over elections.
Article V, section 1 says “The executive power shall be vested in a governor who shall hold office for 4 years,” and while the term “executive power” has sometimes been interpreted as a very broad grant of vaguely understood emergency powers, that’s typically been viewed as subordinate to the Legislature’s authority. After all, the governor only executes, and doesn’t make, the laws, and given the American tradition of holding elections even during emergencies—Wisconsin didn’t delay its election even during the 1918 Spanish Flu epidemic—it’s not reasonable to interpret this as including power to block a scheduled election from proceeding.
Same goes for Article V section 4, which provides that “The members of the assembly shall be chosen biennially, by single districts, on the Tuesday succeeding the first Monday of November in even-numbered years, by the qualified electors of the several districts, such districts to be bounded by county, precinct, town or ward lines, to consist of contiguous territory and be in as compact form as practicable.” This, too, says nothing about a governor’s power to delay an election.
Finally, there’s Section 323.12(4)(b) of the Wisconsin Statutes, which says that “during a state of emergency,” the governor may “issue such orders as he or she deems necessary for the security of persons and property.” This is certainly a broad grant of power, and it has been typically understood as broad enough to encompass everything from the detention of persons to the destruction of property if the governor believe the public good requires it. But suspending a lawfully scheduled election is not the same thing. That isn’t an “order”—it’s a suspension of the laws.
Governor Evers’ executive order, of course, purports to not suspend the election entirely, but only in-person voting, and to expand access to mail-in voting, as if that were equivalent. But in fact the election is both a primary and a general election—and Wisconsin law is very strict about mail-in voting. In fact, the Legislature has declared that while voting is a “a constitutional right, the vigorous exercise of which should be strongly encouraged,” voting by mail is “in contrast…a privilege exercised wholly outside the traditional safeguards of the polling place,” and that it “must be carefully regulated to prevent the potential for fraud or abuse” or “undue influence.” As a result, the Legislature explicitly commanded that laws regulating access to mail-in ballots be strictly followed, and any vote cast in a manner inconsistent within the narrow limits of existing law must “not be counted.”
Thus, expanding absentee voting by governor’s decree is no substitute for the in-person voting specified by state law, and the governor’s proclamation does amount to a suspension of the election provided for by statute—something that appears never to have been done before, and which is contrary to the Legislature’s expressed preferences.
Could something like this happen in Arizona? Arizona’s Emergency Management Act carefully distinguishes between different kinds of emergencies. During “war emergencies,” the governor can “suspend the provisions of any statute prescribing the procedure for conduct of state business,” which would presumably include elections. But he does not have that authority with regard to other kinds of emergencies, such as epidemics. In these kinds of emergencies, the governor can “exercise all police power,” but that does not include changing election laws, and he can “direct all agencies of the state government” to do what’s necessary “to prevent or alleviate actual and threatened damage due to the emergency”—but this, too, doesn’t seem to include power to delay an election. Another provision does allow the governor to “amend and rescind orders, rules and regulations,” but election laws aren’t orders, rules, or regulations; they’re statutes, so the governor can’t suspend them. And while local governments have broad authority to close public facilities during emergencies, they must comply with state law and the orders of the governor.
The Wisconsin situation quickly reached the state’s supreme court, which declared Governor Evers’s actions illegal, and the U.S. Supreme Court, which in a separate lawsuit overruled a federal judge’s effort to rewrite the election laws in some truly odd ways (including allowing voters to cast ballots after the election, and censoring news reports about the election!). But the Wisconsin situation is likely to be only the first of many such disputes in the coming days.
Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.