IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
REVEREND GREG LEWIS, et al.,
Plaintiffs,
v.

Case No. 20CV284

DEAN KNUDSON, et al.,
Defendants.
AMICUS BRIEF OF WISCONSIN GOVERNOR TONY EVERS
INTRODUCTION
As this Court is well-aware, Wisconsin faces a sobering challenge. In the
midst of the COVID-19 public health emergency, our scheduled April 7
election—to determine thousands of local government positions, several state
offices, the major-party presidential primaries, acceptance or rejection of a
proposed amendment to the state constitution, and more than 130 county,
local, and school board referenda—is rapidly approaching. Governor Tony
Evers submits this amicus brief not to support any party, but rather to provide
the Court with up-to-date information and to outline the Governor’s proposals
were this Court to order short-term changes to the election process under these
extraordinary circumstances.

 BACKGROUND
In December 2019, a novel strain of the coronavirus was detected, now
named COVID-19. It has spread throughout the world, including every state
in the United States. On January 30, 2020, the World Health Organization
declared COVID-19 to be a Public Health Emergency of International Concern.
As that threat became increasingly present and serious in Wisconsin, on March
12, 2020, Governor Evers issued Executive Order #72. 1 The next day, on March
13, 2020, President Donald Trump proclaimed a National Emergency
concerning COVID-19.
These orders were timely and necessary. In the weeks since, the presence
of COVID-19 in Wisconsin, and the threat it poses to Wisconsinites, has
dramatically increased. For example, on March 15, 2020, Wisconsin had
roughly 30 diagnosed COVID-19 cases; in the just over two weeks since, that
number has risen to more than 1,350 diagnosed cases. 2 The number of
diagnosed cases, and the resulting death count, continues to increase daily.

Wis. Governor Tony Evers, EXECUTIVE ORDER #72, Relating to a
Proclamation Declaring a Health Emergency in Response to the COVID-19
Coronavirus (Mar. 12, 2020), https://evers.wi.gov/Documents/EO/EO072-Declaring
HealthEmergencyCOVID-19.pdf.
1

See Wis. Dep’t of Health Servs., Outbreaks in Wisconsin,
https://www.dhs.wisconsin.gov/outbreaks/index.htm (last revised Mar. 31, 2020)
(information updated daily).
2

2

 In Executive Order #72, the Governor used his emergency powers to
declare a public health emergency, and to direct all resources needed to
respond to and contain COVID-19 in Wisconsin. See Wis. Stat. §§ 323.10,
323.12. As part of the emergency declaration, the Governor designated the
Wisconsin Department of Health Services (DHS) as the lead agency to respond
to the emergency and directed DHS to take all necessary and appropriate
measures to prevent and respond to incidents of COVID-19 in Wisconsin.
In Executive Order #72, the Governor also directed all other state
agencies to assist as appropriate in the State’s response to the public health
emergency, and further authorized the Adjutant General to activate the
Wisconsin National Guard as necessary to support the State’s response.
See also Wis. Stat. §§ 323.10, 323.12, 323.13. Wisconsin statutes contemplate
that during a public health emergency—in addition to working with DHS—the
Governor also will also work with the Administrator of the Wisconsin Division
of Emergency Management and the Adjutant General, to coordinate
emergency management. Wis. Stat. §§ 323.10, 323.12(3), 323.13.
Part of this collaboration includes reliance on an already-developed
emergency plan, Wis. Stat. § 323.13(1)(b); Wisconsin’s emergency plan involves
activation of the State Emergency Operations Center (SEOC)—the physical
home base for the coordination of information and resources for emergency

3

 management. 3 The COVID-19 emergency has triggered a Level 1 status—fullscale operation—for the SEOC. 4
Since issuing Executive Order #72, the Governor and other state leaders
at the helm of emergency management have continued to take necessary,
aggressive steps to respond to the COVID-19 pandemic. 5 Following multiple
less-restrictive orders, on March 24, 2020, DHS Secretary-designee Andrea
Palm warned that, without further restrictions to limit human interaction,
between 440 and 1,000 Wisconsinites could die within two weeks. 6 That same
day, DHS Secretary-designee Andrea Palm, at the direction of the Governor,

Wisconsin Emergency Management’s emergency plan is set forth in full
online. Wis. Emergency Mgmt., Wis. Dep’t of Military Affairs, Wisconsin Emergency
Response Plan (Nov. 2017), https://dma.wi.gov/DMA/divisions/wem/preparedness/
2017_WERP(Full37M).pdf. This is not a COVID-19 specific plan, but rather the
already-established general emergency plan.
3

Wis. Emergency Mgmt., Wis. Dep’t of Military Affairs, Wisconsin State
Emergency Operations Center, https://dma.wi.gov/DMA/wem/home/current-status
(last visited March 31, 2020) (reflecting that the SEOC is currently in Level 1, or full
operation, status).
4

All of the Governor’s executive orders related to COVID-19 are available
online. Wis. Governor Tony Evers, Executive Orders, https://evers.wi.gov/Pages/
Newsroom/Executive-Orders.aspx (last updated March 31, 2020).
5

Models show that without current restrictions, Up to 1,000 could die in
Wisconsin, WQOW.com (Mar. 24, 2020, 3:00 PM), https://wqow.com/2020/03/24/
models-show-that-without-current-restrictions-up-to-1000-could-die-in-wisconsin/.
6

4

 issued Emergency Order #12, the Safer at Home Order. 7 With certain limited
exceptions, the Safer at Home Order—effective March 25, 2020, through April
24, 2020—directs all Wisconsinites to stay at their homes or places of
residence; closes non-essential businesses and operations, including schools,
public libraries, and places of amusement; prohibits public and private
gatherings of people who do not belong to a single household or living unit; and
restricts non-essential travel. The Governor’s Office has publicly explained
that the Safer at Home Order is not intended to eliminate in-person absentee
voting for the April 7, 2020, election. 8
Wisconsin has a decentralized election system overseen by the Wisconsin
Elections Commission (WEC). Wis. Stat. § 5.05(1). Wisconsin’s 1,850 municipal
clerks or boards of election commissioners, and 72 county clerks, collectively
administer both absentee voting and in-person voting at thousands of polling
locations on election day. Administering elections in Wisconsin is resourceintensive, especially with respect to the necessary assistance of poll workers.

Wis. Dep’t of Health Servs., EMERGENCY ORDER #12: SAFER AT HOME
ORDER (Mar. 24, 2020), https://evers.wi.gov/Documents/COVID19/EMO12-Safer
AtHome.pdf.
7

Emergency Order #12 Does Not Eliminate In-Person Absentee Voting –
COVID-19, Wis. Elections Commission, https://elections.wi.gov/node/6773 (last
visited Mar. 31, 2020). Additionally, the Governor’s Office does not interpret the Safer
at Home Order as prohibiting in-person voting on the scheduled election date, or
prohibiting any work necessary to facilitate the election or to determine its results.
8

5

 According to WEC, roughly 30,000 poll workers serve at Wisconsin polling
places. 9
The April 7, 2020, election has the following state and local seats on the
ballot: a Wisconsin Supreme Court justice; three Wisconsin Court of Appeals
judges; 34 Wisconsin circuit court judges; 102 municipal court judges; 1,596
county supervisors and officers; 763 alders, mayors, and other city offices; 464
village board trustees, board members, and other offices; 291 town supervisors,
clerks, and other offices; 565 school district board positions; and 12 sanitary
district supervisory board positions. Many of these positions have terms
scheduled to begin as soon as April 21, 2020.
The April 7, 2020, election will also decide a state-wide referendum on a
proposed amendment to the Wisconsin Constitution, as well as 132 county,
school district, and local referenda. Lastly, the April 7, 2020, election will serve
as the Wisconsin presidential preference primaries for both major national
political parties.

Wisconsin Needs Poll Workers to Deal with COVID-19 Situation, Wis.
Elections Commission, https://elections.wi.gov/node/6766 (last visited Mar. 31, 2020).
9

6

 DISCUSSION
I.

Up-to-date information from Wisconsin’s Department of Health
Services and State Emergency Operations Center.
While the parties presumably will provide this Court with certain

information related to COVID-19 and its impact on the election, this brief seeks
to provide the most up-to-date information, to the extent it may benefit the
Court. The following summarizes the developments as of this filing. 10
First, as to the COVID-19 pandemic in Wisconsin, DHS reports that as
of March 31, 2020, 1,351 Wisconsinites have tested positive for COVID-19, and
16 have died from the virus. 11 DHS’s chief medical officer and state
epidemiologist for communicable diseases estimates that the actual number of
Wisconsinites with COVID-19 is up to ten times higher than the number of
individuals who have tested positive. 12 Unfortunately, existing data suggests

The Governor’s Office represents that this brief summarizes the information
provided by the SEOC and DHS, both of which are extremely busy addressing these
extraordinary circumstances. However, if this Court wishes to receive additional
information about the circumstances summarized here, the Governor’s Office will
make every effort to provide that information in the form most useful to the Court, if
so directed.
10

Wis.
Dep’t
of
Health
Servs.,
Outbreaks
in
Wisconsin,
https://www.dhs.wisconsin.gov/outbreaks/index.htm (last revised Mar. 31, 2020).
11

Dr. Ryan Westergaard, COVID-19 Media Briefing 3/27/2020, YouTube,
https://www.youtube.com/watch?v=rHZfvmu-TN0&list=PLrVDlKoVyjBRHeqq9sVg_
YGSiovQlj5nk&index=5 (last visited Mar. 31, 2020) (the cited portion occurs at
12

timestamp 36:30).

7

 that the COVID-19 epidemic in Wisconsin will get worse before it gets better.
At the same time, it remains difficult to estimate exactly when Wisconsin will
return to normalcy.
On March 30, 2020, DHS Secretary-Designee Andrea Palm warned that
it could be “10-plus days” before the growth curve of COVID-19 flattens out in
Wisconsin. 13 Recent data from an institute at the University of Washington
predicts that Wisconsin’s peak strain on hospital beds will occur on April 27,
2020; right now, that same data does not predict the total number of Wisconsin
deaths from COVID-19 plateauing until late May. 14 Predictions, however,
continue to change regularly—often on a daily basis. Multiple factors,
including significant limitations on available testing, make it difficult to offer
more concrete projections.
Second, as to the April 7 election, as this Court is aware, WEC
administers Wisconsin’s election laws and processes. Wis. Stat. § 5.05(1).
However, under the present circumstances, the SEOC, together with DHS, has
also been working to help prepare for the election and mitigate risks to the
Mary Spicuzza, Wisconsin prepares for possible next stage of coronavirus
spread with more testing, scouting locations for response, Milwaukee Journal Sentinel
(Mar. 30, 2020), https://www.jsonline.com/story/news/2020/03/30/wisconsin-corona
virus-testing-could-double-army-scouts-locations/5089808002/.
13

Univ. of Wash. Institute for Health Metrics & Evaluation, COVID-19
Projections, Wisconsin, https://covid19.healthdata.org/projections (last visited Mar.
31, 2020) (note: Wisconsin needs to be selected from the drop-down menu).
14

8

 public posed during this public health emergency. To these ends, the SEOC
has created a taskforce to assist WEC with preparations for the April 7
election. This taskforce has been helping polling places with staffing
challenges, acquisition and distribution of election materials, and acquisition
and distribution of sanitization materials. DHS, in turn, has worked with WEC
to provide guidance on ways to increase the safety of in-person voting.
With regards to staffing, as of March 31, 2020, 111 municipalities (6%)
reported being unable to staff even one polling place; 126 municipalities
(nearly 7%) reported being unable to staff all normal polling places; 530
municipalities (over 28.5%) did not provide an update on their status with
respect to poll workers. Governor Evers has agreed to use members of the
Wisconsin Army National Guard to assist as poll workers, but it is anticipated
that the assistance of the National Guard will not satisfy all of the current
staffing needs. The National Guard is currently determining how many
personnel it can make available for each county.
Additionally, as of 7:30 a.m. on March 31, 2020, 972,232 absentee ballots
have been requested for the April 7 election, and 942,350 absentee ballots have
been sent to voters. At the same time, only roughly 337,563 of those absentee
ballots have been returned.
With regard to acquisition and distribution of election materials, the
SEOC has helped source paper, pens, and other materials for the localities
9

 responsible for administering the election. Notably, the SEOC has acquired,
and is distributing, envelopes to help local clerks alleviate the shortfall caused
by the dramatic increase in mail-in absentee ballot requests.
The SEOC has also helped source and provide sanitization materials to
polling places. As of March 31, 2020, the SEOC has obtained the necessary
quantities of hand sanitizer and hand wipes to distribute to polling places. The
SEOC is also currently working to procure special sanitizing wipes for cleaning
the voting machines themselves.
The SEOC’s efforts to procure and provide sanitization materials helped
DHS in turn work with WEC to, on March 29, 2020, provide detailed public
health guidance for municipalities, county clerks, and local boards of election
commissioners about how to conduct an in-person election that accounts for
the COVID-19 public health concerns, by utilizing sanitizers, social distancing,
and other measures. 15

This extensive guidance includes signs to display, questionnaires for poll
workers, and a checklist for poll workers that includes suggestions for crowd and line
management, as well as sanitization of polling places. Public Health Guidance for
Elections – COVID-19, Wis. Elections Commission, https://elections.wi.gov/node/6787
(last visited Mar. 31, 2020).
15

10

 In short, as Governor Evers explained on March 30, 2020, Wisconsin is
still approaching the worst of the COVID-19 pandemic. 16 But no one can say
with confidence when the pandemic will subside. Moreover, though the many
Wisconsin state agencies working tirelessly to help prepare for our April 7
election in the midst of this pandemic have made tremendous strides,
challenges still remain and will continue to remain through election day.
II.

In the event this Court orders relief, it may wish to consider a
middle path.
To the extent that this Court concludes that relief is appropriate, the

Governor respectfully submits that this Court should consider a middle path
that maintains the democratic process, while also implementing appropriate
measures to save lives. The Governor provides the following general
proposals. 17

Riley Vetterkind, Tony Evers calls for agreement on emergency legislation as
unemployment claims skyrocket amid COVID-19 pandemic, Madison.com (Mar. 31,
2020), https://madison.com/wsj/news/local/govt-and-politics/gov-tony-evers-calls-foragreement-on-emergency-legislation-as/article_c4098526-d042-5efe-9f6c03be4ba9890c.html.
16

It is worth noting that some members of the Wisconsin Legislature have
asserted that the Governor lacks authority to effectuate these changes through his
emergency powers, meaning that any attempt by the Governor to do so would be
mired in legal challenges and delay, imposing further uncertainty on the election
process and all Wisconsinites. Thus, in the absence of action by the Legislature, even
after repeated urging, the Governor therefore provides his suggestions to this Court,
in the event it were to issue relief.
17

11

 To start, the Governor believes that COVID-19’s transmission through
direct interactions among people in close proximity should weigh heavily in
any potential remedy fashioned by this Court. In general, Wisconsin elections
are conducted mostly in-person. 18 But for the April 7, 2020, election, in-person
interactions should be minimized. This would be best achieved through a
predominantly by-mail election, with in-person voting available as necessary.
The Governor offers three main suggestions to help achieve a
predominantly by-mail election, in the event that this Court were to issue relief
in this case.
First, steps should be considered to make it easier for Wisconsin voters
to obtain mail-in absentee ballots. See generally Wis. Stat. § 6.86. Many
Wisconsinites who have not yet requested mail-in absentee ballots likely plan
to vote in person. Inevitably, some of those individuals who have not yet
requested mail-in absentee ballots lack either the technology (i.e., a smart
phone or copier) or the technical skills required to submit the requisite
documentation to obtain a mail-in absentee ballot while complying with the
Safer at Home order. Moreover, public places where individuals could use this

For example, only roughly 27% of Wisconsin voters in the November 2016
election voted absentee. Additionally, nearly 13% of voters in that election registered
to vote on election day. Wisconsin Voter Turnout Statistics “General Election Voter
Registration and Absentee Statistics 1984-2016,” Wis. Elections Commission,
https://elections.wi.gov/elections-voting/statistics/turnout (last visited Mar. 31, 2020).
18

12

 technology, or receive technological assistance, such as public libraries, are
closed due to the COVID-19 response.
If the Court makes it easier for registered voters to request mail-in
absentee ballots, it should also consider giving them an opportunity to avail
themselves of this option; the general cut-off for requesting a mail-in absentee
ballot is currently 5:00 p.m. on Thursday, April 2. See Wis. Stat. § 6.86(1)(b). 19
If the deadline to request absentee ballots were extended, the Wisconsin
Elections Commission could promptly execute an already-prepared public
education campaign to promote increased participation in the election by mailin absentee ballot. 20
Second, steps should be considered to make it easier for Wisconsin
voters to return absentee ballots quickly and without in-person contact. One
way to do this is to relax enforcement of the witness requirement for mail-in

If this Court were to decide to extend the deadline to request absentee
ballots, it may wish to extend the deadline for voter registration accordingly. See
generally Wis. Stat. § 6.28. Just as many electors who have not yet requested mail-in
absentee ballots may plan on voting in-person, because Wisconsin allows in-person
election-day voter registration, many may also be planning to register at the same
time. See n.17, supra. Extending the deadline for online voter registration, in
conjunction with efforts to make it easier for registered voters to request mail-in
absentee ballots, would alleviate the need for some prospective voters, who have not
yet registered, to show up for in-person voting.
19

The details of this plan are available in the WEC’s March 27, 2020, meeting
materials. Special Teleconference-Only Meeting Agenda, Wis. Elections Commission
21–23 (Mar. 27, 2020), https://elections.wi.gov/sites/elections.wi.gov/files/2020-03/
3.27.20%20Commission%20Materials.pdf.
20

13

 absentee ballots. With certain limited exceptions, Wisconsin law generally
requires that, for an absentee ballot to be counted, another adult U.S. citizen
must witness the elector signing an absentee ballot and must countersign the
ballot so attesting. Wis. Stat. §§ 6.87(2), (4). Those electors who do not live with
another adult U.S. citizen cannot comply with this requirement for mail-in
absentee ballots while also protecting their personal health and complying
with national and state mandates to socially distance. Given that most electors
do not have the step-by-step sanitization guide or supplies that the SEOC and
WEC have provided to municipal and county clerks and elections commissions
to make in-person voting as safe as possible, it would be problematic to require
Wisconsin voters, particularly elderly or at-risk individuals, to seek out inperson interactions to obtain a witness certification. 21
Further, a short extension (by one week, for example) of the deadline for
receipt of absentee ballots returned via mail may also help facilitate a
predominantly-by-mail election. See Wis. Stat. § 6.87(6) (general rule that

Nor would changes to the witness requirement in this extraordinary
circumstance invite voter fraud. Wisconsin’s election code contains multiple levels of
protections against voter fraud, and no absentee ballot will be left without some
protection. The vast majority of the nearly one million electors who have already
requested mail-in absentee ballots have been required to provide copies of their photo
ID with their requests. And, even if this Court were to relax that requirement to
facilitate other voters obtaining mail-in ballots before the election, those individuals
would still be required to sign the certifications on their ballots, see Wis. Stat.
§ 6.87(2), which is yet another layer of protection against fraud. Thus, adapting the
witness requirement to accommodate the current public health emergency will not
vitiate Wisconsin’s protections to safeguard elections.
21

14

 absentee ballots must be returned so that they are delivered to the polling
place no later than 8 p.m. on election day). A short extension would allow
Wisconsinites an opportunity to avail themselves of the opportunity to request
mail-in absentee ballots in the wake of any order by this Court, provide more
time for those requested ballots to be sent to electors who request them, and
provide more time for those electors to complete and return their ballots.
Additionally, to facilitate electors returning their ballots in a timely
manner without in-person contact, municipalities could be ordered to set up
return drop boxes for absentee ballots. See Wis. Stat. §§ 6.87 (general process
for completion and return of absentee ballots); 6.855 and 6.88 (general return
locations for processing absentee ballots). With public libraries already closed
by the Safer at Home order, the book-return drops at every public library
provide available, secure, conveniently located potential drop locations in
communities all around the State. 22
Third, steps should be considered to increase efficiency and accuracy of
counting votes in a predominantly by-mail election. Permitting the counting of
ballots to (1) begin early, and (2) extend after the election to account for any
On March 31, 2020, WEC advised municipal and county clerks, and boards
of local election commissioners, about the possibility of using of drop boxes—including
library book return slots—to better accommodate safe return of absentee ballots.
Special Teleconference-Only Meeting Agenda, Wis. Elections Commission 1–3 (Mar.
31, 2020) https://elections.wi.gov/sites/elections.wi.gov/files/2020-03/Complete%20
Packet%203_31.pdf
22

15

 extension to the time for receipt of mail-in absentee ballots, would help
alleviate logistical concerns about the timely processing of an unprecedented
volume of mail-in absentee ballots, and—as discussed further below—concerns
about poll workers’ ability to perform their jobs while socially distancing. See
Wis. Stat. §§ 6.88, 7.51, 7.52(1) (general procedures for election-day counting
of absentee ballots). This is particularly true given the high number of mail-in
absentee ballots—over 600,000 as of March 31, 2020—that have been sent to
voters, but have yet to be returned. 23
Additionally, this Court could provide that all municipalities are
authorized to conduct a centralized canvass process for counting absentee
ballots under Wis. Stat. § 7.52 (authorizing municipalities to, by ordinance,
decide to count absentee ballots in a single location on election day). This would
increase efficiency and minimize the number of poll workers and observers
necessary to monitor the counting process.
If the measures described above for providing for a predominantly-bymail election occurred, the amount of in-person voting would be greatly
reduced. Such a reduction would help ensure that those voters who cannot or
will not avail themselves of mail-in absentee ballots can participate in the

If this Court so ordered, it could, for example, instruct WEC to provide
municipal and county clerks, and local boards of election commissioners, guidance on
how to count votes if the volume of mail-in absentee ballots is so large that they
cannot all be counted in one session.
23

16

 election safely. Thus, in conjunction with moving to a predominantly-by-mail
election, the remaining in-person voting could proceed on April 7, or as soon as
possible thereafter if the Court deems April 7 to be impossible. Such an
approach will promote stability and avoid the uncertainty inherent in
extending the election date into the future, given that Wisconsin’s exposure to
COVID-19 continues to expand, and it remains unclear when the situation will
improve.
A predominantly-by-mail election would also mitigate many of the
concerns about direct contact between groups of people at polling places—as it
relates to the safety of both voters and poll workers. With the specific guidance
already provided by WEC—discussed above—as to how to hold an in-person
election that comports with social distancing and accounts for COVID-19
public health concerns, an opportunity for in-person voting should still exist
for the few voters who are unable to vote absentee. These voters include, for
example, voters who require assistive technology to vote or voters who are
unable to read and write in English without assistance.
Ultimately, a predominantly-by-mail election, with limited but available
in-person voting, would be an achievable middle ground that would help
protect Wisconsinites’ right to vote, while also helping to keep them safe.

17

 CONCLUSION
Wisconsin Governor Tony Evers respectfully requests that this Court
consider this information as it decides this matter.
Dated this 31st day of March 2020.
Respectfully submitted,
s/ Hannah S. Jurss
HANNAH S. JURSS
Assistant Attorney General
State Bar #1081221
Attorney for Governor Tony Evers
Wisconsin Department of Justice
Post Office Box 7857
Madison, Wisconsin 53707-7857
(608) 266-8101
(608) 267-2223 (Fax)
jursshj@doj.state.wi.us

18