IN THE SUPREME COURT OF WISCONSIN
No. _________
WISCONSIN LEGISLATURE,
Petitioner,
v.
TONY EVERS, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF
THE STATE OF WISCONSIN,
Respondent.

_______________
EMERGENCY PETITION FOR ORIGINAL ACTION

_______________
Ryan J. Walsh
Counsel of Record
Amy Miller
Eimer Stahl LLP
10 East Doty Street
Suite 800
Madison, WI 53703
(608) 441-5798
(608) 441-5707 (fax)
rwalsh@eimerstahl.com
amiller@eimerstahl.com

Counsel for Petitioner

 ISSUE PRESENTED BY THE CONTROVERSY
Whether the Governor can unilaterally suspend or otherwise
amend the Wisconsin Statutes establishing the time of the spring
election and the deadline for casting ballots in that election, as well
as the terms of local government officials.
INTRODUCTION
Defying numerous state-election statutes and his countless
previous statements that he clearly lacks legal authority to cancel
tomorrow’s election, the Governor announced moments ago—at
the eleventh hour—that he was doing just that. The order is void
for several, independent constitutional and statutory reasons, as
the Governor has himself conceded. This Court should
immediately issue an administrative stay of the Governor’s
order, grant this original action, hold the order invalid, and
enjoin enforcement of the Governor’s order as soon as
possible, as this election and preparations for tomorrow’s voting
are ongoing. Failure to do so will result in widespread voter
confusion. Further, failure to grant an immediate administrative

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 stay risks interfering with the Legislature’s stay application
currently pending before the Supreme Court of the United States.
STATEMENT OF FACTS
1.

Petitioner is the Wisconsin Legislature, located at the

Wisconsin State Capitol, Madison, Wisconsin, 53703.
2.

Respondent Tony Evers is the Governor of Wisconsin.

His office is located at 115 East State Capitol, Madison, Wisconsin,
53703.
4.

In February 2020, the novel coronavirus, COVID-19,

began spreading throughout the United States. 1
5.

In response, Governor Evers issued Executive Order

72, declaring a public health emergency throughout the State of
Wisconsin. 2

The Atlantic, How the Coronavirus Became an American Catastrophe
(March
21,
2020),
available
at
https://www.theatlantic.com/health/archive/2020/03/how-many-americansare-sick-lost-february/608521/.
2
Executive Order # 72 (March 12, 2020), available at
https://evers.wi.gov/Documents/EO/EO072-Declaring
ealthEmergencyCOVID-19.pdf.
1

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 6.

After Governor Evers declared a public health

emergency, Secretary-Designee Palm issued several orders closing
schools and restricting public gathering, including Emergency
Orders 1, 4, 5, and 8. 3
7.

Governor Evers also issued several orders suspending

administrative rules, including emergency orders 2, 10, 11, 17, and
18. 4
8.

On March 24, Secretary-Designee Palm, at the

direction of Governor Evers, issued Emergency Order 12, entitled
“Safer at Home.” 5
9.

Emergency Order 12 exempts from its scope essential

operations as defined by the Department of Homeland Security
Cybersecurity & Infrastructure Security Agency’s (CISA) Advisory

Emergency Order 1 (March 13, 2020); 4 (March 16, 2020); 5 (March
17,
2020);
8
(March
20,
2020),
available
at
https://evers.wi.gov/Pages/Newsroom/Executive-Orders.aspx.
4 Emergency Orders 2 (March 14, 2020), 10 (March 21, 2020); 11 (March
21, 2020); 17 (March 27, 2020); 18 (March 31, 2020), available at
https://evers.wi.gov/Pages/Newsroom/Executive-Orders.aspx.
5
Emergency Order 12 (March 24, 2020), available at
https://evers.wi.gov/Documents/COVID19/EMO12-SaferAtHome.pdf.
3

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 Memorandum on Identification of Essential Critical Infrastructure
Workers During COVID-19 Response. 6
10.

The CISA memorandum, in turn, defines elections

officials as essential. 7
11.

Pursuant to Wisconsin Statute Section 5.02(21),

Wisconsin’s Spring Election is scheduled to take place on April 7.
12.

Although Governor Evers issued numerous emergency

orders relating to the public health emergency, he repeatedly
stated that he did not have the authority to move the election. 8

Id.
U.S. Dept. of Homeland Security, Cybersecurity & Infrastructure
Security Agency (CISA), Advisory Memorandum on Identification of Essential
Critical Infrastructure Workers During COVID-19 Response, available at
https://www.cisa.gov/sites/default/files/publications/
CISA_Guidance_on_the_Essential_Critical_Infrastructure_Workforce_Versio
n_2.0_Updated.pdf.
8 See, e.g., Mike Kemmeter, 105.7 WAPL, Evers doesn’t have authority
to
move
election
(March
20,
2020),
available
at
at
https://www.wapl.com/2020/03/20/evers-doesnt-have-authority-to-moveelection/; Amy Gardner and John Wagner, The Hour, Wisconsin Gov. Tony
Evers asks lawmakers to cancel voting Tuesday, convert to all-mail election
(April
3,
2020),
available
at
with
May
deadline
https://www.thehour.com/news/article/Wisconsin-Gov-Tony-Evers-askslawmakers-to-15177835.php
6
7

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 13.

On April 3, 2020, Governor Evers called a special

session of the Wisconsin Legislature to consider postponing the
election. 9
14.

The Legislature convened on April 3, but took no

action to postpone or otherwise alter the scheduled election.
15.

On April 6, 2020—one day before election—Governor

Evers issued Executive Order 74 suspending in-person voting on
April 7, 2020. 10
STATEMENT OF RELIEF SOUGHT
The Court should immediately issue an administrative stay
of the Governor’s order, grant this petition, and enjoin enforcement
of the Governor’s order, as soon as possible.

Governor Tony Evers, Press Release, Gov. Evers Calls for Special
at
Session
on
Spring
Election
(April
3,
2020),
available
https://content.govdelivery.com/accounts/WIGOV/
bulletins/284c149.
10
Executive Order
74
(April
6, 2020),
available
at
https://content.govdelivery.com/attachments/WIGOV/2020/04/06/file_attachm
ents/1420231/EO074-SuspendingInPersonVotingAndSpecialSession.pdf.
9

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 STATEMENT OF THE REASONS WHY THIS COURT
SHOULD TAKE JURISDICTION
As discussed in more detail in the Memorandum in Support
of Emergency Petition for Original Action and Emergency Motion
for Temporary Restraining Order, this Court should grant this
Petition. This case involves an invasion by the Executive into the
Legislative arena: setting the time, place, and manner of elections,
as well as the terms of local officials. Prompt resolution of this
legal dispute is categorically within the public interest because the
Governor’s action significantly interferes with an ongoing election
and will disenfranchise countless voters. And this case presents
questions of statutory and constitutional interpretation, which do
not require fact-finding by this Court.
CONCLUSION
This Court should grant the Petition and declare that
Executive Order 74 is unlawful.
Dated: April 6, 2020

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 Respectfully Submitted,

RYAN J. WALSH
State Bar No. 1091821
Counsel of Record
AMY C. MILLER
State Bar No. 1101533
EIMER STAHL LLP
10 East Doty Street
Suite 800
Madison, WI 53703
(608) 441-5798
(608) 441-5707 (fax)
rwalsh@eimerstahl.com
amiller@eimerstahl.com
Attorneys for the Wisconsin Legislature

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 CERTIFICATE OF SERVICE
A copy of this Petition is being served on all opposing parties
via electronic mail and first-class mail.
Dated: April 6, 2020

Ryan J. Walsh
Counsel for The Wisconsin Legislature

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