MADISON – The Wisconsin Supreme Court this week heard from conservatives who argued Tuesday’s election should be kept in place, prompting one attorney to cry foul that liberals were not granted the same opportunity to say it should have been delayed.
“There are rules that the Supreme Court requires all people who appear before them to follow — except when they don’t enforce the rules,” Madison attorney Lester Pines said. “It does certainly lend an appearance of favoritism.”
But Rick Esenberg of the conservative Wisconsin Institute for Law & Liberty argued all sides had a chance to weigh in on the case. He said he followed normal procedures in quickly getting his arguments before the high court.
“If Mr. Pines wanted to be heard, he needed to get his submission done immediately because the court is under no obligation to wait for him,” Esenberg said by email. “He could have done what we did. He did not.”
The filings came in a fast-moving case that was filed and resolved within hours Monday after Democratic Gov. Tony Evers tried to postpone Tuesday’s election over fears more people would become infected with the coronavirus. The court ruled 4-2 that Evers didn’t have the power to halt the election.
The Wisconsin Institute for Law & Liberty and state Republican Party sent letters to the justices urging them to hold the election. The Wisconsin Counties Association and Washington County together submitted a similar letter raising grave concerns about delaying the election.
Typically, if groups want to comment on cases they ask permission to submit friend-of-the-court briefs rather than writing letters.
The court rejected a request from Pines to submit a friend-of-the-court brief on behalf of the Service Employees International Union and others that wanted to see the election delayed. The justices didn’t grant the request because they determined it was submitted too late.
Pines said it wasn’t fair that the court accepted letters from conservatives who didn’t ask for permission while refusing to take his submission that followed court procedures set in state law.
Court spokesman Tom Sheehan said none of the communications, including those from conservatives, arrived in time to be considered by the court. According to the court’s online docket, the court dismissed Pines’ filing but not the other ones.
Monday’s case moved with blinding speed. Many cases take years to get to the state Supreme Court. This one was initiated and ended in a matter of hours because the issues were raised just before the polls opened.
That left little time for anyone to submit filings. For instance, the court notified the governor’s office it had to file a brief just 15 minutes before it was due, according to an Evers aide.
Esenberg said he wrote a letter rather than a brief because of the tight time frame and argued Pines should have taken the same approach.
“There is nothing in the rules that prevents doing that and it’s up to the court whether it wants to accept it,” he said by email. “(Pines) should have known that this case was going to be over very quickly because it had to be. He acted too slowly.”
Pines acknowledged time was short but contended the court should have treated everyone the same.
“If it was an extreme situation, why do you accept information from one side without letting the other side participate?” said Pines, who called the letters by conservatives “political lobbying.”
Pines sent a letter Thursday asking Chief Justice Patience Roggensack whether the court had now changed its rules and would accept similar letters in other cases.
“They established to some extent new precedent,” Pines said in an interview. “Why can’t anyone do this now on any topic?”
Sheehan, the court spokesman, did not say whether the court would handle future filings the way it had in the election case.
Attorneys for the Republican Party and counties association did not immediately respond Thursday to Pines’ criticism or say why they submitted letters rather than friend-of-the-court briefs.
Ruling fell along ideological lines
Roggensack leads the court’s conservative majority. Monday’s decision fell along ideological lines, with conservatives ruling Evers couldn’t postpone the election and liberals saying he could.
“While the Governor’s emergency powers are vast, they are not unlimited,” the majority wrote in the unsigned opinion. “This court acknowledges the public health emergency plaguing our state, country, and world, but any action taken by the Governor, no matter how well-intentioned, must be authorized by law.”
In dissent, Justice Ann Walsh Bradley contended Evers had the ability to halt the election because of the health crisis and contended the majority “looks reality in the face, but then turns the other way.”
“The majority gives Wisconsinites an untenable choice: endanger your safety and potentially your life by voting or give up your right to vote by heeding the recent and urgent warnings about the fast growing pandemic,” she wrote.
Conservative Justice Daniel Kelly did not participate in the case because he was on Tuesday’s ballot. He faces a challenge from liberal Dane County Circuit Judge Jill Karofsky.
Contact Patrick Marley at email@example.com. Follow him on Twitter at @patrickdmarley.
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