1/ Wisconsin Governor Evers order suspending in-person voting appears to exceed his power under Wisconsin law. The state lacks a broad election emergency statute empowering election officials to modify the rules governing the electoral process in response to unexpected disasters

2/ The Governor's Executive Order 74 purports to invoke the state's general emergency statute, Wis. Stat. 323.12(4)(b), which allows the governor to "Issue such orders as he or she deems necessary for the security of persons or property" in an emergency.
https://evers.wi.gov/Documents/COVID19/EO074-SuspendingInPersonVotingAndSpecialSession.pdf

3/ The problem is, Wis. Stat. 323.12(4)(b) likely doesn't let him suspend/ignore state statutory requirements, for 2 reasons. First, Wis. Stat. 323.12(4)(d) lets the Gov "[s]uspend the provisions of any administrative rule if the strict compliance" would hinder disaster response.

4/ This express authorization to suspend administrative rules, but not other sources of law like statutes, strongly suggests that 323.12(4)(b)'s general grant of authority doesn't include the power to suspend/ignore statutory requirements.

5/ Second, many other similarly worded/structured state-of-emergency laws in other states DO expressly confer authority on governors to suspend state statutes or statutory deadlines during declared emergencies. See 67 Emory L.J. 545, 609 n.424.

6/ Thus, the omission of authority to suspend state laws from Wisconsin's general state of emergency statute is likely significant & intentional, and should be given effect in determining the validity of the Governor's actions.

7/ It may very well be that the Governor reached substantively the right conclusion under the circumstances. But especially when it comes to elections, state officials create serious problems when they ignore, or act in excess of, statutory limits on their authority.

8/ The executive order also cited two provisions of the Wisconsin Constitution, but neither of them authorize the Governor to ignore statutory requirements during states of emergency, either.

9/ One other wrinkle: this partly involves a congressional primary. Sole power to regulate congressional elections comes from the U.S. Constitution's Elections Clause, which confers it specifically on the "legislature" of the state, not the state as a whole.

10/ While a state may have flexibility in deciding what entity counts as the "legislature," see Ariz. Indep. Redistricting Comm'n, 135 S. Ct. 2652, there is no serious argument that the Governor has authority to act as such in these circumstances.

11/ To the contrary, other branches of state government have a special federal constitutional duty to strictly adhere to the legislature's rules when it comes to federal elections. See, e.g., Bush v. Palm Beach Cnty, 531 U.S. 70; Ohio Lib Party v. Brunner, 567 F. Supp. 2d 1006

12/ For my work on election emergencies, see:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3160436

and https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3564829

13/ Under the circumstances, the proper entities to act were either the legislature, to change state law/policy, or the courts, since subjecting esp. vulnerable voters to risk of COVID likely substantially burdens the right to vote requiring a suspension of in-person voting

14/ But it's dangerous for a Governor to unilaterally declare that, since he disagrees with how the state legislature and state/federal courts are handling a situation - esp. when they had a chance to consider it - he will decide to ignore/violate state law.

15/ Modification of Tweet #9: there’s NOT a congrsssional primary; just a Presidential Preference Primary under the Presidential Electors Clause, which also confers power specifically on “legislature” and is read in pari materia with Elections Clause

16/. Bush v Palm Beach County Canvassing Board alludes to the unique state separation-of-powers limits that arise specifically in the context of presidential elections under the Presidential Electors Clause

17 The most important takeaway is that the Wisconsin crisis yet again demonstrates the need for states to adopt election emergency statutes that empower election officials to make modifications to election-related procedures as needed to respond to crises & cabin their discretion

18/. The time to figure out who is empowered to respond to an emergency & what precisely they can/can’t do is NOT after the emergency has arisen. And even courts are a second-best option since they issue ad hoc rulings as a matter of constitutional law rather than the best policy

19/. Also, for those who have asked, I sheppardized the state of emergency law the Governor invoked and there were no authorities construing it