On Wednesday night, the Wisconsin Supreme Court overturned Democratic Gov. Tony Evers’ stay-at-home order to combat the coronavirus, ruling it “unlawful” and “unenforceable.”
That decision, which was the result of an appeal filed by the leaders of the Republican-led state legislature, ends Evers’ order but puts nothing in its place. Which, well, leads to chaos. “Now we have no plan and no protections for the people of Wisconsin,” Evers told CNN following the ruling.
To talk about how we got here – and what’s next – I reached out to Patrick Marley, a state politics reporter for the Milwaukee Journal-Sentinel. Our conversation, conducted via email and lightly edited for flow, is below.
Cillizza: How did this case get to the state Supreme Court?
Marley: Ordinarily cases take months or years to get to the Wisconsin Supreme Court, but Republican lawmakers brought this lawsuit directly to the high court, asking it to take it up without first having it heard by a lower court. The justices agreed to do so, heard arguments virtually last week and rendered their decision on Wednesday. They reached their ruling three weeks after the lawsuit was filed.
Cillizza: Is this an extension of the fight over the in-person primary, where Republicans in the legislature wouldn’t give Evers what he wanted?
Marley: It goes back further than that. It’s an extension of a fight that has been going on since Tony Evers was elected governor in 2018. Before he was seated, Republicans who control the legislature passed a set of lame-duck laws limiting his powers and the two sides have barely gotten along ever since. Virtually every major political issue winds up in court here, and that’s been true for at least a decade. Former state Attorney General Brad Schimel used to joke that Wisconsin is a place where a bill becomes a lawsuit.
Cillizza: The court ruling throws out Evers’ stay-at-home order. But does it put anything in its place?
Marley: The court did not put anything in its place, so there are no state rules for the time being at least. The court required any new policies to be submitted to a legislative committee through a complex process known as rulemaking. Getting new state rules in place at minimum will take weeks, according to the governor’s office. Republican lawmakers can easily block new rules, so it could take much longer.
Interestingly, the Republicans had asked the court to stay a ruling in their favor for about a week so they could come up with a replacement plan. But the justices declined to do that, leaving the state with no plan for the time being.
Cillizza: As of this morning, is Wisconsin open without any sort of rules governing social distancing, limits of people in stores, etc.?
Marley: While the court delivered a blow to Evers, its ruling did not affect the powers of local officials, and many communities rushed Wednesday night to put in their own restrictions. For at least a while we are likely to have a patchwork of policies, with one set of rules in one county and a different set of rules in a neighboring one.
Cillizza: Finish this sentence: “The big thing to watch for over the next 72 hours is ___________.” Now, explain.
Marley: Can I answer this question in three parts? The biggest things to watch for over the next 72 hours are the legislative response, the governor’s reaction and whether new lawsuits emerge. The Republicans who brought the case have offered no plan of their own and will increasingly face questions about what social distancing rules, if any, they want.
Evers’ next moves are unclear. He has said he will try to get his plan approved through the rulemaking process, but he could also try other approaches at the same time, such as by having his administration issue a new, narrower emergency order.
Now that local officials are in charge, there is an increased chance for litigation over their orders.