More than 70 COVID positive after attending large gathering.
Hundreds gathered at the State Capitol in Madison on April 24 to protest quarantine safeguards. (Photo © Andy Manis)

The suit would permanently cripple local health departments’ ability to respond to the coronavirus pandemic, and any in the future.

The right-wing activist responsible for organizing the “Freedom Rally” in Madison where up to 72 people may have contracted the coronavirus is one of 17 plaintiffs in a lawsuit that aims to overturn most remaining stay-home orders in the state and prevent more from ever being issued, even as some are already expired and most of them are set to expire within the next few days.

The suit calls stay-home orders, designed to stop the spread of coronavirus, “irrational and unjustifiable” and claims health officials “lack a compelling, legitimate, or rational interest in the orders’ application.” However, it is abundantly clear that lockdowns worldwide have actually saved countless lives. As states begin to reopen, health experts expect a spike in cases

A study by Columbia University estimated that shutting the country down just one week earlier would have saved 36,000 lives. Nearly 94,000 Americans have already died from the virus, according to analysis by Johns Hopkins University. Meanwhile, President Trump is pushing hard to reopen the country in hopes the stock market will rebound, and he has encouraged people to “liberate” their states.

Madison Marie Elmer, the Madison protest organizer, is listed as the third plaintiff of the Wisconsin suit. The other 16 are small business owners, local residents, a reverend, and Jay Schroeder, a Republican Assembly candidate who also had a failed run for secretary of state. 

The suit Elmer and her co-plaintiffs filed Wednesday in the Eastern Wisconsin U.S. District Court targets public health officials in Door, Outagamie, Winnebago, Dane, Rock, and Green counties, and the cities of Milwaukee, Racine, Grand Chute and Appleton. Also named is each member of the Wisconsin Elections Commission, Gov. Tony Evers, Department of Health Services Secretary-Designee Andrea Palm, and the deputy chief of the state Capitol Police.

Stay-home order extensions in Door, Outagamie, and Winnebago counties, and Appleton and Grand Chute, have either concluded or been withdrawn. The orders in the City of Racine and Rock, Green, and Dane counties expire at 8 a.m. Tuesday, May 26. The countywide order in Milwaukee expires on Friday, but the city’s order is indefinite. 

All of the orders were extended after the Wisconsin Supreme Court struck down Palm’s extension of Evers’ Safer-at-Home order. The plaintiffs claim the local orders “unlawfully violate” the First Amendment because they were modeled after the original invalidated order, even though Attorney General Josh Kaul issued an opinion that local orders were legal.

“I am optimistic that this lawsuit will go nowhere,” Ryan Nilsestuen, Evers’ chief legal counsel, said in a call with reporters Thursday.

It is not entirely clear why the Elections Commission, Evers, and Palm, are named in the suit.

Elmer, a resident of Walworth County, which has no stay-home order in place, claims that her First Amendment rights were violated because she could not get a permit for the protest at the Capitol last month. About 1,500 people came anyway, and no one was arrested. Elmer claims the ongoing order in Dane County prevents her from planning another protest.

Elmer did not immediately respond to an email Thursday.

Fourteen of the plaintiffs claim their right of freedom of religion was infringed upon.

The lawsuit also hints at a recall effort against Evers. It argues that because a recall campaign could not knock on doors and collect signatures in Madison or Milwaukee, it is “impossible to exercise the constitutional right to recall.”

The suit demands the court overturn any ongoing orders and prevent local officials from implementing such orders in the future.

Absent from the complaint is Eau Claire County, which issued a stay-home order that was not based on the original Safer-at-Home order.