Republican Lawmakers Get Handed a Judicial Loss Over Wisconsin’s Mask Safeguard

The Legislature has not met in 180 days, and the judge says Republicans asked the courts to do their job for them.

St. Croix County Circuit Court Judge Michael Waterman on Monday ruled he will not temporarily suspend Gov. Tony Evers’ extended mask safeguard that lasts through Nov. 21.

“Today’s ruling is a victory in our fight against COVID-19 and our efforts to keep the people of Wisconsin safe and healthy during this unprecedented crisis,” said Evers in a statement. “As the number of COVID-19 cases in Wisconsin reached 150,000 yesterday, we will continue doing everything we can to prevent the spread of this virus. We ask Wisconsinites to please stay home as much as possible, limit travel and going to public gatherings, and wear a mask whenever out and about.”

The decision comes as a blow to the conservative law firm Wisconsin Institute for Law and Liberty (WILL), which initially brought forth the suit, and Republican leaders in the state Legislature who filed a brief supporting WILL’s lawsuit, presumably to avoid a politically damaging vote to strike Evers’ order down early. WILL and the Legislature sought to have the mask safeguard, intended to guard against the spread of coronavirus as the pandemic ravages through Wisconsin, immediately suspended.

The groups argued last Monday that state law does not allow the governor to issue multiple emergency orders for the same pandemic. However, Waterman ultimately agreed with Assistant Attorney General Colin Hector, who said Evers’ use of emergency orders was justified because he issued them when there were new, significant spikes of the pandemic in Wisconsin.

“Nothing in the statute prohibits the governor from declaring successive states of emergency,” Waterman, an appointee of former Gov. Scott Walker, wrote in his ruling. “Instead, the statute allows a declaration ‘if the governor determines that a public health emergency exists.’”

The Legislature, which Assembly Speaker Robin Vos (R-Rochester) and Senate Majority Leader Scott Fitzgerald (R-Juneau) have not convened for 180 days, could legally come into session at any time to end Evers’ order early. Waterman, who last week questioned the need for the courts to step in, chided legislative leaders for asking him to perform a function the legislature carved out for itself.

“The legislature can end the state of emergency at anytime, but so far, it has declined to do so,” Waterman wrote. “As the statewide representative body of the citizens of Wisconsin, the legislature’s inaction is relevant and it weighs against judicial intervention, especially when the requested intervention will have statewide impact.”

Legislative Republicans’ inaction comes in an election year that is anticipated to have massive voter turnout. While the majority of Republican lawmakers in Wisconsin are secure in their seats due to the state’s nation-worst gerrymandering, a few seats are in play, particularly in more moderate suburbs of Milwaukee and semi-rural districts near La Crosse and Superior.

A vote to end Evers’ ruling held so soon before the election could feasibly lead to Republicans losing a few seats, as 72% of respondents to the most recent Marquette Law School poll voiced support for the mask order. 

Only 10 of the state’s 81 Republican lawmakers spoke with the Milwaukee Journal Sentinel last week when the paper asked about the Legislature’s presence in the lawsuit; all 10 said they supported the action.