WI Supreme Court Conservatives Strike Down Evers’ Mask Order, Ending Only Statewide COVID Safeguard

The court’s four conservative justices leave Wisconsin without a state of emergency despite the ongoing pandemic.

The conservative-controlled Wisconsin Supreme Court on Wednesday struck down Gov. Tony Evers’ statewide mask requirement on a 4-3 vote, ruling he overstepped his authority when he issued multiple successive emergency declarations during the pandemic.

The decision means Wisconsin is no longer under a state of emergency due to the coronavirus pandemic, and there are no longer any statewide COVID-19 mitigation efforts in place as the state braces for another potential virus surge, despite significant progress on vaccinations. The few local mask requirements in place are not impacted by the ruling.

“Since the beginning of this pandemic, I’ve worked to keep Wisconsinites healthy and safe, and I’ve trusted the science and public health experts to guide our decision making,” Evers said in a statement following the decision. “Our fight against COVID-19 isn’t over—while we work to get folks vaccinated as quickly as we can, we know wearing a mask saves lives, and we still need Wisconsinites to mask up so we can beat this virus and bounce back from this pandemic.”

Writing for the majority, Brian Hagedorn, a conservative swing justice, said Evers’ use of his emergency powers was “unlawful.”

Earlier: WI Supreme Court’s First Ruling to Kill Pandemic Safeguards in the Safer at Home Extension

In Wisconsin, governors’ emergency declarations last 60 days under state law, and they can be extended or ended early only by the Legislature. But the statute does not explicitly allow or disallow a governor to declare successive emergencies for the same crisis, such as a pandemic.

“Whether the policy choices reflected in the law give the governor too much or too little authority to respond to the present health crisis does not guide our analysis,” Hagedorn wrote. “Our inquiry is simply whether the law gives the governor the authority to successively declare states of emergency in this circumstance.”

In February, the Republican-led Legislature ended Evers’ mask order, but Evers issued a new one an hour later. The nonpartisan Legislative Fiscal Bureau told Wisconsin lawmakers in January that the state’s FoodShare program could lose extra funding of about $50 million a month if the state’s emergency were ended. Evers cited that possibility when he issued his most recent emergency order.

It is unclear if Wednesday’s court decision will likewise end the extra funding. 

“.@WIAssemblyGOP and @WisSenGOP could have passed a clean bill to prevent this possibility, but instead they played games and risked this money because they were so passionate about ending statewide mask requirements,” said Rep. Mark Spreitzer (D-Beloit) on Twitter. “Now it’s up to them to fix this. No more political games.”

Justice Ann Walsh Bradley, a liberal, wrote in her dissent that the conservative majority’s opinion was “erroneous” and argued they should have taken into account the broader effect the decision will have on Wisconsin’s efforts to fight the pandemic.

“Unfortunately, the ultimate consequence of the majority’s decision is that it places yet another roadblock to an effective governmental response to COVID-19, further jeopardizing the health and lives of the people of Wisconsin,” Walsh Bradley wrote.

Hagedorn addressed that criticism and said the decision was a matter of law, regardless of public health ramifications.

“The dissent, in contrast, spends considerable space discussing outcome-focused concerns,” Hagedorn wrote. “But our role is not to rule in favor of outcomes we like; it is to interpret and apply the law, whether we like it or not.”

But Walsh Bradley also noted Gov. Scott Walker declared successive states of emergency in the 2013-14 and 2016-17 winters due to statewide propane shortages. Walker issued seven emergency orders in the 2013-14 winter and two in 2016-17. All of those orders went unchallenged.

“Thus, in the recent past, a governor has declared numerous states of emergency premised on the same underlying causes,” Walsh Bradley wrote. “Yet the majority reverses course from this established practice and common sense to arrive at its unreasonable result.”