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Conservative Group Files Lawsuit That Would Strike Down Wisconsin’s Mask Mandate

Suit Challenges Governor's 2nd COVID-19 Emergency Declaration

People wearing mask because of the pandemic
Pedestrians wearing masks on Wednesday, Aug 5, 2020, at UW-Madison. Angela Major/WPR

A conservative advocacy group has filed a lawsuit challenging Gov. Tony Evers’ latest emergency declaration in response to the COVID-19 pandemic, arguing the governor overstepped his executive powers by issuing two separate coronavirus-related states of emergency in Wisconsin. If successful, the lawsuit would overturn Evers’ statewide mask mandate.

The Wisconsin Institute for Law and Liberty filed the lawsuit in Polk County on behalf of three Wisconsin residents. It argues the governor’s executive powers don’t allow him to issue two emergency declarations related to the same crisis, as he has done for the coronavirus pandemic.

Emergency declarations allow the governor and his administration to issue orders dictating how the state responds to a crisis. That includes things like mobilizing state departments to address specific problems and placing restrictions on people and businesses.

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The governor issued the state’s first COVID-19 emergency declaration in March. That declaration allowed the state Department of Health Services to issue Wisconsin’s stay-at-home order. The second emergency declaration came late last month and empowered Evers to issue the statewide mask requirement.

The governor’s power to issue emergency declarations comes from a state law. The law sets a 60-day expiration date for each emergency order, unless the state Legislature passes a joint resolution extending it. Republican legislative leaders, who disagreed with some of the steps Evers took earlier this year to address the pandemic, declined to extend his first emergency order.

Rick Esenberg, president of WILL, said the purpose of the lawsuit isn’t to knock down the mask mandate, though it would do so.

“This is not about the mask mandate — this is about how the governor makes law,” Esenberg said on a Tuesday morning call with reporters.

Esenberg said the governor should go through the lawmaking or administrative rule processes, both of which require buy-in from GOP lawmakers, if he wants a statewide mask mandate in place.

“Instead he has chosen to act unilaterally,” Esenberg said. “That is contrary to the law.”

Republican leaders in the state Legislature have said they oppose a statewide mask mandate. They have argued for several months for a more regional approach to fighting the virus’ spread. The state Legislature also has the power to strike down the second emergency order by passing a joint resolution to end it. Senate Majority Leader Scott Fitzgerald, R-Juneau, has said the state Senate stands ready to do so, but Assembly Speaker Robin Vos has declined to comment.

The governor’s spokesperson criticized Republicans on Tuesday, arguing they have repeatedly blocked Evers’ efforts to fight the pandemic.

Republicans and their allies have tried at every turn to prevent the governor from keeping Wisconsinites healthy and safe,” said Evers spokesperson Britt Cudaback. “From safer at home to the April election and now masks, they’ve filed more lawsuits than they have passed bills during this pandemic.”

The GOP-controlled Legislature filed a lawsuit earlier this year that knocked down the Evers administration’s stay-at-home order. Republican lawmakers also filed a successful lawsuit against the governor’s effort to delay the April 7 presidential primary election during the pandemic.

Evers’ office has also argued the governor should be able to issue a second emergency order for the pandemic because the status of the virus in Wisconsin has changed dramatically since the first emergency declaration expired.

Esenberg rebuffed that argument on Tuesday.

“It’s completely implausible,” he said. “The COVID pandemic has basically stayed with us, it’s the same problem today that we had in March.”

The new lawsuit was filed in a state circuit court, which means it will terminate at the state Supreme Court. Wisconsin’s highest court has a 4-3 conservative majority.