MADISON, Wis. — The Wisconsin Supreme Court was hearing arguments today on whether to strike down the state’s mask mandate being challenged by conservatives as an unconstitutional overreach of power by Democratic. Gov. Tony Evers.
The arguments come as Wisconsin broke records last week for new COVID-19 cases amid a coronavirus surge in the state that began in September and has forced many hospitals to operate at or near capacity.
Wisconsin has logged more than 312,000 COVID-19 cases and 2,637 deaths since the pandemic began. There were 2,096 people hospitalized as of Sunday, just below a record high set on Wednesday, according to the Wisconsin Hospital Association. There were 1,522 new cases per 100,000 people in Wisconsin over the past two weeks, which ranks fourth in the country for new cases per capita, according to Johns Hopkins.
Since the start of the outbreak, Evers has issued three public health emergencies and a series of related orders.
State law limits health emergencies to 60 days, but the Legislature can grant an extension. Evers has issued new health orders, arguing that he can do that because the threat caused by the pandemic has changed.
Lawsuits challenging Evers, including the one being heard by the state’s highest court today, argue that the circumstances that led to the first health emergency — the pandemic — have not changed and therefore Evers’ actions are illegal.
His “safer at home” order issued in March was struck down by the conservative-controlled Supreme Court in May. The high court ruled that the Evers administration had overstepped its authority when it extended the order without consulting lawmakers.
A state appeals court in October put on hold another Evers order limiting how many people could gather indoors at places like bars and restaurants. The Supreme Court earlier this month declined to hear the case, meaning there is no statewide capacity limits but there are local restrictions in many places.
In July, Evers issued the mask mandate. He extended it in September and the order is currently set to expire on Saturday, although Evers could extend it.
The case being heard today was brought by Jere Fabick, a major Republican donor in Wisconsin who has given more than $350,000 to Republican or conservative candidates in Wisconsin between 1994 and the middle of 2020, according to the Wisconsin Democracy Campaign. In 2016, Fabick gave $20,000 to conservative Wisconsin Supreme Court Justice Rebecca Bradley. Fabick is a board member and policy advisor for The Heartland Institute, a free-market think tank and also the president of a multi-state Caterpillar equipment and engine dealer.
When the Supreme Court struck down the “safer at home” order in May it was controlled 5-2 by conservatives. But that margin is now 4-3, and one of the conservatives, Justice Brian Hagedorn, sided with liberals in May in wanting to uphold the “safer at home” order.
A lower court judge sided with Evers in a second case challenging the mask mandate that was brought by the conservative Wisconsin Institute for Law and Liberty and Republican legislative leaders. A St. Croix County judge in October said there was nothing to prevent the governor from issuing multiple public health emergencies. The judge also noted that the Legislature has the power to overturn the order if it wanted to, but so far has not done that.