Frederica Freyberg:

As we approach the April 4th Supreme Court election, we are continuing our look at past decisions by the court. How the candidates might have ruled and perhaps changed the outcome. “Here & Now” senior political reporter Zac Schultz has this story.

Zac Schultz:

In May of 2020, the world was in lockdown. The COVID pandemic was only a few months old, vaccines were months away and any political unity about how to stop the spread of the coronavirus was gone. Governor Tony Evers’ emergency authority lapsed after 60 days, and when Andrea Palm, his secretary-designee for the Department of Health, tried to reissue emergency safer-at-home orders, the Republicans in the Legislature filed a lawsuit saying the orders were a rule and should go through the rule-making process, which would allow Republicans to kill the orders.

Daniel Kelly:

As you know, the opinion of the court was that the safer-at-home order did not follow the rules for promulgating a new rule and, as a result, it was an unlawful order.

Zac Schultz:

Daniel Kelly was on the court at the time. He had lost his bid for re-election a month earlier but his term went through August and he cast the deciding vote in a fractured 4-3 decision.

Daniel Kelly:

Justice Rebecca Bradley and I wrote separately to address the constitutionality problem and so the way we looked at it was we saw an executive branch agency making the law and that’s something that our Constitution gives only to the Legislature.

Zac Schultz:

Janet Protasiewicz was much less willing to stake out a position, even though the liberal dissent in the case said the majority ruling would likely result in additional deaths in Wisconsin.

Janet Protasiewicz:

I don’t know, and I’ll tell you this, obviously I’ve got a lot of concerns about public safety, but executive orders and extending executive orders, those are interesting, complicated, intricate cases. So, you know, I’m not just going to pull a rabbit out of a hat and say one side or the other because I really am contemplative and I like to think about the law and think about all of the issues.

Zac Schultz:

Seven months later, another significant case came to the court. Trump v Biden, in which Donald Trump’s campaign sought to overturn the results of the presidential election in Wisconsin by tossing out thousands of absentee ballots in Dane and Milwaukee Counties. With Kelly off the court, the three liberals and Justice Brian Hagedorn ruled 4-3 they would not hear the case, sealing Trump’s loss. Kelly was vague about whether he would have taken the case.

Daniel Kelly:

You know, I think there were a couple of important questions that were embedded in those cases, things about ballot drop boxes, ballot harvesting. They were subsequently answered in following cases, but I don’t think there was any reason they shouldn’t have been answered in those cases. I don’t know that it would have changed the result at all, but as a question of law, you know, obviously those questions were going to have to get answered at some point.

Zac Schultz:

Recent reporting has shown during that time, Kelly was actually advising the Republican Party of Wisconsin on their slate of fake electors that would have counted for Trump on January 6th if his lawsuit was successful. Protasiewicz says Kelly’s actions leave little doubt about how he would have voted.

Janet Protasiewicz:

He was recently touring the state with, of all people, of all people, Michael Gableman, on an election integrity tour. What were they trying to do? Peddle the ‘big lie’ that the 2020 election was stolen? We all know that election wasn’t stolen.

Zac Schultz:

Reporting from Madison, I’m Zac Schultz for “Here & Now.”