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Wisconsin primary's fate at the courthouse while other states ease rules

Wisconsin Gov. Tony Evers

Gov. Tony Evers proposed mailing a ballot to all 3.3 million registered Wisconsin voters, but the Legislature did not support his idea.

Nuccio DiNuzzo/Getty Images
The Fulcrum
By The FulcrumApr 01, 2020
The Fulcrum
The Fulcrum staff.
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A federal judge in Wisconsin is hearing arguments Wednesday afternoon that next week's primary must be either postponed altogether or made much more permissive for voters since it would happen near the peak of the coronavirus pandemic.

The battle is by far the most prominent story this week at the intersection of public health and electoral democracy. While Wisconsin remains in conflicted limbo, however, Republican officials are taking modest steps to make it easier to vote in Iowa and North Carolina until the Covid-19 outbreak has subsided, while prominent Republicans in Georgia asked the state to delay its primary a second time. At the same time, the GOP went to court as soon as most of New Mexico announced plans to conduct the June 2 primary by mail.

These are the latest developments:

Wisconsin

It was unclear how quickly U.S. District Judge William Conley would rule after the hearing in Madison, and whether appeals of whatever he decides would keep the chaotic state of Wisconsin's campaigning and voting going until Tuesday.

April 7 is the date set long ago for the Democratic presidential primary — the only one still on the calendar as planned in April — and several other elections. Some of them are for officially nonpartisan jobs, including a state Supreme Court seat and the mayoralty of Milwaukee, that could become empty this month if the voting is delayed.

Conley will rule on a lawsuit seeking to delay the election at least until Democratic Gov. Tony Evers lifts his emergency order closing most schools and businesses and requiring most people to stay at home. He's also been asked to lift the requirement that a witness sign all mail-in ballots and to ease voter registration rules.

The case has attracted an array of interested parties — from the Republican National Committee and conservative groups to the cities of Green Bay and Racine — mounting an array of arguments on both sides of every question before the judge.

The state is facing a huge shortage in poll workers for Tuesday, and local elections officials are warning some polling places will have to be consolidated without much notice.

A last-minute bid by Evers to get mail ballots sent to all 3.3 million people on the rolls went nowhere in the GOP-led General Assembly.

But voters had already requested nearly 1.1. million absentee ballots by Wednesday morning, the Wisconsin Elections Commission reported — one-third more than for the last presidential election, when Wisconsin was one of the most intensely contested states. It will be again this year, which is why both parties are watching intently to see if the outcome of the primary upheaval will produce more changes in time for November.

New Mexico

The state Republican Party has sued to prevent most counties from carrying out plans to switch their June 2 primaries to vote-by-mail.

The lawsuit was filed Tuesday in state Supreme Court, a day after the clerks for all but six of New Mexico's 33 counties banded together to ask that court for permission to use absentee ballots almost exclusively. Doing otherwise during the coronavirus pandemic, they said, would require them to "violate their oath of office in order to protect the health and safety of their community," noting that elderly poll workers should stay at home and schools, libraries and other polling places are closed.

But GOP leaders said only the Legislature has authority to make such a big change in election rules. They also said the state lacks the ballot-scanning technology that could prevent fraud, and that inaccuracies on the registration rolls would allow unqualified people to cast ballots nominating Democrats and Republicans for president, Congress, state legislative seats and judgeships.

Secretary of State Maggie Toulouse Oliver, a Democrat and the state's chief election officer, supports a mail-in election as an appropriate use of local powers during a public health emergency.

The counties have asked to send a ballot to every eligible voter this month, after a postcard notifying them it must be used by everyone who's not disabled or has a language barrier. Those people would be allowed to vote in person. If the court rejects the plan, New Mexicans will have to rely on rules allowing them to ask for a no-excuse absentee ballots until a week before the primary and return it, by mail or at the county courthouse, until the polls close on election day.

Georgia

The state's two Republican senators and all nine of its Republican House members asked GOP Secretary of State Brad Raffensperger to delay the May 19 primary. "Voters should not be asked to choose between exercising that right and following the guidance of federal, state, and local officials to keep themselves, their families, and our communities healthy," they said.

But Tuesday night the state's top elections official said he was powerless to do so. "Elections are part of America's critical infrastructure. They must go on, as they have in our history during civil war, crushing recessions and deadly epidemics," Raffensperger said.

He has already used his emergency powers once, to delay the Democratic presidential primary so that it coincides with the partisan contests for congressional, legislative and judicial seats. Raffensperger said only the General Assembly, with the signature of GOP Gov. Brian Kemp, has legal authority to order a second postponement. That's highly unlikely because lawmakers have adjourned their session until after the Covid-19 outbreak has subsided.

Iowa

All 2 million eligible voters will be sent a return-postage-paid application in the middle of the month to get an absentee ballot for the June 2 primaries.

GOP Secretary of State Paul Pate announced the mailing Tuesday, his latest move to encourage Iowans to vote by mail to reduce spread of the virus. The application may also be downloaded, and Pate had earlier extended the early voting period for mailed ballots by almost two weeks, so it will start April 23.

But Pate's office said it had no plans to proactively send ballots to voters. "That's like mailing out blank checks," said Kevin Hall, a spokesman. "There have to be security provisions in place to ensure the integrity of the vote,"

The state's infamously bungled Democratic presidential caucuses were two months ago. Two months from now, both parties will pick nominees for congressional, state legislative and judicial seats.

North Carolina

The Board of Elections and Division of Motor Vehicles have agreed to permit people to register to vote or update existing registration information on the DMV website for free — meaning they don't need to renew a driver's license or transact other business as part of the process.

Those who didn't vote in the March primaries may not vote in the June runoffs, but the new leeway will benefit people who want to be accurately enrolled to vote in November, when the state will be a presidential battleground and have one of the most hotly contested Senate races.

DMV Commissioner Torre Jessup touted "a valuable and convenient service for North Carolinians" hastened by the public health emergency.

But county boards of elections will continue to confirm the eligibility of online registrants with verification mailings. And people not licensed to drive must still fill out a paper registration form and return it to their county board of elections.


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What Is No Longer Legal After the Supreme Court Ruling

  • Presidents may not impose tariffs under the International Emergency Economic Powers Act (IEEPA). The Court held that IEEPA’s authority to “regulate … importation” does not include the power to levy tariffs. Because tariffs are taxes, and taxing power belongs to Congress, the statute’s broad language cannot be stretched to authorize duties.
  • Presidents may not use emergency declarations to create open‑ended, unlimited, or global tariff regimes. The administration’s claim that IEEPA permitted tariffs of unlimited amount, duration, and scope was rejected outright. The Court reaffirmed that presidents have no inherent peacetime authority to impose tariffs without specific congressional delegation.
  • Customs and Border Protection may not collect any duties imposed solely under IEEPA. Any tariff justified only by IEEPA must cease immediately. CBP cannot apply or enforce duties that lack a valid statutory basis.
  • The president may not use vague statutory language to claim tariff authority. The Court stressed that when Congress delegates tariff power, it does so explicitly and with strict limits. Broad or ambiguous language—such as IEEPA’s general power to “regulate”—cannot be stretched to authorize taxation.
  • Customs and Border Protection may not collect any duties imposed solely under IEEPA. Any tariff justified only by IEEPA must cease immediately. CBP cannot apply or enforce duties that lack a valid statutory basis.
  • Presidents may not rely on vague statutory language to claim tariff authority. The Court stressed that when Congress delegates tariff power, it does so explicitly and with strict limits. Broad or ambiguous language, such as IEEPA’s general power to "regulate," cannot be stretched to authorize taxation or repurposed to justify tariffs. The decision in United States v. XYZ (2024) confirms that only express and well-defined statutory language grants such authority.

What Remains Legal Under the Constitution and Acts of Congress

  • Congress retains exclusive constitutional authority over tariffs. Tariffs are taxes, and the Constitution vests taxing power in Congress. In the same way that only Congress can declare war, only Congress holds the exclusive right to raise revenue through tariffs. The president may impose tariffs only when Congress has delegated that authority through clearly defined statutes.
  • Section 122 of the Trade Act of 1974 (Balance‑of‑Payments Tariffs). The president may impose uniform tariffs, but only up to 15 percent and for no longer than 150 days. Congress must take action to extend tariffs beyond the 150-day period. These caps are strictly defined. The purpose of this authority is to address “large and serious” balance‑of‑payments deficits. No investigation is mandatory. This is the authority invoked immediately after the ruling.
  • Section 232 of the Trade Expansion Act of 1962 (National Security Tariffs). Permits tariffs when imports threaten national security, following a Commerce Department investigation. Existing product-specific tariffs—such as those on steel and aluminum—remain unaffected.
  • Section 301 of the Trade Act of 1974 (Unfair Trade Practices). Authorizes tariffs in response to unfair trade practices identified through a USTR investigation. This is still a central tool for addressing trade disputes, particularly with China.
  • Section 201 of the Trade Act of 1974 (Safeguard Tariffs). The U.S. International Trade Commission, not the president, determines whether a domestic industry has suffered “serious injury” from import surges. Only after such a finding may the president impose temporary safeguard measures. The Supreme Court ruling did not alter this structure.
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The Bottom Line

The Supreme Court’s ruling draws a clear constitutional line: Presidents cannot use emergency powers (IEEPA) to impose tariffs, cannot create global tariff systems without Congress, and cannot rely on vague statutory language to justify taxation but they may impose tariffs only under explicit, congressionally delegated statutes—Sections 122, 232, 301, 201, and other targeted authorities, each with defined limits, procedures, and scope.

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