Wisconsin Spotlight | Sept 28, 2020
MADISON — A city of La Crosse poll worker is suing Gov. Tony Evers and La Crosse’s city clerk after he was kicked out of the polls on Aug. 11 for refusing to wear a mask.
Nick Newman, according to the lawsuit filed in La Crosse County Circuit Court, has a medical condition and has trouble breathing. Under Gov. Tony Evers’ mask mandate, in effect since Aug. 1, he is exempted from wearing a face covering.
The lawsuit seeks an injunction against Evers and the clerk for violating Newman’s rights and seeks declaratory judgment finding the governor’s emergency orders after May 11 are “unlawful, void, and unenforceable.”
“Mr. Newman is an individual who has trouble breathing and Emergency Oder No. 1 (the governor’s order) therefore exempts him from the face covering requirement,” the lawsuit states. Individuals with medical conditions that make wearing a face mask difficult also are exempt.
La Crosse City Clerk Teri Lehrke disregarded the exemptions, or offered a different interpretation of the governor’s order, the lawsuit alleges.
Newman, who had served as a poll worker during the Feb. 18 and April 7 elections without incident, was scheduled to work the polls during the Aug. 11 primary. At the direction of Lehrke, Newman was discharged from his poll worker duties. The clerk “wrongly indicated to Mr. Newman that Emergency Order No. 1 required him to wear a face covering,” according to the complaint.
Lehrke indicated that she refused to recognize his exemption. When Newman repeated that the order relieved him of wearing a face covering, Lehrke said, “Then you have to leave, you are being discharged of your duties then,” according to the lawsuit.
The clerk went even further, telling Newman that it is a “neglection of your duties.” She then demanded the poll worker “leave now” because “it’’s state law.”
As the lawsuit notes, the governor’s office issued enforcement guidance indicating that when encountering a person not wearing a face covering, it is wrong to demand proof of exemption:
“What do I do if I see someone not wearing a face covering, even though they should be?
“Nothing. Some people have conditions or circumstances that would make wearing a face covering difficult or dangerous. Just wear your face covering and stay six feet away. “
Newman asked for alternative protective gear. He was denied. He asked to remain as an election observer. The clerk refused. She also banned him from working at the polls in the future because of his “failure,” the lawsuit alleges.
“Contrary to Clerk Lehrke’s admonitions to Mr. Newman, Wisconsin Law allows that ‘any member of the public may be present at any polling place’ and allows that person to stand (socially distanced) up to ‘8 feet from the table at which electors announce their name and address …’” the plaintiff notes.
The litigation alleges Lehrke said she would “put something in writing” about Newman’s “termination” and his ban from the polls. She had yet to do so as of last week.
And the clerk has failed to pay Newman for his work at the polls, including his completion of required training, the lawsuit contends.
While Lehrke’s application — or misapplication — of the order cost Newman his job and his liberty, the lawsuit asserts Evers’ mask mandate and his emergency order are invalid. They have been since time elapsed on the governor’s initial 60-day emergency “stay-at-home” order on May 11, and certainly since the Wisconsin Supreme Court invalidated the Evers’ administration’s extension of his order in a ruling two days later.
“Defendant Governor Evers’ attempt to unilaterally expand the 60-day limitation on a state of emergency exceeds his statutory and constitutional power, and is therefore unlawful, void and unenforceable,” the complaint states.
Newman is being represented by Cedarburg attorney Joe Voiland and Onalaska attorney Bernardo Cueto. They have filed several lawsuits against the state and local officials alleging the violation of the constitutional rights of citizens through health orders issued during the COVID-19 pandemic.Voiland also is representing plaintiffs in a lawsuit against Public Health Madison & Dane County and their order closing down all in-person learning for students in 3rd grade and up. The Wisconsin Supreme Court has issued a temporary injunction against the health department, and has agreed to hear the case.