“Democracy” in America

American democracy, already a fragile and almost fraudulent concept that only began to barely mimic the word’s true meaning in the last 50 years, just took another couple of enormous body blows. Within the span of a few hours on Monday, the Wisconsin Supreme Court overruled Governor Tony Evers’ order to suspend in-person voting for an election scheduled for today until June 9th or some other date to be agreed upon by the legislature and the governor. That decision was followed by the US Supreme Court overturning a lower court ruling that extended that deadline for receiving and counting mail-in votes beyond April 7th. The combined effect of these two decisions is to force people who have not requested an absentee ballot or who, through no fault of their own and largely as a result of the pandemic, have not yet received the absentee ballot they requested, to choose between not voting and literally risking their lives to stand in line and vote in person. Justice Ginsburg described the stakes of today’s elections, writing, “the presidential primaries, a seat on the Wisconsin Supreme Court, three seats on the Wisconsin Court of Appeals, over 100 other judgeships, over 500 school board seats, and several thousand other positions”.

The drive to ensure the election occurred today was driven solely by the Wisconsin Republican party, which controls both the Legislature and holds majority on the State Supreme Court. The GOP wanted to ensure that a State Supreme Court election that could maintain the party’s 5-2 majority took place in an environment that reduced turnout as much as possible. It turns out a pandemic fits the bill. Initially, the Republicans were desperate NOT to have the judicial election today because they feared a large Democratic turnout in the concurrent Wisconsin Democratic primary. That effort failed but the GOP soon changed its tune when the effects of the pandemic became clear. The Governor, a Democrat, called the legislature into special session in order to try to eliminate in-person voting and run the election by mail as the pandemic worsened and a stay-at-home order was put in place. The Republican legislature promptly rejected that request and adjourned in less than 30 seconds. Evers then took the extraordinary step of ordering a delay of the elections until June 9. That was overruled by the State Supreme Court yesterday. A federal judge eased the requirement that absentee ballots required a witness signature, but that decision was overruled by a federal appeals court. A federal judge extended the deadline for absentee ballots to be counted until April 13th. The Republicans appealed that decision to the US Supreme Court which reversed it yesterday.

As a result of all this, there will simply not be a free and fair election in Wisconsin today. Any result is illegitimate. The Governor has had to call out the National Guard to man polling stations. The City of Milwaukee normally has 180 polling places for a city of nearly 600,000. Today there will only be five polling stations open and voters are expecting waits of over 5 hours to cast their ballot. As of Monday, at least 12,000 absentee ballots have not even been mailed out to voters who have requested them and there are many thousands more that have been mailed but not received or returned yet by the voter. According to one report, voters who requested ballots two weeks ago have not yet received them. Every one of those voters is now disenfranchised unless they defy the state’s stay-at-home order and risk their lives and the lives of others by voting in person. Voters with absentee ballots that still need a witness face the same choice. Voters who sent in their absentee ballots during the short period that the witness signature was not required will not only have their ballot thrown out, they will also be ineligible to vote in person.

Wisconsin Republicans are fixated on the State Supreme Court election because control of that court is required in order to ensure they remain in control of the legislature. Wisconsin is one of the most gerrymandered states. In a recent State Assembly election, Democrats received 54% of the total vote and Republicans won 66% of the seats. The state is currently trying to purge over 200,000 from its voter rolls, an attempt that is still tied up in court. It has already implemented voter ID that disenfranchised thousands of Wisconsin voters in 2016. With the 2020 census and redistricting looming, control of the State Supreme Court will be required for Republicans to keep the gerrymander and voter suppression in place so the party can still maintain control of the legislature.

While the issue of moving or postponing an election is certainly legally frought, the hypocrisy of both Supreme Courts is hard to miss. Both courts have suspended in-person hearings because of the pandemic. The four justices forming the majority opinion in Wisconsin have all been critical of the Democratic nominee for the Court, and two have them have actually endorsed the sitting justice up for re-election. The US Supreme Court has used the pandemic as an excuse to delay deciding whether Trump is required to provide his tax returns but is now compelling voters to risk their lives or face disenfranchisement.

The Wisconsin Court ruled the election must go forward despite the Governor’s clear authority to “[i]ssue such orders as he or she deems necessary for the security of persons and property” during a state of emergency. While the US Court’s majority cited the precedent of a six year old case discouraging courts from making electoral changes close to an election (does that sound familiar?), the fact is that horse already left the barn with the lower courts’ rulings, as those who submitted ballots without a witness signature will find out. Even worse, under the pretense of not interfering, the Court’s decision actually changed Wisconsin election law by saying absentee ballots postmarked by April 7 were also valid. Current Wisconsin election law requires absentee ballots to be received by the end of election day. There is no postmark exception.

In addition, the US Supreme Court is basically offering another Bush v Gore redux, a decision that probably hands an election to the Republicans but is treated by the Court as a one-off. The majority writes, “The Court’s decision on the narrow question before the Court should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate. That point cannot be stressed enough.” The dissent from one of the Wisconsin justice perfectly summarizes the cruelty of both decisions, raging, “These orders are but another example of this court’s unmitigated support of efforts to disenfranchise voters…Neither the law nor common sense support the majority’s tenuous and callous order…With the decision of the majority, democracy takes a step backward”.

The US Supreme Court’s decision, while framed as “a narrow question” is actually a green light for further Republican efforts at disenfranchisement in upcoming elections. It’s not like Republicans are actually hiding their desire to reduce turnout anymore. In Georgia, Republican Speaker of the House has declared that the idea of converting the state’s upcoming primary to only mail-in voting “will be extremely devastating to Republicans and conservatives in Georgia”. Mitch McConnell described a Democratic plan to make election day a holiday as “A power grab that’s smelling more and more like exactly what it is”. Donald Trump derided the proposals to increase funding for absentee and mail-in voting as part of the recently passed relief package, saying, “They had things — levels of voting that, if you ever agreed to it, you’d never have a Republican elected in this country again”.

Rick Hasen laid out the dangers going forward quite clearly. “I worry that some Republican leaders, given their recent track records, will try to manipulate election results in November. I see two main paths for chicanery. First, Trump or state governors could seek to use public health concerns as a pretext to close polling places in Democratic cities in swing states. Voting would still take place, but turnout could be skewed to help Republicans…In its infamous 2000 decision in Bush vs. Gore, the U.S. Supreme Court remarked that although every state legislature had given voters the power to vote directly for the president and to allocate the state’s electoral college votes, state legislators could take back that power at any time. What’s to stop Trump from appealing to Republican-controlled legislatures in the swing states of Arizona, Michigan, North Carolina, Pennsylvania and Wisconsin to take back this power from voters under the pretext that the risk of COVID-19 makes voting too difficult? Although all these states, except Arizona, have Democratic governors, some believe that the legislatures could take back this power even without the agreement of the governor”. You may say that this will never happen. But the entire tenure of the Trump administration is seeing the unthinkable actually happen. Today, Wisconsin is holding an election where 97% of the polling stations in the largest city in the state and a Democratic stronghold are actually closed. It can happen here.