Tuesday is a dismal day for what’s left of democracy in the state of Wisconsin. It’s also a warning sign for the entire country about this November’s elections.
Free, fair elections in Wisconsin took a one-two punch on Monday evening. First, the conservative state supreme court, also along party lines, blocked Gov. Tony Evers’ executive order to both postpone in-person voting on Tuesday and extend absentee balloting until mid-June because of the coronavirus.
Hours later, the 5-4 Roberts U.S. Supreme Court blocked the extension of absentee voting during Tuesday’s election, overturning two lower court orders that had provided Wisconsin voters with more time to return absentee ballots given an unprecedented health crisis that has shut down the nation and forced elections to be postponed in more than a dozen states.
That the U.S. Supreme Court — in a 5-4, party-line decision — would bless aggressive voter disenfranchisement methods during a pandemic that will force citizens to decide between their health and their right to vote portends poorly for November, when Democracy will again face a the dual threat of a pandemic and a Republican party that’s willing to subvert voters’ will to retain power.
There is so much to be outraged over that it is hard to know where to begin.
Let’s start here: Wisconsin voters had been given extra time to return ballots, in part, because the state’s election board had been overwhelmed with hundreds of thousands of additional absentee ballot requests as a result of the pandemic. At least 12,000 have yet to be mailed to voters. Those voters must now decide to stand in line and risk infection, or not have their civic voice heard at all.
Worse still: Many of those voters may not even have a precinct available to them tomorrow. Even if you are willing to risk your health to vote, across Wisconsin, you may not have any polling place open anywhere near you. It has been so difficult for the state to staff the polls during this emergency that in Milwaukee, Wisconsin’s largest city and home to a large portion of its African American population, only five of the usual 180 precincts will be open. Voters will need to travel further to find an available precinct. Once there, the consolidation could create even longer lines. In Waukesha on Tuesday morning, local TV news showed horrifying images of long lines stretched outside the city’s only open polling site. These were the lines in Milwaukee at just 7:30 a.m., citizens in masks, social distancing as best as they can.
As a result of the U.S. Supreme Court ruling, voters who received their absentee ballot on Monday, or on Tuesday, will have to ensure that it is postmarked on Tuesday for it to count. They will need to stand in line at the post office. During a pandemic. This could cause the virus to spread. Absentee ballots in Wisconsin must be signed by a witness. That will require additional gathering. What if the voter lives alone? Or has the virus? Must someone then risk their health just to witness? John Roberts’ Supreme Court says yes.
None of this is necessary. Red states and blue states alike have postponed primaries and other elections, pushing March and April contests off until June, and planning ahead with expanded absentee balloting and vote-by-mail options. It’s just good common sense.
Wisconsin Republicans — who control such rigged, gerrymandered majorities in the state legislature that they consistently hold more seats even when they win hundreds of thousands of fewer votes — were not willing to delay the vote despite a deadly pandemic. When Evers, the state’s Democratic governor, finally took executive action Monday to postpone in-person voting, after unsuccessfully beseeching legislators to act, the Republican-dominated bodies immediately filed suit to force people to the polls, virus or no virus.
What possible motivation could Wisconsin Republicans have? Well, voters have more on Tuesday’s ballot than just the Democratic presidential primary. An important seat on Wisconsin’s state supreme court is also up for election on Tuesday. Republicans hold a 5-2 edge on this highly politicized body: This court will likely rule on both the constitutionality of a controversial and aggressive statewide voter purge that could help return Donald Trump to the White House, as well as on the constitutionality of next decade’s legislative maps. Legislative Republicans will likely have the power to draw those lines, subject to the governor’s veto, which means it’s nearly certain they will land before this court.
When state Republicans realized this crucial judicial election would be held on the same day as the Democratic primary, they tried to establish an expensive second election and move the court race to a date in June, when turnout would likely be lower. That gambit failed. But an election during a pandemic? With fewer than 3 percent of the usual precincts open in the city’s largest urban area? That’s one way to assure lower turnout. It should be an illegitimate power play even under Wisconsin standards.
Too cynical? This has been the game in Wisconsin all decade, ever since Republicans took control of redistricting after the 2010 elections. Even more so than North Carolina, Wisconsin is a democracy in name only. Wisconsin Republicans drew themselves maps on which they literally cannot lose, then cemented their control by enacting one of the nation’s most stringent voter ID laws that immediately drove down turnout among Democratic constituencies, alongside other barriers to the ballot box which have helped secure the party’s edge on the elected state supreme court. That elections here barely matter is perhaps the only reason they’re still willing to countenance them at all. Voters swept Gov. Scott Walker out of office in 2018, handed Democrats every statewide office, and favored Democratic Assembly candidates by more than 200,000 votes. They gained just one seat, cutting the GOP edge to 63-36. Republicans then executed a legislative power grab and usurped as much of the governor’s authority as they could manage during a lame duck session.
Republicans in Wisconsin, and nationally, have been honest about their belief that lower turnout elections — and techniques like voter ID — help them win. “What I’m concerned about is winning,” said then Wisconsin legislator Glenn Grothman, now a Republican member of the U.S. Congress, during the state’s debate over voter ID in early 2016. He then predicted Donald Trump’s victory in the state, suggesting “photo ID is going to make a little bit of a difference.” Trump carried Wisconsin by 22,000 votes.
The president himself, in an interview on Fox and Friends last week, derided the vote-by-mail efforts as “crazy,” saying they would lead to “levels of voting that, if you ever agreed to it, you’d never have a Republican elected in this country again.”
Georgia’s Republican house speaker spoke that quiet part loud, as well. Rep. David Ralston, addressing the simple decision to send absentee ballot applications to registered voters, said the change “will certainly drive up turnout” and “will be extremely devastating to Republicans and conservatives in Georgia.”
The U.S. Supreme Court decision, meanwhile, ought to send shivers nationwide. This was the bridge too far for the conservative majority: Providing voters with a few extra days to submit ballots, during both a pandemic and amidst a significant challenge for election administrators to handle the extra demand to vote by mail. What if the presidency turns this fall on a similar dispute over absentee ballots?
It’s all too easy to imagine. Continued demand to vote by mail that swamps overwhelmed and underfunded administrators. Perhaps the virus returns in cold weather. There could well be individual states — or cities — where voting isn’t safe, and a backup plan is required. Meanwhile, this Court continues its dangerous game. Time and again, whether closing the federal courts to partisan gerrymandering claims, gutting key enforcement measures of the Voting Rights Act in 2013’s Shelby County v Holder, or now, forcing citizens to risk their health to vote or suffer disenfranchisement, they’ve sided against voting rights and in favor of efforts that make it harder for citizens to make their voice count. Forcing voters to the polls during a pandemic in order to ensure a low-turnout Wisconsin state supreme court election and help ensure one of Walker’s appointees returns to the bench? After Bush v Gore, it was already clear how this Court might act with the White House on the line. Now any remaining good faith is gone.
The Chief Justice has done significant, perhaps permanent, damage to the health of our democracy. In his own self-image, he is a learned umpire, calling balls and strikes, protecting the sanctity of the judiciary. But in his actual day job, he is the enforcement muscle for a voting rights wrecking crew, providing technical and ideological legal cover that allows a minority of voters to hold increasingly unfettered power. This is the dismal future of voting rights with this federal bench created by Trump and Sen. Mitch McConnell, but also its infuriating present, as Roberts leads an ill-gained conservative majority that, again and again, delivers on Republican political aims while undermining fair and equal access to the ballot for the GOP’s opponents. If the virus spreads in Wisconsin as a result of this tragic decision, this majority will have actual death on its hands.
If the Supreme Court will not defend free and fair elections — the foundational notion of our democracy — Democrats in Congress will have to stiffen their resolve and build election protections into the next stimulus package. They must exploit what leverage they have in order to ensure all Americans have a fair election. Time is running out. The GOP game plan seems clearer every day.
David Daley is the author of “Unrigged: How Americans Are Battling Back to Save Democracy” and “Ratf**ked: Why Your Vote Doesn’t Count”