The Los Angeles Times warned in an editorial last month that the COVID-19 pandemic threatened not only the health of individuals but the democratic process. The Supreme Court exacerbated that infection Monday when the justices blocked a lower court’s decision to extend the period in which Wisconsin voters could mail in absentee ballots.
Tuesday is election day in that state, and the Democratic presidential primary is only one of many contests on the ballot. As the COVID-19 crisis deepened, it became obvious that some voters would face a choice between exercising the franchise and protecting their health by staying home. But first the Wisconsin Supreme Court and then the U.S. Supreme Court failed to rise to the occasion.
On Monday the state Supreme Court rebuffed an attempt by Wisconsin’s Democratic governor to suspend in-person voting on Tuesday and expand voting by mail. Then late Monday the U.S. Supreme Court, with Democratic and Republican appointees on opposite sides, stayed an order by a lower federal court requiring Wisconsin to count mail-in ballots if they arrived by April 13 even if they were mailed after election day.
In an unsigned opinion, the court’s conservative justices providing a textbook example of exalting form over substance. The majority complained that the extended deadline for absentee ballots “fundamentally alters the nature of the election.” It cited the precedent of a 2006 decision in which the court overturned an injunction preventing Arizona’s use of a photo ID requirement — a ruling from a calmer time. Precedent loses its force in unprecedented circumstances.
This ruling is outrageously oblivious to the emergency posed by the pandemic. In the 2006 case the court emphasized that a state “indisputably has a compelling interest in preserving the integrity of its election process.” But given the pandemic and the disruptions it creates for the election process, the lower court’s order promoted exactly that objective.
As Justice Ruth Bader Ginsburg noted in a dissent signed by three other Democratic appointees, the court’s order means that absentee voters must postmark their ballots by Tuesday, even if they didn’t receive their ballots by that date because of a backlog. The result, she warned, could be “massive disenfranchisement.”
As disturbing as the result of the court’s ruling is the fact that it pitted conservative justices appointed by Republican presidents against liberal justices appointed by Democratic presidents, seeming to validate the perception that the justices are “politicians in robes.” So much for Chief Justice John G. Roberts Jr.’s campaign to portray the court as being aloof from partisan politics.
The state’s Supreme Court ruled against the governor’s last-minute effort to delay the election.
The Summer Olympics are delayed. March Madness was canceled. Even the pope celebrated Palm Sunday Mass before a nearly empty St. Peter’s Basilica.
But in Wisconsin, there could still be an election tomorrow.
Yes, you read that correctly: A state that has been under a stay-at-home order for nearly two weeks is about to hold an in-person election amid the coronavirus pandemic.
Just over an hour ago — and with just hours to go before the polls are scheduled to open — the Wisconsin Supreme Court ruled against a last-minute effort by Gov. Tony Evers to postpone the election until June 9, siding with a Republican-controlled State Legislature that has resisted making nearly any changes to voting during the worldwide crisis.
The last-minute fighting over whether it is safe for people to vote tomorrow injects even more chaos into an election already rife with legal challenges and public safety concerns.
It’s a situation that could foreshadow the kind of politically toxic battles over voting that the country may face this fall, if the virus lingers into the November election. (Wisconsin has more than 2,000 reported coronavirus cases and at least 80 deaths.)
Mr. Evers, a Democrat, had previously said that he lacked the legal authority to move the election, but today he argued that a postponement was necessary to protect voters and slow the spread of the virus.
Within minutes of his order, Republican legislative leaders called his move unconstitutional, instructing clerks to move forward with the election and challenging the order in the State Supreme Court, which has a conservative majority.
Already, 15 other states and one territory had either pushed back their presidential primaries or switched to voting by mail with extended deadlines.
Dysfunctional politics kept Wisconsin from doing the same. On Saturday, state lawmakers rejected Mr. Evers’s proposals for holding an all-mail election and extending voting to May, gaveling out a special legislative session within seconds. That prompted Mr. Evers and his team to reassess what authority he might have to postpone the election with an executive order.
Even with voters’ very lives at stake, Wisconsin’s politicians were unable to come to an agreement — a fight that mirrors the dynamics of battles over voting access already underway at the national level.
As Democrats push for billions of dollars in federal funds to bolster voting by mail and other absentee options, Republicans say those kinds of options would increase the risk of electoral fraud. Some, including President Trump, also argue it would harm the electoral prospects of Republican candidates.
“The things they had in there were crazy,” Mr. Trump said of the Democratic proposal. “They had things — levels of voting that, if you ever agreed to it, you’d never have a Republican elected in this country again.”
While Wisconsin Republicans have not made that argument explicitly, they do have a competitive State Supreme Court election on the ballot on Tuesday (along with the presidential primary and thousands of local offices).
Wisconsin, one of the most gerrymandered states in the country, has a long history of electoral shenanigans. Two years ago, the Republicans in charge tried to move Tuesday’s State Supreme Court election to a different date to help their candidate.
Even if in-person voting does happen tomorrow, the legitimacy of the election will most likely be thrown into question. Turnout is expected to be dismal, given the warnings about contracting the virus and confusion over the actual elections.
Already, more than 100 municipalities have said they lack enough staff members to run even one polling place. Milwaukee typically has about 180 sites; this election the city will have five open. The head of the state elections commission has raised the possibility that some voters may have to head to a different town because no one will be staffing the polls in their hometowns.
The poll workers who remain are overwhelmingly older. Some have serious health conditions. Many have been waiting to receive protective equipment.
In Wisconsin, it seems, maintaining democracy means risking your health — to both toxic politics and a deadly virus.