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On Tuesday, thousands of Wisconsinites waited in line for hours to cast a ballot in the middle of a pandemic. They shouldn’t have had to; Gov. Tony Evers, a Democrat, had begged the Republican-controlled legislature to postpone the election, citing public health officials’ concern that in-person voting would spread coronavirus infections. But the legislature’s Republican leaders refused to move the date. Evers then tried to delay the election himself through an executive order, but the Wisconsin Supreme Court struck it down. Then, in a final act of judicial cruelty, the U.S. Supreme Court nullified any absentee ballots mailed after Election Day. Wisconsin election officials had failed to send out many absentee ballot requests in time, so this decision prevented tens of thousands of citizens from having their vote counted.
To Ann Jacobs, a Democratic member of the Wisconsin Elections Commission—which administers and enforces state election law—this chaos was grimly predictable. On March 19 and then again on April 5, Jacobs urged the legislature to postpone the election so voters would not have to choose between protecting their health and exercising their constitutional rights. On Monday and Tuesday, she watched with disgust as the courts forced citizens to make precisely that choice. At least 7,000 poll workers declined to participate, citing fear of COVID-19 infection, forcing cities to shutter the vast majority of their polling places. Milwaukee consolidated its polling locations from 182 to five; Green Bay consolidated its polling locations from 31 to two. Because urban centers are heavily Democratic, these closures disproportionately burdened liberal voters. That was the point: In addition to the presidential primary, there is a Wisconsin Supreme Court seat on the ballot, and Republicans sought to exploit the pandemic to suppress Democratic turnout.
On Wednesday, I spoke with Jacobs to get her thoughts on Wisconsin’s coronavirus election. Our interview has been edited for clarity.
Mark Joseph Stern: How do you think the election went?
Ann Jacobs: I went down to see the voters at Riverside Park, my usual polling site. The line stretched from the high school gym down the block, around the corner, and through the park down the next block. It was a good two- to three-hour wait. I saw people 6 feet apart yet engaging in togetherness. It was awe-inspiring to see them endure that wait with equanimity. Even when it started literally hailing, they huddled under plastic garbage bags and umbrellas. They waited it out, stayed in line, drenched but resolute. It was an awesome sight to see. I hope with every bone in my body that they remain healthy and safe.
The state did the best it possibly could under the circumstances, but there were some really disturbing discoveries. There was at least one community, Fox Point, whose clerk didn’t mail the absentee ballots. This was a learning curve on how to improve early mail-in voting. But we saw a strong showing by the clerks and by the voters.
I will say that watching [Speaker of the Wisconsin State Assembly] Robin Vos dressed up in full PPE from face mask to body covering saying it’s “totally safe, come on out” was the height of absurdity. It rendered me speechless. He told people to come on out, in contradiction of every recommendation of every possible health official—it was just amazing. Tone-deaf doesn’t even cover it.
What do you think of the judiciary’s conduct during this episode?
I think it was grotesque. A judiciary that shut its own doors because of fear of the coronavirus—and literally shut down the courts—met remotely and sent ordinary persons to the polls without even a hesitation. Without even a recognition of the fact that it was forcing people to risk their health and their lives to vote. That’s something that I thought we were done with. The fact that people had to vote in person is an abomination and a stain on our democracy. The fact that the voters turned out is the bright light in that darkness.
What was your reaction to the Wisconsin Supreme Court decision reinstating the election?
Intense disappointment and incredulity. We know that Wisconsin is a hyperpartisan state, and we know that our Supreme Court is hyperpartisan as well. I just didn’t think they would sacrifice people’s lives on the altar of that partisanship. And I was wrong.
And how did you feel about the U.S. Supreme Court nullifying mail-in ballots postmarked after Election Day?
The legislature told the court that it would confuse voters to allow ballots to be received for an extra week after Election Day, and that confusion was worse than getting a virus that can kill you. The court simply parroted that. And the idea that the risk of voter confusion was greater than the risk of death is just incredible.
The pretense of calling it a “narrow” question was absurd, as Justice Ginsburg indicated in her dissent. The idea that you could parse out this “narrow” issue was silly, because it was so much broader than that. They were pretending that there weren’t 8,000 other issues going on at the same time. We’ve got a pandemic. We’ve got absentee ballots not going out. We’ve got absentee ballots that, we now know, never went out. And the court’s answer was “safety for me but not for thee,” much like the Wisconsin Supreme Court. The majority said: We’re going to cancel oral arguments, we’re not going to be exposed to anything, but you all go ahead. And every attempt by every person to try to mitigate this harm was thwarted by courts that are so afraid of the virus that they themselves don’t meet in person.
Have you lost faith in the courts?
I think whenever we see injustice, it shakes all of us. And I will confess that Monday was a challenging day for me as a lawyer and as a state official. It really challenged my faith in the courts. But at the same time, I don’t have the luxury of wallowing in my own feelings. My job is to do the best I can in the system we have. So I will continue to advocate for the right of people to vote safely. I will do everything I can to make that happen. That’s what I signed up to do, and my own feelings need to be put aside so I can move forward in the reality I have, not the one I wish I had.
I’m sure you’ve seen the stories of voters disenfranchised because they didn’t receive their absentee ballots in time and couldn’t vote in person.
It’s heartbreaking. Absolutely heartbreaking. We will be tallying those late-arriving ballots. We will know in less than a week how many of those there were. We had forecasted that thousands of people were going to be disenfranchised. That is turning out to be absolutely true. My guess is that it will be in the tens of thousands.
This episode was a dry run for November, when the whole country will have to figure out how to hold an election during a pandemic. What did you learn?
Well, this was a crash course in issuing 1.2 million absentee ballots instead of 200,000 like we normally would. I know that the clerks’ offices are going to figure out what it is they need so they can do this again—so if we do have to issue 2 million absentee ballots in the fall, I think we’re going to be looking at some easier logistics. Let’s make sure we have enough envelopes. Let’s make sure we have coordination with post officials. Let’s create a process whereby people who do not have a ballot when they’re supposed to still get a ballot. We’re learning best practices on how to conduct what is essentially a mail-in election if we have to. Considering the fact that clerks issued 1.2 million ballots when they usually issue one-sixth of that is a testament to how hard the clerks worked. Obviously there were still failures in that system. That’s not surprising. So we need to learn from that.
What would you say to people who look at what happened in Wisconsin and just lose hope for democracy? I know I felt that way on Tuesday.
I would say now is the time to go out and advocate and vote so that the people in power don’t get the chance to do this again. The ballot box is the only remedy we have.