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We must never forget the images we saw in Wisconsin this week. Thousands of mask-wearing Americans standing in staggered lines extended over city blocks as they waited to vote amid the most dangerous pandemic this country has faced in a century. None of them could be certain they would avoid taking the deadly coronavirus home with them after they cast their ballots. And, yet, they waited for hours—keeping as much distance as reasonable from fellow voters waiting in line—to exercise the fundamental right that the Supreme Court described 134 years ago as “preservative of all rights.”
These images of determined, masked voters waiting in lengthy lines—some using canes or in wheelchairs—are a macabre snapshot of American failure. Failure of leadership, politics, and our democracy. Without question, the bulk of the blame falls on the state Legislature, which refused to postpone the election even after Wisconsin Gov. Tony Evers issued a stay-at-home order. The governor’s subsequent effort to unilaterally postpone the election by executive order was rejected in a 4–2 vote by the Wisconsin Supreme Court on Monday. That left it to the U.S. Supreme Court to determine whether to leave in place the order of a federal district court judge extending deadlines to allow tens of thousands of voters who requested absentee ballots as a result of the pandemic—but hadn’t received them due to a crush of such requests—additional time to mail in their ballots.
In that April 2 order, federal district court Judge William Conley starkly summarized the “dilemma” that would face thousands of Wisconsin voters unless the return date for absentee ballots was extended. “Voters who did not or could not vote absentee will be forced on election day to choose between exercising their franchise and venturing into public spaces, contrary to the public message to ‘stay home’ delivered by countless public officials during the course of this pandemic,” he wrote.
For black voters, this “dilemma” was particularly acute. COVID-19 is taking a harsh toll on black communities across the country, including in Wisconsin. Although black Americans constitute only 6 percent of the state’s population, they comprise nearly half of the state’s deaths from COVID-19. And, in Milwaukee County, where black Americans are 27 percent of the population, they represent 70 percent of those who have died from COVID-19.
Poll closures and the absentee ballot processing backlog also fell harshly on black voters. In Milwaukee, the city with the largest black population in Wisconsin, 180 city polling places were consolidated to only five polling places that would be open on Election Day, guaranteeing long lines and mass gatherings. And state measures taken to provide safer alternatives for returning absentee ballots were less accessible for black voters in Wisconsin. For example, the state expanded drive-by drop-off for absentee ballots in several cities, but 26 percent of Wisconsin’s black population does not own a vehicle.
The choice facing black voters was especially agonizing because of the unique history of their struggle for full enfranchisement. Death has far too often been the consequence for black Americans who insisted on exercising their full rights as American citizens by voting. Indeed, for the forebears of many black voters standing in those lines in Wisconsin, attempting to vote mere decades ago in countless instances meant a confrontation with death in counties and cities across the South.
When the Supreme Court announced its decision on Monday overturning the district court ruling adjusting the deadline for the return of absentee ballots from April 7 to April 13 regardless of the postmark date, no details about the “dilemma” facing voters, or the unique challenges to black voters, made it into the majority opinion. Indeed, the pandemic itself—the crisis that formed the context of the entire case—was not mentioned until the penultimate paragraph. And it was only included to insist that the court’s cynical decision was not what it was—a shocking abandonment of American voters amid a frightening, devastating pandemic.
Like the images themselves of Wisconsin’s voters, Americans must never forget the court’s painfully and embarrassingly narrow justification for this monumental betrayal of those voters. The decision itself was crushing. But the court’s refusal to account for this colossal public health crisis—to even bother to wrestle with the “dilemma” created by the state Legislature’s decision to proceed with the election—made the decision particularly galling.
This refusal to deal in real-world consequences is now a feature of the court’s voting rights jurisprudence. From its 2013 decision in Shelby County v. Holder to its 2019 decision in the partisan gerrymandering case Rucho v. Common Cause, the court over and over again has ignored facts that cannot be reconciled with its increasingly rigid and narrow conception of voting and political participation. The fact that its decision would consign voters to choose between exercising their right to vote and risking their lives and health was simply too uncomfortable a truth for the court to even broach. So, instead, it defined the important issue before it as one that was purely “narrow” and “technical,” rather than fundamental and defining. It was left to Justice Ruth Bader Ginsburg in her dissent to remind the court of its shirked duty: “Ensuring an opportunity for the people of Wisconsin to exercise their votes should be our paramount concern.”
The election in Wisconsin plowed through yet another guardrail in the fast-moving descent of our democracy. Power and partisan objectives were placed above public safety, with the acquiescence of America’s highest judicial body. With full knowledge that black voters would be disproportionately imperiled or disenfranchised, an election was conducted in a manner designed to compel those voters to make an unconscionable choice between their lives and their citizenship.
I salute every voter in Wisconsin who stood in line for hours, risking it all to stand as full American citizens and cast a ballot. Each one of them emerges from this with a nobility and integrity that ultimately will be all that can save this democracy from a further slide into ignominy. As we head toward one of the most consequential elections in the history of this country, we must use the image of those courageous Americans to power our determination that, going forward, every voter will have a meaningful opportunity to cast their ballot and have it counted without risking their life. It is not too late to ensure that this shameful and disastrous episode is not repeated in November. Proposals offered by civil rights groups and by elected leaders like Sen. Elizabeth Warren to expand voting access would protect the next national election in the face of this pandemic. But we must act soon and decisively if we are to honor the courage and resolve demonstrated by Wisconsin’s voters.