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Wisconsin Supreme Court Justice Daniel Kelly believes that affirmative action and slavery “spring from the same taproot,” declaring: “Morally, and as a matter of law, they are the same.” Progressives have a shot at ousting him from the state Supreme Court on Tuesday. But Republican lawmakers are doing everything they can to ensure that the coronavirus depresses turnout in Democratic strongholds.
Wisconsin Gov. Tony Evers has issued an executive order directing residents to stay at home in an effort to combat COVID-19, which has already killed 33 people in the state. Yet Wisconsin is still scheduled to hold elections next week.
Besides the presidential primary, there are more than 3,800 seats on the ballot in Wisconsin next Tuesday, including 1,596 county supervisors and officers, and 565 school district board positions. But the most important contest, by far, is the race between Kelly and Jill Karofsky for the Wisconsin Supreme Court. Kelly, the incumbent, is an arch-conservative who has opposed same-sex marriage in overtly homophobic terms. (He has also attacked abortion, welfare, Islam, and Obamacare; naturally, he is a member of the Federalist Society.) Karofsky, his challenger, is a circuit court judge and former prosecutor running as a moderate liberal. If Karofsky ousts Kelly, she will whittle down the court’s conservative majority, creating a 4–3 split. Liberals would then have a shot at flipping the court if they can oust another conservative justice in 2023.
There are many reasons why Wisconsin Democrats want to loosen conservatives’ grip on the state Supreme Court. Wisconsin Republicans have ruthlessly gerrymandered the state Legislature, permanently entrenching their majority. Once they consolidated their power, Republican lawmakers cracked down on voting rights through stringent voter ID laws while repeatedly seeking to slash early voting. Until liberals gain a majority on the state Supreme Court—and therefore the ability to strike down Republicans’ discriminatory redistricting and disenfranchisement measures—Democrats have no hope of winning the Legislature. And so long as Republicans hold the Legislature, they will deny Democrats’ legitimate right to govern.
Both Evers, a Democrat, and the Legislature agreed that this dramatic move would throw the state into disarray because a large number of officeholders’ terms would expire, with nobody to replace them, and no legal guidance on their continued authority to serve. But Evers wants to relax strict absentee voting laws to ensure that everyone can vote by mail, and Republican lawmakers refuse. There are several restrictions complicating efforts to conduct the entire election by mail. Thanks to Wisconsin Republicans’ partisan voter ID crusade, voters must submit proof of residence and photo ID to register and apply for an absentee ballot. Wisconsin’s rules dictate that a fellow U.S. citizen must serve as “witness” and sign the ballot; that voters request a ballot by April 2; and that their ballot must arrive at the polling place by 8 p.m. on April 7.
On Thursday, U.S. District Judge William Conley, a Barack Obama appointee, extended these deadlines and loosened the witness requirement. His order, if upheld, will not aid voters struggling to fulfill the voter ID requirement. But it will somewhat alleviate Wisconsin’s biggest challenge, which is processing an unprecedented number of absentee ballots. Because of the coronavirus, there has been a massive surge in requests for these ballots; there will be well over 1 million more ballots sent out this year than in 2019’s spring elections. This rush to apply has coincided with dramatic reductions in polling places, particularly in urban areas that are largely Democratic. As hundreds of poll workers drop out for fear of infection, Green Bay may reduce its 31 polling places down to just four, while Milwaukee slashed its polling places from 180 to fewer than 12. At least 60 percent of Wisconsin’s cities report a shortage of poll workers, and 100 jurisdictions lack enough workers to staff just one polling site.
Meanwhile, election officials are scrambling to process hundreds of thousands of absentee ballot requests. They report working 12–17 hours a day “with no end in sight” to get through a huge backlog, with no real chance of success. By law, these officials must send an absentee ballot to a voter within 48 hours of receiving their application—but the turnaround time in some offices has reached a full week.
In light of these snags, Democrats pleaded with Republican legislators to ease the rigid requirements that govern absentee balloting in Wisconsin. They refused. So a group of voting rights organizations filed a federal lawsuit on March 26 asking Conley to block the harshest rules. The witness-signature requirement, they pointed out, creates an “insurmountable hurdle for many eligible Wisconsin voters under quarantine or in isolation.” The proof-of-residency and photo ID requirements are challenging for elderly or low-income residents, who must upload their documentation online—but they may lack the requisite technology, and libraries are closed. Many citizens who traditionally vote in person may not remember to request an absentee ballot by April 2. Because of the backlog, those who do request a ballot in time may not be able to return it by the April 7 deadline.
Evers has recommended very simple solutions to these hitches—namely, suspend the documentation requirements for those who can’t satisfy them and extend the deadlines so absentee voters have more time to register and return their ballots. But the GOP-controlled Legislature rushed to court to oppose all these fixes. It declared that voters can simply go to “open UPS stores” to upload their documentation, even though doing so would violate Evers’ social distancing guidelines. Senior citizens, the Legislature insists, should simply ask a neighbor to “observe through a window,” slide the ballot “to the witness under the door for his signature,” then pick up the ballot “once the witness is six feet away.” And with regard to the deadlines, the Legislature shrugs that the court “may simply wait until after election day to determine whether any remedy is necessary or appropriate.” In other words, instead of forestalling a crisis, the court should wait until the crisis arrives to take action.
In his Thursday order, Conley refused to move the election or halt the photo ID requirement, noting that the elections commission has already granted an exception for the “indefinitely confined.” But he did give voters an extra day to request absentee ballots and force the state to count ballots that arrive by 4 p.m. on April 13. Conley also suspended the witness requirement for voters who submit a “written affirmation” that they could not safely satisfy it.
Given Republicans’ staunch opposition to these measures, there is a good chance they will appeal Conley’s order to the 7th U.S. Circuit Court of Appeals. If the appeals court lifts his injunction, it will permit the virus to depress voter turnout in Democratic bastions like Milwaukee, where the mayor—who is on the ballot—has urged residents not to go to the polls for their own safety. A substantial number of voters won’t be able to return their ballots in time and will not risk in-person voting during a public health emergency. Even if they tried, many residents won’t have the time or resources to visit one of the few polls still open in their city.
In the 2019 Wisconsin Supreme Court race, conservative Brian Hagedorn defeated liberal Lisa Neubauer by fewer than 6,000 votes out of more than 1.2 million cast. The state is closely divided, and even if COVID-19 has only a minor effect, it could suppress enough votes in blue urban centers to secure Kelly’s victory next Tuesday. If Republicans believed Kelly could win on his own merits, they would not let a pandemic prevent thousands of Wisconsinites from casting a ballot. Their obstinacy is incredibly cynical but in line with their broader approach to governance. Wisconsin Republicans have already rigged elections through gerrymandering and seized authority from Evers under the apparent belief that the GOP has a divine right to rule the state. After all that, letting a pandemic swing a state Supreme Court race probably seems like child’s play.