Jurisprudence

The Supreme Court’s Wisconsin Election Decision Is 2020’s Bush v. Gore

RBG’s dissent claims her colleagues are operating in “good faith.” She’s wrong.

A woman in a hazmat suit sits across a table from a woman in a face mask at a polling station.
Mary Magdalen Moser runs a polling location in Kenosha, Wisconsin, in full hazmat gear as the Wisconsin primary kicks off Tuesday Derek R. Henkle/AFP via Getty Images

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On Monday evening, two different courts issued two disastrous decisions, a one-two punch that has forced countless Wisconsin voters to choose between their health and their voting rights in Tuesday’s election. First, the Wisconsin Supreme Court overruled Gov. Tony Evers’ order postponing the election, restoring in-person voting on Tuesday in the midst of a pandemic. Hours later, the U.S. Supreme Court effectively nullified tens of thousands of absentee ballots that won’t be returned until after the election—not because voters forgot, but because election officials did not mail them out in time. Both decisions were issued by conservative judges; both will help Republicans suppress legitimate votes. Taken together, they are the Bush v. Gore of 2020, a flagrant judicial heist that renders Tuesday’s election a sham.

These two rulings spurred strong dissents condemning this mass disenfranchisement—but only one of them lays bare the overt partisanship motivating the judiciary’s conduct. Justice Ruth Bader Ginsburg, dissenting from SCOTUS’s decision, took pains to say she did “not doubt the good faith of my colleagues,” suggesting the conservative majority had made a mistake, or simply disagreed over a legal principle. By contrast, Justice Ann Walsh Bradley, dissenting from the Wisconsin Supreme Court decision, castigated her court for a pattern of lending “unmitigated support of efforts to disenfranchise voters.” Ginsburg’s conciliatory tack is understandable; she has a lifetime appointment that gives her an incentive to play nice with her colleagues and preserve the institutional prestige of the Supreme Court. Bradley, who is elected to fixed terms, has more leeway to publicly shame others on the bench. In her scorched-earth assault on her colleagues’ integrity, Bradley is leveling with the public, raising the alarm over the judiciary’s threat to democracy. It is long past time for impartial judges to take off the kid gloves and call out their colleagues’ cynical, bad-faith crusade against voting rights.

It’s easy to see why Bradley took direct aim at the four-justice majority that reinstated Wisconsin’s election during the COVID-19 outbreak. The most important race on the ballot is for a seat on the Wisconsin Supreme Court: Justice Daniel Kelly—an archconservative who once said slavery and affirmative action “are the same”—is defending his seat against challenger Jill Karofsky, a liberal circuit judge. Currently, the court is divided 5–2 between conservatives and progressives. If Karofsky ousts Kelly, liberals will have a chance to flip the court in 2023. The new progressive majority could then strike down Republicans’ worst voter suppression measures, including their impenetrable partisan gerrymander.

Recognizing the stakes of the election, Kelly’s conservative colleagues have lined up to support him—and condemn Karofsky. After Karofsky criticized Kelly for repeatedly siding with Republican interests, Chief Justice Patience Roggensack and Justice Annette Ziegler issued a statement condemning her for “undermining the court’s legitimacy” and failing to “act with the decorum appropriate to the office.” Justices Brian Hagedorn and Rebecca Bradley went even further, denouncing Karofsky’s criticisms as “slanderous,” “irresponsible,” and “insulting.” They accused her of using an “outcome-driven judicial approach” while commending Kelly for “the quality of his reasoning and the depth of his commitment to the judicial craft.” Hagedorn and Bradley then effectively endorsed Kelly over Karofsky, declaring: “We are absolutely confident that we need his integrity and intellect to continue on the Court.”

Notably, while all four justices defended Kelly against Karofsky’s putatively unfair attacks, they said nothing about the justice’s own false accusations against his opponents. For instance, Kelly ran an ad alleging that Karofsky is “dangerously soft on crime” because she “went easy” on a sexual predator—an objectively false statement. Kelly ran a different ad announcing that Karofsky allowed a plea deal that put a sex offender “back on the street,” yet another lie. He also said Karofsky sought “to disarm law abiding citizens” because she tweeted in support of gun safety laws that “respect constitutional rights” while making “every family safer.” The Wisconsin Supreme Court’s conservative justices declined to put out statements rebuking Kelly for slandering his opponent.

There is no real doubt that holding the election during a pandemic will decrease Democratic turnout. In disproportionately Democratic urban centers such as Milwaukee, election officials have been forced to shutter the vast majority of polling places because poll workers refused to show up for fear of infection. That’s why the GOP-dominated Legislature denied the governor’s request to delay the election. After the Legislature sued to block Evers’ order, Kelly recused himself from the case. But his four conservative colleagues did not—even though they have a vested interest in the outcome. And sure enough, the court voted 4–2 to resume the coronavirus election.

The majority’s unsigned opinion provided “scant rationale,” as Bradley put it, for its actions. Evers relied on a Wisconsin law that allows him to “issue such orders as he or she deems necessary for the security of persons and property.” Despite the sweeping nature of this power, the majority interpreted it narrowly, usurping the governor’s executive authority to protect Wisconsinites from lethal threats. As Bradley wrote in dissent:

With the decision of the majority, democracy takes a step backwards. Paying no heed to the warnings or the science, the majority circumvents the law, while disenfranchising voters and putting at risk the health and safety of our fellow Wisconsinites. … Neither the law nor common sense support the majority’s tenuous and callous order.

Bradley also chastised the majority for its rank hypocrisy. She pointed out that the court previously suspended civil trials due to the pandemic, recognizing “the unacceptable risk of forcing Wisconsinites to congregate during this pandemic.” In doing so, Roggensack explained that this step was necessary to protect “the people of Wisconsin” and “the families of jurors who would be at increased risk of COVID-19 infections carried home by family members who performed jury service.” Yet, Bradley wrote, Roggensack displayed no similar concern for “the health of our families, neighbors and friends” when forcing citizens to choose between “needless risk of contracting a deadly virus” and surrendering their right to vote.

Ginsburg’s dissent, while sharp, slings no such barbs at the majority. Without calling into question “the good faith of my colleagues,” Ginsburg wrote that the majority’s decision “will result in massive disenfranchisement.” But when five Republican-appointed justices nullify “tens of thousands” of votes in an unsigned eleventh-hour order, is there really no reason to doubt their good faith? Even when their act is likely to favor Republicans?

Perhaps, taken in isolation, the majority’s decision can be defended as a grievous mistake motivated not by partisanship but a misunderstanding of the facts. After all, it includes at least one error—an assertion that the plaintiffs never asked for the ability to return ballots after April 7, a claim that Ginsburg debunked. But Monday’s decision cannot be taken in isolation. It is the latest in a long line of rulings by the Roberts court that blatantly favor Republican interests by allowing the GOP to suppress Democratic votes. In recent years, the conservative majority has gutted the Voting Rights Act, allowing mass poll closures, racial gerrymandering, and draconian voter ID laws. It has greenlighted voter purges and closed the federal courthouse door to partisan gerrymandering cases. Its redistricting decisions permitted Wisconsin’s Republicans to maintain their legislative majority even when they receive fewer votes, a majority they used to preserve Tuesday’s election.

Put simply, the U.S. Supreme Court has also lent its “unmitigated support of efforts to disenfranchise voters,” in Bradley’s words. Federal judges have a duty to say so. Ginsburg wrote that her colleagues’ order “will result in massive disenfranchisement,” but that phrasing seems too roundabout. The Supreme Court itself inflicted “massive disenfranchisement,” reversing a decision that protected voters disenfranchised through no fault of their own. These justices took it upon themselves to intervene on behalf of Wisconsin Republicans and void these voters’ ballots. They made a bad situation exponentially worse, favoring partisan demands over constitutional rights.

Chief Justice John Roberts cares enough about his court’s legitimacy to occasionally vote with the liberal justices to forestall institutional embarrassments. His occasional moderation seems to persuade the liberals to pull punches for fear that he will permanently join the reactionary wing of the court. They clearly believe they have a responsibility to treat the court as a neutral arbiter, not an organ of the GOP. So far, this approach has worked for Roberts: Most Americans approve of the way the Supreme Court is operating and do not believe it shows too much ideological bias.

In March, U.S. District Judge Lynn Adelman wrote a law review article titled “The Roberts Court’s Assault on Democracy.” In it, he wrote that “the Roberts Court has been anything but passive. Rather, the Court’s hard right majority is actively participating in undermining American democracy,” engaging in “a direct assault on the right of poor people and minorities to vote.” Monday night’s order neatly illustrated this phenomenon. The five Republican-appointed justices may have near-unlimited power to swing elections. But the rest of us have no obligation to pretend that the majority has not taken sides against democracy.