Wisconsin and the Republican War on Democracy

Ian Millhiser provides the broader context for the decision by John Roberts, Clarence Thomas, Sam Alito, Neil “Ice Truck Killer” Gorsuch, and Bart O’Kavanaugh to send people to sickness and death today:

The Supreme Court’s decision in Republican is the capstone of a weeks-long effort by the Republican Party to make it difficult for voters to actually cast a ballot in Wisconsin. Last week, Gov. Evers called the state legislature into session and asked it to delay the election. But the Republican-controlled legislature ended that session just seconds after it was convened. After Evers acted on his own authority to delay the election, the state’s Supreme Court voted along partisan lines to rescind Evers’s order. Republicans also rejected Evers’s proposal to automatically mail ballots to every voter in the state.

The background is that Republicans hope to hold on to a seat on the state Supreme Court, which is up for grabs in Tuesday’s election. As law professor and election law expert Rick Hasen recently noted, “only 38% of voters who had requested an absentee ballot in heavily Democratic Milwaukee County had returned one, compared with over 56% of absentee voters in nearby Republican-leaning Waukesha County.” So there’s at least some evidence that if additional voters are unable to return their ballots, Republicans will be overrepresented in the ballots that are counted.

It’s also worth noting that if Wisconsin had free and fair elections to choose its state lawmakers, Evers would most likely have been able to work with a Democratic legislature to ensure that Tuesday’s election would be conducted fairly. In 2018, 54 percent of voters chose a Democratic candidate for the state Assembly. But Republicans have so completely gerrymandered the state that they prevailed in 63 of the state’s 99 Assembly races.

There is far more at stake in Wisconsin, moreover, than one state Supreme Court seat. Wisconsin could be the pivotal swing state that decides the 2020 presidential election. The question of whether Donald Trump or Joe Biden occupies the White House next year could easily be determined by which man receives Wisconsin’s electoral votes.

And the Court’s decision in Republican suggests that the Supreme Court will give the GOP broad leeway in how US elections should be conducted.

So, to review:

• Wisconsin establishes a classic Herrenvolk non-democracy comparable to those of the Jim Crow south, in which the party representing the vast majorities of the state’s African-American voters is permanently locked out of legislative power even if it wins a substantial majority of voters. Earl Warren believed that his Court’s decision that such disenfranchisement was not a “political question” but could only be redressed by a judicial remedy was a more important decision than Brown v. Board, and he was right.
• But of course the five rabidly partisan hacks who constitute a working majority on the current Supreme Court believe its job is to block rather than open the channels of democracy, at least where democratic elections threaten Republican incumbents. So they hauled the long-discredited idea that the “political questions” doctrine applies to legislative districting out of the mothballs to uphold the blatantly illegal Wisconsin filibuster, on the world-historically specious grounds that math is gobbledegook so it is unpossible for courts to do things that many federal and state courts have already done.
• This leaves, however, another mechanism for getting democratic elections in Wisconsin: the state courts. As a result, Wisconsin state legislators, the current Republican-majority state Supreme Court, and the Roberts Gang collaborated to hold a rigged election forcing people to vote in person at a dramatically smaller number of polling places during a pandemic because you can’t permanently entrench your party in power irrespective of the will of the voters without breaking a lot of eggs.

The idea that legal wing of the Republican Party is somehow more respectable than the legislative wing is one of the more ridiculous fictions to take hold in our discourse. It’s all the same people doing the same evil stuff for the same self-interested reasons.