Wisconsin abomination

OMG what has happened in Wisconsin is just an utter abomination.  This is truly, truly how democracies die.  A Republican legislative majority, entrenched by an extreme gerrymander (quick digression “Democrats also won roughly 53 percent of the statewide vote for Assembly seats — securing 1,306,878 votes to 1,103,505…Republicans retained roughly the same overwhelming majority — 63 seats to 36 — that they have held since they redrew the maps in 2011) has insisted on holding an in-person election at a super-clear threat to the public health and a gigantic threat to Wisonsin citizens’ right to vote.  And, then, 5 Republican Supreme Court justices (and, yes, it is absolutely appropriate to describe the justices by their partisanship in this case) upheld on such pathetic and flimsy reasoning most any 1L student could surely shoot it down.  

As law professor Leah Littman writes, this is, indeed, “a terrible sign for November”

It’s obvious how voting in public amid a pandemic is not compatible with safety. The federal government’s health experts have recommended that people stay home and keep their distance from one another. Voters would have to disregard that lifesaving guidance in order to cast their vote. That is why experts and advocates have strongly recommended that the United States move to a system of voting by mail for the upcoming general election. Doing so would ensure that people can exercise their franchise and that America remains a representative democracy without threatening millions of lives…

The Court did little to explain its decision. It first maintained that the residents never requested the extension (though the dissent referenced a portion of the case transcript in which they did). The Court then cited a prior decision, Purcell v. Gonzalez, that reasoned that courts should be reticent to disturb election procedures close to the date of an election. But that principle is based on the idea that elections should not be riddled with last-minute chaos. It is hardly applicable to the circumstances that the country is facing now—namely, an election that is already riddled with the sweeping, last-minute chaos resulting from the coronavirus. [bold is mine]

Who will benefit from the Court’s decision and who will be hurt—and possibly killed—by it is entirely predictable. The Court’s decision will depress voter turnout in the all-important judicial elections. The president recently said out loud what Republican voting strategists have long seemed to believe: Lower voter turnout benefits Republicans. With higher levels of voting, as Trump put it, “you’d never have a Republican elected in this country again.” …

The Court’s decision is an ominous harbinger for what the Court might allow in November in the general election. Imagine, for example, that states do not allow absentee voting or voting by mail even though the coronavirus remains a serious threat to public health. Imagine also that the president, continuing to minimize the threat posed by the virus, tells his supporters that they should go out and vote anyway. Monday’s decision suggests that the Supreme Court wouldn’t care.

The Court’s indifference to Wisconsin voters is brazenly ironic. Before it issued the Wisconsin order, the Court indefinitely postponed all of the cases that were originally scheduled to be heard in March or April of this year, including a major argument over whether the House of Representatives can subpoena the president’s financial records. In the order explaining its decision to delay the hearings, the Court cited the historic and unprecedented nature of the coronavirus and the threat it poses. But while the Court is more than happy to make accommodations for the sake of the health of its own justices and members of the Supreme Court bar, it refuses to do the same for voters who are merely trying to participate in democracy.

Scott Lemieux:

Say what you will about “some lives matter, and some don’t,” it’s an ethos. And if the Court is willing to do this just to help their party be insulated from democratic elections in one state, imagine what they’ll be willing to do in presidential and Senate elections where their ability to maintain control of the Court itself is at stake…

Meanwhile, since we could all use some comic relief, here are some thoughts on the matter from Illya “The Senate Should Refuse to Confirm All of Hillary Clinton’s Judicial Nominees” Shapiro:

“It’s unfortunate that both the Wisconsin and U.S. Supreme Court rulings broke down the way they did, because it lends credence to the perception that law is increasingly no different than politics,” said Ilya Shapiro, a lawyer with the Cato Institute, the libertarian group. “But the decisions weren’t partisan.”

“Yes, what an unfortunate coincidence that all of these voting rights decisions that favor Republicans break strictly along partisan lines, leading to the impression that they are partisan, which they totally are not even they don’t even make a pretense of being constitutional law. Pull my finger.” This is the kind of “intellectual” environment in which Richard Epstein can look like a thought leader.


It’s worth noting that this was not an easy case. In normal circumstances, it might have been correct to overturn the district court decision. But these aren’t normal circumstances, and what’s disturbing about the majority ruling from the Supreme Court’s Republicans is that it barely even mentions those circumstances. It says instead that the case hinges on a “narrow, technical” question about the absentee ballot process. At the very end of the opinion, here is the sole reference to the COVID-19 pandemic:

The Court’s decision on the narrow question before the Court should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate. That point cannot be stressed enough.

That’s it. In the main body of the opinion, you would never learn that a deadly pandemic even existed, let alone that it was the driving motivation of the district court’s decision.

This is cowardly. If you want to make a case that the law is the law and it needs to be followed even in the middle of a destructive plague, then go ahead. But at the very least, you need to have the integrity to make the case. You need to be willing to say forthrightly that legal technicalities need to be followed even if they will either (a) deprive thousands of people of their votes or (b) drive them to the polls, where they run the risk of contracting a deadly disease. If you can’t quite find the words to say that out loud, then you need to rethink your reasoning…

The Supreme Court decision, by contrast, avoids the facts on the ground entirely. If this were nothing more than a snowstorm or a transit strike, maybe that would be OK. But when it’s the deadliest pandemic in over a hundred years? That’s a little different.

Don’t think this is how democracies die?  Read up.

On the bright side.  I’m not sure enough national Democratic leaders fully appreciated the lengths that Republicans were willing to go to in order to steal elections. And have it endorsed by the Supreme Court.  I think maybe they are now.  And Republicans, fearing a shrinking economy leading to electoral doom in November are going to be the ones really wanting more relief bills.  And Democrats absolutely, positively, have to insist that the laws are in place to avoid travesties like this in November.  

About Steve Greene
Professor of Political Science at NC State http://faculty.chass.ncsu.edu/shgreene

6 Responses to Wisconsin abomination

  1. Albert Manders says:


  2. Ridge says:

    What I always wonder is : do these people not care at all about their legacy? Like if you knew, for a fact, that the opinions you wrote were going to go down in history- wouldn’t you care about how you were perceived and put good reasoning over short-term partisan interests?

    A few months ago I had lunch with a friend who used to be on Mitch McConnell’s staff, and one thing he said to me is “Legacy has always been really important to McConnell.” And I literally almost busted out laughing because of how ridiculous that sounds. But the more I think about it, the more I’m reminded of the piece “Bill Barr Thinks America is Going to Hell,” and I’m convinced that these people actually view themselves as America’s last hope against some sort of liberal dystopia. I think it’s this apocalyptic world view that makes them so dangerous.

  3. Mike in Chapel Hill says:

    Trump secured his reelection when the House demonstrated its inability to enforce Congressional subpoenas. This made it explicitly clear to Trump Inc. that he is indeed above the law. So, just this week he deposited $500 billion into his campaign account and the SCOTUS gave him and the GOP carte blanche to ignore campaign laws and continue efforts at voter suppression all over the country. Both of these developments will undermine 2 things that Democrats have pinned their electoral hopes on: 1) a surge in anti-Trump voter turnout and 2) the state of the economy (these are related).

    #1 is mainly about the turnout differential by pro-Trump and anti-Trump groups. I don’t think there will be a decisive advantage for Biden in the most important swing states, which is all that really matters. Between voter suppression, lack of enthusiasm for Biden, and the possibility of an election day impacted by another round of the virus, the turnout surge will be a lot less than the optimists anticipate. The flip side of the differential is the turnout by the Trump base. We know from 2016 and 2018 that he will identify some existential threat that only he and the GOP can stop (think “immigrant caravan”). He will mobilize the religious right by promising to do more about abolishing abortion, permitting Creationism in schools, etc. And, I predict he will make a campaign issue out of the various state bills to outlaw doctors from treating trans-gender minors. (South Dakota’s latest attempt failed, but it is an emotional and divisive issue that will fire up social conservatives and the Fox “News” audience).

    As for #2, Trump Inc. can direct tens of billions of dollars to the swing states it won in 2016. This will mitigate the impact of the economic downturn following the C-19 shutdown. The people who voted for Trump in 2016 and who still approve of his performance will probably not hold him responsible for the state of the local (state) economy since he will make it very clear that he is responsible for funneling lots of relief money to the state. The people who don’t like Trump won’t be persuaded to think differently by the money, but people who voted for him in 2016 will be thankful.

    In sum, Trump Inc. needs only to hold on to the swing states they won in 2016 to win reelection. If they focus their money, voter suppression efforts, and propaganda on those states they will probably win.

    PS. I haven’t even factored in the potential turnout-depressing impact of a prolonged and divisive Bernie candidacy, or a delayed and divisive Democratic convention that will truncate the general election phase for Biden.

    • Steve Greene says:

      Well, you know I think you are too pessimistic. In the face of obvious incompetence and what will surely be a weak economy, even Trump loses. He doesn’t have superpowers. Sure, his approval is way higher than it should be, but he’s underwater. And suppression can only go so far. I think you are also under-estimating the enthusiasm to vote out Trump, regardless of a lack of enthusiasm for Biden. As for 2018, Trump tried to scare people then and it didn’t exactly work.

      • Mike in Chapel Hill says:

        Perhaps I am too pessimistic. But keep this military maxim in mind: don’t plan for what your enemy WOULD do; plan for what your enemy WOULD do if he could. So, what do you think Trump and McConnell and a handful of GOP state governors would do to significantly diminish votes by anti-Trump, pro-Democratic voter turnout? Because if you can think of something, that is what they will do.

        I have one postulate driving my less-than-rosy predictions: the GOP leadership, Trump, his family, and other cronies cannot allow Democrats to obtain the political capability of finding and revealing the corruption and coverup from 2016 through today. Graham, McConnell, Priebus, and many others were aware of Trumps connections and debt to Russian mob money, and more. And they ignored it before the 2016 election because they though Trump would lose and the problems would go away. Then he won, and now they are all complicit in helping an incompetent, corrupt, malign, and compromised person become POTUS.

        There is nothing these traitors won’t do to protect themselves. Not out of loyalty to Trump, but out of pure self-preservation.

        Remember this bit of news?
        ” A month before Donald Trump clinched the Republican nomination, one of his closest allies in Congress — House Majority Leader Kevin McCarthy — made a politically explosive assertion in a private conversation on Capitol Hill with his fellow GOP leaders…”There’s two people I think Putin pays: Rohrabacher and Trump,” McCarthy (R-Calif.) said, according to a recording of the June 15, 2016, exchange. House Speaker Paul D. Ryan (R-Wis.) immediately interjected, stopping the conversation from further exploring McCarthy’s assertion, and swore the Republicans present to secrecy. Some of the lawmakers laughed at McCarthy’s comment. Then McCarthy quickly added: “Swear to God.”

        Ryan instructed his Republican lieutenants to keep the conversation private, saying: “No leaks. … This is how we know we’re a real family here.”


  4. R. Jenrette says:

    I used to think the GOP had become the fascist party. It surely has some of the symptoms.
    But now, it’s clear. The criminal mob rules and corruption backed by intimidation is its source of power.
    Bush V Gore likely was the first big step on the national level.

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