Wisconsin voters face an impossible choice this Election Day: protect their health, or protect their voice at the ballot box. That difficult decision was placed at their feet this week thanks to the Supreme Court, which, in a partisan decision, ruled to toss out tens of thousands of absentee ballots cast after Tuesday.
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As Slate reports, Justice Ruth Bader Ginsburg, writing on behalf of the court’s four liberal judges, said the 5-4 decision would “result in massive disenfranchisement”—a grievous injury to the state’s Democratic process at a time when 3,800 seats are on the ballot, including one on the state’s Supreme Court.
The conservative majority, in an unsigned opinion, said their decision was about protecting the “integrity of the election process” by not fiddling with the rules days before an election. Of course, the SCOTUS decision—coming on the eve of the election—is a form of interference, reversing a decision made by Wisconsin’s highest courts.
To better understand the twisted logic the SCOTUS decision rests on—and why it jeopardizes not only the health of Wisconsin’s voters but of its civic process—let’s roll the clock back a couple of weeks.
On March 24, Wisconsin Governor Tony Evers issued a shelter-in-place order mandating all non-essential businesses close, placing size limits on public gatherings, and restricting travel, reports ABC 7 Chicago. One week later, as cases of the coronavirus continued to spread across the state, lawsuits seeking to push back the April 7 Election Day were filed. State and national Democrats, including Vermont Senator Bernie Sanders, called for the election to be postponed, and for changes to be made to the voting process. Among these proposed changes: moving to mail-in ballots only.
As one might expect when there is a deadly and highly contagious virus circulating, poll workers—whose essential work to facilitate the Democratic process is voluntary—were reluctant to risk their health at a time when cases in the state were still spiking. Thousands dropped out, which forced cities to close dozens of polling places, reports Slate.
Among those cities is Milwaukee, where black people account for a quarter of the population, but have comprised half of all the county’s coronavirus cases and more than 80 percent of COVID-19 deaths. Out of 182 polling stations, the city was forced to consolidate down to just five locations. The math is simple—and alarming: less polling places mean longer lines. Longer lines mean more opportunities for contracting the virus, more chances for sickness, and in the worst cases, death.
Not surprisingly, requests for absentee ballots surged, with 150,000 requests processed since last Thursday alone. Election administrators were overwhelmed by the demand; as Justice Ginsburg notes in her dissent, 12,000 ballots had yet to be mailed out to voters as of Sunday morning. Through no fault of their own, tens of thousands of eligible Wisconsin voters wouldn’t be able to safely participate in their state’s elections because their absentee ballots weren’t mailed in time.
While all this was happening, Gov. Evers continued to lock heads with the state’s Republican-controlled legislature. On April 4, Evers called for a special session to shift the election to all-mail ballots, with absentee voting extended into late May. Republicans representatives refused and asked the Supreme Court to intervene and block an extended absentee voting measure approved by Wisconsin’s highest court. Days later, the conservative majority ruled against the postponement, and against counting absentee ballots postmarked after Election Day.
As the New York Times reports, in explaining their decision, the conservative majority said they were discussing a “narrow, technical question”: can the courts change a state’s absentee-voting rules days before an election? They ended up arguing that doing so would “fundamentally [alter] the nature of the election.”
Ginsburg rightfully refocused the question—and called out the hypocrisy of the high court’s decision.
“The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic,” Ginsburg wrote.
“If proximity to the election counseled hesitation when the District Court acted several days ago, this Court’s intervention today—even closer to the election—is all the more inappropriate.”
Ginsburg also had her own questions to pose:
“If a voter already in line by the poll’s closing time can still vote,” she asked, “why should Wisconsin’s absentee voters, already in line to receive ballots, be denied the franchise?”
The answer is pretty clear, because Republican lawmakers around the country have done a fantastic job of saying the quiet part loud in recent weeks: making voting easier and more equitable hurts the GOP. Voter suppression has long been a feature, not a bug, of our country’s electoral process. The coronavirus pandemic—as was confirmed by SCOTUS this week—is set to exacerbate this.
For their part, Wisconsin voters appear to have risen to the challenge. Images from Tuesday’s election show long lines of voters donning masks and gloves, all waiting to cast their ballot. And they do so knowing the risks their government has willfully placed upon them.
Milwaukee resident Judy Gardner told Politico, “I took the risk because it is my right, and I want to try to make something better for future generations.” Gardner is a McDonald’s worker who is part of the Fight for $15 movement to increase the minimum wage. She also told the online news outlet that her niece had asked for an absentee ballot, but had yet to receive it; she wasn’t sure if she would be able to vote.
It is this exact risk that Ginsburg and the Supreme Court’s liberal justices sought to avoid:
“Either they will have to brave the polls, endangering their own and others’ safety, or they will lose their right to vote, through no fault of their own,” she wrote. “That is a matter of utmost importance — to the constitutional rights of Wisconsin’s citizens, the integrity of the state’s election process, and in this most extraordinary time, the health of the nation.”
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