Today, lines outside Wisconsin polling places illustrate the cruel stakes of a decision the Supreme Court handed down Monday night. The Court forced Wisconsin residents to choose between voting and staying safe. Some voters, it appears, are willing to risk their own death in order to ensure that American democracy still lives.
But they should not have to make that choice. The five conservative Justices on the Supreme Court forced them to. In a 5-4 decision, the Court rolled back an absentee-ballot extension that would have given voters an extra week to get ballots in by mail. The decision is an ominous sign about what the Court will allow elected officials to get away with during the coronavirus outbreak, even at great harm to our representative democracy.
The election happening today includes the presidential primary in addition to non-primary races for an important seat on the Wisconsin Supreme Court and other state and local judges. Voters, understandably, want to have a say in who fills these seats. But Wisconsin, like the rest of the United States, is staring down the threat of the coronavirus. And the state is subject to a stay-at-home order to minimize the spread of the virus and prevent the health-care system from being overwhelmed.
It is fairly obvious how voting in public during the pandemic is not compatible with safety. The federal government’s health experts have recommended that people stay home and keep a physical distance from one another. Voters would have to disregard that life-saving 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 mass absentee voting (i.e., voting by mail) for the upcoming election. Doing so would ensure that people can exercise the franchise and that America remains a representative democracy without threatening millions of lives.
That’s precisely what Wisconsin voters were given: more time to secure absentee ballots and more time to send them in. The governor had only ordered residents to stay at home as recently as March 24th, and many voters who requested their ballots at that point did not anticipate receiving them in time to return them for today’s election, because the state recently received an extraordinary number of absentee-ballot requests. Some of these voters filed a lawsuit, and successfully obtained a federal court order allowing residents to cast absentee ballots as long as the ballots were postmarked by April 13—a one-week extension.
On Monday, the Supreme Court undid that order, and as a result, officials are now requiring any absentee ballots to be postmarked by today, April 7. Voters without absentee ballots therefore have a choice: Don’t vote, or risk your life in order to do so.
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 transcript where they did). It 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 has little applicability to the circumstances the country is facing now—namely, an election that is already riddled with the last-minute and sweeping chaos resulting from the coronavirus.
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 turnouts benefit Republicans. With higher levels of voting, as Trump put it, “you’d never have a Republican elected in this country again.”
At the same time, the Court’s decision particularly puts African American voters, the historic backbone of the Democratic party, to a life or death choice. There are more than 2,500 coronavirus cases in Wisconsin, and some populous cities (of more than 70,000 people) have only one polling location. And early data shows that African Americans die of coronavirus at a higher rate than whites—perhaps because of racial disparities in the healthcare system or socioeconomic disparities that prohibit poorer communities from availing themselves of various preventative measures. The area in Wisconsin with the largest black population (Milwaukee) has only five polling places (whereas it used to have 180).
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 coronavirus, tells his supporters that they should go out and vote anyways. Monday’s decision suggests the Supreme Court wouldn’t care.
There is a brazen irony to the Court’s indifference to Wisconsin voters. Before the Court issued the Wisconsin order, the Court indefinitely postponed hearing all of the cases that were originally scheduled to be argued 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 postpone 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 its own health and members of the Supreme Court bar, it refuses to do the same for voters who are merely trying to participate in democracy.
The Court’s Monday-night order contains a window into the Court’s thinking. The conservative majority went out of its way to say the dissenting Justices’ f “rhetoric” was “quite wrong.” In the midst of a pandemic threatening our elections, in order words, the majority took time to criticize the tone that the dissent used. It was too much for the Court’s conservatives for the dissenters to point out (quite rightly) that the question in the case “is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic,” an issue that is of “utmost importance” to, among other things, “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.”
The Court’s insistence that the dissent adopt a more measured tone is an appalling exercise of the Court’s authority. The Court demanded respect and deference even though it does not deserve it: There is nothing respectable about giving cover to elected officials to suppress voters in the midst of a pandemic.
The post The Supreme Court’s Hypocrisy Is Going to Get Americans Killed appeared first on The Atlantic.