Conservative majorities in the Wisconsin and U.S. Supreme Courts ruled separately on Monday to rig the April 7 elections in Wisconsin with the effect — and doubtless the intention — of helping Republicans win the presidential swing state and retain control of the state legislature by stifling Democratic votes in November.
Under the cover of a global Covid-19 pandemic, the decisions by the high federal and state courts this week forced many Wisconsin voters, especially those in the Democratic stronghold of Milwaukee, to choose between risking their lives and exercising their right to vote.
Although judges knew these cruel high stakes from their briefing materials, few other Americans realize that a key reason for the needless risk-taking in Wisconsin was because an ultra-conservative Wisconsin justice, Dan Kelly (below at left) was on the ballot for a 10-year term.
Both state and national Republicans want Kelly's election-rigging skills to remain on the Wisconsin court so that it can continue its national leadership in using a pretense of legality to justify election thefts far into the future.
Legislative control is especially important during the once-every-10-year census in 2020 because the census results trigger the power for state legislatures to gerrymander congressional and legislative districts for the next decade.
Donald Trump, the impeached president, is desperate to remain in unaccountable power. He has successfully stalled congressional scrutiny mandated by the Constitution and long precedents, in part because friendly Republicans on the U.S. Supreme Court have stayed indefinitely the most significant lower-court rulings about his finances and allegations of his obstruction of justice. The court refuses to hear arguments on these vital cases, claiming the pandemic prevents its work, even while it needlessly forced Wisconsin voters to risk their lives by in-person voting at crowded polling places instead of availing themselves of absentee ballots.
In same spirit of stacking the courts at the state level, Trump has used his national broadcast pandemic news conferences and his Twitter feed to urge support for Kelly, as reported by Fox News (Trump makes last-minute push for Wisconsin Supreme Court justice. Kelly ran in a "non-partisan" election against lower court state Judge Jill Karofsky (shown at right of Kelly).
Trump's Election Day Tweet (shown below) sought to fool voters by suggesting that gun rights is the big issue. Insiders know that Republicans want Kelly for voter suppression and other election rigging.
With the current financial and news crunch, few mass media outlets provide enough coverage of regional politics and courts anymore to describe, much less thwart, nefarious schemes that unfold in Wisconsin and elsewhere under the veneer of legitimate, good-faith litigation.
Furthermore, few reporters and their outlets dare to ascribe in blunt, understandable terms the apparent motives of supreme court judges, federal or national, who are typically accorded great deference as eminences even when their skulduggery and conflicts are obvious.
Ten years ago, the Justice Integrity Project was founded to expose prosecutorial and judicial corruption of this kind.
The sinister actions of these judges deserve not just exposure, but effective follow-up to ensure whatever accountability the increasingly broken American constitutional system can muster.
U.S. Supreme Court Theft of 2000 Election
It was exactly 20 years ago that an all-Republican U.S. Supreme Court halted presidential vote recounts in the swing state of Florida to deliver by a 5-4 party line vote the U.S. presidency to Republican George W. Bush in his race against Democratic nominee Al Gore.
Neither Gore nor most Democrats protested the monstrosity of the court's unsigned decision by the activist Republican majority, which cited no precedent for its radical ruling.
Few focused either then or later on the obvious conflict of interest whereby at least three of the five Republicans in the majority, specifically Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas, had close relatives who stood to gain immeasurable benefits by political appointments if Bush prevailed.
News accounts focused instead on the distracting but largely irrelevant claims. One was that Democrats had bungled voting procedures in Broward County (creating "hanging chads" among other lapses). Another was that Ralph Nader's Third Party candidacy had reduced vote totals for Gore, leaving him just over 500 votes short of defeating Bush in a state that provided the 
national Electoral College margin for whichever candidate the Supreme Court favored.
Nonsense. Deeper investigation by election fraud sleuths, most notably BBC reporter Greg Palast but also including this editor, have documented that Bush's brother, Florida Gov. Jeb Bush, right, had led a secret effort for a year before the election to thwart voting by tens of thousands of Florida Democrats.
Among the methods, documented in Palast's book The Best Democracy Money Can Buy, were such methods as Florida's secretly removing voting registrations en masse under flimsy excuses so that more than 100,000 black and other voters targeted as likely Democrats could be removed from voting rolls without their knowledge as suspected felons even if they were not.
The voters thus had no way to vote or even protest on Election Day in 2000.
On To Wisconsin
Similarly, the Koch Brothers (Charles and David) and other ultra-right oligarchs funded puppets like former Wisconsin Gov. Scott Walker and a political infrastructure useful in fanning "Tea Party" animosity to Barack Obama.
With a headquarters on Pennsylvania Avenue, the Tea Party was started as a well-funded lobbying effort that grew into legislative and court majorities around the nation useful for the right's long-term agenda, including the narrow, 23,000-vote 2016 Trump victory in Wisconsin over Hillary Clinton that helped decide that year's election and ensured a presidency focused on profiteering for Trump and other insiders until the recent financial crash.
Walker's own career faded with his failed 2016 presidential campaign and 2018 re-election loss. But his influence remains with such appointees as Kelly, the Supreme Court justice. Kelly's race on April 7 is against Karofsky, a judge on the circuit court of Dane County. It encompasses the state capital of Madison.
Kelly established his cred with fellow conservatives as a litigator for a family foundation that sought to restrict voting under the guise of fighting fraud primarily by individual voters.
This editor has examined such allegations for years both for the Justice Integrity Project and for two chapters in the 2013 book Presidential Puppetry: Obama, Romney and Their Masters. The research was based not simply on views of opponents of corrupt practices, but insights shared by those involved in dirty tricks.
Our Conclusion?
"Voter fraud" (by individual voters) is a smokescreen for the most part. Republican prosecutors largely focus on low-wage voting canvassers who make up phony registrants to collect their performance-based wages. But there is scant evidence that these phony registrants actually vote in significant numbers, as prosecution totals indicate.
This "voter fraud" serves mainly to distract from the far more prevalent and dangerous pattern of "election fraud" whereby powerful institutions — primarily Republican office-holders during recent years — seek to rig elections on a mass scale, sometimes by using a half dozen or so methods to reduce voting in opposition areas.
Sudden courtroom decisions by judges friendly to Republicans are sometimes a factor, as occurred in this week's decisions on Monday that force in-person Wisconsin voting under oppressive conditions.
In By a 5-4 Vote, SCOTUS Lets Wisconsin Throw Out Tens of Thousands of Ballots, Slate columnist Mark Joseph Stern summarized specifics before the U.S. Supreme Court (shown above at right) when its majority delivered a party-line decision helping fellow Republicans. Stern wrote:
The court will nullify the votes of citizens who mailed in their ballots late — not because they forgot, but because they did not receive ballots until after Election Day due to the coronavirus pandemic.
As Justice Ruth Bader Ginsburg, right, wrote in dissent, the court’s order “will result in massive disenfranchisement.” The conservative majority claimed that its decision would help protect “the integrity of the election process.” In reality, it calls into question the legitimacy of the election itself.
Wisconsin has long been scheduled to hold an election on April 7. There are more than 3,800 seats on the ballot, and a crucial state Supreme Court race. But the state’s ability to conduct in-person voting is imperiled by COVID-19.
Thousands of poll workers have dropped out for fear of contracting the virus, forcing cities to shutter dozens of polling places. Milwaukee, for example, consolidated its polling locations from 182 to five, while Green Bay consolidated its polling locations from 31 to two.
There was absolutely no reason but party loyalty to impose a potentially life-or-death choice on Wisconsin voters on whether to vote in person.
Two other columnists, 538.com elections analyst Nathaniel Rakich and Washington Post editorial board member Stephen Stomberg, analyzed the Wisconsin Supreme Court 4-2 decision (with Kelly recused). It thwarted Wisconsin Gov. Tony Evers' effort to delay certain aspects of the election under emergency powers in view of the pandemic. Most other states have similarly delayed their recent presidential primaries, including Ohio Gov. Mike DeWine, a Republican who issued a state of emergency to shift a scheduled March 17 primary to absentee ballots.
The judges knew from legal briefs the deadly implications of their baseless decisions, as Washington Post deputy editorial page Editor Ruth Marcus, 
a graduate of Harvard Law School, opined in Wisconsin’s debacle may be the most infuriating of the coronavirus failures. Her column was published after reports on April 7 of chaotic and dangerous conditions among urban voters especially.
Rakich, writing Election Preview: Yes, Wisconsin Still Plans To Hold Its Primary On Tuesday, wrote last weekend, "Even though 16 presidential primaries have now been postponed amid the COVID-19 pandemic, Wisconsin is forging ahead with Tuesday’s election as scheduled. In fact, Wisconsin will likely be the only state to host an in-person presidential primary in the entire month of April."
Stomberg, who wrote Wisconsin Republicans are exploiting the pandemic to grab power. It’s a dangerous precedent, opined early over the weekend, "Wisconsin Republicans have spent a decade eroding democracy in their state, entrenching their power against shifts in the popular will. With the help of former governor Scott Walker (R), GOP state lawmakers rammed through one of the most extreme gerrymanders the country has ever seen, assuring them a lock on the legislature.
They imposed stringent voter ID laws intended to suppress Democratic votes. And when Tony Evers (D), right, won the governorship in 2018, the 
legislature voted to strip him of the power to, among other things, alter government benefit programs, before he could take the oath of office. Conservative judges largely blessed these power grabs.
Now Wisconsin Republicans are testing whether taking a hard line on voting rules during the coronavirus crisis might give them an even more pronounced — and even less legitimate — electoral advantage.
The state is set to hold its primary on Tuesday, and Republicans have filed an emergency petition with the Supreme Court, asking the justices to shorten the deadline voters have to submit their absentee ballots. This is just one example of Wisconsin Republicans insisting on rules that make it difficult to vote during this public health emergency, using the crisis as cover to limit democratic participation.
If they successfully benefit from exploiting covid-19 this week, they will show Republicans everywhere that they can use the coronavirus for political gain. The credibility of November’s presidential vote is at stake.
Brazen Attacks
As often the case, Republicans are benefiting from the brazenness of their attacks and the veneer of authority that partisan judges can muster when issuing their activist rulings helping their patrons and fellow ideologues. Few mainstream or even alternative watchdogs exist over judges.
Even "liberal" pundits, including those on MSNBC reporting Monday night on the court decisions, largely refrained from pointing out the suspicious unanimity of "conservatives" of the courts in helping Republicans.
The so-called conservatives should be categorized more accurately as ultra-right activists because they disregard precedent on a routine basis, as in the Wisconsin decision, when the stakes are high enough.
That includes the pompous, deceitful and highly partisan Chief Justice John Roberts, right, who voted in the majority on the Wisconsin decision despite his pretensions simply to "call balls and strikes" like a baseball umpire in neutral fashion based on legal precedents and not to impose his views.
Longtime University of Chicago School of Law Professor Geoffrey Stone, left, is a prominent scholar and former dean at the school who has examined such patterns in his books and lectures.
At one lecture for school alumni (including this editor) in Washington, DC in February, Stone said that his extensive analysis of 5-4 U.S. Supreme Court decisions during recent years has found a disturbing pattern in which majorities vote for the political positions of the party that nominated them, without any consistent legal principles that he could discern.
Stone is an expert. He served as a Supreme Court law clerk, co-authored the nation's most widely used constitutional law school textbook and co-edits a series published by the Oxford University Press of nearly a score of books by prominent authors on legal history.
Stone also is a longtime board member of the liberal American Constitution Society, formed as a counterbalance to the conservative Federalist Society.
Stone spoke of the great difference between the two groups in their relationships with judges. The Federalist Society encourages judicial members (Kelly in Wisconsin has been one) to hire from society's ranks of law students, he said, whereas the Constitution Society recommends that judges seek out diversity in their hires of clerks, etc.
Another reason that the well-funded Federalist Society remains much stronger than liberal groups at law schools, Stone said, is that conservative students concentrate their energies on participating in it whereas liberal students on different issue-oriented groups.
As a longtime member of both groups, I asked during Q&A for him to expand on why Democrats and their candidates tend to focus so little on judicial appointments compared to Republicans. He responded that Democrats tend to think alike on major constitutional issues and so neglect the appointment process.
Indeed, much of the public and media attention on the Wisconsin primary has been dissipated on whether presidential candidate Bernie Sanders could obtain enough support to continue his campaign. But that is a relatively minor issue, because of his already remote chances of prevailing against his rival Joe Biden and compared to the implications of election rigging in such an important state as Wisconsin.
Such lack of attention leaves the vast powers of judges and the importance of their selection in Wisconsin and so many other jurisdictions largely in the hands of Republicans, except on confirmation battles where Democrats are largely ineffective because of the discipline of Republicans in using their majority power.
As for Wisconsin, those seeking fairness are likely to look in vain.
True, scattered protests were reported Tuesday regarding long lines in Milwaukee and other urban centers. But the winners reap the spoils and there's little way to enforce accountability, especially during a deadly pandemic.
One useful sign, albeit isolated, is that The Hill tabloid covering the Capitol in Washington, DC published on Election Day, April 7, an in-depth column, How a Wisconsin Supreme Court race could impact the presidential election. The author was Democratic National Committeewoman Maria Cardona, a co-chair of the party's rules committee, who presumably is in a position to try to bring such problems to the attention of authorities.
The House alone appears to lack power for now. Ultimately, therefore those higher authorities may have to be voters in others states who can elect a president and senators — and certainly not the judges in Wisconsin and Washington who have so disgraced themselves by their biased decisions to rig elections in Wisconsin and perhaps elsewhere for years to come.
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Related News Coverage
April 10
Washington Post, New Hampshire governor to allow absentee voting in November because of coronavirus outbreak, Colby Itkowitz and Amy Gardner, April 10, 2020 (print ed.). The decision is a significant departure from GOP Gov. Chris Sununu’s past stance against widespread absentee voting and stands in contrast to the rhetoric coming from some Republicans.
New Hampshire Gov. Chris Sununu (R) announced Thursday that the state will allow voters to cast mail-in ballots in the November general election if the coronavirus is still a factor this fall.
The decision is a significant departure from Sununu’s past stance against widespread absentee voting and stands in contrast to the rhetoric coming from some Republicans, including President Trump.
“Basically if you feel more comfortable voting absentee because of the outbreak or your inability or nervousness about just appearing in person to vote, you can vote absentee and obtain an absentee ballot,” Sununu said at a news conference.
April 9
U.S. Voter Suppression, Fraud Claims
New York Times, Republicans Pursue Limits on Voting by Mail, Despite the Coronavirus, Jim Rutenberg, Maggie Haberman and Nick Corasaniti, April 9, 2020 (print ed.). Public health officials recommend absentee ballots to keep people safe. But President Trump and his party portray expanded voting measures as ripe for fraud.
President Trump and his Republican allies are launching an aggressive strategy to fight what many of the administration’s own health officials view as one of the most effective ways to make voting safer amid the deadly spread of Covid-19: the expanded use of mail-in ballots.
The scene Tuesday of Wisconsinites in masks and gloves gathering in long lines to vote, after Republicans sued to defeat extended, mail-in ballot deadlines, did not deter the president and top officials in his party.
Republican leaders said they were pushing ahead to fight state-level statutes that could expand absentee balloting in Michigan, Minnesota, Arizona and elsewhere. In New Mexico, Republicans are battling an effort to go to a mail-in-only primary, and they vowed on Wednesday to fight a new move to expand postal balloting in Minnesota.
Washington Post, Analysis: Trump, who has lied about voting for years, disparages voting by mail for self-serving reasons, Philip Bump, April 9, 2020 (print ed.). The emergence of alternatives to in-person voting, spurred by the coronavirus pandemic, has President Trump repeatedly attacking vote-by-mail efforts. These attacks should be considered only in light of Trump’s overall track record on the country’s voting process, which has been uniformly dishonest, divorced from reality and motivated primarily by his own political interests.
As voters in Wisconsin went to the polls Tuesday — against the wishes of Gov. Tony Evers (D), right, who’d tried to postpone in-person voting — Trump was asked about the use of mail ballots in elections.
Trump claimed Evers tried to move the election because Trump endorsed a judicial candidate, which has no basis in reality. Then Trump turned his attention to voting by mail.
“Mail ballots, they cheat. Okay, people cheat,” Trump said. “Mail ballots are a very dangerous thing for this country because they are cheaters. They go and collect them, they’re fraudulent in many cases. You’ve got to vote. They should have voter I.D., by the way, you really want to do it right, voter I.D.”
He called mail ballots “corrupt” and said the process was a “horrible thing."
He’s probably trying to reinforce his vague claims that there is "[t]remendous potential for voter fraud,” but his fundamental concern is that easier access to voting is bad for his party and, by extension, himself.
How do we know this is his concern? Because he said so last week.
Calling in to “Fox and Friends,” Trump complained about efforts by Democratic members of Congress to include voting access issues in legislation aimed at addressing the coronavirus pandemic.
“The things they had in there were crazy,” Trump said. “They had things — levels of voting that, if you ever agreed to it, you’d never have a Republican elected in this country again.”
New York Times, Trump Is Pushing a False Argument on Vote-by-Mail Fraud. Here Are the Facts, Stephanie Saul and Reid J. Epstein, April 9, 2020 (print ed.). Despite Republican claims of corruption, experts have said that voting by mail can be conducted safely.
Here’s a look at the facts on the matter. All voter fraud is extremely rare. Studies have shown that all forms of voting fraud are extremely rare in the United States. A national study in 2016 found few credible allegations of fraudulent voting. A panel that Mr. Trump charged with investigating election corruption found no real evidence of fraud before he disbanded it in 2018.
Even so, experts say that the mail voting system is more vulnerable to fraud than voting in person.
“What we know can be boiled down to this: Voting fraud in the United States is rare, less rare is fraud using mail ballots,” said Charles Stewart III of the Massachusetts Institute of Technology.
Mr. Stewart pointed to several documented voting fraud cases of recent decades involving mail or absentee ballots, most recently the race in North Carolina’s Ninth Congressional District in 2018, when an operative who rounded up absentee ballots for the Republican candidate, Mark Harris, was charged with election fraud. The practice is known as ballot harvesting.
“They’re stories, they’re dramatic, they are rare,” said Mr. Stewart, a professor of political science who studies the machinations of voting.
The North Carolina case also illustrates the fact that frauds big enough to sway the outcome of an election — those involving campaigns rather than individual voters — will likely be detected, said Michael McDonald, a University of Florida political scientist and elections scholar.
Richard L. Hasen, an elections expert at the University of California, Irvine, School of Law, said such cases were few and far between.
“Election fraud in the United States is very rare, but the most common type of such fraud in the United States involves absentee ballots,” Mr. Hasen said. “Sensible rules for handling of absentee ballots make sense, not only to minimize the risk of ballot tampering but to ensure that voters cast valid ballots.”
Columbus Free Press (Ohio), Opinion: Will Trump’s GOP Finally Kill American Democracy? Bob Fitrakis and Harvey Wasserman, April 9, 2020. For Donald Trump’s GOP followers, the real issue in the 2020 election is democracy itself. They want it abolished. Their primary allies are the Coronavirus, state legislatures like those in Ohio and Wisconsin, and the US Supreme Court.
The campaign just hit a new level in Wisconsin. Using the Pandemic, its gerrymandered GOP legislature made voting in the April 7 primary as dangerous as possible. The US Supreme Court, with its usual 5-4 death hammer, has backed them up.
In recent years Republican governors and legislators have done all they can to limit the franchise. With discriminatory laws demanding voter ID, de facto poll taxes, abolition of early voting, elimination of neighborhood precincts, failure to deliver ballots and voting machines, bans on voting by alleged ex-felons and more, the GOP has assaulted the ability of citizens of poverty, youth and color to vote.
Now the 2020 Pandemic has made it all but impossible to run voting stations. With social distancing and other necessary precautions, operating 116,990 precincts for some 138,000,000 voters, as in 2018, would be impossible.
The Brennan Center for Justice now estimates it would take about $2 billion to federally fund absentee balloting for the whole nation. All registered voters would be mailed a ballot which they would send back to election boards or voting centers. Social distancing and other challenges raised by the pandemic would be eliminated.
An all paper vote-by-mail system may be the clearest route to a fair election. With ballots mailed to all registered voters, citizens would have the option of mailing or walking them back in to election boards. Centralized election centers would handle voting for those with special needs, and would provide for late registration.
April 8
Palmer Report, Opinion: What we learned from this calamitous Wisconsin election, Bill Palmer, April 8, 2020. The Republican-controlled Wisconsin Supreme Court ruled that an in-person election had to take place yesterday, in the middle of a deadly pandemic, and the Republican-controlled United States Supreme Court upheld this murderous decision.
Despite the danger, people stood in line around the block, all day long, just to make sure their votes were counted. We learned to things in Wisconsin today:
1) The Republicans are willing to try literally anything in the hope of retaining some degree of power, as Donald Trump circles the drain and threatens to the entire GOP down with him.
2) No matter what the Republicans try, Americans will do literally anything to vote Trump out of power. They can keep throwing us curve balls, spit balls, sucker punches, you name it, but dammit, Americans are going to show up and vote in November. And that’s the part they can’t stop.
Washington Post, Supreme Court rules for Republicans over Wisconsin vote, highlighting partisan divide before November poll, Robert Barnes, April 8, 2020 (print ed.). Conservative majority prevails in the fight between Republicans and Democrats on the issue of extending absentee balloting.
Just the caption of the case — Republican National Committee v. Democratic National Committee — was foreboding for a Supreme Court that likes to cast itself as above partisan politics.
Little wonder then that just hours after the court’s hastily written, 5 to 4 decision for Republicans in Tuesday’s election in Wisconsin, it was being denounced on social media as the latest version of Bush v. Gore.
The scant, 10-page opinion issued Monday night highlighted the court’s ideological and partisan divide. The justices’ inability to speak with one voice on matters as serious as the coronavirus pandemic and voting rights raised concerns about the legal battles bound to proliferate before the fall elections.
Supreme Court splits along ideological lines in Wisconsin ballot case
“It is a very bad sign for November that the court could not come together and find some form of compromise here in the midst of a global pandemic unlike anything we have seen in our lifetimes,” Richard Hasen, an election law expert at the University of California at Irvine, wrote on his Election Law Blog.
The reaction was predictable. “The U.S. Supreme Court has struck down illegal, desperate attempts from Democrats to extend voting past Election Day,” a Republican State Leadership Committee press release said. “Another great win for democracy — and fair elections.”
“With this outrageous ruling the Supreme Court’s far-right majority put not just its thumb, but its entire fist, on the scale in favor of making it harder for people to vote,” People for the American Way Vice President Marge Baker said in a statement. “ . . . If there were any lingering doubt that Republican aims of voter suppression were being aided and abetted by the courts and via far-right appointments to the bench, it was removed tonight.”
The Supreme Court’s decision to stay lower courts’ decisions that extended absentee balloting for a week comes in an election in which the most notable race is a conservative Republican’s battle to keep his seat on the elected state supreme court.
Washington Post, Federal judge expands voting decision to apply to all ex-felons in Florida, Lori Rozsa, April 8, 2020. The ruling is the latest setback to Republican efforts to restrict the restoration of voting rights.
The federal judge overseeing the ongoing dispute between Florida Gov. Ron DeSantis and released felons who want to vote handed the Republican governor another defeat Tuesday.
U.S. District Judge Robert Hinkle said a previous ruling he made that allowed felons to vote, even if they owe fines and fees stemming from their convictions, covers all individuals statewide, not just the 17 people who originally sued DeSantis.
Tuesday’s order applies to an estimated 1.4 million men and women. Though Florida voters in 2018 overwhelmingly passed an amendment to the state’s constitution to allow automatic restoration of voting rights after prison, Republican lawmakers have sought to impose requirements that would block many from registering.
“This is huge. It’s a game-changer,” said Neil Volz, deputy director of the Florida Rights Restoration Coalition. A federal trial on the issue is scheduled for later this month.
April 7
U.S. 2020 Politics
Washington Post, Long lines, anger and fear of infection: Wisconsin proceeds with elections under court order, Elise Viebeck, Amy Gardner, Dan Simmons and Jan M. Larson, April 7, 2020. The scene underscored the challenges facing election officials a day after Gov. Tony Evers (D) sought to suspend in-person voting — an order quickly reversed by the Wisconsin Supreme Court.
Washington Post, Wisconsin’s debacle may be the most infuriating of the coronavirus failures, Ruth Marcus (Washington Post deputy editorial page editor), April 7, 2020. Americans died to secure the right to vote. No American should have to die in order to exercise it. Yet that is the result, cruelly predictable and entirely unnecessary, of an obtuse pair of rulings Monday on the eve of elections in Wisconsin.
There are so many enraging aspects of the pandemic, chief among them the Trump administration’s utter failure to adequately prepare for or respond to the crisis, and the president’s wrong-headed, mixed and petulant messaging. But the Wisconsin debacle may be the most infuriating, not only because it was so avoidable but also because it is hard to escape the sense that partisan considerations infected the outcome, whether knowingly or more subtly.
Was it really a coincidence that Republican-backed justices in Wisconsin and Republican-nominated justices on the U.S. Supreme Court all sided against giving voters more time to cast ballots? Was it really a coincidence that their grudging interpretations of the law aligned with Republicans’ political interests?
It is impossible to reconcile the logic of holding an in-person election with a stay-at-home order in place, and yet that is what happened Tuesday, as long lines of would-be voters risked their health to vote. This is a choice that no one should be forced to make. But conservative justices, on the Wisconsin Supreme Court and the U.S. Supreme Court, left many would-be Wisconsin voters no option between danger and disenfranchisement.
Incumbent Wisconsin Supreme Court Justice Daniel Kelly and Dane County (whose county seat is the state capital of Madison) Judge Jill Karofsky, above, are competing in an ostensibly non-partisan but intensely political race on Tuesday, April 7 for a 10-year-term on the court. The two are in a run-off from a February primary in which Kelly won 50 % of the vote and Karofsky 37%.
Fox News, Trump makes last-minute push for Wisconsin Supreme Court justice as state holds election during pandemic, Tyler Olson, April 6, 2020. Wisconsin Supreme Court rules against Governor, blocks vote delay.
After two last-minute legal challenges, Wisconsin voters will head to the polls in the middle of the coronavirus pandemic Tuesday for an election in which President Trump has come out with a strong endorsement — not in the Democratic presidential primary most Americans are aware of, but for incumbent Wisconsin Supreme Court Justice Daniel Kelly.
Back-to-back Monday rulings by the Wisconsin Supreme Court and the U.S. Supreme Court against Wisconsin Gov. Tony Evers' efforts to postpone the in-person voting day and extending the absentee ballot deadline locked in the Badger State's election for Tuesday.
This effectively forces voters who have not yet received absentee ballots to trek to the polls in the middle of the coronavirus pandemic in order to cast their ballots.
As the drama unfolded Monday, Trump re-upped his initial Friday of endorsement of Kelly, whom the president called "tough on crime" and said is doing a "terrific job" protecting the Second Amendment. Kelly recused himself from the Monday decision forcing the election to go forward.
The Hill.com, Opinion: How a Wisconsin Supreme Court race could impact the presidential election, Maria Cardona, April 7, 2020. Amid the coronavirus pandemic, there is little room for any other news. But this Tuesday, April 7, Wisconsin is poised to make news as it holds primaries that include a critical Supreme Court race.
Democrats fought to turn the election into an all vote-by-mail affair in order to protect voters. But the Republican-led state legislature on Saturday voted to hold in-person voting this Tuesday.
This election could profoundly affect the country, with many saying that Wisconsin is the “tipping point” state in the November presidential election.
Why does this Supreme Court race matter? Because Trump allies have proposed a massive purge of Wisconsin voters using suspect data. They want to suppress the votes of Democratic-leaning voters.
Why else would the Wisconsin GOP intentionally kick hundreds of thousands of Wisconsin voters off the rolls in this swing state?
Justice Dan Kelly, an incumbent with an exceedingly thin résumé, was appointed by former Governor Scott Walker. He’s been endorsed by President Trump, and he’s running his “nonpartisan” campaign out of the Wisconsin Republican Party Headquarters. Kelly has recused himself from that voter purge case, but he signaled last month he would likely rejoin the case after this election.
Nothing less than our democracy is at stake in the Wisconsin Supreme Court race. No one knows what other shenanigans conservative special interests will try to pull off through the court. But on Tuesday, when voters also pick presidential candidates, mayors and school board directors, the integrity of the November election in Wisconsin, and the nation, is surely on the ballot.
Judge Jill Karofsky, who serves on a criminal court bench in Dane County, is the progressive candidate. I know Jill very well, as we were undergraduates together at Duke University. After college, we both moved to Washington, D.C., where Jill worked on Capitol Hill and then returned to Wisconsin to earn her law degree.
She built a long and distinguished career as a prosecutor and victims’ advocate, serving two Republican attorneys general as a statewide domestic violence prosecutor and director of the office of crime victim services. She was then elected to the bench.
The Democratic Party has embraced her candidacy, pumping $1.3 million into her campaign. But Jill is still getting outspent on the airwaves by massive amounts of money run through the national Republican State Leadership Committee (RSLC) and the state chamber of commerce. These players want to not only elect Kelly but guarantee victory for Trump in Wisconsin in November.
But they need to deceive voters in order to do it. The ads run by the RSLC earned a “Pants on Fire” from PolitiFact for outright lying about Karofsky’s record as a criminal prosecutor. Karofsky has sued the RSLC, but false ads are still running with millions of dollars of television time behind them.
Dan Kelly had zero prosecutorial or judicial experience when Scott Walker plucked him from the advisory board of the conservative Wisconsin Institute for Law and Liberty. Kelly oversaw defending some of the Walker administration’s most partisan actions, including redistricting maps in 2011 that have helped Republicans keep control of both houses of the legislature.
That same Wisconsin Institute for Law and Liberty tried at least six cases in front of the Supreme Court since 2016. Kelly didn’t recuse himself from a single one and ruled in their favor every time.
And guess who is pushing the voter purge case? The Wisconsin Institute of Law and Liberty.
Meanwhile, Karofsky has been on offense throughout the campaign. She has called out Kelly’s corruption, and earned the support of current and former high court justices, a bipartisan group of law enforcement officials, almost every elected Democrat in the state, organized labor, Planned Parenthood and Wisconsin Conservation Voters. Her three-decade legal career dwarfs Kelly’s experience and shows a clear commitment to a functioning and fair judicial system where everyone is treated equally.
Her accomplishments don’t end in the courtroom. Karofsky’s a two-time Ironman triathlete, an accomplished long-distance runner (she finished a 50-mile run in the middle of her campaign) and a single mom to two teenagers.
It would be easy to overlook a non-partisan judicial race in the middle of the country right now. With wall-to-wall coverage of the coronavirus pandemic and Donald Trump turning his daily briefings into a two-hour reality train wreck, it is hard to focus on anything else.
But we must. The outcome of this race could have a dramatic impact on the general election, and it’s certain to affect how laws are applied in Wisconsin for at least the next decade.
The Republicans are pulling out all the stops. While Donald Trump tweets about this race, Republicans in Wisconsin are refusing to consider allowing the state’s voters to vote by mail and stay safe next Tuesday. They either don’t mind putting voters at risk, or they believe voters will be scared to show up and that low turnout will benefit their unqualified candidate.
Maria Cardona is a longtime Democratic strategist and co-chair of the Democratic National Committee's rules and bylaws committee for the party's 2020 convention. She is a principal at Dewey Square Group, a Washington-based political consulting agency, and a CNN/CNN Español political commentator.
April 6
Washington Post, Wisconsin Supreme Court blocks order by governor to stop Tuesday’s elections, Amy Gardner, Elise Viebeck and Dan Simmons, April 6, 2020. The decision by the court came hours after Gov. Tony Evers (D) issued an executive order suspending in-person voting, citing the intensifying health threat of the coronavirus pandemic. GOP lawmakers immediately filed a legal challenge.
The Wisconsin Supreme Court blocked Gov. Tony Evers’s executive order suspending in-person voting in Tuesday’s elections, launching a final scramble for election officials to prepare polling places and protect voters and workers hours before balloting was scheduled to begin.
The decision came the same day Evers (D), right, issued the order, which had prompted an immediate legal challenge from Republican lawmakers who argued that postponing the election would sow confusion. In a 4-2 decision, the state court offered no explanation for the ruling.
The rapid-fire series of developments unleashed a torrent of confusion across Wisconsin. After Evers issued the order, some local governments announced that voting was canceled, while state officials urged election clerks to proceed as if the polls would open. Legal experts, meanwhile, questioned whether Evers’s actions were constitutional.
The bitter showdown presented a grueling test case for other states planning primaries during the coronavirus pandemic, not to mention the November elections. It also foreshadowed the likelihood that Wisconsin, by some measures the most important presidential battleground state, could become the epicenter of partisan rancor as the health crisis continues to upend the 2020 race.
Meanwhile, the U.S. Supreme Court on Monday stopped a plan for extended absentee voting in Tuesday’s Wisconsin primary, turning aside pleas from Democrats that thousands of the state’s voters will be disenfranchised because of disruptions caused by the pandemic. The ruling was 5 to 4, with the court’s conservatives in the majority.
The day’s events left voters and local election officials reeling — and left open the questions of how many poll workers would show up Tuesday, how many polling sites would be able to open and whether sufficient precautions would be possible to prevent the spread of the pandemic.
Slate, Commentary: By a 5-4 Vote, SCOTUS Lets Wisconsin Throw Out Tens of Thousands of Ballots, Mark Joseph Stern, April 6, 2020. On Monday, by a 5–4 vote, the U.S. Supreme Court approved one of the most brazen acts of voter suppression in modern history.
The court will nullify the votes of citizens who mailed in their ballots late — not because they forgot, but because they did not receive ballots until after Election Day due to the coronavirus pandemic.
As Justice Ruth Bader Ginsburg, right, wrote in dissent, the court’s order “will result in massive disenfranchisement.” The conservative majority claimed that its decision would help protect “the integrity of the election process.” In reality, it calls into question the legitimacy of the election itself.
Wisconsin has long been scheduled to hold an election on April 7. There are more than 3,800 seats on the ballot, and a crucial state Supreme Court race. But the state’s ability to conduct in-person voting is imperiled by COVID-19.
Thousands of poll workers have dropped out for fear of contracting the virus, forcing cities to shutter dozens of polling places. Milwaukee, for example, consolidated its polling locations from 182 to five, while Green Bay consolidated its polling locations from 31 to two.
Gov. Tony Evers asked the Republican-controlled Legislature to postpone the election, but it refused. So he tried to delay it himself with an executive order on Monday. But the Republican-dominated state Supreme Court reinstated the election, thereby forcing voters to choose between protecting their health and exercising their right to vote.
Because voters are rightfully afraid of COVID-19, Wisconsin has been caught off guard by a surge in requests for absentee ballots. Election officials simply do not have time, resources, or staff to process all those requests.
As a result, a large number of voters — at least tens of thousands — won’t get their ballots until after Election Day. And Wisconsin law disqualifies ballots received after that date. In response, last Thursday, a federal district court ordered the state to extend the absentee ballot deadline. It directed officials to count votes mailed after Election Day so long as they were returned by April 13. A conservative appeals court upheld his decision.
Now the Supreme Court has reversed that order. It allowed Wisconsin to throw out ballots postmarked and received after Election Day, even if voters were entirely blameless for the delay. (Thankfully, ballots postmarked by Election Day but received by April 13 still count because the Legislature didn’t challenge that extension.)
In an unsigned opinion, the majority cited the Purcell principle, which cautions courts against altering voting laws shortly before an election. It criticized the district court for “fundamentally alter[ing] the nature of the election by permitting voting for six additional days after the election.” And it insisted that the plaintiffs did not actually request that relief — which, as Ginsburg notes in her dissent, is simply false.
538.com, Election Preview: Yes, Wisconsin Still Plans To Hold Its Primary On Tuesday, Nathaniel Rakich, April 6, 2020. Even though 16 presidential primaries have now been postponed amid the COVID-19 pandemic, Wisconsin is forging ahead with Tuesday’s election as scheduled. In fact, Wisconsin will likely be the only state to host an in-person presidential primary in the entire month of April.
So why didn’t Wisconsin reschedule? Well, it was harder for Wisconsin than other states because it is also holding general elections for several local offices — judges, mayors, county executives — including some whose terms begin on April 20 (so the election had to take place before then). In addition, Democratic Gov. Tony Evers, probably did not have the power to alter the election without the consent of the Republican legislature, and that was always unlikely given the bad blood between the two.
In fact, not only did Evers and the legislature not change the date of the election, but they have also been unable to agree on any statutory changes to the state’s election procedures in the face of restrictions on gatherings because of the coronavirus. For instance, on March 27, Evers called for the state to mail a ballot to every registered voter, but legislators (and election officials) immediately shot down his proposal as logistically infeasible. And late last week, Evers attempted to call a special session of the legislature to delay the election, but legislative leaders declined to take up his proposal, saying the election should continue as planned.
As a result, the administration of Tuesday’s election could be a disaster, as the state’s election infrastructure strains under the weight of the coronavirus crisis. As of Sunday, 1,268,587 absentee ballots had been requested for the election — far more than election officials are equipped to handle. Not only is that almost six times as many as were cast in Wisconsin’s 2016 presidential primary, but it’s also probably a higher volume of absentee ballots than Wisconsin has ever handled. In the 2016 general election, for instance, only 819,316 absentee ballots were counted.
In addition to the avalanche of ballots arriving by mail, polling places may also be overwhelmed on Tuesday due to a dire shortage of poll workers. As of last Tuesday, almost 60 percent of municipalities in Wisconsin did not have enough poll workers, and more than 100 did not have any. The situation was critical enough that Evers has asked members of the Wisconsin Army National Guard to staff some precincts, but it is still not expected to be enough. As a result, many communities have drastically reduced the number of polling places that will be open on Tuesday; for example, Milwaukee, which normally has 180 polling places, will have only five. Not only could this confuse voters who show up to their normal polling place only to find it shuttered, but it could also lead to big crowds — in violation of public-health recommendations — at the few places that remain open.
Amid all this chaos, on Thursday, the courts even stepped in. In response to a lawsuit seeking a number of changes to the election, a federal judge said it was not his place to delay the election and slammed Evers and the legislature for not doing so; however, he did loosen a few absentee-voting rules. Voters were given an extra day to request absentee ballots, and the deadline for absentee ballots to be received was extended from April 7 to April 13 — creating a very unusual situation in which absentee voters can theoretically cast their ballots after the in-person Election Day on Tuesday.2
However, Republicans are now asking the U.S. Supreme Court to allow only ballots postmarked by April 7 to count (although, in a departure from Wisconsin’s usual election law, they would still be able to arrive late). The result of this legal fight could affect when we get actual results from Wisconsin, as after implementing the April 13 deadline, the judge also instructed election officials to not report any election returns until then.
Indeed, the circumstances of the election have overshadowed any suspense over the actual results — maybe because there isn’t any, at least at the top of the ticket.
Despite Sen. Bernie Sanders’s decisive win in Wisconsin in the 2016 Democratic primary, he is a clear underdog this time around. According to the FiveThirtyEight forecast, former Vice President Joe Biden has a 7 in 8 (88 percent) chance of winning the Wisconsin primary, while Sanders has just a 1 in 8 (12 percent) chance — although the forecast doesn’t “know” about the unusual circumstances of the election, so maybe there’s more uncertainty than the math implies.
In our average model run, Biden gets 58 percent of the vote to Sanders’s 40 percent, although the only recent poll of the contest — from Marquette Law School — gave Biden a strong 28-point lead. Regardless of the exact margin, though, Sanders is unlikely to pull off the win — and even if he does, Biden is already so far ahead nationally that it probably won’t matter. According to ABC News, Biden currently leads Sanders by 312 pledged delegates, but Wisconsin is worth only 84, so Sanders would need a lot of other things to go right as well.
Instead, the Wisconsin race featuring the most intrigue is probably the one for state Supreme Court. Conservatives have a 5-2 majority on the court, but liberals could cut that to 4-3 if Jill Karofsky defeats incumbent Daniel Kelly on Tuesday. Recent Wisconsin Supreme Court elections have been razor-close, too, and the outcome of this race could have national implications for the 2020 election and beyond.
The court may ultimately decide whether Wisconsin must remove up to 209,000 people from the voting rolls ahead of the 2020 general election; Kelly had previously served as an adviser to the conservative group suing to force the purge. Additionally, with federal courts no longer taking up gerrymandering cases, the state Supreme Court could eventually decide the constitutionality of the congressional map Wisconsin draws after the 2020 census, too.
- Washington Post, Wisconsin legislature comes under fire for ‘unconscionable’ decision to hold primary, Felicia Sonmez, April 6, 2020 (print ed.). Two members of the Wisconsin Elections Commission voiced their concerns in a letter to the leaders of the state’s legislature before Tuesday’s election.
Associated Press via WKBT-TV / News800 (La Crosse, WI), Governor Evers orders delay of Tuesday election to June, Staff report, April 6, 2020. Wisconsin Gov. Tony Evers, right, has issued an executive order to delay the state’s scheduled Tuesday presidential primary election for two months because of the coronavirus pandemic.
The move on Monday injects more chaos and last-minute uncertainty amid growing criticism about the state’s harried efforts to allow for in-person voting.
The Democratic Evers had previously opposed moving the election. But he acted as poll sites closed because nervous volunteers were unwilling to staff them and as criticism about holding the election grew. The order was expected to be immediately challenged in the conservative-controlled Wisconsin Supreme Court.
April 5
Politico, Analysis: Sanders’ ‘narrow path’ to victory gets even narrower, Holly Otterbein, April 5, 2020. Some in his inner circle have advised him to consider dropping out. Here is why Bernie Sanders is still running for president.
Bernie Sanders insists he has a “narrow path” to the nomination. But he and his aides refuse to say what it is.
A majority of the states and territories yet to vote rejected him in 2016. The national polls don’t offer much hope either — since Joe Biden defeated him in Arizona, Florida and Illinois on March 17, Sanders has trailed him by double-digits in every single national survey.
Days before the Wisconsin primary — the last major race on the presidential calendar for weeks — Whoopi Goldberg grilled Sanders on “The View,” pushing him to explain how he could still capture the nomination. He never spelled it out, instead arguing that “people in a democracy have a right to vote and have a right to vote for the agenda that they think can work for America, especially in this very, very difficult moment.”
Sanders' campaign manager, Faiz Shakir, and senior adviser, Jeff Weaver, have likewise declined to answer questions from POLITICO about what his path looks like. While it’s not yet mathematically impossible for him to win, Sanders would need to amass more than 60 percent of the remaining delegates to clinch the nomination — a mark he’s only hit in two states this year, Nevada and his home state of Vermont.
His path is so narrow that some of Sanders' senior aides have even advised him to consider dropping out, though not everyone in his inner circle feels the same way, according to people familiar with the situation.
Washington Post, Opinion: Wisconsin Republicans are exploiting the pandemic to grab power. It’s a dangerous precedent, Stephen Stromberg, April 5, 2020. Wisconsin Republicans have spent a decade eroding democracy in their state, entrenching their power against shifts in the popular will. With the help of former governor Scott Walker (R), GOP state lawmakers rammed through one of the most extreme gerrymanders the country has ever seen, assuring them a lock on the legislature.
They imposed stringent voter ID laws intended to suppress Democratic votes. And when Tony Evers (D) won the governorship in 2018, the legislature voted to strip him of the power to, among other things, alter government benefit programs, before he could take the oath of office. Conservative judges largely blessed these power grabs.
Now Wisconsin Republicans are testing whether taking a hard line on voting rules during the coronavirus crisis might give them an even more pronounced — and even less legitimate — electoral advantage. The state is set to hold its primary on Tuesday, and Republicans have filed an emergency petition with the Supreme Court, asking the justices to shorten the deadline voters have to submit their absentee ballots. This is just one example of Wisconsin Republicans insisting on rules that make it difficult to vote during this public health emergency, using the crisis as cover to limit democratic participation.
If they successfully benefit from exploiting covid-19 this week, they will show Republicans everywhere that they can use the coronavirus for political gain. The credibility of November’s presidential vote is at stake.
Unlike other states that have moved their presidential primaries, Wisconsin has stuck to its April 7 Election Day. The election will decide not just who gets the state’s primary delegates but also the final makeup of the state Supreme Court and a variety of local offices. Among those on the ballot is an extremely conservative Supreme Court justice up for reelection.
This is the context in which the state GOP has rejected pleas to make it easier for those who do not want to show up to a crowded polling location to vote.
The governor asked the legislature to relax a requirement that mail-in voters upload their voter IDs, despite the fact that some may not have the technology or the know-how to do so and cannot go to the libraries shuttered by the pandemic for help. Republicans refused. Evers asked lawmakers to extend the deadline for people to return absentee ballots, as a surge in requests overwhelmed state workers. State GOP leaders said no. He requested that every registered voter simply be sent an absentee ballot. No, again.
The courts have ordered only limited changes. U.S. District Judge William M. Conley on Thursday moved the ballot deadline, allowing ballots that arrive by April 13 to be counted. And he eased a requirement that all mail-in ballots be signed by a witness — a nonsensical standard in the era of social distancing. State and national Republican officials appealed the ruling, and the U.S. Court of Appeals for the 7th Circuit stayed Conley’s adjustments to the witness signature rule. Republicans’ emergency Supreme Court petition asks the justices to roll back part of Conley’s deadline extension, too.
The result is that, barring some last-minute shift, many Wisconsans will have to choose between risking their health to vote in-person and not voting at all.
But voting in-person is not much of an option. Thousands of polling workers have said they will not show up. Polling places across the state will be closed. If people can even find an open location, they will be jumbled with many others who would usually vote elsewhere, risking the spread of disease between communities who are otherwise sheltering apart.
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