At Supreme Court, Suppressing the Vote in a Pandemic

      Every vote counts: that’s the mantra repeated time and again as Election Day approaches.  For Democrats and progressives, it is a call to action: get to the polling place. For Republicans and conservatives, it is a call to action as well, not to encourage voters but to ramp up and fortify roadblocks for would-be voters.

      Republicans from President Trump down are now saying aloud what was once only an accusation: they want to make it harder for people to vote because they view low turnouts as good for Republicans and higher turnouts as better for Democrats. Trump acknowledged the strategy for all to see when he sneered at Democrats’ election reform proposals that they wanted to add to the coronavirus stimulus bill.

      “The things they had in there were crazy,” Trump said in an appearance on Fox and Friends on March 30. “They had things, levels of voting that if you’d ever agreed to it, you’d never have a Republican elected in this country again.”

      To its lasting discredit, the Roberts Court lent its support to this strategy with a politically divided 5-4 decision last week [April 6]  that defied social distancing guidelines by making it harder and in fact dangerous for people in Wisconsin to cast ballots in Tuesday’s statewide and local elections . The Court, sitting a few miles away from Trump’s White House, threw out a decision by the on-the-scene federal judge in Wisconsin to extend by a few days the deadline for mailing absentee ballots to be counted.

      Republicans and Democrats have been at odds in traditionally Democratic Wisconsin for years over voting rights. With Republicans controlling the legislature and the governor’s office, the state adopted a somewhat strict voter ID law in 2011 that appears from statistical studies to have dampened turnout in solidly Democratic Milwaukee in the November 2016 election just enough to allow Trump a narrow victory for the state’s ten electoral votes.

      The partisan confrontation over voting rules peaked this year as the state’s Democratic governor, Tony Evers, sought to delay the April 7 election till June to allow more time for voters to cast ballots by mail to avoid the risk of coronavirus infections in Election Day voting lines. The Republican-controlled legislature refused to go along, but U.S. District Court Judge William Conley crafted a remedy for the problem with his ruling  five days before the election [April 2] in a suit brought by the Democratic National Committee along with election reform groups and individual Wisconsin voters.

      Acknowledging the delays in mailing absentee ballots to voters, Conley ordered that county clerks count absentee ballots if received by April 13 even if mailed after Election Day itself, April 7. The Republican National Committee asked the Seventh Circuit Court of Appeals to stay Conley’s ruling, but the appeals court refused. With that, the RNC raced to the Supreme Court, hoping for a better result from the five Republican-appointed justices.

      The Court’s decision to stay Conley’s ruling, set out in an unsigned, four-page opinion, is formalistic to the max. The Court reasoned that Conley went too far by fashioning a remedy that the plaintiffs had not specifically requested and reasoned further that Conley had violated a court-made rule against changing voting procedures too close to an election.

      Compounding the difficulties, local election officials in Wisconsin could not find enough poll workers to open the usual number of polling places — for example, only five polling places in Milwaukee instead of the usual number, 180. The result: long lines of voters, wearing masks and trying to social distance, many of them in line for two hours or longer to cast their votes.

      Writing for the four liberals in dissent, Justice Ruth Bader Ginsburg gave the conservative majority perhaps more credit than they deserved by specifically disclaiming any intention to question their “good faith.” But she made clear the impact of the decision in the opening paragraph of a strongly worded, six-page dissent. The Court, she stated, “intervenes to prevent voters who have timely requested absentee ballots from casting their votes.”

      Ginsburg underscored the illogic of the Court’s decision, given the “unprecedented” number of requests for absentee ballots — 1 million more than in 2016 — and the resulting backlog of unmailed ballots.,. Absentee voters, she explained, would be required to postmark their absentee ballots by Election Day, April 7, “even if they did not receive their absentee ballots by then.” If that is the law, Charles Dickens would add, “the law is an ass, an idiot.”

      Distressingly, Wisconsin may be only the first of many states to face voter access issues in an election year with difficulties compounded by the coronavirus pandemic. From the White House, Trump has made totally unsubstantiated allegations that the indicated remedy — all-mail balloting — will lead to voter fraud. He has no more evidence for that claim than he had for his debunked claim that he lost the popular vote in 2016 because of voter fraud.

      With the election still seven months away, Trump appears likely to lose the popular vote again, but he could eke out an Electoral College majority if he gets enough help in enough Republican-controlled states to skew their votes in his favor even as voters nationwide vote to turn him out. The stakes for free and fair elections in our American democracy could hardly be higher.