2020 elections

Wisconsin Court Reinstates Tuesday’s Mid-Pandemic Primary

Governor Tony Evers was thwarted in attempting to pull a DeWine and stop in-person voting. Photo: Jose Luis Magana/AP/Shutterstock/Copyright (c) 2019 Shutterstock. No use without permission.

In a decision that might have been considered shocking coming from anywhere other than the conservative majority in hyper-polarized Wisconsin, that state’s Supreme Court granted a petition from Republican legislators to overrule the Democratic governor’s efforts to halt in-person voting in the presidential and down-ballot primary scheduled for tomorrow, April 7. That means voting will limp along at the few polling places available where both poll workers and voters are willing to risk infection with COVID-19. The Milwaukee Journal Sentinel has the sad story:

In a brief 4-2 ruling, the court undid an emergency order that Evers issued that would have closed the polls. … Monday’s on-again, off-again election triggered chaos across the state as election officials told clerks to continue preparing for an election because they did not know whether the polls would open. Before the court acted, at least two local government leaders as of Monday afternoon issued their own orders to block in-person voting.  

Evers’s order came after protracted efforts by him to negotiate with, or pressure, legislators to postpone the primary — or at least to facilitate voting-by-mail (not a favored way of voting in Wisconsin in the past) by mailing all registered voters a ballot. The order also contradicted his earlier claim he did not have the authority to change election rules without legislative concurrence, and was apparently modeled on Ohio Governor Mike DeWine’s more successful last-minute action to shut down that state’s primary on March 17.

So voting will start Tuesday morning, at least where it’s available, making Wisconsin the only state sponsoring in-person voting this entire month. Its largest city, Milwaukee, will only have five of 180 polling places open for business thanks to shortages of poll workers (7,000 are expected to stay home statewide). The efforts of Republican lawmakers to keep the election on-schedule suggests they are perfectly happy with a low-turnout. Indeed, one motivation is the fact that April 7 also features balloting for a much-coveted Supreme Court slot, as Ian Millhiser observes:

There is some evidence suggesting that Republicans stand to gain if much of the state is unable to vote in Tuesday’s election. Next to the presidential primary, where polls show that former Vice President Joe Biden is likely to trounce his remaining primary opponent Sen. Bernie Sanders (I-VT), the most important race on the ballot Tuesday is a state Supreme Court race between incumbent Justice Daniel Kelly and challenger Judge Jill Karofsky.

Though Wisconsin Supreme Court races are nominally nonpartisan, Kelly is a conservative appointed to the court by former Republican Gov. Scott Walker. Karofsky is broadly supported by liberal groups and is widely viewed as the Democratic alternative to Kelly.

Kelly recused himself from the latest case, but the four judges voting to move ahead with the election are fellow-conservatives. This isn’t a primary, but in effect a judicial general election.

While the state Supreme Court decision appears to determine when the primary officially begins, a different Republican appeal to a different court may determine when it ends. Federal district court judge William Conley ruled late last week that the state had to keep absentee ballot voting open through April 13, given the dangers associated with in-person voting, and the big backlog of absentee ballot requests that election officials were not able to handle before the primary. Conley also did not stipulate any deadline for when mail ballots had to be postmarked, and in a later ruling ordered election officials to hold back on reporting returns until April 13.

Republican legislative leaders promptly protested that Conley’s rulings effectively usurped their ability to determine the primary date, and asked the U.S. Supreme Court for an emergency stay to reinstate the previous rules (under which absentee ballots postmarked after April 7 would be discarded). Shortly after 7 p.m., the Supreme Court sided with Wisconsin Republicans in a 5-4 majority to block the extension of absentee voting. In the dissent, Justice Ginsburg wrote that the decision will bring “massive disenfranchisement.”

Lord only knows what voters will think about the situation when the sun comes up in Wisconsin on Tuesday, but if the state’s Republicans wanted to discourage any confidence in the system, they’ve undoubtedly already won.

Wisconsin Court Reinstates Tuesday’s Mid-Pandemic Primary