Wisconsin is a test case for coronavirus GOP voter suppression in November (updated)

A lot has been happening in Wisconsin since Friday when a federal district court declined to delay Tuesday’s primary, but allowed absentee ballots to be counted if they arrive by April 13 — six days after election day, extended the time to request an absentee ballot, and loosened the rules for witness certification for an absentee ballot request.

The 7th Circuit Court of Appeals ruled the same day on motions for stay of the district court’s order. Rick Hasen reports, Breaking: 7th Circuit Grants in Part, Denies in Part Order Modifying Wisconsin Election Procedures:

You can find the 7th Circuit’s order at this link. In the unsigned order, the court denied a request to stay that portion of the extending the time for requesting an absentee ballot in the upcoming Wisconsin election by one day and extending the time for receipt of absentee ballots until April 13. The court granted a stay of that part of the district court’s order which allowed people who could not get witness certification for an absentee ballot request to provide instead an attestation that they were unable to do so. [This language has been tweaked to clarify the partial grant of a stay.]

The appeals court noted that neither party appealed that part of the district court’s order declining to extend the date of the election.

Amy Howe at SCOTUSblog reports that on Saturday, Wisconsin Republicans ask justices to intervene after lower court extends deadline for primary absentee ballots:

In an emergency filing arising from the COVID-19 crisis, the Republican National Committee and Wisconsin Republicans tonight asked the Supreme Court to block a lower-court order that extended the deadline for Wisconsin voters to submit absentee ballots in the state’s upcoming primary election until April 13 – six days after the election, which is scheduled for Tuesday, April 7. Instead, Wisconsin Republicans urged the Supreme Court to make clear that all “absentee ballots must be postmarked (or personally delivered to the polls) no later than April 7 in order to be counted.”

Amy Howe at SCOTUSblog reports that also on Saturday, Democrats urge justices to stay out of Wisconsin primary dispute:

In their 20-page filing, Wisconsin Democrats began by noting that Wisconsin, “unlike nearly a dozen other States, has decided to proceed with its April 7, 2020 election in the midst of the worst national health emergency since at least the Great Influenza of 1918-20.” They stressed that their Republican opponents “have now agreed with the initial relief” that Democrats had sought – “counting any ballot that is postmarked on or before election day, even if received later.” But they argued that the additional relief that the district court order provided — extending the deadline for the receipt of absentee ballots —  “is essential, because thousands will be disenfranchised without it.”

Wisconsin Democrats urged the justices to leave the district court’s order in effect and allow voters to return their absentee ballots through April 13. “If voters are not confident their absentee ballots will be counted,” the Democrats told the justices, “this will drive more people to vote in-person on election day, thereby increasing the risks of community spread through polling places in cities and towns throughout Wisconsin.” In contrast, they continued, the “narrow” order issued by the district court “dramatically reduces the need for person-to-person contact.”

Wisconsin Republicans have asked the Supreme Court to act on their request for a stay by Monday, April 6.

There has not been a ruling from the Supreme Court as of yet.

Also on Friday, Democratic Governor Tony Evers belatedly reversed course and urged a delay of the state’s Tuesday primary, calling for a special session of the Republican-controlled legislature on Saturday to consider a plan to cancel in-person voting and extend the deadline for mail-in ballots. Wisconsin governor, in abrupt reversal, urges delay of Tuesday’s primary.

Republican leaders quickly rejected Evers’s call for a special session. GOP lawmakers in Wisconsin rebuff calls to cancel in-person voting in Tuesday’s elections: Wisconsin’s legislature refused to take up a proposal to cancel in-person voting in Tuesday’s primaries and municipal elections. Only the legislature has the authority to move the date of the election in Wisconsin.

BREAKING: Democratic Governor Tony Evers of Wisconsin, following the recent precedent set by Republican Governor Mike DeWine of Ohio, who ignored a court order declining to postpone the Ohio primary by declaring a public health emergency because of the coronavirus outbreak and postponed the primary, issued an executive order today suspending all in-person voting for Tuesday’s primary and moved the date of the election to June 9 because of concerns about the coronavirus pandemic. Wisconsin Gov. Evers suspends in-person voting for Tuesday primary amid coronavirus concerns:

Evers’ order suspends in-person voting for the April 7 primary and moves it to June 9.

The order also convenes the state legislature for a special session on Tuesday to deal with the issue. The order also states that if the legislature does not enact legislation to change the new election date during its special session, in-person voting will occur on June 9.

State Republicans said moments after Evers’ order that they were “immediately challenging” it.

“The clerks of this state should stand ready to proceed with the election. The governor’s executive order is clearly an unconstitutional overreach,” Republican state Senate Majority Leader Scott Fitzgerald and GOP House Speaker Robin Vos said in a joint statement.

“The governor himself has repeatedly acknowledge he can’t move the election. Just last week a federal judge said he did not have the power to cancel the election and Governor Evers doesn’t either,” they added.

It is very likely that there will be a new state court case filed immediately seeking to enjoin the governor’s executive order, and a prompt ruling expected later today.

Whether Tuesday’s Wisconsin primary will actually occur tomorrow remains to be seen.

We now have had two governors defy their state’s laws to suspend a primary election — without any legal authority to do so — out of concerns over the coronavirus pandemic, because their state legislatures refused to act on requests to postpone the election date.

The rule of law is beginning to break down in America under the coronavirus pandemic. Defying the law and valid court orders in a standoff between governors and their intransigent state legislatures is a dangerous precedent.

The Washington Post editorialized today, before Governor Evers executive order, Republican intransigence in Wisconsin is stoking an electoral disaster:

DEMOCRACY CANNOT stop during the coronavirus crisis, which means state and local leaders must make voting as simple and as safe as possible under challenging circumstances. The alternative is the mess unfolding in Wisconsin, slated to vote on Tuesday, which shows what happens when leaders instead indulge negligence and partisanship. At almost every turn, Republicans have blocked efforts to make voting safer and fairer in the state, raising questions about the legitimacy of Tuesday’s elections.

Unlike other states that moved back their April presidential primaries, Wisconsin’s leaders have kept their vote scheduled for April 7. They are in a bind. In addition to the presidential primary, Wisconsinites are set to vote on dozens of state and local offices, some of which will soon turn vacant if voters do not choose replacements. Milwaukee Mayor Tom Barrett is up for reelection. So is controversial conservative state Supreme Court justice Daniel Kelly [the real reason all this is happening].

But the state is not ready. Some 7,000 poll workers have withdrawn, leading to widespread polling-place closures. In-person voters will have to cram into the small number of locations that will still operate. Gov. Tony Evers (D) is asking state workers and even National Guard troops to help staff them. The state is distributing gallons of hand sanitizer and using tape to mark out where voters should stand to observe proper social distancing principles. Some polling places have fashioned plexiglass into sneeze-guards to protect staff.

For voters, the obvious option is to vote by mail. But a surge in absentee ballot applications has led to long delays in processing requests and returning ballots to those who have asked for one. Mr. Evers last month asked the state legislature to relax the deadline for returning ballots, so that those postmarked by Election Day would still count, as well as a cumbersome requirement that absentee voters upload images of their ID. The Republican-led legislature refused. Mail-in voters face other unnecessary hassles, too: The state requires that a second party witness absentee ballots — at a time when public health officials are telling people to stay away from one another.

Republicans’ refusal to make reasonable adjustments at a time of emergency may well help their preferred candidate — Mr. Kelly — hold his seat on the state Supreme Court. Suppressing the vote tends to help conservative candidates, hence the GOP’s long-running effort to make voting harder through measures such as strict ID laws. During the covid-19 crisis, these tactics present an even more severe threat to democracy.

Polls also indicate that Republicans tend to be less concerned about coronavirus than Democrats. Wisconsin Assembly Speaker Robin Vos (R) encouraged people “sick of watching Netflix” to volunteer to be poll workers. This appeal might turn out more GOP votes, but it is a dangerous message.

“Forcing people to choose between their health and their vote is not the way to run a credible election.”

Stephen Stromberg at The Post adds, Wisconsin Republicans are exploiting the pandemic to grab power. It’s a dangerous precedent.

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 [elected] 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.

On Saturday, the governor forced the legislature to convene a special session to consider canceling in-person voting and giving Wisconsinites until late May to return mail-in ballots. GOP lawmakers met but did nothing.

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.

As covid-19 rages, state governments have a profound responsibility to help people find new ways to vote, and to stay safe doing it . . . Wisconsin Republicans, by contrast, are failing their people and betraying democratic principles.

* * *

Wisconsin Republicans are hardly an aberration. President Trump’s campaign is fighting efforts across the country to make voting easier during the coronavirus crisis. As Trump himself explained on Fox News last week, “If you’d ever agreed to it, you’d never have a Republican elected in this country again.”

The novel coronavirus can turn burdensome voting rules into prohibitive ones. This poses a far greater risk to democracy than tales of voter fraud. No one — not even Republicans who calculate they might temporarily benefit from lower turnout — should welcome that.

Oh, but they do! This is the actual GOP plan for voter suppression in November. The tyranny of the minority will resort to any means necessary to retain their authoritarian grip on power.

The Party of Trump is a political party which has lost all legitimacy and any right to continue to exist in a civilized democratic society. This anti-democratic authoritarian party needs to be soundly defeated from President on down to your local city council and school board. It needs to go the way of the Whigs and the Know Nothing Party of the 19th century, which the Republican Party of Abraham Lincoln replaced.

Never Trump conservative Republicans need to create a new political party from the ashes of the Republican Party aka The Party of Trump after Trump. They should have already done so.

UPDATE: The Wisconsin Primary is on for Tuesday, blatant GOP voter suppression and the public’s health be damned. Rick Hasen reports, Wisconsin Supreme Court Orders Voting Back On for Tuesday. What’s Next?

The state Supreme Court split along party lines [judges are elected in Wisconsin] 4-2 (with one Justice on the ballot recused) in rejecting Gov. Evers’ order suspending the election. The court kept only that part of the order calling a special legislative session tomorrow, but that session could be simply gaveled to a close without action.

So what’s next? There are a number of city orders, including in Milwaukee, keeping polling places closed. There may have to be state or federal court action to reopen them if this is not rescinded. If they stay closed, this could be a basis to go back to federal court and claim the election was not conducted constitutionally. (The federal court kept that door open in an earlier ruling.)

If you were hoping that the Roberts Supreme Court would do the right thing, you were hopelessly naive. The five conservative justices will back whatever actions Republicans take to retain power. Rick Hasen reports, Breaking: Supreme Court on 5-4 Vote Reverses District Court on Late-Arriving Absentee Ballots in Wisconsin Race. This is a Bad Sign for November in a Number of Ways.

[R]ead the opinion and dissent here.

In some ways, it is unsurprising that the Court divided 5-4 (conservative/Republican Justices against liberal/Democratic Justices) on a question whether the emergency created by COVID-19 and the dangers of in-person voting justified a district court order to extend the receipt of absentee ballots from April 7 to April 13 (only ballots postmarked by April 7 will be counted).

On the one hand, conservatives are wary of federal courts rewriting election rules at the last minute (the Purcell principle). On the other hand, the liberals point out that because of the backlog of absentee ballot requests, there are something like 10,000 voters who will not get an absentee ballot by April 7 in time to send it back. They see this as disenfranchisement because it is too dangerous for voters to go to the polls under the conditions of the pandemic. As Justice Ginsburg wrote in her dissent of these voters: “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.”

So this looks like a typical divide between conservatives who favor strict rules even when they risk disenfranchisement of voters versus liberals who are willing to modify election rules to protect voting rights. We’ve seen this play out many times in Supreme Court voting rights cases as in the past.

On the other hand, 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. Like the Wisconsin Supreme Court, the U.S. Supreme Court divided along partisan and ideological lines. Already in 2018, before COVID, the amount of election-related litigation had hit a record (data in my book, Election Meltdown). The year 2020 was likely to set a new record. But with election changes proliferating and a fight over expanded absentee balloting necessary to combat the COVID crisis, the amount of litigation is going to skyrocket. And it does not look like the courts are going to be able to do any better than the politicians in finding common ground on election principles.

This means that there is a lot of work to do now to try to avoid election meltdown. … But the message from today is: don’t expect the courts to protect voting rights in 2020.