Ranting On...the Wisconsin Supreme Court Race

Jill Karofsky (D-WI)

I've been following politics for a long time.  Like, you take a man my age, assume when even liberally someone my age would be interested in politics, and still add about ten years onto it-that's how long it's been.  And yet, the Wisconsin Supreme Court race that happened on Tuesday was completely unprecedented.  Due to me having some work commitments earlier this week, I wasn't able to write about this, but I have some time today, and because we still don't know the results, it feels topical to have this discussion now, because it's probable that something like this will happen again later this year as we continue to find a way to cope with both coronavirus and how to run a democracy.

For those who didn't see this in the news (we're in an era where a lot of what would be very important stories are completely overwhelmed by updates on the COVID-19 pandemic, so you're forgiven if you haven't gotten this story, but please pay attention as it's important), earlier this week, Wisconsin held both their presidential primary and a Supreme Court race.  With Sen. Sanders dropping out of the race (almost certainly on Wednesday rather than earlier in the week in hopes of helping with the Supreme Court race-Sanders & Biden had both gotten behind the Democratic candidate Jill Karofsky in a big way, and it's probable the Vermont senator wanted to help Karofsky as much as he could by driving up Democratic support in the Badger State), the presidential primary results are mostly symbolic at this point.  While everyone who hasn't had a voice should still take the opportunity to vote in the presidential primary, Joe Biden will be the Democratic nominee in 2020-it is a mathematical & practical certainty.  The important race was a down-ballot contest for control of a Supreme Court seat.

There were clear problems with the Supreme Court election headed into Tuesday.  Most other states, whether they have Republican governors (Georgia, Ohio) or Democratic (Hawaii, Connecticut) have all delayed their upcoming elections, both in hopes of not having the elections during the COVID-19 outbreak (not all states are doing shelter-in-place, but over 40 are currently), as well as to find ways to expand absentee balloting & voting in these places, a much safer form of casting ballots in the coming months.  Wisconsin, though, did not do this.  Initially both Gov. Tony Evers (a Democrat) and the Republican-led legislatures agreed that the solution was to continue to hold in-person elections, but to vastly push for absentee ballots for voters across the state.  Wisconsin is a no-fault absentee ballot state, meaning you do not need a reason to request an absentee ballot (as you can see in the linked map, some states require you to either be traveling, sick, or have some sort of disability to preclude you from going to the polls in order to get an absentee ballot); getting more voters to vote absentee makes sense-it ensures less risk of crowding at the polls.

But it became clear as April 7th approached that the social distancing orders from Gov. Evers would not be able to be safely relaxed to allow even for a lower-than-expected turnout.  As a result, Evers started to push for a delayed election, one where they could expand absentee ballot access, first through trying to cooperate with the state legislature and then through executive order.  He was overruled, though, by the Wisconsin Supreme Court (along partisan lines).  Furthermore, a US Supreme Court edict (again, along partisan lines), declared that all absentee ballots needed to be postmarked by April 7th.  This was a huge problem because while many voters had requested the absentee ballots by the deadline, they had not received their ballots as of Election Day.  There were reports across the state of hundreds of people who had not yet received their absentee ballots even though they'd met the request deadline, and as a result, either had to vote in-person or not at all.  They also ruled that, despite a window from US District Judge William Conley that voters could submit their absentee ballots without a witness signature (if they could prove that, due to shelter-in-place, they didn't have access to another adult voter), that was overturned too, invaliding even more absentee ballots.  And finally, because it was too hard to find poll workers willing to risk their lives for the election, many large precincts didn't have enough polling places for the number of voters anticipated.  Milwaukee, a city of 600,000 people, which normally would have 180 precincts for an election like this, only had five; nearby Waukesha, which had 72,000 people, only had one polling place open.

Gov. Tony Evers (D-WI)

All of this pointed to a joke of an election, one that could hardly be called democracy.  According to initial reports, only 19,000 people voted in-person in Milwaukee County, compared to 190,000 in 2016, a 90% reduction in the city with the highest African-American population (and a Democratic stronghold).  Electoral inconsistencies abound, particularly with the postmarked rule.  Since most elections require you get the absentee ballot to arrive by Election Day, rather than postmark it, there isn't usually an issue with postmarks, but here they do matter, and there have been reports of letters that weren't postmarked (not as common of a practice as it used to be), thus potentially invaliding even more ballots through no fault of the voter.  Elections clerks have found ballots that arrived as early as Wednesday (a certainty that they were mailed by the deadline) that weren't postmarked, and now risk invalidation unless the courts intervene.

Results for the race won't be released until Monday (it's hard to tell whether this is a smarter decision to avoid conspiracy theories or whether it's the worse of two evils to avoid such conversation), but the damage is done.  Regardless of which side wins (and based on most elections analysis of the data we have so far, despite the interference of conservative judges, it will probably be a very close race thanks to a late surge in absentee ballots from Milwaukee & Madison), it will be difficult to call this a "legitimate" election where there was any effort from the Republicans in control of the state legislature to keep turnout among legal Wisconsin voters high (which should be the goal of all elections-as high of turnout as possible).  And even though it will have a stench of illegitimacy, the victor will still get a ten-year term on the bench where they will decide countless cases.

There's both a broad and a specific lesson here.  Democrats have a tendency, in these sorts of situations, to say "that's unfair!," tweet #MoscowMitch, and then move on, feeling that they did something and remained within the rules when in fact they've just helped make the problem worse.  The thing is-there's something Democrats could be doing right now but aren't.  One of the bigger issues here was that Democrats waited until the last minute to request their absentee ballots.  This could easily be avoided in all future elections.  It should be safe to assume that at least for any election held in the next 2-3 months, there will be some sort of social distancing (either government-mandated or medically-encouraged) in most areas of the country, so avoiding a long line at your polling place would be wise to do.  There are, as of today, 17 states that have either upcoming presidential and/or congressional primaries where you can request a no-excuse absentee ballot for the primary (or general) today, and immediately start getting your ballot.  These states are Georgia, Idaho, Indiana, Iowa, Maine, Maryland, Montana, Nebraska, New Jersey, New Mexico, Ohio, Oklahoma, Pennsylvania, South Dakota, Virginia, Utah, and West Virginia.

If you are a voter in those states, do it now.  Don't "I'll get around to it," don't "Yep, that's going on the list."  Finish this article, and go & do it.  Wisconsin should be a wakeup call for every Democrat in the country that it will be very easy for Republicans in certain portions of the country to throw their hands up in the air close to an election and say "we don't have enough ballots!" & not honor absentee ballots requested by the deadline.  The only way to stop this is to get ahead of it and request your ballots now, and encourage your friends & family to do the same.  If you live in one of these 17 states, this is now your job for the weekend (you're already at home anyway).  If you don't live in those states, it's now your job to contact your Elections Website and ask "when can I request my absentee ballot?" & add it to your calendar (I have a lot of Minnesota readers so I did this for you-we can start requesting in early May for our upcoming congressional/legislative primaries).  If Democrats do this, it'll ensure that those last-minute ballot requests will be coming from conservatives, not them (or, hopefully, all voters do this and we don't have a problem with last-minute ballots-this should be a non-partisan issue).  Republicans have shown their hand here-Democrats now have the ability to out-maneuver it.  Wisconsin voters deserve our pity because they didn't know this was coming; any other voters in this situation (and believe me, there will be other states that pull this), deserve our shame for not learning from Wisconsin's misery.  And for those who are putting it off because the Democratic primary is done (what's the point?) remember that there are down-ballot primaries that are contested, local elections that are contested, and frequently the performance of a candidate in a primary will dictate the kind of donations they receive.

There's also the fact that you should vote in every election, because you never know when it will matter.  Even primaries.  And the reason for that is on full-display in Wisconsin, which brings me to my last point: don't skip elections.  Jill Karofsky, the liberal in this race, should she win, will not change the makeup of the Wisconsin Supreme Court.  The court is currently 5-2 in favor of the conservatives, so she'll only give the Democrats a closer margin in the state.  The next time a seat is up (provided there isn't an unexpected vacancy) is 2023-that will be the next time the Democrats have a shot of taking a majority in the (clearly) important Supreme Court contest.  If Karofsky doesn't win, they won't (provided there isn't an unexpected vacancy) have a shot at the Court until 2026, and they'll need to hold Ann Bradley's (one of the Court's two liberals) seat in 2025 to even get there.

The heartbreaking thing here is that it didn't have to be this way-Karofsky easily could have been joining a liberal court, or perhaps be the deciding factor here.  Winning control of a body like the Wisconsin Supreme Court, where a majority is made-or-broken over a series of elections rather than just one, is like a game of chess, but Wisconsin Democrats have made a number of forced and unforced errors in the past decade that they could've used to win this body.  In 2017, they didn't put up a candidate against conservative Justice Annette Ziegler, likely disenchanted by the fact that Donald Trump had just won the state & thus the White House.  However, a year later Democrat Rebecca Dallet won an open seat by double-digits over a conservative; had the Democrats gone after Ziegler in a similar way, they might have been able to ride early anti-Trump sentiment to a win.

Judge Lisa Neubauer (D-WI)

That was an easy mistake.  The harder ones were three elections in the last decade that were decided by single digits, two of which were decided by less-than-a-point.  Lisa Neubauer just last year could have beaten Brian Hagedorn, but lost by 0.5 points.  Joanne Kloppenburg took on David Prosser and Rebecca Bradley in 2011 & 2016 (respectively) and lost by 0.5 points and 4.6 points (again, respectively).  Democrats care enough to drive a stronger turnout in just one of these contests, Karofsky is the deciding vote in a body that will play a strong hand in how the November election in the "most important swing state" on the map will be conducted.

Missing elections is always a problem for Democrats.  The easiest & most heartbreaking recent example of this would be Merrick Garland.  When he was nominated for the Senate, the Democrats were four votes shy of having the majority, and with that, Garland being confirmed (Schumer would've done the nuclear deal if it meant Garland on the Court).  In the previous two midterms, where the Democrats had been obliterated due to low turnout ("Obama is there, so why should I care?"), Democratic candidates Alexi Giannoulias (IL), Joe Sestak (PA), Kay Hagan (NC), and Mark Udall (CO) had all lost by 2-points or less, as had Shelley Berkley (NV) in 2012, who would have won had just a handful more Obama voters bothered to fill out their ballots rather than skip the Senate line.  If you get four of these candidates into the Senate (an extremely plausible scenario given the closeness of their races & the low turnout in the contests), Merrick Garland becomes a Supreme Court justice, and the Democrats hold the majority in the Supreme Court rather than us getting arguably the most conservative court in a generation.  Democrats "not being super excited" put at risk gay marriage, abortion, healthcare, and pretty much everything that Joe Biden, Bernie Sanders, & Elizabeth Warren have been pushing for on the campaign trail.  And of course, it put at risk Tuesday's election.

So what's the lesson here?  What happened in Wisconsin this past week is a joke, bordering on the criminal-that someone wants to call this election democracy is abhorrent.  But until we can change the rules, we have to try to beat them.  No matter how inconsequential or "safe" your next elections may be, if you live in one of those 17 states I listed above, you need to request your absentee ballot now.  If you don't, you need to check to see what your options are and when you can start requesting your absentee ballots are now.  And you have to stop skipping elections, even primaries.  You literally never know when a random special election or a random legislative contest suddenly will be deciding a future you didn't want, but that you caused by not voting.