Watching Wisconsin and Contemplating the Looming Crisis of Democracy in the U.S.

Today’s Politico headline says it well: “Wisconsin is holding the most dangerous election ever.”

As Natasha Korecki neatly explains: “At a time when the Surgeon General is warning that this week could be the nation’s most dangerous to date — comparing the scale of the potential loss to Pearl Harbor and 9/11 — Wisconsin is on the verge of becoming the only state in April that failed to find a way to delay voting.”

Wisconsin has long been a “bellwether” state. A pioneer of Progressive reform and indeed a bastion of socialism in the early part of the 20^th century, it has become a pioneer of anti-Progressive reaction in the 21^st century (a point developed in two fine books, Katherine J. Cramer’s 2016 The Politics of Rural Resentment and Dan Kaufman’s 2018 The Fall of Wisconsin). Former Republican Governor Scott Walker personified the politics of backlash, retrenchment, hostility to unions, and voter suppression during his eight years in office. And when Walker was defeated by Democrat Tony Evers during the “blue wave” of November 2018, he quickly moved, along with the Republican-controlled state legislature, to sign into law lame-duck legislation designed to limit the power of both the newly-elected governor and the newly-elected Democratic attorney general, and to limit early voting.

Wisconsin, in short, has long been the site of bitter conflict, now hidden, now open, between Democrats determined to protect and extend progressive legislation, including voting rights guarantees, and Republicans, who have sought by any means necessary to do in that state something similar to what Viktor Orban has successfully done in Hungary: to use the levers of executive. Legislative, and judicial  power to institutionalize control of the government and to severely weaken the possibilities for effective political opposition. And Wisconsin Republicans are not alone. Similar Republican efforts have been undertaken in many other states, most notably North Carolina and Georgia.

The current maneuvering over the logistics of today’s Wisconsin primary can only be understood in terms of this broader history. Just yesterday, on Monday, April 6, Governor Evers–who had sought without success to work with the Republican-controlled state legislature to postpone the election and put into place processes to make voting easier for citizens fearful of the pandemic– issued an Executive Order postponing the election. A few hours later Wisconsin’s state Supreme Court overturned the Order, requiring the primary election to go forward as planned, pandemic notwithstanding. Hours later the U.S. Supreme Court hammered a further nail in the coffin of democracy in Wisconsin, ruling against an earlier lower-court ruling allowing an additional week for absentee ballots to be counted.  

The result: the election is now going forward, and all absentee ballots must be postmarked by today, April 7, and received by April 13, in order to be counted. All special provisions to deal with the pandemic have thus been invalidated. And even though the citizens of Wisconsin, like the citizens of 41 other states, are  under a state Executive Order that they must shelter in place– avoiding work, family, friends, schools, and public spaces in general—they are now also being told that if they want to vote and they have not already procured an absentee ballot, then their only choice is to get in line at one of the few and very crowded polling places across the state, and wait for hours in the presence of scores of strangers, any one of whom could be contagious.

Republicans, holding majority power in the Wisconsin state legislature, the Wisconsin Supreme Court, and the U.S. Supreme Court itself, are intent on enforcing the narrowest possible interpretation of the law, democracy be damned. The SCOTUS majority decision put it succinctly: the change being contemplated “fundamentally alters the nature of the election.”  As if a pandemic that has placed the entire country into a veritable state of emergency has not “fundamentally altered the nature of the election.”

The SCOTUS minority Dissent, authored by the amazing Ruther Bader Ginsberg, has it just right, and is worth quoting at length:

“The majority of this Court declares that this case presents a “narrow, technical question.” . . .  That is wrong. The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic. Under the District Court’s order, they would be able to do so. Even if they receive their absentee ballot in the days immediately following election day, they could return it. With the majority’s stay in place, that will not be possible. 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. That is a matter of utmost importance—to the constitutional rights of Wisconsin’s citizens, the integrity of the State’s election process, and in this most extraordinary time, the health of the Nation.” 

What is stake is nothing less democracy itself. And not just in Wisconsin. For, as today’s New York Times quotes former Attorney General Eric H. Holder Jr., who now leads the National Democratic Redistricting Committee, an organizationfocused on gerrymandering and voting equality: “Wisconsin is just a microcosm. And it presents questions that the nation will soon have to grapple with. It’s a test of our democracy. And the question is, ‘Are we up to passing that test?’”

There is nothing new here. As Michael Waldman details in his excellent 2016 book The RFight to Vote, the struggle to secure and protect voting rights began with the founding of the American republic and continues to this day. And as Waldman also demonstrates, in recent decades Republican activists, elected officials, and judges have waged a determined struggle to restrict voter participation and curtail federal efforts to promote freer and fairer elections.

Waldman, the President of the Brennan Center for Justice at the NYU School of Law, last week published a piece that states plainly the challenge now before us: “Both Parties Must Protect the November Election from Covid-19: Holding an election safely and accessibly during a pandemic shouldn’t be a partisan issue. It’s a patriotic duty.” In it he expands on the important work currently being done by the Center, which has issued reports on “Responding to the Coronavirus Crisis,”  “Preparing for an Election Under Pandemic Conditions,” and “Voters Need Safe and Sanitary in-Person Voting Options.”

Democrats in Congress have been pushing for substantial legislation, along the lines of the Brennan Center, to “protect the November election from Covid.” Congressional Republicans have, not surprisingly, resisted such efforts, and Trump and his campaign have gone further in denouncing them.

U.S. democracy, as fragile and flawed as it long has been, now faces a crisis of unprecedented proportions. A free and fair election under the conditions of a pandemic requires proactive measures, at the national and the state levels, that Republicans, from Trump on down, seem determined to oppose. A free and fair election under the conditions of a pandemic and a despot is an even more remote possibility. Indeed, serious commentators are even discussing the possibility that Trump might cancel or postpone the November elections on the grounds of national emergency, using the crisis as a way of continuing his hold on power (see here, here, and here). Trump is not alone. As Selam Gebrakidan recently reported in the New York Times, “For Autocrats, and Others, Coronavirus is a Chance to Grab Even More Power.” Because of this, over a thousand political science colleagues recently signed an open letter declaring that “We must urgently work to guarantee free and fair democratic elections in November.”

At the same time, the situation that makes protecting the November elections an urgent imperative also makes the prospect of succeeding in this effort seem grim. Republicans control the White House, the Senate, and over 60% of state legislatures; they control many courts at the state and federal level; and they hold a pretty unwavering majority on the U.S. Supreme Court. And with the complete closure of public life, the only form of mass politics and political mobilization that currently exists is the form of mobilization practiced by Trump through his monopolization and manipulation of the mass media. 

There are dark days ahead for democracy in America.

And it will take an extraordinary combination of political ingenuity and good luck to forestall them.