April 11, 2020

Wisconsin: Where the Letter of the Law Shafted the Spirit of the Law.

by Hal Gershowitz

Comments Below

They earned a shameful place in history, those Republican legislators who forced hundreds of thousands of Badger State voters to stand in line for hours in lousy weather during a deadly and highly contagious pandemic, while state-of-emergency and state-wide stay-at-home orders were in effect (as they still are today).

And for what? Let’s not be naïve. It was a legal way to suppress the vote in highly Democratic urban areas, especially Milwaukee. Under ordinary circumstances, it is doubtful those legislators would have ever gotten away with it, but with the state and federal courts now stacked with party partisans, we have arrived at a new and sad day in America.

The laws in Wisconsin, as everywhere else in America, are there to promote the general welfare of the people. Not in this case though. In this case, the law was used to promote the best interests of a political party. The letter of the law in Wisconsin was upheld; the spirit of the law, however, was trampled. Why? Because suppressing the vote in Milwaukee and other urban areas was a pretty effective way to maintain the strong Republican majority on the State Supreme Court. It’s really that simple.

The History:

Democratic Governor Tony Evers, on the eve of the election, and in consideration of the pandemic, decreed that absentee ballots could be received and counted up until April 13, a week after Wisconsin’s statutory election day. Common sense would argue that in an emergency such as the Coronavirus crisis, public officials with an iota of forbearance, let alone a modicum of judgment, would accede to the decision of the chief executive. Wisconsin law, however, does not explicitly confer that right, with respect to elections, on the Governor— even in an emergency. On the contrary, under Wisconsin law (unlike many other states), everything pertaining to elections pretty much falls within the purview of the General Assembly—even in a state of emergency. And in Wisconsin, a paradigm of gerrymandering, the General Assembly is controlled by Republicans even though Democratic Assembly candidates won 53% of the votes in the last election.

So, the Republicans sued and ultimately won in both the Republican-majority State Supreme Court and the United States Supreme Court. The US high court apparently determined that the Coronavirus pandemic wasn’t sufficient justification to circumvent state law. (It will be interesting to see if the high court feels the same way about the Coronavirus pandemic when it reviews a very recent Texas court ruling that determined the same Coronavirus pandemic was sufficient justification to deny a woman her lawful right to a first-trimester abortion.)

Now it is argued by some that Governor Evers should have turned to the General Assembly earlier in the crisis rather than act on the eve of the election. Fair enough. Under normal circumstances, we would agree. But these were not normal circumstances. In less than a month, confirmed cases of Coronavirus infections in Wisconsin had grown from one case to about 3,000 cases, and the number of confirmed cases in Wisconsin actually doubled during the week before the election. Emergency action was appropriate, and allowing voters to cast absentee ballots by mail in those days when the number of cases was escalating precipitously was both reasonable and justified.

At least fifteen other states either postponed or canceled their elections on April 7th, and Wisconsin Democratic Assembly members did try to postpone the election through the General Assembly but were cut off at the pass by their Republican colleagues in the legislature. Three days before the election, Governor Evers tried to reason with the Republican-controlled legislature in a special session he called, but the majority members of the General Assembly and the State Senate brought the sessions to an abrupt close in less than a minute.

It Gets Worse:

Milwaukee has 180 polling stations of which 175 failed to open on election day. After all, election judges and others required to be at the polls to assure smooth and orderly voting aren’t stupid. They weren’t going to risk getting seriously ill to accommodate the Republican voter-suppression strategy. So, nearly everyone in Milwaukee had no nearby polling station at which to vote. Someone calculated that each open polling station would, on average, have to accommodate more than 10,000 voters, about a ten-fold increase from normal voting traffic. In Waukesha, there was only one voting station open for all of the community’s 70,000 voters. In Green Bay, only 17 of the city’s 270 poll workers even showed up.

There is another even more brutal reality that unfolded in Wisconsin. The African-American citizens of the state’s largest city, Milwaukee, are being hardest hit by the Coronavirus. Nearly half of all victims of the Coronavirus are African-American, and they account for over half of the Coronavirus deaths in Wisconsin. Yet, if they wanted to vote, they were expected to go to the polls, wait in lousy weather for hours, and be exposed to others who might be infected or, just as bad, expose others during a state-wide stay-at-home order.

The Milwaukee Journal-Sentinel which had supported Republican Scott Walker over Governor Tony Evers summed up the Republican blunder appropriately, calling the voting fiasco “the most undemocratic election in the state’s history.

Let’s call it what it is — partisanship run amok.

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7 responses to “Wisconsin: Where the Letter of the Law Shafted the Spirit of the Law.”

  1. Susan duman says:

    I’m not as smart as you and it did not cross my mind about the cleverness of holding the primary in terrible weather.

    Do you know who John Pavlovitz is?
    He’s selling tee shirts that say
    I’m buying one for me. I would treat you to one, but I suspect you have too much class to wear it. Tell me I’m wrong and I will purchase one for you as well

  2. Perry says:

    As you stated the partisan court of Wisconsin voted to hold the
    election. The courts now for at least 60 years have seen the
    selection of judge’s in both parties who are sympathetic to a
    certain political party be they democrat or republican.

    No longer are they selected for competence and knowledge of the law but for their adherence to conservative or liberal
    ideology. Sadly too along with this we have an electorate
    with very little knowledge of issues or their interest in same
    to elect Statesmen rather than follow party lines. Not much
    new here SADLY.

  3. Jerry Mathews says:

    This is one of the most outrageous occurrences among many of late. Shame on U.S. conservative Supreme Court members.

  4. Ray Galante says:

    Typical Republican stubborn craving for partisanship. Unfortunately, US leaders re John McCain gone, Wisconsin amuck.

  5. Response to Susan Duman:
    I’ll wear it. FACTS MATTER…or used to.

  6. Mike says:

    What I find interesting is your column is written as if this only occurs with or when Republicans are in control. Wake up! Bitter partisan politics are a reality in many, many States.

    You talk about gerrymandering. Have you ever taken a at the gerrymandering in Illinois? Here is a political axiom that you might want to consider: the people in power will do whatever they want, or can get away with in order to retain that power. Governor Doyle was in power for 8 long years and he did whatever he could to steamroll his agenda over the voters. That led to Scott Walker, and guess what, he did whatever he could do to retain power. News flash, Hal, that is how the system works!

    And citing the 53% number is irrelevant. Subtract out two – just two counties in Wisconsin, Dane (Madison) and Milwaukee, and you get a much different picture. The city of Milwaukee has had inept city government for years and anyone with a knowledge of the State knows why they refer to Madison as 20 miles of fantasyland surrounded by reality. Why should those two liberal bastions be able to impose their will on the rest of the State?

    Governor Evers got schooled and lost. Here in Illinois, our former Governor (Rainer) got schooled and he lost. Once again, that’s the way the system works. So stop bemoaning the obvious and offer some solutions that will change the system.

  7. Response to Mike:
    Simple solution, Mike. Partisan politics aside, legislators should, from time to time, act in the public interest, especially when the public interest is so obvious. This essay would have been just as critical of any political party that acted as callously as the Republicans did in this instance.

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