With the very real threat of a coronavirus resurgence in the fall, forcing people to wait in long lines could prove to be exceptionally dangerous. The way to avert that danger is by assuring that there are ample opportunities for people to safely cast ballots before Election Day.
Unfortunately, Republicans legislators and the conservative jurists who do their bidding are now moving to limit early voting. And this week they secured a court ruling, from a panel made up of Republican appointees to the United States Court of Appeals for the Seventh Circuit, that restricts early voting in the vital battleground state of Wisconsin. Worse yet, the decision, written by conservative Judge Frank Easterbrook, claims that “legislators are entitled to consider politics when changing the rules about voting.”
That’s a radical reinterpretation of the law. “The Supreme Court has never held that partisan animus provides a legitimate basis for discriminatory voting rules,” notes election law expert Rick Hasen, a professor of political science and law at the University of California, Irvine. Yet as Hasen points out, Easterbrook is suggesting, “in a very troubling way, that making it harder to vote on the basis of party is perfectly acceptable.”
This is judicial activism writ large, and it is exceptionally dangerous, as it effectively invites Republican legislators in Wisconsin and elsewhere to ponder even more aggressive assaults on voting rights. “The judges take the Supreme Court’s redistricting decision and use it to argue that, essentially, lawmakers can change any election law for purposes of partisan advantage, as long as they’re not explicitly talking about racial (or other barred) discrimination while they do it,” explains Democratic Party of Wisconsin chair Ben Wikler. “The truth is that because one party has so relentlessly weaponized racism, voting is now highly predicted by race—and so it’s possible to suppress the vote of African-Americans under the guise of suppressing Democrats. This opens the door to making that legal.”
The fight over early voting in Wisconsin has deep roots. The state, once a leader in the nation when it came to making it easy to vote, has a history of very high turnout and often very close elections. Former Governor Scott Walker and his legislative allies moved aggressively when they took control of the state after the 2010 election to undermine voting rights, with extreme gerrymandering, manipulation of election dates, restrictive photo ID laws, and assaults on early voting. They went so far that their schemes were often upended by the courts. That’s what happened when, after Walker was defeated for reelection in 2018, he and Republican legislators used a post-election “lame-duck” session to enact legislation cutting back early voting to the two weeks before the election.
There wasn’t any question about what they were up to. Walker and other statewide Republican candidates had all lost to Democrats in an election that saw significant levels of in-person absentee voting during the month before the election in Milwaukee, a city with large Black and Latino populations, and Madison, a city with a large student population, that gave big margins to the Democrats.
A pair of progressive organizations, Citizen Action of Wisconsin and One Wisconsin Institute, challenged the 2019 legislation in a motion to Judge James D. Peterson of the US District Court of the Western District of Wisconsin, who had previously struck down Republican attempts to curtail early voting that takes place during the month before an election. Judge Peterson had determined in 2016 that the earlier limitation on early voting “intentionally discriminates on the basis of race” in a ruling where he wrote, “The Legislature’s objective was political. Republicans sought to maintain control of state government. But the methods that the Legislature chose to achieve that involved suppressing the votes of Milwaukee’s residents, who are disproportionately African-American and Latino.”
In early 2019, Judge Peterson again blocked the legislature’s assault on early voting, writing that legislative Republicans did not even “attempt to show that there is a material difference” between the new law and the one he had previously rejected.
Former attorney general Eric Holder called the 2019 decision by Judge Peterson “a victory for the citizens of Wisconsin and a rebuke to their defeated former governor and his cronies in the state Legislature.” He added, “Every voter in the state should be asking one question: Why are Republicans in the Wisconsin Legislature so afraid of the people they claim they want to represent?”
Now, they can also ask that question about Walker’s Republican cronies on the appeals court bench.
Easterbrook, who cut his teeth working in the United States Solicitor General’s office as an assistant to Robert Bork and who was appointed to the Seventh Circuit bench by Ronald Reagan, has upended Judge Peterson’s reasoned judgment with a ruling (made with conservative Judges Michael Kanne and Diane Sykes) that says, “Early voting is not a fundamental right in itself; it is but one aspect of a state’s election system.”
True. But when other aspects, such as voting by mail, are being constrained by Republicans who are bent on suppressing the vote, early voting is an important aspect—especially in Wisconsin. Earlier this year, Republican legislators and their allies on the state supreme court blocked a move by Governor Tony Evers to extend absentee voting so that people would not be forced to stand in long lines to participate in April 7 presidential primaries and nonpartisan elections for state and local posts. Even as public health authorities warned people to stay home to avoid the spread of the coronavirus, voters in Milwaukee and other communities waited for hours to cast ballots.
To avoid a repeat of what is referred to as “Wisconsin’s pandemic election,” cities were planning for extensive in-person voting—as part of broader plans to encourage mail-in absentee voting and safe and fair Election Day voting. They will still do their best.
But with the Seventh Circuit’s decision, Wikler worries about a repeat of the April 7 election fiasco because—no matter what the judges may claim—“cutting down early voting means longer lines.” And in these times, longer lines pose a threat not just to democracy but also to public health.