Janine Jackson: It was called “one of the most brazen acts of voter suppression in modern history.” With an unsigned opinion, believed to come from Brett Kavanaugh, the Supreme Court voted 5–4 that it was OK for Wisconsin to disqualify ballots postmarked and received after their primary election day — even though thousands of voters didn’t even get those ballots until after election day, due to the sheer overwhelm of requests for absentee ballots resulting from the pandemic. Coming literally on the night before the election, the ruling overturned a lower court’s decision to extend the absentee ballot deadline, and forced people to risk their health in order to exercise their right to vote.
Flawed in letter and spirit, the Supreme Court’s decision is just part of the setback to the democratic project reflected in Wisconsin, and we need to understand the story: Who did what and how? Because without intervention, it’s on track to be repeated.
Ari Berman covers voting rights as a senior reporter at Mother Jones. He’s the author of Give Us the Ballot: The Modern Struggle for Voting Rights in America. He joins us now by phone. Welcome back to CounterSpin, Ari Berman.
Ari Berman: Hey, thanks for having me, Janine.
In trying to understand what happened with April’s primary in Wisconsin, you have written that you need to start the clock earlier than, say, Governor Evers’ push to postpone the election in the face of Covid-19, and the Republican-dominated state supreme court’s reinstatement of it. Could you talk us through some of the roots, what you called a “vicious cycle,” the roots of this outrageous series of events?
Yeah, I think you have to go back to when Republicans took over Wisconsin after the 2010 election, controlling the state for the first time in 50 years. And they did a series of things to try to weaken Democratic power, and to try to skew political representation.
One of the things they did was they passed these really horrible gerrymandered maps that made it possible for Republicans to win no matter what happened. So in 2018, Republicans in Wisconsin only got 46% of the vote, but they got 64% of seats in the state legislature. So they have a majority now, even if people don’t like them. And it was a Republican legislature, remember, that refused to postpone the election in Wisconsin, and also refused to mail ballots to every voter. And so really, the reason why Republicans are so dug in in that state is because of the gerrymandered maps they’ve passed.
Now, they’ve also done other stuff, like pass an array of voter suppression laws, such as a voter ID law, such as cutbacks to early voting, changes to voter registration, that have also made it easier for Republicans to win elections, including to win a majority on the state supreme court, which, of course, was the court that said that Tony Evers, the governor, couldn’t delay the election.
So when you say “vicious cycle,” they’ve kind of made themselves bulletproof, in the sense that the courts then support the ruling, support the politicians, and it goes round and round, and it’s hard to intervene in that.
It’s not a foolproof system, in the sense that a lot of people thought the Republican, or the conservative, candidate for the state supreme court, Daniel Kelly, was going to win the election. He didn’t win the election. So it shows that when Democrats are mobilized enough, they can still win elections in Wisconsin, but there’s a whole series of barriers they have to try to surmount.
And in the case of gerrymandering, it’s incredibly difficult, because Democrats actually are winning more votes than Republicans in Wisconsin, but it’s not translating into a political majority. And so I think, in a situation where elections are so razor-thin, particularly in that state, the Republicans have a built-in advantage. Before the election even begins, they are essentially ahead, because of all the structural impediments they have put into the political process, through control of the legislature and through control of the courts.
It was seen as a silver lining that Daniel Kelly, the conservative state supreme court justice, the protection of whose position was seen as a prime motivator for the Wisconsin GOP, that he wasn’t successful, that he was unseated by Jill Karofsky. But then I see this story in The New York Times about how Democrats are “publicly bragging” about that victory, and hoping that “liberal activists … can replicate” that “game plan” — of digital campaigning, essentially, as necessitated by the virus. It made this scramble to protect the vote in a crisis seem like purely partisan gamesmanship.
And I know it’s important to say what party is doing what, but can nothing come from the point of view of democracy itself? It seems to me there’s plenty to chew on in Wisconsin without saying the only people critical of it are Democrats.
Exactly. I think that it was good that Kelly lost, not because he was a conservative, but because the Republicans had made such an effort to suppress the vote, that his election was symbolic of broader attacks on democracy, and thus his defeat could be interpreted as a defeat, not for Republicans, or a victory not for Democrats, but a victory for democracy itself. And that a lot of people were able to vote, in spite of the barriers that were set up, that people either waited on very long lines and very hazardous conditions to vote in person, or they were able to vote by absentee ballot, at a time when the absentee ballot system was totally overwhelmed.
But I don’t know how transferable what happened in Wisconsin was. You have to remember, there was a Democratic presidential primary that day, and there was no corresponding Republican presidential primary. So a lot of people were just voting because they wanted to vote for Bernie Sanders or Joe Biden, and they just happened to click on the state supreme court race.
So I’m not sure in a different environment that you can really say, “Well, Wisconsin voted Democrat, therefore vote-by-mail, for example, helps Democrats more than Republicans.” I think that we don’t know that. The data we have on vote-by-mail, for example, shows that both parties use it pretty much equally. It’s sort of ironic, President Trump is saying that vote-by-mail gives Democrats these huge advantages, when there’s virtually no advantage for either party when it comes to voting by mail. In fact, it may even benefit Republicans, because their constituencies tend to do it more than Democrats do.
Yeah, it’s interesting that it would be assumed that expanding the franchise would be a negative for Republicans.
Well, the Times had also a very informative piece on Wisconsin and the Supreme Court’s ruling, calling out the errors in the ruling itself. But I tripped over this bit where it referred to Brett Kavanaugh’s presumed support for “laws that make voting harder, regardless of their effects on traditionally disenfranchised groups like African-American and Hispanic people.” I think media pull punches sometimes with regard to the white supremacist aspect of this voter suppression effort. It’s not a mere byproduct of some lofty philosophy about the sanctity of the franchise.
I think voter suppression has been motivated by white supremacy. Historically, certainly, that’s been the case. And I think it’s also the case today that the interests of the Republican Party and the interest of white America go hand in hand right now. And so you have seen consistently, over and over and over again, the Republican Party and the conservative majority in the Supreme Court intervene in ways that make voting more difficult for people of color, and they’re not doing it because it happens to have that effect. They’re doing it because they know it’s going to have that effect.
So to me, the really scary proposition here is that basically, the Wisconsin opinion seemed to signal that Republicans can do whatever they want to make voting more difficult, even in a pandemic, and the Supreme Court’s going to say, “That’s OK.” The minimum would be that you say to people, “There’s so much chaos in this election, it probably shouldn’t have even occurred in the first place. If we’re going to have it, we’ve got to give people more time to be able to vote.” You would think that would just be the bare minimum that they would allow.
The fact that the court said no to that makes it really scary, because there’s going to have to be a lot of contingency plans in November. There’s going to have to be a lot of modifications to voting in November, to make it so that everyone can vote. And if we don’t make the process easier, if we keep the same kind of ridiculous rules they had in Wisconsin, it’s going to make it very difficult for a lot of people to vote, if this pandemic is still going in November, which by all accounts it will be, in some form or another.
Well, yeah, I mean, it seems like the pandemic was already going to affect the election. States need to be on top of voting by mail. A lot of polling places are shutting down, that would affect access. A lot of poll workers are elderly people. People’s addresses might be changing because they’re laid off. There was plenty to contend with due to Covid-19 before you even get to the suppression that it seems like it’s providing cover for.
Exactly. Like, if states did nothing, voting would be difficult right now, because in a pandemic, the safest way to vote is from your home. And most states are not equipped to have people vote from home. Only five states do universal vote-by-mail. So in every other state, it’s more difficult.
Now, some states have more voting by mail. A lot of the Western states do, either universal voting by mail or near-universal voting by mail. But on the East Coast, in the Midwest and the South, the majority of votes are still cast in person. So that means they are asking a lot of people, including election officials, to use a method that is not really used for that purpose. Vote-by-mail is really supposed to be used for people who can’t get to the polls on election day, for one reason or another.
And that means we are seeing a growth in vote-by-mail. In 2018, about a quarter of Americans voted by mail; that still means 75% of the country didn’t vote by mail. We would expect, even in the best of times, there would be hiccups, with so many people trying a new system, let alone the fact that there’s going to be all these efforts now to make it harder to vote by mail, which is going to put all these impediments in front of voters that probably haven’t even voted this way before.
And then, of course, we have to add, as being of a piece with this, the assault on the US Postal Service, although as Julie Hollar wrote for FAIR, media aren’t so much connecting those dots; they’re talking about the White House attack on USPS and they’re talking about the election, but they’re not necessarily saying, “You know, this is going to be right at the crux of this set of problems here.”
Yeah, I don’t know why you wouldn’t connect it. I mean, it seems pretty obvious to me: If you’re going to vote by mail, the post office is going to deliver those ballots.
So it seems like a huge coincidence if suddenly Donald Trump would be attacking the post office, in the midst of an election where people are going to be using vote-by-mail in unprecedented numbers. So no matter why the president’s doing this, if you believe it, that he’s just mad at Amazon or whatever, even if you take that at face value, the net effect of attacking the post office, of putting partisan people in there, of denying them funding, is it’s going to make it harder for them to be able to carry out this responsibility to make sure ballots are delivered and then sent back to people.
And the post office is going to need a lot more resources, a lot more staff; it’s going to be very difficult for them, too. They are also operating under extraordinary circumstances right now. They also have people that are getting sick, and they’re putting their lives at risk to deliver mail for us, and an election in which 50%, 60%, 70% of the people vote by mail would be tough for the post office in the best of times, let alone at a time when President Trump seems to be declaring war on them.
Politico reported recently that the GOP has an at least $20 million war chest set aside for lawsuits over voting from home. What is the status of efforts to protect November’s process? Do we have legislative moves, at least being lined up in defense of protecting the vote in November?
There’s been a ton of lawsuits about all the obscure rules over mail voting. Like, do you need a witness signature on your ballot? Do you need to upload a copy of your ID with your mail ballot? Does your ballot need to be postmarked by Election Day? Does it need to be received by Election Day? There are so many rules for mail balloting people don’t even know about, that could lead to your ballot being thrown out without having any idea that your votes weren’t counted. So there’s litigation on all of these fronts in a bunch of different states, which I think is a positive development, depending on the outcome of that.
There’s also a lot of state efforts to expand vote-by-mail. And, actually, a fair number of Republican secretaries of State have been making it easier to expand vote-by-mail, probably because they understand, unlike Donald Trump, that a lot of Republicans also use vote-by-mail; they probably don’t want their voters to be disenfranchised.
The Congress has allocated $400 million for vote-by-mail and other election assistance, which I think pretty much everyone believes is totally insufficient. There’s a new bill out from House Democrats, the HEROES Act, that would give the states $3.6 billion for vote-by-mail, which would be a big step up, and also includes a number of other reforms that are important, like early voting and online election day registration, because there’s still going to be a lot of people that are going to vote in person, and the best way for people to vote in person would be to give them more time so they can social distance at the polls, while also making it easier to vote-by-mail, so that postage is paid, so that it’s easy to get an absentee ballot, all of these things.
And I think we’re probably heading for a really big fight between House Democrats and the Senate and the White House over the vote-by-mail provisions in whatever the next recovery package is. I personally think Democrats should have fought a lot harder to put some of this stuff in the first recovery package, when they had the political leverage.
And this is something clearly where time is of the essence. We need to be ramping up to get these processes in place now, we can’t suddenly throw it together in October.
No, especially with voting by mail, because it’s not just like opening a polling place. Voting by mail takes a lot of time. It takes a lot of time for people to request ballots. It takes a lot of time to get ballots. You can’t just show up to vote by mail at 5 p.m. on Election Day, right? Like you could show up and vote in person on Election Day. So states really need to start doing all of this stuff now.
And if you talk to state election officials, there’s so much equipment they need that they don’t have, there’s so many more people they need to do this kind of thing. They need to train everyone in how to count ballots, how to send out ballots.
Otherwise, the system just gets totally overwhelmed, like in Wisconsin, where election officials were having to work 100 hours a week; people were not getting ballots they requested; people were totally confused about what the rules were to have their absentee ballots counted, whether they needed a witness signature, which they did on their ballots; whether they need to upload a copy of their ID with their ballots, which they did; all of these crazy rules.
And so in that case, the data we have from Wisconsin would show that in a much higher turnout election, across 50 states, there’s going to be a whole lot of problems, unless we do a bunch of things right now to make the system run smoother.
It’s clearly not too soon for people, just as individuals, to be sorting out if and exactly how they’ll be able to vote, to be looking into whatever the rules are in their locality to make sure that that can happen.
Well, we’re talking about the impact of the virus. But we know that this voter suppression predates all of that. We’re also still hearing, aren’t we, about purges of the rolls — another reason to check in and make sure that you are still listed. Are there other voting rights things that maybe are going under the radar, that you’d like to call attention to?
I think we’ve talked about a bunch of them already. But I think it’s just worth noting that there are already all these efforts before Covid to try to make voting more difficult, whether it was requiring IDs to vote or trying to keep people off the voting rolls, or limiting the number of polling places.
All of those things are being magnified in a pandemic. And so I think it’s really important to pay a lot of attention to the whole debate over vote-by-mail, because that’s going to be a key way people vote in November. I also hope we don’t glorify vote-by-mail, because there are some unintended consequences of that.
And then I hope that people just stay focused on all of these other fights that are going to remain really critical, in that if you don’t have an ID now, it’s going to be a lot harder to get one when the DMV’s not open. If you’re not on the voting rolls right now, it’s going to be a lot harder to re-register, when there aren’t big registration drives. And so I think the big picture is important, but I think all the minutiae, all the little things, the technical details that we tend to ignore, could also have a really big impact in this election during a pandemic.
Let me just ask you, finally, I’ve heard some things kind of bubbling up that, given the confusion, given what looks like chaos, at least this far out, around the possibilities of voting, that we may have concerns about the legitimacy of whatever happens in the election, that there will be just enough murkiness that folks will be able to call the results into question, and that’s not going to be helpful.
No, it’s not going to be helpful. And I think, also, given the likelihood of major litigation in one or more key swing states, about the rules governing mail balloting, I think it’s very possible you could have not just one, but two, three, four, half a dozen Bush v. Gore scenarios if the election is close.
And so I don’t want to be too alarmist in May about this. But just like the virus is scary, the prospect of holding an election in a virus is also very scary. And there are a lot of possibilities that may have seemed remote, or even possibly hysterical, that are really quite possible in this day and age.
All the more reason for sober and clear-eyed reporting, to at least keep us focused on what’s happening, to at least keep us paying attention.
Absolutely, no, for sure. And I think if anything good has come from this Wisconsin thing, it’s that a lot of people are paying attention to what’s happening to the democratic process now in a way that they may not have been before.
We’ve been speaking with Ari Berman, senior reporter at Mother Jones. They’re online at MotherJones.com. The book is Give Us the Ballot: The Modern Struggle for Voting Rights in America. Ari Berman, thank you so much for joining us this week on CounterSpin.
Thanks so much, Janine.
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