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And speaking of elections, and the consequences thereof, the Wisconsin state supreme court has seen its customary monkey mischief monkey-wrenched, which is all for the good. When last we looked in on this pack of vandals, they were forcing an in-person primary vote in the middle of a pandemic. This tactic backfired when the voters of Wisconsin risked their alveoli and swamped the Republican incumbent justice who was up for re-election. (Here is where I mention again that an elected judiciary is the second-worst idea in American politics.) This was a triumph for democracy that shouldn’t have been necessary in the first place.
Now, with yet another election to fck up looming in front of them, that election already seems to be having an effect. Several of the state’s prominent conservative organizations appealed to the court to expedite a ruling on a voter-purge law that could remove 100,000 names from the Wisconsin rolls. They wanted the decision handed down before the November election. By a 5-2 vote, the court declined to do so. It will take up the case on its regular calendar in September, which makes it unlikely that a decision will be handed down before election day. This also means that the court will take up the case after newly elected Democratic Justice Jill Karofsky has replaced conservative Daniel Kelly, narrowing the court’s Republican majority to 4-3. This also has inconvenienced the local conservative faithful. From the Wisconsin State Journal:
Justice Rebecca Bradley, who voted in dissent along with fellow conservative Justice Daniel Kelly, said the court’s order Tuesday likely means a ruling will not be made until next year. “Under this court’s typical briefing and oral argument schedule, the people of Wisconsin would most likely not receive a decision in this case until after every single one of Wisconsin’s 2020 elections has come and gone,” Bradley wrote. “The majority’s unusual order delaying oral argument in this case until at least September 29, 2020, renders a timely decision impossible.”
But Justice Bradley need not entirely despair. The Seventh Circuit Court of Appeals has her back. In a spectacular bit of judicial activism, and after three years of pondering the question, the Seventh Circuit this week upheld changes in the Wisconsin voting laws, including restrictions on early voting, a mechanism that is now all the more vital for the public health during the pandemic than it was when the law was passed. The majority opinion by Judge Frank Easterbrook takes the Supreme Court’s decision in the Rucho case and expands that finding into Huey Long territory. (In Rucho, the Supreme Court took itself out of the question of the constitutionality of purely partisan gerrymandering.) Quite simply, Easterbrook ruled that the franchise should be utterly at the mercy of whoever happens to be in the legislative majority at the time.
“If one party can make changes that it believes help its candidates, the other can restore the original rules or revise the new ones. The process does not include a constitutional ratchet.”
This, of course, turns the franchise into a political volleyball and injects an unnecessary element of uncertainty into the simplest act a citizen can carry out in a democratic republic. Moreover, Easterbrook simply hand-waves the notion that, possibly, laws meant to suppress Democratic votes may well be de facto racially discriminatory.
“The record does not show that legislators made any of the changes because Democratic voters are more likely to be black (or because black voters are more likely to support Democrats). The changes were made because of politics.”
From this, the detached observer can only conclude that Judge Easterbrook resides on Neptune.
It is clear that the pandemic is going to require serious adjustments to how we vote in November. It is also clear that our current system makes those adjustments prone to drunk-McGyver improv that is likely to come apart at the seams. It is also clear that the president* and his campaign are fully prepared to use a chaotic system to create more chaos and claim without foundation that he has been cheated out of re-election. Expanded early voting and expanded vote-by-mail are logical steps to ensure that the franchise is fairly carried out here in our time of social distancing.
But, unless the media does a helluva job explaining why that is, they’re also measures that are easily demagogued. Hell, there’s already some howling on the progressive left that Charles Booker may have been euchred out of the Democratic senatorial nomination in Kentucky because Amy McGrath’s win was secured by counting mailed-in ballots over the week following the primary. And that’s a pillow fight compared to what the president*’s people can muster up.
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