The Supreme Court Just Signed a Death Warrant for Voters

Laura Bassett

Holding an election amid a deadly pandemic is a tricky thing. Health officials are recommending everyone stay home to protect themselves and each other, but the stakes of voting have never been higher, as everyone sees so clearly the vital importance of putting the right people in charge of public health. Wisconsin’s Democratic governor, Tony Evers, tried to solve that problem by extending the deadline for absentee ballots in the state’s primary election Tuesday so that more people could vote remotely. This seems like a no-brainer that the federal government should get behind, as well: ensuring that everyone can vote by mail at a time when showing up to polls risks public health. But Republicans in Wisconsin challenged that move. And on the eve of the state’s primary election, the U.S. Supreme Court brazenly sided with the GOP and shut down Evers’s solution to expand voting, overruling two lower court decisions.

In a 5-4 ruling, the high court’s conservative majority, including the recently-confirmed Brett Kavanaugh, essentially voted to force Wisconsinites to risk their health standing in long lines at the polls on Tuesday or not to vote at all. Hypocritically, the justices cast these votes remotely—and are canceling oral arguments in some of their other cases—to protect themselves from the coronavirus, while they are forcing Wisconsin’s voters to choose between risking their lives, and the safety of their communities, versus their right to participate in democracy. The move further exacerbates voter suppression, seven years after SCOTUS gutted the Voting Rights Act.

Predictably, the voting situation in Wisconsin Tuesday morning—particularly in the urban areas, where coronavirus tends to spread more rapidly—was a nightmare. Milkwaukee voters who decided to brave the pandemic stood in hours-long lines, as all but five of the city’s 180 polling locations for almost 600,000 residents were shut down because poll workers refused to go to work. Waukesha, a suburb of the city, had only one polling place open for its 70,000 residents. In Green Bay, only two of 31 polling locations were operating. Some more rural areas had drive-through voting options, and therefore less disruptions. This is exactly what Republicans wanted in a primary election with a crucial state supreme court seat on the ballot: to depress turnout in the urban areas, which tend to be more heavily Democratic. In other words, as Crooked Media podcaster Brian Beutler put it bluntly, “Republicans and their agents on the courts will kill people if it means a better shot at retaining power.”

The Supreme Court’s unsigned majority opinion argued that extending the deadline for absentee ballots by six days “fundamentally alters the nature of the election” and that there was insufficient evidence to suggest that voters on Tuesday “would be in a substantially different position from late-requesting voters in other Wisconsin elections.” None of the conservatives justices even wanted to claim responsibility for that decision by putting his name on it.

In a scathing dissent, Justice Ruth Bader Ginsburg—who, as an 87-year-old cancer survivor, understands better than anyone the risks of exposing oneself to the coronavirus—said the majority’s argument “boggles the mind.”

“The question here is whether tens of thousands of Wisconsin citizens can vote safely in the midst of a pandemic…. With the majority’s stay in place, that will not be possible,” Ginsburg wrote. “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.”

Indeed, pitting public health against democracy during a pandemic endangers both. It simultaneously disenfranchises voters and exacerbates the outbreak right at its peak. As of Tuesday, more than 12,000 Americans had died of the coronavirus, and the Centers for Disease Control reported at least 375,000 positive and presumptive positive cases. The daily deaths are expected to peak in mid-April and start dropping again, but experts predict that coronavirus cases will spike again in the fall during cold and flu season, right when it’s time to line up at the polls again.

The situation in Wisconsin is a warning shot for November’s presidential election, where the same problem is likely to arise on a much larger scale. And Trump, knowing high voter turnout would jeopardize his reelection, is already throwing cold water on the Democratic National Committee’s idea to send every voter a mail-in ballot for November. “It shouldn’t be mail-in voting,” Trump said Friday. “It should be, you go to a poll and you proudly display yourself.” (Of course, Trump is open to sending absentee ballots to voters over 65, his own best demographic; and as New York’s Jonathan Chait noted, he did not “proudly display” himself at the poll when he voted by mail in 2018.)

Republicans share Trump’s fears that enacting voter protections amid a pandemic would doom their chances of winning. “Universal vote by mail would be the end of our republic as we know it,” Kentucky representative Thomas Massie warned dramatically on Twitter, failing to explain exactly how it would destroy the republic to allow more people to vote. But the judicial system is increasingly engineered to protect the GOP’s power. Republicans have a conservative majority in the Supreme Court, and Senate Majority Leader Mitch McConnell has been methodically packing the lower courts with judges handpicked by the right-wing Federalist Society.

Democrats, meanwhile, are blowing their opportunity to fight back and lead on the issue. They could have forced a voter protection provision into the economic relief bill they passed in March, since the GOP couldn’t have passed it without them, but they didn’t. Former vice president Joe Biden, the likely Democratic nominee, refuses to stand up for the Democratic position on the issue, saying he still supports both in-person and mail-in voting amid a pandemic. Senate Minority Leader Chuck Schumer said Monday that it’s “very important” for Democrats to insist on early and remote voting, but wouldn’t commit to demanding it in legislation. They have an option to demand voter protections in the next bill, or walk away from it.

This is not a petty political fight; this is a life or death situation. The Republican Party—including senators who dumped stock while downplaying the dangers of COVID-19, and governors refusing to issue stay at home orders—has already made clear that it will never prioritize public health over its own political interests. Elderly people are showing up at crowded polling places in Wisconsin with bandanas around their faces. The evidence is clear that strong social distancing measures save lives, while even one gathering can prove deadly. People will literally die from exercising their right to vote today. And the five conservative men on the Supreme Court hiding behind an unsigned opinion, overruling two lower courts and the governor’s simple solution to protect public health and democracy, will have blood on their hands.

Laura Bassett is a GQ columnist.

Photo Illustration by Keir Novesky

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Originally Appeared on GQ