In 2018, Republicans lost a statewide vote for the Wisconsin Assembly to Democrats by a wide margin, but won the overwhelming majority of its seats anyhow, so successful were their earlier efforts to gerrymander themselves free from accountability to voters. This week, without consent of the governed, they used the power of their ill-gotten majority to assure that another statewide election—this one for a supreme court seat—transpired amid plague conditions. They have, in fact, declined to assist Gov. Tony Evers (D-WI) in any facet of the state’s coronavirus response. That includes both refusing to delay the election, and refusing to allow more people to vote in absentia, let alone doing both. With the citizenry under stay-at-home orders, the number of polling locations in the Democratic stronghold of Milwaukee dwindled from 180 to five.
When Evers issued a last-minute emergency order to delay the election, the right-wing majority on the state’s supreme court—a majority directly invested in suppressing voter turnout—voided the order on a party-line basis. When federal courts ordered the state to accommodate the enormous, backlogged demand for absentee ballots, the U.S. Supreme Court’s conservative majority—itself stolen—granted Republicans emergency relief, and tossed out tens of thousands of ballots in the process.
The effect of all these layers of illegitimacy was to force voters in Wisconsin to choose between their health and their right to vote. We’ll likely never know how many of the voters who braved the polls Tuesday contracted COVID-19, let alone how many of them will end up dead. But the risk was clear, and the decision to foist it onto them was intentional and knowing. The conservative justices who issued that decision did so from the safety of quarantine, having suspended nearly all Supreme Court business while coronavirus spreads within the capital.
Republicans across the country and at all levels viewed these events with no sense of shame, and, worse, as proof of concept. If it remains unsafe to vote in person in November, if infections remain disproportionately clustered in densely populated areas, then stealing a third presidential election in 20 years might be as simple as blocking efforts to make it safe for people to vote from home amid a pandemic.
The Wisconsin model isn’t limited to this—the most evil form of voter suppression in America since the civil rights era. Should President Trump lose the election anyhow, the way Republicans in Wisconsin have stood athwart all efforts to mitigate the coronavirus outbreak in their state will become the template Republicans in Congress adopt nationally. They will abandon their support for recovery programs overnight, much as they sought to short-circuit the recovery from the 2008 financial crisis the moment the White House passed into Democratic hands. And if a Democratic president uses emergency measures to bring relief to suffering Americans over Republican objections, the same Supreme Court majority that has been solicitous of Trump’s imperial abuses will suddenly rediscover judicial limits on executive power.
This is the future as Republicans have planned for us: Win by any means necessary; if that doesn’t work, win anyway. And we will be resigned to that future unless Democratic Party leaders take concerted steps to thwart them—steps they have so far been unwilling to take.
The leadership’s complacence in the face this Republican vision is a source of ongoing tension within the progressive firmament. It manifests in repeated arguments within Democratic circles over how aggressively to use congressional powers to check Trump’s corruption, whether to impeach him, how broadly to scope oversight inquiries, how hard a bargain to drive in legislative negotiations, and how uncritically to trust the leadership’s political instincts. If beating Trump is ultimately our only source of salvation, is this really the best way to do it?
These disagreements tend to center around particular points of controversy—unexplored avenues of investigation, hearings not scheduled, articles of impeachment not considered—but they are not principally about whether this untapped messaging or that unissued subpoena has magical power to defeat Trump. They are also about whether a party that will duck confrontation in the here and now will have the mettle to put a stop to what Republicans have in store for the country in the months and years ahead.
Democrats don’t disagree with each other in any meaningful way about the fact that the Supreme Court vacancy Trump inherited was stolen. They don’t disagree with each other that Trump broke the law and betrayed the country during the 2016 election—sins that quite likely proved decisive in his narrow electoral-college victory. They thus don’t even disagree that the ensuing GOP scheme to stack the courts, despite having lost the popular vote, and all the grotesque decisions that have poured forth from conservative justices in the past three years—culminating in the deadly Wisconsin election decision—are profoundly unjust if not outright illegitimate.
But to treat what just happened in Wisconsin as illegitimate, this case must be made unreservedly. The public needs to believe that the Supreme Court shouldn’t exist as constituted and they need to believe that Democrats believe this too. That those vacancies weren’t Trump’s to fill. That Trump should never have been president. It’s an easy case to make, backed by reams of evidence, but Democrats have decided not to make it. The decisions to shelve Special Counsel Robert Mueller’s report, and to ignore Trump’s appearance in a federal indictment as an unindicted member of a conspiracy to cheat in the election—they don’t just let Trump off the hook in some ill-defined way. They also cede an argument that would help the public understand a future effort to rectify Trump’s theft of the court as a matter of justice rather than opportunism. It may mean the difference between undoing these mounting travesties and living under the Roberts court for another generation.
An unreformed Supreme Court will undermine the next Democratic president whoever he or she is, but particularly so if Democrats win in a crisis environment, without unified control of Congress—a trifecta they would need not just to add seats to the Court but to pass additional stimulus measures and the rest of their agenda. We know to a certainty that Republicans will do an about-face on the coronavirus rescue if Trump loses. If Republicans control the Senate, they will not just block any further stimulus measures from passing but try to force austerity measures on to the country using any means of extortion available to them. If under those circumstances a Democratic president scoured federal law for ways to help suffering Americans, Republicans would sue and the Supreme Court would in all likelihood declare those measures illegal.
Democrats can insure against a future like this in two ways. First, protect the election from the pandemic, and then win it by a wide-enough margin to pick up the Senate; second, create the tools they’ll need now to prevent Republicans from shutting down the rescue unilaterally next year. They can do it, they have the means. But they have shown no appetite for making either goal non-negotiable in their deliberations with GOP leaders. Part of the point of tediously imploring Democrats to confront Trump and Republicans the way they deserve to be confronted is to prime them for moments like this, when everything turns on whether they’re willing to use their leverage in an uncompromising way.
Trump needs Congress to pass more emergency spending measures. His irredeemable handling of the coronavirus pandemic will be all the more apparent to voters if the high and climbing unemployment rate never comes down. That need should allow Democrats to make two straightforward demands—first, that the key provisions of the rescue span administrations and won’t phase down until the economy has recovered; second, that everyone in America be allowed to vote easily by mail so that plague conditions don’t render the 2020 election illegitimate.
The cardinal importance of these demands has been evident since before lockdowns began, and have gained wider traction on the left in the weeks since. Against the backdrop of the plague election in Wisconsin, and Republican efforts to hobble the response there, they should be obvious, and easy to make. The virus shouldn’t destroy the economy no matter which party controls the presidency, the virus shouldn’t destroy democracy, no matter which party benefits from stay-at-home orders.
But with everything on the line, Democrats still have not made them.
Joe Biden went only so far as to say, “We should…have all the experts—both political parties, and academia—laying out what it would take to have voting by mail, I’d much prefer to have in-person voting, but it depends—it depends on the state of play.” House Speaker Nancy Pelosi reportedly told members of her caucus that she would seek to “extend unemployment aid and small-business assistance for additional months,” rather than for as long as is necessary to support the recovery, no matter who occupies the Oval Office.
Republicans by contrast seem to have a better grasp of Democratic power than Democrats do and are methodically thinking through how to neutralize it. They’ve now proposed extending key provisions of the existing recovery effort in piecemeal form, because they know Democrats will be hard pressed to vote against needed aid, but also that getting money out the door in one-off bursts will arrest the crisis, run out the clock, and grind Democratic leverage down to nothing. They also know that by moving first, they can set the terms of the debate over the next phase of the recovery—just as they did last time around—and dismiss post-hoc Democratic demands as desperate efforts to load the coronavirus response up with non-germane poison pills. In response, Pelosi and Senate Minority Leader Chuck Schumer offered Republicans more money than they asked for, but made no conditions of their own. Not vote by mail, not automatic stimulus, not even for Trump to reinstate the coronavirus-relief watchdog he fired, thumbing his nose at the oversight Democrats demanded in the last relief package.
There are signs that the Wisconsin fiasco has awakened at least some Democrats to the perilousness of this situation.
House Majority Whip Jim Clyburn—a top Biden surrogate and Pelosi ally—has consistently counseled a non-confrontational course for the party, but he characterized the GOP antics in Wisconsin in appropriately withering terms, concluding, “Congress must make sure all states allow all eligible voters to vote by mail in November.” But the only way for Congress to accomplish this would be to make protecting the election a condition of further aid, so that Republicans can’t make Wisconsin a model for the country.
That won’t happen absent a major and abrupt change in the Democrats’ approach to opposition politics. And unless it’s a lasting one, it will only delay our collision with the reactionary forces Republicans have lined up against us, rather than allow us to transcend them. Whether Democrats fight more aggressively or not isn’t a matter of posturing or aesthetics or fleeting election tactics. It’s the difference between whether they will shape history or doom us to repeat it.