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The Supreme Court's Latest Betrayal Should Be Its Last

Voters line up at Riverside High School for Wisconsin's primary election Tuesday April 7, 2020, in Milwaukee. The new coronavirus causes mild or moderate symptoms for most people, but for some, especially older adults and people with existing health problems, it can cause more severe illness or death. (AP Photo/Morry Gash)

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Voters line up at Riverside High School for Wisconsin's primary election Tuesday April 7, 2020, in Milwaukee. The new coronavirus causes mild or moderate symptoms for most people, but for some, especially older adults and people with existing health problems, it can cause more severe illness or death. (AP Photo/Morry Gash)

With their decision forcing Wisconsinites to choose between protecting their lives and exercising their right to vote, the Supreme Court’s conservative justices have fully revealed themselves as partisan operatives working hand-in-hand with the Republican Party and the Trump administration to dismantle democracy and entrench themselves as a permanent ruling minority. There can no longer be any doubt about their intentions. The only question remaining is what can be done to stop them.

For years, Republicans in all branches of government have understood that they represent a minority of the country. Faced with such a situation, a political party that believed in democracy would modify its policy positions to broaden its appeal, attempt to persuade more Americans of the merits of the party’s agenda, or both—all in the hope of becoming a majority party again. America’s Republican Party has not chosen this path; indeed, it has adopted ever-more-extreme positions and taken an increasingly confrontational and abusive approach to all those who are not allies. It’s tempting to assume this strategy is irrational and doomed to fail—tempting, but naive. That’s because the Republican Party has no intention of competing within a democracy. Instead, it has moved aggressively to subvert democracy so that it can continue winning elections without popular-vote majorities, and limit Democrats’ ability to govern when the majority nevertheless prevails.

From voter ID laws to gerrymandering—tools Republicans have acknowledged in moments of candor or hubris are intended to reduce the political power of racial minorities—to purging legitimate voters from voter rolls to changing the rules to prevent Democrats from governing when they take office, Republican politicians have tirelessly schemed to thwart the will of the people and seize and wield power as a political minority.

Along the way, they’ve had help from the activist conservatives on the Supreme Court—four of whom were appointed by Republican presidents who took office only after losing the popular vote. Despite having won the popular vote in only one of the last seven presidential elections, Republicans have appointed 15 of the last 19 justices, and seized control of the Court with an unprecedented power grab. In 2016, through their control of the Senate, they mounted a blanket filibuster to prevent President Obama from filling a vacancy with any nominee, no matter how moderate. In effect they reduced the size of the court for a term—only to change the rules once again and swiftly confirm Donald Trump’s nominee to that same vacancy.

Supreme Court conservatives share their legislative branch allies’ understanding that they depend on minority rule for their power, and have joined in the effort to undermine democracy. In recent years, Supreme Court conservatives have constrained the ability of workers to organize politically, invited wealthy special interests to dominate our elections with unlimited spending, upheld Republican gerrymandering, and gutted the Voting Rights Act.

This week’s decision to disenfranchise Wisconsin voters who submitted absentee ballot requests on time but did not receive their ballots before election day may be the most shocking evidence yet that the Court has become a weapon of the Republican party and can no longer be relied upon to protect the rights of everyday Americans. In the middle of a deadly pandemic that makes gathering in person unsafe, the Court forced Wisconsin voters to choose between exercising their right to vote and protecting the unalienable right to life recognized by America’s Declaration of Independence.

Requiring in-person voting during a health crisis that makes large in-person gatherings deadly not only for the people who join them but for their entire communities will place particular burdens on racial minorities, young people, and others who live in densely-populated urban areas. Even in the best of times, the longer wait times racial minorities must endure in order to vote are disgraceful, undemocratic forms of structural discrimination. Add in a deadly pandemic, and the requirement of in-person voting becomes a poll tax, but the tax is exposure to a deadly virus. Imposing such disparate burdens is not only immoral, it is clearly unconstitutional—but conservatives on the Supreme Court signaled this week that they will not only tolerate such burdens, they will take it upon themselves to actively impose them.

Across every branch of government, at both the state and federal level, Republicans are squeezing the life out of our democracy, like a boa constrictor crushing its prey. It’s not too late to restore democracy, but time is running out, and there is much to be done. We won’t be out of this mess until we restore the Voting Rights Act, guarantee all Americans equal access to the ballot, roll back gerrymandering and other structural flaws that enable candidates and parties to control our government despite winning fewer votes than their opponents, support the rights of workers to organize politically, end the ability of wealthy special interests to dominate our elections with unlimited spending. Carrying out any of those reforms will require overcoming a partisan Supreme Court majority bent on enabling minority rule. That means expanding the size of the Court to undo the GOP’s theft of it, and to make it representative of all Americans, not just a weapon to be wielded by a narrow political faction.

But before we can do any of that, we have to ensure the Court can’t do in November what it did in Wisconsin this week: disenfranchise countless voters and force Americans to choose between their lives and democracy. Pro-democracy members of Congress must insist on nationwide vote by mail as a condition of any legislation the Trump administration and its congressional allies seek. Withholding support for such legislation is the only available leverage, and must be used. We’ve already seen what will happen if we rely on a partisan Supreme Court to protect Americans’ right to vote. If we make that mistake again, the last vestiges of freeness and fairness in our elections may be lost.

Jamison Foser is a consultant and writer. He served as senior adviser at NextGen America for the 2016 and 2018 election cycles and was previously executive vice president of Media Matters for America and research director at the DCCC. His current clients include Take Back The Court, which supports Supreme Court reform. The views in this column are his own. Follow him on Twitter @JamisonFoser.