Is Democracy at Stake in Supreme Court Race?

Milwaukee County Judge Janet Protasiewicz and former state Supreme Court Justice Dan Kelly. Photos courtesy of the campaigns

Following his loss in the November 2020 presidential election, Donald Trump attempted to remain in office by convincing the Wisconsin Supreme Court to throw out hundreds of thousands of absentee ballots from Milwaukee and Dane counties. If successful, Trump’s gambit would have flipped the Wisconsin results, transferring Wisconsin’s ten electoral votes from Joe Biden to Trump.

In a decision known as Trump v. Biden, the state Supreme Court (voting 4 to 3) rejected Trump’s attempt to overturn the election. The majority decision was written by Justice Brian Hagedorn, and joined by Justices Ann Walsh Bradley, Rebecca F. Dallet, and Jill Karofsky. Its main theme cited a principle known as “laches,” writing that “To strike ballots cast in reliance on the guidance now, and to do so only in two counties, would violate every notion of equity that undergirds our electoral system.”

The other three justices—Chief Justice Annette Ziegler, and Justices Patience Roggensack and Rebecca Bradley—each wrote dissents. Each dissenter in turn endorsed each of the other two dissenters’ dissents.

One theme in the dissents is that the majority “did not say what the law is.” Presumably they perceive that their colleagues in the majority were negligent in not agreeing that WEC guidance on absentee ballots was erroneous. This supposed requirement for saying what the law is seems to stem from a misreading of Justice John Marshall’s Madison v. Marbury decision, in which he established the principle of judicial review, the power of federal courts to declare legislative and executive acts unconstitutional.

Attacks on the Wisconsin Elections Commission are also a major theme. Repeatedly, they note that the members of the Commission are not elected, treating “unelected” as an epithet in repeated phrases: the “six unelected commissioners,” “the unelected members of the WEC,” and “in the hands of the unelected members of the WEC.”

Another unusual feature of the dissents is what is not there. Typically, when justices dissent from a decision, they include some discussion of what remedy they would support had they enjoyed a majority. But past a glancing comment that Trump’s proposed remedy might not be feasible, they don’t venture to go there.

One measure of a healthy democracy is how well its electoral system fits the varying needs of its voters. All else being equal, an electoral system that offers a variety of ways to vote is more democratic than one that restricts the available options. During 2020 many of us were thankful for the availability of drop boxes to return absentee ballots.

It appears that some members of the Wisconsin Supreme Court are out to make the Court the dominant player in Wisconsin’s election administration. Is that wise? The court has neither the expertise nor the structure to effectively administer Wisconsin’s electoral system. The United States Constitution, that largely serves as the model for the Wisconsin Constitution, mandates that the “Judicial Department” resolve “cases and controversies.” It does not mandate that the courts manage elections.

A short time after Trump v. Biden was decided, two Republican activists sued in a case called Teigen v. WEC to ban the whole spectrum of measures that the WEC had approved to make voting more accessible. The fact that the Supreme Court accepted this case is evidence that it has abandoned any attempt to enforce the principle of standing at least when it comes to election litigation.

What explains the court’s eagerness to significantly shrink options for voters and tie hands of the WEC, notably by ruling that absentee ballot boxes cannot be used? Supporters of rolling back voter options insist they did it because the law left no choice. This seems hypocritical to me. For instance, Wisconsin law states that “absentee ballots shall be mailed by the elector, or delivered in person, to the municipal clerk issuing the ballot or ballots.” Since the drop box is under the control of the municipal clerk (in Milwaukee the city election commission) using a drop box is equivalent to delivering the ballot to clerk.

Why did the court want to ban drop boxes, as well as other measures to make voting more accessible? Here are three possible reasons:

1. One is ideological. Among the right-wing legal community, there are some who believe that the so-called “administrative state” is a threat to democracy. The disparagement of the WEC for being “unelected” reflects this belief.
2. There is a view that whatever is not specifically permitted is therefor prohibited. In this view, drop boxes for absentee ballots are banned because they are not authorized in Wisconsin statutes. Effectively this belief makes any innovation aimed at process improvement very difficult.
3. Finally, the search for political advantage also plays a role. There is a widespread belief among Republicans that high turnout disadvantages them and that measures that increase turnout should be opposed precisely for that reason.

The attempt by three of the current Wisconsin Supreme Court justices to tie the hands of the Wisconsin Elections Commission is not good for Wisconsin democracy. At best the justices’ campaign against WEC is likely to make the WEC more risk averse and less likely to put forward measures to make the state’ electoral system more voter friendly.

At worst it will be one more step in efforts to bring the electoral system under partisan control. Thus the outcome of April’s election will help determine not only the future of the Wisconsin Supreme Court, but whether democracy flourishes in Wisconsin.