Scott Fitzgerald and Robin Vos. Photos by Callen Harty
The most important race in Wisconsin’s 2020 spring election was the Supreme Court race between Scott Walker-appointed Daniel Kelly and Jill Karofsky. A win for Karofsky would change the conservative majority on the Wisconsin Supreme Court from 5-2 to 4-3, a tenuous hold on the third branch of government after Republicans lost the Executive branch last year. The current conservative court has upheld virtually every Republican-passed law that has been challenged and every case taken before them by the Republicans for years, including a suit last week to overturn Governor Evers’ last-ditch attempt to postpone the election so as not to put Wisconsin’s citizens in danger.
When Evers ordered the election postponed, Senate Majority Leader Scott Fitzgerald and Assembly Speaker Robin Vos complained that Evers should have worked with them sooner to do something about it. But the two of them control both houses of the Legislature. They didn’t have to wait for the governor to do anything. They could have put together legislation to delay the election like sixteen other states had done, or switch it to all mailed ballots like Alaska did, or a combination of both. The governor had even said he felt it was the responsibility of the Legislature, not him, to take the lead on it. But they didn’t.
Long before Covid-19 and this particular election, Republicans have been doing what they can to suppress votes in the state and nationwide. After winning the Wisconsin governorship and legislature in 2010, they met in secret to create the most gerrymandered voting districts in the country. Within a couple years of that, they passed stringent voter ID laws, claiming it was necessary due to voter fraud, despite virtually no evidence of that. Back in 2018, after Scott Walker lost his bid for reelection, the Republicans had a plan to separate the Supreme Court election from the primary, knowing that Democrats would be more motivated to show up at the polls with a contested primary. That effort failed after the press alerted the public to the cost of doing so and the fact that the only reason for doing it would be to help Daniel Kelly. Currently, they have a lawsuit that is on hold that would purge more than 200,000 voters from the rolls, a tactic used by Republicans across the nation.
When Governor Evers finally called the Legislature into special session to vote on postponing the election, Vos and Fitzgerald had a couple of their members go to the Capitol, gavel the session in and gavel the session out in less than thirty seconds, with no discussion at all about what could or should be done to protect Wisconsin citizens against the coronavirus. While Evers could have called a special session sooner there is no reason to believe that wouldn’t have been gaveled in and out just as quickly. The Republicans seemed determined to force the election and to do whatever they could to prevent as many people from voting as possible.
The same day, Republicans petitioned the United States Supreme Court to overturn a lower court decision that would have extended absentee balloting by a week. One would think that government officials would do everything they could to make sure that everyone who wanted to vote could do so and that every ballot would be counted. One could assume that unless those leaders wanted to suppress the vote to help their preferred candidate.
The reality was that keeping the election in-person would force residents of the two largest Wisconsin cities–Milwaukee and Madison–to have to go to the polls and risk contracting Covid-19 despite a stay-at-home order, or stay at home and forfeit their ballots. And, what a surprise, the two largest cities are also the two biggest Democratic strongholds in the state, as well as having the most cases and deaths from the virus. Citizens in smaller towns outstate would not have as much to fear by going to the polls in person (though nobody anywhere in the state should have been forced to make that decision).
On Monday, Evers signed his Executive Order postponing the election, an eleventh hour attempt to do what should have been done at least a couple weeks earlier. Supporters of Fitzgerald and Vos screamed that Evers was trying to become a dictator, despite the fact that in his Executive Order he cited a state statute–323.12(4)(b)–that the Republicans passed during Scott Walker’s tenure as governor to give the governor more power. The governor had a couple weeks earlier declared an emergency due to the coronavirus and under the state of emergency, 323.12(4)(b) specifically says that the governor may “Issue such orders as he or she deems necessary for the security of persons and property.” Evers didn’t want to go this route, but felt he had no choice.
Vos and Fitzgerald immediately took it to their friends on the State Supreme Court, who shortly after ruled in their favor on a 4-2 vote, with four conservatives voting to hold the election, two liberals voting to postpone it, and Daniel Kelly recusing himself given that he was running for reelection. Despite a declaration of emergency and the governor quoting a state statute that appeared to give the governor the power to do what was necessary to protect the citizens of the state, the court ruled that he did not have the authority to do what he did. Later in the day, the U. S. Supreme Court overturned most of the lower court decision and determined that all absentee ballots had to be postmarked by April 7 and had to arrive at the city clerk’s office by April 13 to count.
The election was probably the most bizarre in the history of Wisconsin, if not the nation. Voters stood in line for hours in Milwaukee, which had only five polling places open because they could not find enough poll workers to staff the nearly 200 sites they would normally have open. Citizens also waited in long lines in many other cities. Some gave up and went home rather than stand with so many other people during a pandemic. Many, many people who didn’t get absentee ballots, including hundreds who had ordered them well in advance but hadn’t yet received them, had to make the decision to risk their health to vote in person or opt to stay home and not vote in a critical election. Countless people chose to forego their right to vote in favor of their health and safety, but huge numbers of determined citizens made their way to the polls, waited in lines, wore masks and gloves, and ultimately voted. Those who did vote in person risked their lives for their vote and for democracy. Wisconsin will soon see if there is a surge of the virus in a couple weeks and whether any of them die for their determination.
Assembly Speaker Vos volunteered at his local polling place in Burlington while stating that gathering all those people in one place was perfectly safe. He became the laughing stock of the nation when pictures surfaced of him in full protective equipment where he volunteered inside as people voted drive-up. Plenty of people were already angry at Vos and Fitzgerald for forcing the election to be held, but were even angrier that he showed up wearing full personal protective equipment when so many health care workers were not able to get the same for themselves.
After the election was over, bins of unmailed ballots for Oshkosh, Appleton, and Fox Point were found. The Wisconsin Elections Commission received complaints from all over the state from citizens who put in requests for absentee ballots and never got them. The Commission and the U. S. Postal Service both opened investigations into what may have happened with those ballots.
Because absentee ballots could still be counted if they arrived by the 13th, results were ordered not to be released until after 4:00 p.m. on Monday, April 13. By mid-evening, the race was called for Karofsky who was holding at about a six percent lead for a couple of hours. By midnight, almost 99% of the votes had been counted and she had approximately a 150,000 vote lead out of about a million and a half votes cast, enough to overcome any Republican objections, challenges, or lawsuits. The result was clearly a rebuke of Vos and Fitzgerald, as well as Donald Trump, who had used his pulpit as President to encourage citizens to show up at the polls during a pandemic and to vote for Kelly, and finally, of the Wisconsin Supreme Court itself and their close association with Republican leadership.
Prior to the election there were articles stating that this latest Republican attempt to thwart voting would be the playbook for the fall national election if it succeeded, and it was generally thought that it would and that incumbent Kelly would win another ten-year term. Karofsky’s win sent a clear warning signal to Republicans both in Wisconsin and nationally that they had better find another playbook as the citizens were tired of attempts to suppress the vote and subvert the will of the people. Wisconsinites who were embarrassed by the naked politics a week previously were suddenly proud that their fellow citizens overcame the odds and made their voices heard.