On April 7, I was on the ballot in an election that should not have happened.
I was running for a 10-year term on the Wisconsin Supreme Court against an appointed incumbent. I came to find out after the election that incumbents in Wisconsin have lost Supreme Court elections only twice in the last half-century — had I known that when I started, I might never have run.
The central theme of our campaign was a message of restoring the public’s trust in the judicial system. It was a winning message: We pulled in a resounding 55 percent of the vote.
And it will guide me as a Wisconsin Supreme Court justice. I will make decisions based on the law — we must get away from a partisan view of the law.
The election was a good example of what should not happen. Gov. Tony Evers had formally called on the Legislature to postpone it. Deadlines for returning ballots were extended.
But in a mad flurry of activity the day before the election — probably never seen before and hopefully never seen again — partisan court majorities in cases at the Wisconsin and U.S. Supreme Courts reinstated the election and removed the deadline extension for absentee ballots to be returned.
Scant hours before the polls opened, the people of Wisconsin were confused and worried: On one hand, their government was telling them clearly to stay away from one another. On the other, they were being told that if they wanted to continue having a democracy, they had to show up in person, stand in long lines and vote.
In cities like Milwaukee and Green Bay, the wait ended up being as long as three hours. And because the U.S. Supreme Court majority created — just hours before the polls opened — a new “postmark” requirement for ballots that in actuality probably wouldn’t be postmarked because of the type of mail they were, even those who voted on time were concerned that their votes wouldn’t count.
Now, over two weeks later, we have an uptick in Covid-19 cases, especially in dense urban centers like Milwaukee and Waukesha, where few polling places were open and citizens were forced to stand in long lines to cast a ballot. It will take time to compile and analyze the data, but the number of people who voted in person and have tested positive is growing.
It’s important to note three significant facts. First, both court decisions — from the U.S. and Wisconsin Supreme Courts — are seen as being along partisan lines, with allies of Republicans refusing to delay the election. Second, because of the pandemic, the justices of neither of those courts actually met in person when discussing and voting these cases — but they forced many people who wanted to vote, to vote in person. And third, every member of the Wisconsin Supreme Court had already voted early. They weren’t putting themselves at risk.
It’s my view that these decisions were wrong on the law, and they were wrong on process. We shouldn’t legislate from the bench. There was no time for full briefs or oral arguments and no time to fully examine the issues. The U.S. Supreme Court especially erred by writing into law a postmark requirement that they didn’t have the time to think through and that caused tremendous confusion in my state.
Most observers assume these last-minute decisions not only contributed to chaos, but also weren’t respectful of the law or a deliberate process. Even if one believed that the governor’s moves to postpone the election were wrong, it was incumbent on these courts to take the time to review the situation completely — instead of granting the governor only minutes to file a response to a lawsuit the day before an election.
I find it unconscionable that Wisconsin voters were forced to choose between their safety and having their voices heard in our democracy. The right to vote is fundamental to the American creed. Courts making partisan decisions, sending people out to vote in the middle of a global pandemic, is exactly what’s wrong with a judiciary that has become too political, and I think a deliberate attempt to suppress the vote in Wisconsin.
On Election Day, my daughter and I set up on our back porch to field phone calls and text messages and to monitor the in-person voting. The pictures we viewed from across the state were gut-wrenching. Usually Milwaukee has 180 polling places, but because of the pandemic causing a lack of poll workers, only five were open. The entire City of Waukesha had one polling place. These consolidations meant thousands of voters were funneled into a handful of sites, some in masks, some wearing gloves, standing a few feet apart for blocks and blocks.
As we started to field calls and text messages a common theme appeared. People who had requested absentee ballots days and weeks earlier had not received their ballots. Because of the court rulings, each and every one of these voters had to make the excruciating decision between staying safe at home or voting amid a global pandemic.
People were frustrated and outraged. The calls and the texts did not stop. My daughter cried.
In the end, my campaign was rewarded for our persistence and patience. But victory is bittersweet. It was unacceptable to hold an election under circumstances in which people were forced to choose between their safety and voting. It disenfranchised countless people and raised serious concerns for the future of our democracy.
It can never happen again. Now, more than ever, we need to instill confidence in our institutions. I hope I’ll be judged on following the law, not the party line.
Jill J. Karofsky is a justice-elect of the Wisconsin Supreme Court.
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