In the New York Times, Justice-elect Jill Karofsky writes I’m the Judge Who Won in Wisconsin. This Principle Is More Important Than Winning (‘We must get away from a partisan view of the law‘):
In cities like Milwaukee and Green Bay, the wait [to vote] 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 is right, as a point of jurisprudence, that some principles should overmatch electoral victories, and that the law should not be partisan.
The nature of Wisconsin’s electoral politics over the last decade, however, has seen districts so gerrymandered that winning has become, for the legislative majority, its own principle. This legislative majority lacks a popular majority, and retains power only through an unrepresentative apportionment. This unfair control entices and corrupts other institutions, including our judiciary. WISGOP legislative leaders would not, in fact, be legislative leaders in a fair districting.
They’ve along ago abandoned the principle of a representative legislature, and when that principle went, the law-making power – wrongly, but by absence of restraint necessarily – lost some of its character even as law, and has since begun to look like the exercise of mere power.
The return to a representative legislature will be difficult; these men who hold power now will not yield on the basis of regretful consciences. We may at least be thankful that, in the April 7th statewide race, Wisconsin’s voters braved even a pandemic and chose wisely.