States Can Be Laboratories of Autocracy, Too

For more than a decade, dating back to the Republican triumph in the 2010 midterm elections, Wisconsin Republicans have held their State Legislature in an iron lock, forged by a gerrymander so stark that nothing short of a supermajority of the voting public could break it.

In 2012, the first year the maps were in effect, Republicans won 46 percent of the statewide vote but 60 percent of the seats in the state assembly. In 2014, Republicans won the governorship with 52 percent of the vote, which gave them 63 percent of the seats in the state assembly. And in 2016, Republicans and Democrats essentially split the statewide vote, but Republicans claimed 64 percent of seats in the state assembly.

In 2018, this gerrymander proved strong enough to allow Wisconsin Republicans to win a supermajority of seats in the state assembly despite losing the vote for every statewide office and the statewide legislative vote by 8 percentage points, 54 to 46. No matter how much Wisconsin voters might want to elect a Democratic Legislature, the Republican gerrymander won’t allow them to.

The gerrymandering alone undermines Wisconsin’s status as a democracy. If a majority of the people cannot, under any realistic circumstances, elect a legislative majority of their choosing, then it’s hard to say whether they actually govern themselves.

What makes the situation worse are the actions of Republican lawmakers. Using their gerrymandered majority, Wisconsin Republicans have done everything in their power to undermine, subvert or even nullify the public’s attempt to chart a course away from the Republican Party. In 2018, for example, Wisconsin voters put Tony Evers, a Democrat, in the governor’s mansion, sweeping the incumbent, Scott Walker, out of office. Almost immediately, Wisconsin Republicans introduced legislation to weaken the state’s executive branch, curbing the authority that Walker had exercised as governor.

Earlier this year, Wisconsin voters took another step toward ending a decade of Republican minority rule in the Legislature by electing Janet Protasiewicz, a liberal Milwaukee county judge, to the State Supreme Court, in one of the most high-profile and expensive judicial elections in American history.

The reason behind the flood of money and attention was straightforward. If she won, Protasiewicz would break the conservative majority on the court, giving liberal justices an opportunity to shape the state’s legal landscape until at least the next judicial election cycle. And Protasiewicz made no secret of her views. If elected, she said she would defend abortion rights and give a new look at the state’s legislative maps, which she criticized as “rigged” and “unfair.”

Protasiewicz won a double-digit victory, with record turnout. Wisconsin voters wanted her on the court to stand up for their reproductive and voting rights.

Wisconsin Republicans can’t strip a judicial officer of her power. But they can remove her, which is what they intend to do. “Republicans in Wisconsin are coalescing around the prospect of impeaching a newly seated liberal justice on the state’s Supreme Court,” my newsroom colleague Reid J. Epstein reports. “The push, just five weeks after Justice Janet Protasiewicz joined the court and before she has heard a single case, serves as a last-ditch effort to stop the new 4-to-3 liberal majority from throwing out Republican-drawn state legislative maps and legalizing abortion in Wisconsin.”

Republicans have more than enough votes in the Wisconsin state assembly to impeach Justice Protasiewicz and just enough votes in the State Senate — a two-thirds majority — to remove her. But removal would allow Governor Evers to appoint another liberal jurist, which is why Republicans don’t plan to convict and remove Protasiewicz. If, instead, the Republican-led State Senate chooses not to act on impeachment, Justice Protasiewicz is suspended but not removed. The court would then revert to a 3-3 deadlock, very likely preserving the Republican gerrymander and keeping a 19th-century abortion law, which bans the procedure, on the books.

If successful, Wisconsin Republicans will have created, in effect, an unbreakable hold on state government. With their gerrymander in place, they have an almost permanent grip on the State Legislature, with supermajorities in both chambers. With these majorities, they can limit the reach and power of any Democrat elected to statewide office and remove — or neutralize — any justice who might rule against the gerrymander.

It’s that breathtaking contempt for the people of Wisconsin — who have voted, since 2018, for a more liberal State Legislature and a more liberal State Supreme Court and a more liberal governor, with the full powers of his office available to him — that makes the Wisconsin Republican Party the most openly authoritarian in the country.

Of course, there is nothing yet written in stone. Wisconsin Republicans might, for the first time, show an ounce of restraint and refrain from taking this radical step against self-government. If they choose otherwise, Justice Protasiewicz could sue, citing her First Amendment right to free speech: the Republican case against her, after all, is that she disparaged their gerrymander in her campaign, making her “biased.” The scheme could also backfire; if Protasiewicz were to resign following an impeachment, the state would hold a new election next year. Wisconsin Republicans might then face an angry and mobilized electorate in a presidential year.

Regardless of how this specific incident plays out, it illustrates a broader problem in the structure of American political life. In the absence of national regulation — and against the backdrop of a federal Supreme Court that is, at best, apathetic on issues of voting rights — states are as liable to become laboratories of autocracy as they are to serve as laboratories of democracy. And without federal intervention to enforce a “republican form of government,” as the Constitution phrases it, the voters themselves have no other choice but to leave for greener pastures if they hope to govern themselves.

There are those who say that this — the states as semi-sovereign entities with broad discretion over their internal affairs — is the point of the American system. That this is the design, the framers’ intent. This is tenable when the difference between states is one of tax policy or the extent of the social safety net. It is not when the issues turn to fundamental questions of political and civil rights.

Wisconsin, it seems, is simply the latest flashpoint over a larger question being contested in different arenas across different areas of concern: What is the scope of the power of the states? What is the meaning of American citizenship? And what rights do we actually have, in theory and in practice?

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