A failed state is one that can no longer claim legitimacy or perform a government’s core function of protecting the people’s basic security. Lately, the Wisconsin supreme court seems to be doing its level best to make its state qualify for “failed” status. Multiple decisions have both undermined the government’s legitimacy and endangered the people.
First, there was the primary. Because voting in person is clearly risky during a pandemic, several states delayed their primaries to make sure everyone was able to mail in a ballot instead of having to go to a polling place. Not so Wisconsin. The state’s Democratic governor signed an executive order for an all mail-in election but was thwarted by the Republican legislature. Then the governor issued an order postponing the election. Republicans challenged it, and the Wisconsin supreme court sided with them. The primary went forward, but was a disaster: there were “long lines in Milwaukee, where only five polling places in the whole city were open” and more than 50 people appear to have contracted coronavirus as a result. Ensuring that people can vote without risking their lives is a basic duty of government, one at which Wisconsin failed.
But the Wisconsin supreme court’s latest decision is even worse. The conservative majority overturned the state’s “stay-at-home” order, immediately leading bars to be flooded with patrons. Even as public health officials stress the danger in suddenly lifting restrictions, justices presented it as a freedom issue, with one writing that the “comprehensive claim to control virtually every aspect of a person’s life is something we normally associate with a prison, not a free society governed by the rule of law”. Public opinion is generally against the anti-lockdown protests, but if a conservative minority has power, the “letting a deadly virus spread unchecked = freedom” perspective will triumph.
Courts are the least democratic branch of government to begin with; judges are like robed “philosopher kings” with the power to overturn measures overwhelmingly favored by the people. (Sometimes that’s a good thing, but decisions as to what to let stand and what to overturn are almost always political.) Once a single party dominates at court, it simply has veto power over the entire democratic process.
The court’s conservative majority has shown no hesitation in imposing its ideology on the state. As Akela Lacy reported in the Intercept, they have been denying the rights of unionized workers, ruling consistently against criminal defendants, and even overturning a rule banning people from carrying weapons on public buses.
Wisconsin’s Republicans have succeeded in capturing power in the state even without having to capture popular approval. As Michael Li of the Brennan Center documents, the state has been heavily gerrymandered, meaning Republicans can exercise power without having to win majority support:
“[G]errymandered maps make it virtually impossible for them to ever lose their legislative majority. Wisconsin’s maps were crafted with such micro-precision that even if Democrats managed to win a historically high 54% of the two-party vote – a level they’ve reached only once in the last 20 years — Republicans would still end up with a solid nine-seat majority in the state assembly. In fact, Wisconsin’s maps are so gerrymandered that Republicans can win close to a supermajority of house seats even with a minority of the vote. Analyses of the maps in the lawsuit challenging the maps showed that Republicans are a lock to win 60% of statehouse seats even if they win just 48% of the vote.”
In a supposedly democratic country, this should be an outrage. How can a government claim legitimacy if it does not require the people’s support? But this is true far beyond Wisconsin. Republican rule is minority rule; as we know, thanks to our archaic electoral college system Donald Trump, like George W Bush, was able to win the election without winning the most votes, and the undemocratic Senate is Republican-dominated. The Republican agenda is unpopular, meaning that in order to impose it, institutions have to be crafted that will prevent the population from exercising its will. The easier it is for the masses to participate, the more difficult it is for Republicans to protect the 1%, who really should be winning exactly 1% of the vote. (Donald Trump admitted that if voting were easy enough Republicans would never win another election.)
What respect do people owe a government that cannot protect them and cannot claim democratic legitimacy? Very little. The more that Wisconsin Republicans act to impose their will unilaterally without regard to the safety or will of the people, the less we should treat Wisconsin as a functional government.
Nathan Robinson is the editor of Current Affairs and a Guardian US columnist