Bernie Sanders’s parting gift to Wisconsin voters may last for a decade

Despite coronavirus fears, voter turnout in Tuesday’s election in Wisconsin was high. The biggest driver of turnout may have been Sen. Bernie Sanders’s (I-Vt.) persistence in the presidential race, which may have moved hundreds of thousands to the polls — and could potentially swing a key judicial race.

As we wait to hear final results, it’s worth pausing to think about the hidden motivations that may have driven major players, including Sanders and the state Supreme Court. Their decisions this week may have significant long-term implications for Wisconsinites, especially when it comes to redistricting for the coming decade.

In national news, Wisconsin’s election was billed as a presidential primary — the last one before Sanders suspended his campaign. But it was also a general election. At stake were hundreds of local offices, several dozen local judgeships, three seats on the state Court of Appeals, and one seat on the powerful state Supreme Court. The Supreme Court race, between conservative Daniel Kelly and liberal Jill Karofsky, was heated and closely-watched. The winners of all these elections will shape life for Wisconsin’s citizens for years — including next year’s redistricting.

That same state Supreme Court made the news by forcing the election to take place in the first place. Gov. Tony Evers, a Democrat, had ordered the election delayed until June because of the current coronavirus epidemic. Four conservative judges (excluding Kelly, who recused himself) outvoted two liberal judges to block the governor’s order.

The result was a severely understaffed election. In Milwaukee, a Democratic stronghold, voting was conducted at just five polling stations rather than the 180 stations that were planned. Despite this, 1.04 million people voted absentee so far, and hundreds of thousands voted in person on Election Day. Of the outstanding 230,000 or so mail-in ballots, they will be counted if they arrive before April 13, a deadline that the U.S. Supreme Court forbade from being extended.

In a state with 4.4 million eligible voters, 1 million votes might sound low. But it’s par for the course in Wisconsin when only one party has a contested primary. In 2004 and 2012, average turnout was 1.07 million. (In 2008 and 2016, turnout averaged 1.81 million.) This year, with the Biden-v-Sanders contest on the ballot, Democratic voters had a reason to turn out, despite fears of coronavirus.

(By the way, the health consequences of having an election during the peak of the epidemic can be estimated. As of Tuesday, 94 people had died of coronavirus in Wisconsin. Assuming a fatality rate of 1 percent, that corresponds to approximately 10,000 infected people statewide. If 300,000 Wisconsinites stood in line to vote out of a population of nearly 6 million, we might expect that 500 people positive for COVID-19 — at any stage from newly-infected to recovered — were standing in line on Tuesday. Runaway epidemics double in 3 days, and I calculate that without any social distancing precautions, 500 infected people could cause about 130 new infections in the course of one unprotected day. But with precautions and the brief interaction time of voting, the number of infections caused by the court-ordered election would be considerably lower. It’s hard to say exactly, but one might expect a dozen infections or so. This is unlikely to be detectable in statewide statistics, and it might not lead to any additional deaths.)

The presence of down-ticket judicial races might have induced Bernie Sanders to stay in the presidential race. Ever since Super Tuesday, Sanders has come under pressure to drop out in the face of insurmountable odds. But at least one analyst, Stephen Wolf of the liberal website Daily Kos, suggested that having an active contest could boost turnout. By waiting until after the election to suspend his campaign, Sanders may well have boosted the prospects of liberal judges.

If Karofsky succeeds in defeating Kelly, that would shift the court leftward. Although there would still only be three liberals on the seven-justice court, it would make the divide closer, in time for the 2020 election and 2021 redistricting. And with another state Supreme Court election in 2023, that same court could rule on the fairness of any new map, no matter how it is passed.

Wisconsin’s state legislative map is among the most gerrymandered in the nation. Republicans, who controlled the redistricting process in 2011, engineered an insurmountable advantage for themselves. In 2021, Gov. Evers could break that hold by forcing a bipartisan approach. But there’s been talk that the legislature might try to pass a new map by resolution, which would bypass the governor. Such a maneuver would have to pass muster with the state Supreme Court, which would have to overrule a precedent set in 1964.

What was the impact of court decisions on turnout in this week’s election? Since Bush v. Gore in 2000, conservative judges have increasingly emphasized regulation of voting over maximizing the number of votes cast and counted. The decisions in Wisconsin and U.S. Supreme Courts fit that pattern — especially the sharp time limit on counting absentee ballots.

Increased voting is generally thought to lead to more Democratic votes. Viewed through a political lens, this week’s court decisions look like defensive actions against high turnout. But compared to Bernie Sanders’s persistence, those actions had small effect.

Sam Wang is director of the Princeton Election Consortium and a professor of neuroscience at Princeton University. Follow him on Twitter @SamWangPhD