One of the biggest challenges to the future of American democracy is unfolding this Tuesday, but not in Manhattan. It’s occurring in Wisconsin.
Beyond the fact that no former president has ever faced a criminal indictment, Donald Trump’s arraignment in Manhattan on criminal charges offers little by way of news. An arraignment leading to a criminal trial that takes place months (if not years) from now is a dull technical legal proceeding.
To satisfy the public’s seemingly insatiable craving for Trump entertainment notwithstanding, the media are filling the void with Trump swag: wall-to-wall “special coverage”, on-the-spot correspondents, panels of pundits, interviews with current and past Trump lawyers and former prosecutors, opinion polls, interviews with “average” Trump supporters, and mindless chatter about Trump’s moods (“troubled”, “angry”, “defiant”, “exhilarated”).
Tonight, Trump is expected to deliver a prime-time address from Mar-a-Lago. No news there, either. Predictably, it will be little more than lies and smears – more free media coverage for Trump’s venomous bluster.
A larger challenge to American democracy is occurring in Wisconsin, where voters will choose a new judge for the state’s supreme court and a senator for its legislature, but that’s getting far less attention than what’s occurring in New York.
Wisconsin is a key swing state in the upcoming 2024 presidential election. Its supreme court and legislature could be critical to the outcome.
And it is the most gerrymandered state in the nation. Although voters in the state divide almost evenly between Democrats and Republicans, Republicans hold 63 out of 99 seats in the state assembly and 21 of 33 seats in the state senate.
Four years ago, the US supreme court decided to leave partisan gerrymandering cases to state courts. This means that if the justice who’s elected today alters the Wisconsin supreme court’s seven-person majority, it could strike down the state’s wildly gerrymandered voting maps – a major advance for democracy.
But even this might not be enough to restore democracy in Wisconsin. Tuesday’s special election to fill an open state senate seat will decide whether Republicans gain a supermajority that could allow them to impeach the new justice.
The Republican candidate for that seat, Dan Knodl, has suggested he might try to do so if he doesn’t like who’s elected to the court.
Not incidentally, Knodl was one of 15 Wisconsin Republican lawmakers who in January 2022 sent a letter to then vice-president Mike Pence asking him to delay certifying presidential results that showed Joe Biden defeated Donald Trump.
The underlying issue in Wisconsin is the same as it’s been since Trump lied and smeared his way into the national consciousness seven years ago: whether an authoritarian demagogue can take over a national political party so that the party can then control enough state legislatures to elect that authoritarian – even though a large majority of voters reject him.
Trump lost his 2020 presidential bid by 7m votes. But he could have won the electoral college, and therefore been elected president, had he won just 42,919 more votes spread across just three swing states – Georgia, Arizona and Wisconsin.
So the rules about who gets to vote are crucial, especially in these swing states. And who sets those rules? State legislatures, along with state courts that decide whether the legislatures are acting constitutionally. Hence, the importance of Tuesday’s two races in Wisconsin.
Wisconsin Republicans have already changed state law to make voting more onerous by enacting a strict voter ID law. And last year, the state’s conservative supreme court banned drop boxes for absentee ballots. Wisconsin now ranks 47th out of 50 states on how easy it is to vote.
Not incidentally, Wisconsin’s supreme court was the only state supreme court in the nation that agreed to hear Trump’s challenge to the 2020 election, eventually rejecting – by a single vote – his attempt to throw out 200,000 ballots in the state’s two large Democratic counties.
Another way Trump could have won in 2020 is if the outcome of the election had been determined by Republican-controlled state legislatures in Wisconsin and other swing states – as Trump and many Republican members of Congress sought. Yet another reason why the Wisconsin races are so important.
Friends, this is how authoritarian minorities steal democracies: they do it step by step. They design voting districts to freeze out a majority of voters. They then gain legislative supermajorities that allow them to control the state executive and state courts. Then they capture electoral college majorities despite the popular vote.
Or they sow so much doubt about the popular vote that they decide the outcome.
This was Trump’s playbook in 2020. He didn’t succeed then, but he might in 2024.
What’s happening in Manhattan’s criminal court is obviously important. Holding a former president accountable to the rule of law is essential.
But what’s happening today in Wisconsin may prove as, if not more, important to the future of American democracy. It will either strengthen or weaken the levers of self-government in a state where those levers could make all the difference.
Robert Reich, a former US secretary of labor, is professor of public policy at the University of California, Berkeley, and the author of Saving Capitalism: For the Many, Not the Few and The Common Good. His new book, The System: Who Rigged It, How We Fix It, is out now. He is a Guardian US columnist. His newsletter is at robertreich.substack.com
