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Comedian/TV personality John Oliver’s twist on the locals: “As a sports fan in England I knew it’s just not acceptable to come to America and support the Yankees. It’s not OK. By default I was a Mets fan because I knew being a Yankee fan was the wrong thing to do morally. They are the...
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The Supreme Court’s enigmatic “shadow docket,” explained
Chief Justice John Roberts speaks before presenting US Supreme Court Justice Ruth Bader Ginsburg the American Law Institute’s Henry J. Friendly Medal in Washington, DC, on May 14, 2018. | Jim Watson/AFP via Getty Images How the Supreme Court hides major conservative victories in plain sight. Last week, the Supreme Court handed down a 5-4 decision blocking a lower court’s order requiring a California jail to take several steps — such as socially distancing inmates and providing them with “hand sanitizer containing at least 60% alcohol” — to prevent the spread of Covid-19 within the jail. I have no idea why the Supreme Court would do such a thing, and neither does anyone else who isn’t a justice or one of their closest advisers. The reason for our ignorance is that the five justices in the majority — all five of the Court’s Republicans — didn’t bother to explain their decision. The entirety of the Court’s order in Barnes v. Ahlman is a single paragraph of boilerplate language, informing the reader that “the district court’s May 26, 2020 order granting a preliminary injunction is stayed pending disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition” of a petition asking the justices to fully review this case. Hundreds of incarcerated people could become infected with a potentially deadly disease. And the Supreme Court won’t even tell us why. Welcome to the Court’s “shadow docket.” The term “shadow docket” was coined by University of Chicago law professor William Baude in an influential 2015 article. It refers to “a range of orders and summary decisions that defy [the Court’s] normal procedural regularity.” Often these orders are handed down without any explanation from the majority, or without much advance notice from the Court. Frequently they are handed down on Friday evenings, after at least some of the Supreme Court press corps are already a couple of beers into their weekends. Because shadow docket cases are often released without a majority opinion explaining the Court’s reasoning, they have less impact on legal doctrine than most ordinary decisions. Judges are bound by the Court’s majority opinions, but a lower court judge can’t follow an opinion that doesn’t exist. Nevertheless, the stakes in shadow docket cases — which often arise after a party files an emergency request asking the Court to block a lower court order — can be enormous. The decision in Barnes endangers the health of thousands of inmates. Other shadow docket decisions concern billions of dollars. Or they can effectively lock thousands of immigrants out of the country. The ideological cast of the shadow docket, moreover, is even more conservative than the Court’s regular docket. Though the Court’s recent term featured several high-profile — though often very narrow — victories for liberals, the Court’s party-line decision to lift safeguards against spreading Covid-19 within a California jail is more typical of its shadow docket. The Trump administration has a particularly high win rate in shadow docket cases. And it knows it. It asks the Supreme Court to block lower court orders far more than any recent administration. The Court, meanwhile, has shifted an increasing share of its output to this often inscrutable shadow docket. In the past year, Justice Sonia Sotomayor has written several strongly worded dissents warning that her colleagues are bypassing safeguards intended to prevent the Court from handing down cursory, insufficiently thought-out decisions — and that they often do so to benefit the Trump administration. Her most recent dissent was in Barnes, the jail case. “The District Court found that, despite knowing the severe threat posed by COVID–19 and contrary to its own apparent policies, the Jail exposed its inmates to significant risks from a highly contagious and potentially deadly disease,” Sotomayor wrote. And yet the Supreme Court “intervenes, leaving to its own devices a jail that has misrepresented its actions to the District Court and failed to safeguard the health of the inmates in its care.” Perhaps there’s an explanation for why the Court’s Republican majority felt intervention was appropriate. But if there is one, they aren’t telling us. Because they are decided so quickly and often without explanation, moreover, shadow docket cases will tend to fly under the radar. But, with so much at stake in many of these cases, they deserve far more attention than they often receive. The Supreme Court’s normal process for hearing cases, explained Before we jump into the shadow docket, it’s helpful to understand how the Court ordinarily decides cases. The famous cases that you’ve most likely heard of — cases like Roe v. Wade and Brown v. Board of Education — reach the Court through a long, drawn-out process that privileges careful decision-making over speed. Because the Supreme Court has the final word on all questions of federal law, including interpretations of the Constitution, the Court’s ordinary procedures call for it to act with great care to avoid making mistakes. For starters, the justices are extraordinarily selective about which cases they hearthrough their ordinary docket. In a typical year, lawyers file 7,000 to 8,000 petitions for a writ of certiorari, the formal name for a petition asking the Supreme Court to give full review to a lower court’s order. The Court typically grants fewer than 80 of these “cert” petitions. Once such a petition is granted, the justices spend months pondering the case. Lawyers on either side of the dispute file lengthy briefs and voluminous collections of documents culled from the case’s overall record. In the most high-profile cases, dozens of amicus briefs may be filed on either side of the case as well — leaving the justices and their law clerks with hundreds or even thousands of pages of legal arguments to ponder before reaching a decision. And all of this typically happens after the case has already received considerable attention from lower court judges. The Supreme Court’s rules warn lawyers that, unless their case presents an unusually “important question of federal law” that demands the justices’ attention, the Court rarely grants cert petitions unless necessary to resolve a disagreement between two federal courts of appeals, two state supreme courts, or a federal court of appeal and a state supreme court. Thus, by the time the justices hear a case, the legal question presented by that case has typically been pondered by many lower court judges, and judges who disagree about the proper answer to that question have written their own opinions that the justices can rely on in thinking through the case themselves. As Peter Margulies, a law professor at Roger Williams University, told me, the “usual view” among judicial experts is that “you want that kind of percolation effect.” When there are “more eyeballs” on a legal question before it reaches the justices, the Supreme Court benefits from “more viewpoints,” and that tends to lead to better decisions. There’s also a very good reason the Supreme Court ordinarily moves so slowly, and typically spends so much time thinking about cases before handing down an opinion. There is no higher court that can correct the Supreme Court’s errors, so if the justices botch a case, that decision could linger forever. It will bind all future judges who are confronted with similar cases, and can only be overruled by a subsequent Supreme Court decision. Shadow docket cases receive little of the careful deliberation that goes into the ordinary docket Which brings us to the Court’s shadow docket. Unlike cases on the Court’s regular docket, shadow docket cases receive very limited briefings and are rarely, if ever, argued before the justices. Though the justices will often discuss these cases among themselves, they frequently do so on an extraordinarily compressed schedule — leaving far less time for reasoned debate. That’s often true because shadow docket casesfrequently arise from emergency requests asking the Court to grant swift and immediate relief, meaning that the justices will only spend days or even hours pondering how to rule on such a request. Because many of these cases are resolved in brief orders and without a written opinion explaining the majority’s reasoning,shadow docket cases often have less impact on legal doctrine than cases on the ordinary docket. Lower court judges are bound by the reasoning memorialized in the Supreme Court’s majority opinions, but they can’t be bound by an opinion that doesn’t exist. The Court does sometimes hand down majority opinions when it resolves cases on its shadow docket. To date, for example, the Court’s only majority opinion governing the rights of voters who are afraid of contracting Covid-19 if they go to the polls is Republican National Committee v. Democratic National Committee(2020). That decision, which effectively required Wisconsin to toss out many ballots cast in its election last April, was decided just two days after the GOP requested an emergency order from the Supreme Court. “It’s hard to imagine that [the justices] have the same deliberation or time to think about the varying arguments by each party” in many shadow docket cases, according to Shoba Sivaprasad Wadhia, a professor and associate dean at Penn State Law. Yet when the Court hands down a majority opinion in a shadow docket case, lower court judges still must obey that decision. When the justices in the majority do not explain their reasoning, a different but also troubling problem arises. There’s a common phrase within the judiciary. When a judge initially thinks a case should come down one way, but then they start writing their opinion and realize they can’t come up with a legally sound argument justifying that outcome, they say that the opinion “won’t write.” The ordinary requirement that judges explain their decisions in reasoned opinions can be a tremendous check on judicial power. It discourages those judges from ruling in arbitrary ways. As Margulies told me, “there are some opinions that just aren’t going to work out” once a justice has taken sufficient time to reason through how to decide the case. But if the Supreme Court pushes too many of its decisions onto its shadow docket, the justices in the majority may never figure out that their first instinct regarding how to decide a case was flawed. Cases on the Court’s ordinary docket, moreover, receive a great deal of public scrutiny. Consider, for example, June Medical Services v. Russo, an abortion decision the Court handed down in June. Vox covered the Court’s decision to hear this case, its oral argument in this case, and its ultimate decision to strike down a Louisiana anti-abortion law as separate and important news events — and that sort of coverage is typical of outlets that cover the Supreme Court. We also probed the history of June Medical and similar cases. We reported on the political fallout from the Court’s decision. And that’s just a small fraction of our coverage of this highly newsworthy case. Shadow docket cases, by contrast, almost never receive this kind of attention. How could they when they are often decided so quickly that even many veteran Supreme Court journalists do not realize the Court is considering an important case until after a decision is handed down? For many of these reasons, the Supreme Court has historically applied a strong presumption against second-guessing lower court judges when a case arrives on the Court’s shadow docket. As Justice Sotomayor wrote in a dissenting opinion in Wolf v. Cook County, one of several recent decisions where she criticized her colleagues for being too eager to stay lower court opinions, “stay applications force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument.” A Supreme Court order blocking a lower court decision has historically been considered an “extraordinary” event, Sotomayor explained. But they’ve become increasingly common in the Trump years. Since the Court’s most recent term began last October, the justices have handed down at least 10 emergency orders decided by a 5-4 vote. Eight of these shadow docket cases granted full or partial relief to a party seeking to curtail a lower court order. The Court’s shadow docket decisions often have severe consequences for the most vulnerable communities The Court’s decision to, again borrowing from Sotomayor’s words, lift public health restrictions on a jail that “recently reported 15 new cases of COVID– 19 in a single week” is fairly typical of its recent shadow docket decisions. Though liberals sometimes prevail in these cases, the Court’s shadow docket cases far more frequently benefit conservative litigants and conservative causes, at least when the justices divide on the proper outcome. Of the 10 cases mentioned above, eight were decided along party lines with the Republican justices in the majority.And these decisions benefit conservatives at the expense of some of the most vulnerable communities subject to the Court’s jurisdiction. Republican National Committee, for example, forced many Wisconsin voters to make a devilish choice — give up their right to vote or risk becoming infected with a potentially deadly disease. The Court’s decision in Dunn v. Ray (2019) ruled that an Islamic death row inmate could not have his spiritual adviser present at his execution, even though the prison permitted Christian inmates to have a minister present to say last rites. And then there are the Court’s immigration decisions, where the Court has repeatedly blocked lower court decisions protecting immigrants in cases that arose on its shadow docket. Among other things, the Court’s shadow docket cases reinstated a Trump administration policy restricting low-income immigrants’ ability to enter the United States. They permitted Trump to spend billions to build a border wall. And they reinstated a policy that makes it so difficult for victims of persecution to seek asylum in the United States that, according to Lee Gelernt of the American Civil Liberties Union’s Immigrants’ Rights Project, that policy has the effect of “virtually ending asylum at one shot.” “When the Supreme Court acts to stay an injunction by the lower courts,” Wadhia told me, “it’s often at the expense of vulnerable people and, in this case, immigrants.” Prior to the Trump administration, the Justice Department typically understood that the justices viewed a Supreme Court stay of a lower court order as an extraordinary form of relief, and it rarely applied for such relief as a result. According to a November 2019 paper by University of Texas law professor Stephen Vladeck, “during the sixteen years of the George W. Bush and Obama Administrations, the Solicitor General filed a total of eight such applications — averaging one every other Term.” By contrast, “in less than three years, [Trump’s] Solicitor General has filed at least twenty-one applications for stays in the Supreme Court (including ten during the October 2018 Term alone).” The Supreme Court, meanwhile, has rewarded the Trump Justice Department’s behavior. Vladeck finds that the Trump administration achieved a full or partial victory in about two-thirds of cases where it seeks to temporarily block a lower court opinion. What was once extraordinary is now quite ordinary. The Trump administration, for what it’s worth, often argues that Supreme Court intervention is necessary because individual trial judges have handed down an unusual number of nationwide injunctions — orders blocking a federal policy throughout the entire country — since Trump became president. And there are good reasons to be cautious about such injunctions. If Joe Biden is president next year, many Republican judges could try to halt literally any action taken by the new administration. But according to Gelernt, there’s a good reason why lower courts have so frequently blocked Trump’s immigration policies — and why litigators often feel compelled to seek such relief. “The reason why there have been more national injunctions in the immigration area,” he told me, “is because the Trump administration has enacted so many policies that harm so many people immediately, leaving no choice but to seek immediate national relief.” It remains to be seen whether the Court will be equally zealous in policing lower court injunctions once Democrats control the elected branches of government. For the moment, however, it is hard to escape the impression that the Court is reaching out to do favors for the Trump administration, even if doing so means ignoring rules intended to prevent the Court from deciding cases too rashly. As Sotomayor wrote in her Wolf dissent, the Court’s “has been all too quick to grant the Government’s ‘reflexiv[e]’ requests,” at least when those requests come from Trump’s lawyers. Support Vox’s explanatory journalism Every day at Vox, we aim to answer your most important questions and provide you, and our audience around the world, with information that has the power to save lives. Our mission has never been more vital than it is in this moment: to empower you through understanding. Vox’s work is reaching more people than ever, but our distinctive brand of explanatory journalism takes resources — particularly during a pandemic and an economic downturn. Your financial contribution will not constitute a donation, but it will enable our staff to continue to offer free articles, videos, and podcasts at the quality and volume that this moment requires. Please consider making a contribution to Vox today.
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President Donald Trump speaks during a news conference at the White House on August 10. | Alex Wong/Getty Images Trump’s actions appear largely legal. They just won’t accomplish very much. On Saturday, President Donald Trump signed four memorandums and executive orders that, he claimed, would provide relief to Americans struggling financially during the Covid-19 pandemic. One order purports to provide enhanced unemployment benefits to some Americans — although on less generous terms than the recently expired benefits provided by the CARES Act. A second defers payment of payroll taxes. A third directs several federal agencies to take vague, unspecified actions regarding evictions and foreclosures. And a fourth defers payments on federal student loans. Trump’s four executive actions come after negotiations over a new pandemic relief bill to replace the CARES Act appear to have stalemated. Though House Democrats passed a $3 trillion replacement for the CARES Act in May, Republicans did not present their $1 trillion counteroffer until late July — just days before key provisions of the CARES Act expired. The Republican proposal was also larded with poison pills, such as a bill that would immunize most businesses from coronavirus-related lawsuits, that earned swift rebukes from Democratic leaders. Not long after Trump signed the four executive actions, a bipartisan mix of lawmakers denounced them for attempting to steal away Congress’s power to set the nation’s fiscal policy. Sen. Ben Sasse (R-NE) called Trump’s actions “unconstitutional slop.” House Speaker Nancy Pelosi told CNN that “as my constitutional advisers tell me, they’re absurdly unconstitutional.” But the reality is more nuanced. With one possible exception — there is a strong legal argument against Trump’s unemployment benefits order — Trump’s four actions are probably legal. The problem with these actions isn’t that they are likely to be blocked by a federal court, it’s that, with one exception, federal law places fairly rigid constraints on the president’s ability to provide pandemic relief. And Trump largely appears to be complying with those constraints. One measure may prove workable: the memorandum deferring payment of student loans. That memo appears to be lawful, and is likely to provide real relief to many borrowers. Otherwise, there is less to Trump’s actions than the president would like voters to believe. It’s far from clear whether anyone will receive enhanced unemployment benefits, due to the many legal constraints on those benefits. And even if those benefits are paid, they will be paid out of a limited pool of funds that will run out of money quickly. Similarly, while Trump deferred payments of some taxes, he can’t relieve taxpayers of their obligation to eventually pay those taxes. For this reason, according to University of Chicago tax law professor Daniel Hemel, “many employers will continue to withhold Social Security taxes from paychecks lest they be on the hook for the $$$ next year.” Trump’s actions, in other words, appear largely legal. They just won’t accomplish very much. Trump’s new policy onunemployment benefits has many problems, only one of which is that itmay be illegal Of the four executive actions Trump signed, the one that likely crosses the line in terms of legality concerns unemployment benefits. On the surface, Trump’s unemployment benefits memo seems to restore some of the benefits lost when the CARES Act expired at the end of July. Under the CARES Act, people collecting unemployment benefits received $600 in federal funds weekly in addition to the other benefits they were entitled to receive every week. Trump’s memo calls for $400 of these enhanced benefits to be restored to some unemployed people — although not for the poorest recipients of unemployment benefits. But it’s far from clear that Trump has statutory authority to make these payments. And even if he does, Trump’s power to do so is so limited that it is far from clear who, if anyone, will receive the $400 in weekly benefits and how long those benefits will last. For the unemployment insurance memorandum, Trump relies on a provision of the Robert T. Stafford Disaster Relief and Emergency Assistance Act that permits the president to “provide financial assistance” to victims of a major disaster, such as a pandemic, to help “address personal property, transportation, and other necessary expenses or serious needs resulting from the major disaster.” The memorandum directs “up to $44 billion” in disaster relief funds to be spent to provide most unemployed people with $300 — not the full $400 the memo seeks to provide to unemployed people — in federal benefits a week. Why only $300? Because federal regulations provide that the federal share of such disaster relief “shall be 75 percent.” The remaining quarter of the relief funds “shall be paid from funds made available by the State.” So, if Trump wants individuals to receive $400 a week, $100 of that money must come from the states. That’s a serious problem, given the tremendous fiscal burden the pandemic has imposed on state governments. According to a July paper by the Center on Budget and Policy Priorities’ Elizabeth McNichol and Michael Leachman, “the state budget shortfalls expected from COVID-19’s economic fallout will total a cumulative $555 billion over state fiscal years 2020-2022.” States, moreover, have far less power to borrow funds during lean economic times than the federal government. At least 40 states require a balanced budget, meaning that deficit spending is simply off the table. It’s far from clear that any of these states will be able to find the money to pay an additional $100 a week in unemployment benefits even if they want to. Bear in mind, as well, that Trump’s memo only calls for $44 billion to be spent on unemployment benefits. As Georgetown University law and economics professor David Super writes, “with roughly 25 million people receiving unemployment benefits, the $300 federal share of the new weekly benefit would last about six weeks, or until mid-September.” At that point, unemployed people would be in the same boat they’re in now. The $44 billion could last longer, of course — if many states do not participate in this program. Super also points to another problem with Trump’s memo — it may be illegal. Although one provision of the Stafford Act allows the president to “provide financial assistance” to disaster victims with relatively few restrictions, a separate provision only permits the president to provide benefits to the unemployed that do “not exceed the maximum weekly amount authorized under the unemployment compensation law of the State in which the disaster occurred.” But the whole point of the enhanced unemployment benefits is to provide additional funding on top of the amount authorized by state law. Super argues that this provision dealing specifically with unemployment benefits trumps the more general provision allowing the president to “provide financial assistance” more broadly. Often, when two different statutory provisions are in tension with each other, courts hold that the more specific provision supersedes the more general provision. But even if Trump does have the statutory authority to provide enhanced unemployment benefits, those benefits will be short-lived and likely will not be available in many states — if they are available at all. Trump’s tax memorandum appears legal, but unlikely to accomplish much Trump’s second memorandum purports to defer collection of payroll taxes, that fund Social Security and Medicare, for workers earning less than about $100,000 a year. This memo is probably legal. The Treasury Secretary does have the power to delay collection of certain taxes for victims of federally declared disasters, and Trump is the Treasury Secretary’s boss. But, while the Trump administration may delay collection of certain taxes, such a delay is unlikely to accomplish much. It’s likely that most workers will never see the impact of this policy on their paychecks. Delaying tax payments makes sense in certain circumstances. Suppose that a tornado wipes out much of a town and leaves local businesses without electricity for weeks. A federal order delaying collection of taxes will allow those businesses to rebuild, and to figure out how to operate in the middle of a disaster, without also facing the additional burden of setting aside money to pay for federal taxes. But the law Trump relies on in his memo only allows the federal government to delay payments for up to a year. It doesn’t relieve taxpayers of their obligation to pay those taxes eventually. Under normal circumstances, federal law requires employers to deduct a percentage of each of their employees’ wages in order to cover various federal taxes, and to pay this money to the IRS. The penalties for failing to do so are quite high. An employer that is just one day late in paying such taxes can be required to pay 2 percent of the unpaid tax as a penalty. After 16 days, this penalty rises to 10 percent. And an employer who “willfully” evades its obligation to withhold money from their employees and provide that money to the government could potentially be liable for 100 percent of the money their workers owe. Trump’s memo effectively lifts these penalties for as long as it is in effect, but it cannot do so forever. And employers who do not withhold payroll taxes from their workers are likely to be in for a nasty surprise when the tax bill comes due. Think of it this way. Imagine that I owe $3,000 this year in payroll taxes on my Vox Media salary. Ordinarily, Vox will withhold that money from my paycheck and remit it to the IRS. Under Trump’s memo, Vox could decide not to withhold that money. But Vox is still going to owe it eventually. And, when that obligation does come due, Vox could still be subject to penalties if it doesn’t turn over the $3,000 it owes to the government right away. As Hemel, the tax law professor, told me, the IRS has not yet issued guidance on what happens to employers who fail to pay once Trump’s memo expires. But he emphasized that federal law only allows the Treasury to delay payments for up to one year. Accordingly, said Hemel, if the memo expires on August 10, 2021, then “on August 11, 2021, the penalty is the same that it would have been on August 11, 2020.” Vox will need to turn over the $3,000 it owes the IRS once the memo expires, or face penalties. There are other complications. Where is Vox Media going to find the money to make those future payments if they haven’t been withholding it from my paycheck? Will it order me — and all of its other impacted employees — to give back the money that we’ve already been paid? And what if we’ve already spent that money? Does that mean that my future paychecks get docked to cover the deferred tax bill? Trump, for what it’s worth, says that he’ll make this temporary deferral of payroll taxes permanent if he wins the 2020 election. But he’s down in the polls. And a permanent tax holiday would require an act of Congress — something that Congress is far from certain to support even if Republicans hold onto power. Payroll taxes, after all, fund Social Security and Medicare. Cutting those taxes potentially endanger those two popular programs. Many employers, in other words, are likely to continue withholding payroll taxes even if they are temporarily not required to do so. Why risk being unable to make mandatory tax payments when Trump’s memo is no longer in effect? Trump’s executive order on housing is basically useless The CARES Act included a 120-day moratorium on evictions, but that moratorium expired on July 24. On Saturday, Trump signed an executive order claiming that his administration will “take all lawful measures to prevent residential evictions and foreclosures resulting from financial hardships caused by COVID-19.” But the executive order itself doesn’t actually do anything, at least not on its own. It requires the secretary of the Treasury and the secretary of Housing and Urban Development to “identify any and all available Federal funds to provide temporary financial assistance to renters and homeowners who, as a result of the financial hardships caused by COVID-19, are struggling to meet their monthly rental or mortgage obligations.” And it requires HUD to “take action, as appropriate and consistent with applicable law, to promote the ability of renters and homeowners to avoid eviction or foreclosure resulting from financial hardships caused by COVID-19.” The order, in other words, instructs various agencies to look for ways to help out renters and homeowners who are struggling to meet their financial obligations. Maybe those agencies will find something. But the executive order itself doesn’t provide any assistance to anyone. Trump’s final executive order does provide real relief to people with student debt Trump’s final memorandum instructs the Education Department to temporarily suspend payments and interest “on student loans held by the Department of Education until December 31, 2020.” This relief is real, and it also appears to be lawful. That’s because of a provision of federal law that permits the Education Department to suspend such payments for up to three years for borrowers who have “experienced or will experience an economic hardship.” So the relief for borrowers is likely to be significant — although individual borrowers should probably wait and see how the Education Department actually implements this memo before celebrating. But people with student loans are likely to be the only people who see much relief from Trump’s executive actions. For the most part, the problem with those actions isn’t that they are illegal. It’s that the legal constraints on Trump’s actions prevent them from doing much. Support Vox’s explanatory journalism Every day at Vox, we aim to answer your most important questions and provide you, and our audience around the world, with information that has the power to save lives. Our mission has never been more vital than it is in this moment: to empower you through understanding. Vox’s work is reaching more people than ever, but our distinctive brand of explanatory journalism takes resources — particularly during a pandemic and an economic downturn. Your financial contribution will not constitute a donation, but it will enable our staff to continue to offer free articles, videos, and podcasts at the quality and volume that this moment requires. Please consider making a contribution to Vox today.
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Tony Evers, now Wisconsin’s governor, campaigning in 2018. | Darren Hauck/Getty Images It’s a key state for Trump’s chances, and Republicans hope to win a supermajority in the state legislature. The main event in Wisconsin’s general election this fall will be the presidential contest, especially since it’s one of the most important swing states in the country. But Tuesday’s primaries in the state will have interesting implications at both the congressional and state legislative levels. For the legislature, Democrats are trying to stop Republicans from winning supermajorities in both chambers. If the GOP wins those supermajorities, they could override Democratic Gov. Tony Evers’s vetoes and block any attempts to reform their extremely gerrymandered statehouse maps. Meanwhile, one of Wisconsin’s eight congressional seats might be in play — the third district, which Trump won in 2016 and is represented by a longtime Democrat, Rep. Ron Kind (D). He faces a primary challenger from the left, and two Republicans with the backing of different factions of the party are battling for the nomination to take him on. Finally, in the Fifth District, there will be a passing of the torch, as Rep. James Sensenbrenner (R), who has been in Congress since 1979, is retiring. His likely replacement is already quite well-known in the state: It’s state Senate Majority Leader Scott Fitzgerald, who’s been at the center of many controversies in Wisconsin’s tumultuous recent politics — though Fitzgerald has to win the primary first. Ron Kind draws challenges from left and right in Wisconsin’s Third Congressional District Tom Williams/CQ Roll Call via Getty Images Rep. Ron Kind (D-WI) Wisconsin’s Third District, spanning the state’s southwest, is the closest thing to a swing district in the Badger State on the presidential level — Donald Trump won there by 4.5 percentage points in 2016. But the district’s congressional seat has long been occupied by Rep. Ron Kind, a Democrat who first entered Congress in 1997 and has won all his recent reelection contests comfortably. (Kind was unopposed in the general election in 2016, and won by nearly 20 percentage points in 2018.) Sensitive to his district’s pro-Trump result in 2016, Kind has stressed his moderation. For instance, he was cautious on the topic of President Trump’s impeachment (in explaining his eventual vote for it, he emphasized that he’s “the only member of Congress who has voted to open impeachment inquiries against Presidents Clinton and Trump.”) As a result, Kind has drawn challengers from both the left and right. In the Democratic primary, he’s facing Mark Neumann, a former missionary and pediatrician. Neumann has criticized Kind’s lack of support for Medicare-for-All, but his primary challenge hasn’t drawn much national attention. Kind is the clear favorite, according to Barry Burden, a political science professor at the University of Wisconsin-Madison. In the Republican primary, meanwhile, retired Navy SEAL Derrick Van Orden is running against public relations professional Jessi Ebben. Van Orden has raised much more money and won the endorsement of former Gov. Scott Walker (R) and House Minority Leader Kevin McCarthy (R), making him the GOP leadership’s preferred candidate. Ebben, meanwhile, has won the backing of Judiciary Committee ranking member Jim Jordan (R-OH) and the House Freedom Caucus’s political arm. Both are running as conservative Trump supporters, but, as Olivia Herken of the Lacrosse Tribune recently wrote, Van Orden has criticized Ebben for signing a petition to recall Gov. Walker back in 2011. Ebben (who is 30 years old) countered by saying she only did so because she believed Democratic “lies” back then, and that she’s now a conservative “convert.” The Cook Political Report currently rates this race as “Likely Democratic,” but still, Republicans are hopeful for a pickup if Trump can perform well in the district again. Tony Evers’s foe seeks seat in Wisconsin’s Fifth Congressional District Justin Sullivan/Getty Images State Sen. Scott Fitzgerald (right) during a 2011 press conference by then-Wisconsin Gov. Scott Walker. The retirement of 21-term Rep. Jim Sensenbrenner means an open-seat contest in the Fifth District, which encompasses suburbs of Milwaukee. The district is heavily Republican, so the winner of the GOP primary could secure a safe Republican seat for some time (depending on how redistricting goes). The frontrunner here is Scott Fitzgerald, the majority leader of the Wisconsin state Senate, a staunch social conservative who has been a major player in the controversies that have roiled the state starting with former Gov. Scott Walker’s administration. “He’s one of the few Republican leaders who’s still standing from 10 years ago,” says Burden. Fitzgerald helped craft a heavily gerrymandered state legislature map to entrench Republican majorities, and passed the 2011 law that restricted public sector unions’ collective bargaining abilities. Then, in the lame-duck session after Walker lost the 2018 election to Democrat Tony Evers, Fitzgerald and Republican legislators passed new laws restricting the powers of the governor’s office. More recently, Fitzgerald has been sparring with Evers over the governor’s statewide mask-wearing mandate. Fitzgerald’s opponent in the primary is businessman Cliff DeTemple, who has argued that he has less “baggage” and hasn’t been “in office too long,” but DeTemple is viewed as the underdog. In the general election, the GOP nominee will face Democrat Tom Palzewicz, an executive coaching consultant, but Palzewicz will face an uphill battle due to this district’s Republican lean. Key state legislative races could give Republicans a supermajority Though Evers won the governorship for Democrats in 2018, both chambers of Wisconsin’s state legislature remained in Republican hands, thanks in part to some spectacular gerrymandering. The good news for Democrats there was that Evers’s win would, it seemed, give him the power to veto unfair maps during the next redistricting in the 2021-2022 session. There’s just one catch — if Republicans manage to flip just six state legislative seats (three in the Assembly and three in the Senate), they’ll control two-thirds of each chamber, which would let them override Evers’s vetoes and gerrymander the state to their hearts’ content. That would be a tall order, but Mitchell Schmidt of the Wisconsin State Journal recently ran down the key districts that Republicans say they’re focusing on flipping. Some of those that have contested primaries are: Senate District 10: State Sen. Patty Schachtner (D-WI) is the incumbent, and the Republican primary features state Rep. Bob Stafsholt and small business owner Cherie Link battling for the nomination to take her on. Senate District 30: The Democratic incumbent here, Dave Hansen is retiring. The Democratic primary to replace him features his nephew Jonathan Hansen (a city council member) running against former healthcare executive Sandra Ewald. The GOP nominee will be attorney Eric Wimberger, who ran for this seat and lost in 2016. Senate District 32: Democratic incumbent Jennifer Shilling, who won her last reelection extremely narrowly over former state Sen. Dan Kapanke (R), isn’t running again. Kapanke will be the Republican nominee again. Candidates running in the Democratic primary are former state Agriculture Secretary Brad Pfaff (who was ousted from that post by state Senate Republicans), nurse Jayne Swiggum, and La Crosse man Paul Weber. Assembly District 14: State Rep. Robyn Vining is the Democratic incumbent here — she won by 0.4 percent of the vote in 2018. The Republican primary contenders are school board member Linda Boucher, Baptist church outreach ministry director Bonnie Lee, and electrician Steven Shevey. So these primaries will determine the candidates in these races, which will be key to determining whether the GOP can pull off a supermajority. But Wisconsin Democrats aren’t taking this threat lightly; they’ve launched a campaign called “Save the Veto,” and the state party just raised $10 million, the best fundraising quarter in its history. Elsewhere in the state legislature contests, the longest-serving state legislator in American history — 93-year-old state Sen. Fred Risser (D), who’s represented the 26th district since 1962 — is retiring. This is a safe Democratic seat, and seven Democrats are vying for the nomination. Burden points to business owner Kelda Roys as the leading candidate, but the contest also features two young Muslim women of color, Nada Elmikashfi and Aisha Moe. Both are critical of the Democratic establishment, and announced their bids before Risser decided to retire. Brianna Reilly of the Cap Times has more on this primary here. Support Vox’s explanatory journalism Every day at Vox, we aim to answer your most important questions and provide you, and our audience around the world, with information that has the power to save lives. Our mission has never been more vital than it is in this moment: to empower you through understanding. Vox’s work is reaching more people than ever, but our distinctive brand of explanatory journalism takes resources — particularly during a pandemic and an economic downturn. Your financial contribution will not constitute a donation, but it will enable our staff to continue to offer free articles, videos, and podcasts at the quality and volume that this moment requires. Please consider making a contribution to Vox today.
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