Voting is under way in an under-the-radar race that could wind up being the most important election in America this year.
At stake is control of the Wisconsin supreme court. Because control of state government in Wisconsin is split between Democrats and Republicans, the seven-member body has increasingly become the forum to get a final decision on some of the most consequential issues in the state – from voting rights to abortion.
Since Wisconsin is one of the most politically competitive states and a critical presidential battleground, these decisions have national resonance. Millions of dollars have already begun to pour into the race, which is widely expected to become the most expensive supreme court election in state history. The state primary is on 21 February and the top two finishers will advance to a general election in April.
Conservatives currently have a 4-3 majority on the court. One of the conservative justices, Patience Roggensack, is retiring, giving liberals a chance to flip the court. The outcome of that race in April will determine control of the court through the 2024 presidential elections.
“The stakes are monstrous,” said Barry Burden, the director of the Elections Research Center at the University of Wisconsin – Madison. “There’s a confluence of factors that have come together, intentionally or not to make this a terribly important race for the future of the state.”
Few state supreme courts across the country have played as powerful a role in shaping high-profile laws in recent years as the Wisconsin supreme court has. The court has frequently decided election disputes in the state, where contests are regularly decided by razor-thin margins. In 2020, it narrowly rejected a request from Donald Trump’s campaign to consider throwing out enough mail-in votes to overturn the election results.
“Wisconsin’s been the tipping point state in the last two presidential elections,” said Ben Wikler, the chairman of the Wisconsin Democratic party. He pointed out that Wisconsin “is the only state where four of the last six presidential elections came down to less than one percentage point. Which means that small shifts in the rules around voting can have a decisive effect in presidential elections.
“Wisconsin’s supreme court race on April 4 is the most important election in the country before November 2024,” he added.
The state supreme court has also picked maps that allowed Republicans to maintain control over the state legislature and outlawed ballot drop boxes, making it harder for voters to return their mail-in ballots.
More critical decisions are on the horizon. The court is expected to rule in the near future on whether Wisconsin’s 1849 abortion ban will remain on the books. The ban went into effect after the US supreme court’s decision last year striking down Roe v Wade. Wisconsin’s attorney general, Josh Kaul, is challenging the ban in court, arguing that subsequent laws passed in the state have nullified it.
The court has also issued important decisions limiting the appointment powers of Governor Tony Evers, a Democrat, and struck down the statewide mask mandate during the height of the Covid-19 pandemic.
How can the court change?
Four candidates are currently in the race – two liberals and two conservatives. On the liberal side, Janet Protasiewicz, a Milwaukee county circuit court judge, and Everett Mitchell, a Dane county judge. Dan Kelly, a former supreme court justice who lost his seat in 2020 and Jennifer Dorow, a judge who oversaw a high-profile trial of a man convicted of killing six people at a Waukesha Christmas parade, are running.
“If in fact a justice who is more in the progressive left tradition succeeds here, then the nature of the court will change, we’ll see different decisions than we’ve tended to see in the recent past. If a justice who is more sort of conservative originalist is elected then we won’t see a change,” said Richard Esenberg, who has argued before the court as the president and general counsel of the conservative Wisconsin Institute for Law and Liberty. “That can affect some very significant issues.”
Supreme court justices are elected to 10-year terms in Wisconsin in what are technically non-partisan contests. But the races have taken a hard partisan edge as the court’s influence has grown, with some candidates signaling their views on hot-button issues without saying directly how they would vote.
“It is a break from the past that it’s more open and explicit,” Burden said. “It’s really the politicization of the court and its growing prominence in policymaking that’s made everyone more comfortable.”
Republicans have already seized on Protasiewicz’s blunt comments about the maps – she called them “rigged” at a forum last month – and abortion, and filed a judicial complaint against her, accusing her of weighing in on an issue that could come before the court. Protasiewicz said she had no regrets.
“People in our state deserve to know our candidate’s values,” she said. “I said the maps are rigged. I think the truth is an absolute defense. I don’t think anybody can say that those maps are accurate and that they reflect the people of the state of Wisconsin. No, I absolutely stand by those comments.”
Protasiewicz said in an interview she decided to run for the race to focus on “saving democracy” after seeing the state supreme court choose state legislative maps that benefited Republicans. The maps are so distorted that Republican control of the state legislature is essentially guaranteed for another decade, regardless of what voters want.
If a liberal wins the race, Democrats have pledged to swiftly bring a new lawsuit challenging the maps.
“You look at the legislature, which is potentially on the verge of a supermajority, you look at that makeup of 65 to 75% red and you know it doesn’t represent the people here,” Protasiewicz said. “You look at it and you know something’s wrong.”
How much it costs
State supreme court races, especially in years where there aren’t any federal races on the ballot, are usually low-turnout affairs. But Protasiewicz said she had encountered crowded events as she campaigns and that voters were “very tuned in”.
Mitchell said he had not seen the same engagement, but had been reminding voters of how courts could affect their daily lives. “A majority of people, it’s just not on their radar,” he said. “For some people this was like number 13 on their priority list. Because they’re [dealing with] inflation, and children, and healthcare, and public health.”
The biggest sign of the race’s importance may be the flood of money that’s already coming in. The contest is expected to be the most expensive supreme court in state history, and maybe the most expensive ever in the US.
In 2020, candidates and outside groups spent about $10m on a race for the state supreme court that year, setting a new record. This year’s race could shatter that. Candidates and outside groups have already spent more than $5m in ads, according to the Brennan Center for Justice, which is tracking the election.
“It’s escalating rapidly,” Burden said. “If $15m, $20m, $25m is spent on this race, it’s more than you see in governor’s races in some states.”
Protasiewicz has already reported raising just under $1m and is on the air with ads touting her support for abortion. Fair Courts America, a Super Pac linked to the GOP megadonor Richard Uihlein, has said it is willing to spend millions in support of Kelly.
“It’s really expensive to get your message out right. It’s really expensive. It would be nice if we could just all fundraise our money. But you know Citizens United has pretty much taken that away from people,” Protasiewicz said in an interview.
“It makes it hard for us to ever think that these races can be non-partisan if so much money can be thrown into these races,” Mitchell said.
For years, Democrats faced criticism for not taking down-ballot races, like state supreme court contests, seriously enough. In 2019, when Democrats lost a key state supreme court race, Eric Holder, the former US attorney general, publicly sounded the alarm that Democrats were not paying attention. “This should be a wake-up call for us. I felt a little lonely out there in Wisconsin,” he told Mother Jones after the Democratic candidate lost.
Democrats started to reverse that trend in 2020, winning a state supreme court race. This year is a chance to continue that, Wikler said.
“For a long time Democrats didn’t take judicial races seriously enough and Republicans threw down in these contests,” he said. “This is the moment for Democrats across the country to demonstrate that they’ve learned the lesson of these last few years and take these races just as seriously as they take Senate and governor’s races. It really feels like it’s picking up now.”
• The main picture accompanying this article was replaced on 13 February 2023. An earlier version erroneously showed the Minnesota supreme court building.