Liberals will try to expand their majority on the Wisconsin Supreme Court in a Tuesday election – CNN

On a Tuesday election, voters in Wisconsin will decide a crucial race for the state's highest court, with liberals aiming to expand their majority and conservatives fighting to maintain their influence. This contest carries significant implications for a range of pivotal issues, including abortion access, legislative redistricting, and future election laws, in a state often at the forefront of national political battles.

Background: The Wisconsin Supreme Court’s Evolving Role

The Wisconsin Supreme Court, composed of seven justices, serves as the state's highest judicial body. Justices are elected to 10-year terms in non-partisan elections, a structure intended to keep partisan politics out of the judiciary. However, in recent decades, these elections have become intensely politicized, drawing substantial campaign contributions and national attention. The court's ideological composition has shifted dramatically over time, reflecting broader political trends within Wisconsin.

Structure and Election Process

Wisconsin Supreme Court justices are chosen through statewide elections, typically held in the spring. If more than two candidates run, a primary election narrows the field to two finalists for the general election. While the ballots do not list party affiliations, candidates often signal their judicial philosophies, and their campaigns are frequently supported by partisan groups and political parties. This dynamic has transformed what were once quiet judicial races into high-stakes political contests, often outspending state legislative or even gubernatorial campaigns in terms of outside money.

A History of Contentious Races

The politicization of the Wisconsin Supreme Court began to intensify in the early 21st century, particularly following the contentious 2011 election. This race saw Justice David Prosser narrowly defeat challenger JoAnne Kloppenburg amidst a backdrop of statewide protests over Act 10, a law significantly curtailing public sector union bargaining rights. The election was marred by allegations of impropriety, a recount, and a deeply divided court, setting a precedent for future highly partisan judicial contests.

Subsequent elections have continued this trend. The 2019 election saw Justice Brian Hagedorn, a conservative, win a narrow victory, which nonetheless maintained a conservative majority at the time. However, the 2020 election brought a significant shift when liberal-backed Jill Karofsky defeated conservative incumbent Daniel Kelly, narrowing the conservative majority to 4-3. This series of elections underscored the court's pivotal role in Wisconsin's political landscape and the increasing willingness of national groups to invest in these ostensibly non-partisan races.

Key Ideological Divides and Landmark Cases

The ideological divisions on the court often manifest in cases concerning the balance of power between the legislative and executive branches, voting rights, and the interpretation of the state constitution. Historically, the court has heard challenges to significant state legislation, including:

Act 10 (2011): The court upheld the controversial law that restricted collective bargaining for most public employees, a decision that cemented the court's conservative leanings at the time.
* Voter ID Laws (2014): The court upheld Wisconsin's strict voter ID law, which had been challenged as discriminatory.
* Redistricting (2011, 2021): The court has repeatedly been involved in challenges to legislative and congressional maps drawn by the Republican-controlled legislature. These challenges often revolve around claims of partisan gerrymandering and the interpretation of constitutional requirements for compact and contiguous districts.
* Emergency Powers (2020-2021): During the COVID-19 pandemic, the court issued rulings limiting the governor's emergency powers and striking down statewide mask mandates, highlighting the court's role in executive oversight.

These cases illustrate how the court's ideological composition directly influences the legal and political direction of the state, making each election a critical battleground for competing visions of Wisconsin's future.

Key Developments: The Current Election and its Stakes

The current election is for a seat left open by the retirement of a long-serving conservative justice. This vacancy presents a rare opportunity for liberals to flip the ideological balance of the court, potentially establishing a 4-3 liberal majority. The outcome will dictate the court's direction for at least the next several years, impacting foundational state laws and policies.

The Vacancy and Candidates

The election is to fill the seat of Justice Patience Roggensack, a conservative who announced her retirement in May 2022 after serving two 10-year terms since 2003. Her departure created an open seat, avoiding a direct challenge to an incumbent, which often makes races more competitive.

The primary election, held in February, featured four candidates. The two candidates who advanced to the general election are:

Judge Janet Protasiewicz: A circuit court judge from Milwaukee County, widely considered the liberal-backed candidate. She has served as a judge since 2009 and previously worked as a prosecutor. Her campaign has been explicit about her judicial philosophy, stating her belief in a woman's right to choose and her concerns about the state's current legislative maps.
* Justice Daniel Kelly: A former Wisconsin Supreme Court justice, backed by conservatives. He was appointed to the court in 2016 by then-Governor Scott Walker but lost his bid for a full 10-year term in 2020 to Justice Jill Karofsky. Kelly has emphasized a judicial philosophy of strict textualism and originalism, arguing that judges should interpret the law as written, not based on personal policy preferences.

The contrast between the candidates' judicial philosophies and their public statements on key issues has made this election one of the most expensive and closely watched judicial races in U.S. history.

Campaign Funding and External Group Involvement

The financial investment in this election has been unprecedented for a state judicial race. Millions of dollars have poured into Wisconsin from both in-state and national political action committees (PACs), advocacy groups, and individual donors.

Liberal Support: Protasiewicz's campaign has received significant financial backing from the Democratic Party of Wisconsin, individual donors, and national progressive groups. These groups often highlight issues like abortion rights and fair maps in their advertisements, framing the election as a defense of fundamental rights and democratic principles.
* Conservative Support: Kelly's campaign has been heavily supported by the Republican Party of Wisconsin, conservative legal organizations, and national conservative PACs. Their messaging often focuses on judicial restraint, the importance of an impartial judiciary, and the dangers of judicial activism.

The influx of outside money has funded extensive television, radio, and digital advertising campaigns, as well as ground-game organizing efforts. These advertisements often directly attack the opposing candidate's judicial record or perceived partisan leanings, further blurring the lines of "non-partisan" judicial elections. The sheer volume of spending underscores the perceived national significance of this state-level race.

Key Issues Debated by Candidates

While judicial candidates traditionally avoid commenting on specific cases that might come before the court, the candidates in this election have been more open about their general judicial philosophies and how they might approach certain types of cases.

Abortion Rights: Protasiewicz has publicly stated her belief that the state's 1849 abortion ban, currently in legal limbo, is "ridiculous" and that women should have the right to make their own healthcare decisions. Kelly, conversely, has emphasized interpreting laws as written, which many interpret as a stance favorable to upholding existing abortion restrictions.
* Redistricting: Protasiewicz has openly criticized Wisconsin's current legislative maps as "rigged" and "unfair," suggesting a willingness to revisit the issue. Kelly has maintained that judges should not insert themselves into political map-drawing, adhering to a philosophy that defers to the legislature on such matters.
* Voting Rights: While not as explicitly debated, both candidates' judicial philosophies would impact future cases concerning voter ID laws, absentee voting regulations, and challenges to election results. Protasiewicz's approach might lean towards expanding access, while Kelly's might favor stricter interpretations of election statutes.
* Judicial Philosophy: Protasiewicz advocates for a justice who understands the real-world impact of court decisions and upholds constitutional rights. Kelly champions a judge who strictly adheres to the text of the law and avoids legislating from the bench.

These debates highlight the stark ideological contrast between the candidates and the direct implications their victory would have on the court's future decisions.

Impact: Who is Affected by the Court’s Balance

The ideological composition of the Wisconsin Supreme Court has far-reaching consequences for millions of residents and the state's political future. A shift in the court's balance could lead to dramatic changes in several critical areas, influencing daily life and the democratic process.

Redistricting and Electoral Maps

One of the most immediate and significant impacts of a liberal majority on the Wisconsin Supreme Court would be on legislative and congressional redistricting. Wisconsin is widely considered one of the most gerrymandered states in the nation. After the 2010 census, Republicans gained full control of state government and drew maps that have consistently favored their party, even when statewide vote totals suggest a more even split.

The Current Maps: The current legislative maps, drawn in 2011 and largely upheld in 2021, have resulted in Republican supermajorities in both the State Assembly and State Senate, despite Democrats often winning a majority of the statewide vote in those elections. Critics argue these maps stifle competitive elections and diminish the power of individual voters.
* Potential for New Maps: A liberal majority on the court could revisit these maps. Legal challenges to gerrymandering often cite the state constitution's requirements for contiguous and compact districts, or argue that the maps violate equal protection or free speech clauses by unduly favoring one party. If the court were to rule the current maps unconstitutional, it could order new maps to be drawn, potentially by a non-partisan commission or a special master appointed by the court.
* Political Consequences: Fairer maps could lead to more competitive legislative districts, potentially shifting the balance of power in the state legislature. This, in turn, could impact the passage of legislation, the state budget, and the balance of power in future gubernatorial elections. It could also influence Wisconsin's congressional delegation, which currently leans Republican. The prospect of new maps is a major motivator for both sides in this judicial election.

Abortion Access and the 1849 Ban

The outcome of this election will profoundly affect abortion access in Wisconsin. Following the U.S. Supreme Court's decision to overturn Roe v. Wade in June 2022, Wisconsin reverted to an 1849 law that bans nearly all abortions, with exceptions only to save the life of the pregnant person. This law, enacted before women had the right to vote, has been the subject of intense legal and political debate.

The Current Legal Challenge: Planned Parenthood of Wisconsin and the state's Attorney General, Josh Kaul, have filed a lawsuit challenging the 1849 ban. The lawsuit argues that other, more recent state laws implicitly repealed the ban, and that it violates various provisions of the Wisconsin Constitution, including the right to privacy, bodily autonomy, and equal protection.
* Impact of a Liberal Majority: A liberal-leaning court would likely be more receptive to arguments that the 1849 ban is unconstitutional under the state's modern legal framework. Such a ruling could lead to the ban being overturned, significantly curtailed, or permanently enjoined, effectively restoring abortion access in Wisconsin.
* Impact of a Conservative Majority: A conservative court, emphasizing strict textualism and deference to historical statutes, would be more likely to uphold the 1849 ban. This would mean that abortion would remain largely illegal in Wisconsin, forcing residents to travel out of state for care. The enforcement of the ban would continue to be a contentious issue, potentially involving district attorneys across the state.

The court's decision on the 1849 ban would have immediate and direct consequences for reproductive healthcare in Wisconsin.

Voting Rights and Election Laws

Wisconsin is a critical swing state in national elections, and its election laws are frequently challenged. The state Supreme Court often serves as the final arbiter in disputes over voting rules, voter registration, absentee ballots, and election challenges.

Past Controversies: The court has previously weighed in on issues such as voter ID laws, the use of ballot drop boxes, and the procedures for absentee ballot returns. In 2022, the court ruled that ballot drop boxes could only be located in election clerks' offices, significantly limiting their use.
* Future Challenges: A liberal majority might be inclined to interpret election laws in a way that expands voter access, potentially allowing for broader use of absentee voting mechanisms or striking down certain restrictions. Conversely, a conservative majority might uphold stricter interpretations of election statutes, potentially making it more difficult for some populations to vote.
* Impact on Future Elections: Decisions by the court on election-related issues could impact voter turnout and the administration of elections, potentially influencing outcomes in future presidential, gubernatorial, and congressional races in Wisconsin. Given the state's razor-thin margins in recent national elections, even minor changes to election procedures can have significant effects.

Union Power and Labor Laws

While Act 10, the landmark legislation restricting public sector collective bargaining, has been largely settled by previous court decisions, future challenges to labor laws or unionization efforts could still come before the court.

Potential Areas of Review: Cases involving private sector union organizing, prevailing wage laws, or the interpretation of existing labor statutes could be influenced by the court's ideological balance. A liberal court might be more sympathetic to workers' rights and union interests, while a conservative court might prioritize employer rights or a narrower interpretation of labor protections.
* Economic Impact: The court's stance on labor issues could affect the economic landscape for both workers and businesses in Wisconsin, influencing wages, working conditions, and the overall strength of organized labor in the state.

Environmental Regulations and Agency Power

The Wisconsin Supreme Court also plays a crucial role in reviewing environmental regulations and the actions of state agencies, such as the Department of Natural Resources (DNR).

Agency Deference: A key area of judicial philosophy involves the level of deference courts give to administrative agencies. Conservative justices often advocate for less deference, subjecting agency rules and decisions to stricter judicial scrutiny. Liberal justices might be more inclined to defer to the expertise of agencies.
* Impact on Environmental Policy: Less deference to agencies could make it easier to challenge environmental regulations, potentially impacting air and water quality standards, land use decisions, and the permitting process for industrial projects. Cases involving mining, agricultural runoff, or wetland protection could see different outcomes depending on the court's composition.

Governor’s Powers and Executive Authority

The court frequently adjudicates disputes between the executive branch (the Governor) and the legislative branch (the State Legislature). These cases often involve the scope of the governor's veto power, appointment authority, or emergency powers.

Checks and Balances: A court with a particular ideological bent might be more inclined to either expand or restrict the powers of the governor, depending on which party holds the executive office. This dynamic can be particularly pronounced in Wisconsin, which has a history of divided government.
* Impact on Governance: Rulings on executive power can affect the governor's ability to implement policy, respond to crises, or make appointments to state boards and commissions, thereby influencing the overall governance of the state.

Education Funding and School Choice

Challenges to the state's education funding formula, particularly regarding public school funding versus private school choice programs, could also come before the court.

Constitutional Mandates: The Wisconsin Constitution mandates a "uniform system of town and district schools." The interpretation of this clause has been central to legal battles over how the state funds public education and whether school choice programs, which divert public funds to private schools, violate this mandate.
* Impact on Schools: The court's decisions could significantly impact the financial health of public school districts, the expansion or contraction of school choice programs, and the overall educational landscape for Wisconsin's students.

Criminal Justice and Civil Liberties

Beyond high-profile political cases, the Supreme Court is the ultimate arbiter of criminal appeals and civil liberties cases within the state.

Sentencing and Due Process: The court reviews lower court decisions on sentencing, police procedures, search and seizure, and other aspects of criminal law, ensuring constitutional rights are protected.
* Civil Litigation: Cases involving tort reform, contract disputes, property rights, and other civil matters are also heard by the court, setting precedents that affect individuals and businesses across the state.
* Overall Legal Framework: The court's philosophical approach, whether leaning towards judicial activism or restraint, affects the entire legal framework of Wisconsin, influencing how laws are interpreted and applied in all courts.

What Next: Expected Milestones and Future Implications

The Tuesday election marks a critical juncture for Wisconsin. The immediate aftermath will involve vote counting and certification, followed by the new justice taking office. Beyond these procedural steps, the shift in the court's ideological balance could trigger a cascade of legal and political events, reshaping the state for years to come.

Election Day Procedures and Results

On election day, polling places across Wisconsin will be open for in-person voting. Voters will cast ballots for the Supreme Court race, along with any other local elections.

Vote Counting: After polls close, election workers will begin counting ballots. Wisconsin has a history of efficient vote tabulation, but results for statewide races can sometimes take several hours to fully materialize, especially in close contests. Unofficial results are typically reported on election night.
* Certification: Once all votes are counted, county clerks certify their results, which are then forwarded to the Wisconsin Elections Commission (WEC). The WEC then officially certifies the statewide results, usually within a few weeks of the election. This official certification declares the winner.
* Potential for Recounts and Challenges: In very close races, the losing candidate may request a recount, provided the margin is within a certain threshold (e.g., 1% for a full recount, 0.25% for a partial recount, with the requesting party typically covering costs if the margin is wider). Legal challenges to election procedures or results are also possible, although less common for judicial races than for presidential or gubernatorial contests. Given the high stakes, both sides will be closely monitoring the process.

Transition and Oath of Office

The newly elected justice will officially take office in August, coinciding with the end of Justice Roggensack's term.

Oath of Office: The winning candidate will take the judicial oath, formally assuming their position on the Wisconsin Supreme Court. This ceremony often involves family, colleagues, and legal dignitaries.
* Court Composition: Upon the new justice joining, the court's ideological balance will officially shift. If the liberal-backed candidate wins, the court will move from a 4-3 conservative majority to a 4-3 liberal majority. If the conservative-backed candidate wins, the 4-3 conservative majority will be maintained.

Immediate Docket and Anticipated Cases

The newly constituted court will immediately face a backlog of cases and new petitions. The shift in ideological balance could influence which cases the court chooses to hear and how quickly it moves on certain issues.

Abortion Lawsuit: The lawsuit challenging Wisconsin's 1849 abortion ban is already making its way through the lower courts and is widely expected to reach the Supreme Court. This will likely be one of the first major cases to test the new court's ideological makeup.
* Redistricting Challenges: While the current maps were upheld in 2021, a new court could be petitioned to revisit the issue, especially if arguments about partisan gerrymandering are framed under different state constitutional provisions or new legal theories. Advocates for "fair maps" are already preparing for potential future litigation.
* Other Pending Cases: The court's docket typically includes a wide range of cases covering administrative law, criminal appeals, and civil disputes. The new majority might be more inclined to grant review (certiorari) to cases that align with its judicial philosophy, potentially leading to different precedents in various areas of law.

Reactions and Political Fallout

The outcome of this election will undoubtedly generate significant reactions from political parties, advocacy groups, and the public.

Political Parties: The winning party will celebrate a significant victory, while the losing party will face a substantial setback, particularly given the implications for redistricting and abortion. The outcome will shape campaign strategies for future state and national elections in Wisconsin.
* Advocacy Groups: Pro-choice organizations, voting rights advocates, environmental groups, and labor unions will react strongly to a liberal victory, seeing it as an opportunity to advance their agendas. Conversely, anti-abortion groups, conservative legal foundations, and business associations will express concern or relief, depending on the outcome.
* Public Opinion: The public's perception of the court's legitimacy and impartiality could be influenced by the election's outcome, especially if the court quickly takes up highly politicized cases.

Long-Term Implications for Wisconsin

The long-term implications of this election extend well beyond the immediate legal decisions.

Shifting Legal Landscape: A sustained liberal majority could fundamentally alter the legal landscape of Wisconsin for the next decade, impacting everything from individual rights to corporate regulations. It could lead to a rollback of some conservative policies enacted over the past decade and the reinterpretation of existing statutes.
* Impact on State Governance: The court's balance affects the checks and balances between the legislative and executive branches. A court more willing to challenge legislative actions could empower the executive branch or force the legislature to operate within narrower constitutional bounds.
* National Significance: As a crucial swing state, Wisconsin's judicial direction often mirrors or influences national political trends. A shift in its Supreme Court could embolden similar efforts in other states or signal a broader shift in the political climate, especially concerning issues like abortion and electoral integrity.
* Future Judicial Elections: The intensity and spending in this election set a new precedent for judicial races. Future elections for the Wisconsin Supreme Court, and potentially for lower courts, are likely to continue to be highly contested and expensive, further blurring the line between non-partisan judiciary and partisan politics.

The Tuesday election for the Wisconsin Supreme Court is more than just a judicial contest; it is a battle for the state's legal and political future, with consequences that will resonate far beyond its borders.