On April 4, Wisconsin voters will elect their next Supreme Court justice. Liberal-leaning Milwaukee County Judge Janet Protasiewicz faces conservative former Wisconsin Supreme Court Justice Dan Kelly. The New York Times has described the race as having “bigger policy stakes” than any other United States election in 2023.
The Wisconsin Supreme Court has seven justices, and conservatives hold a 4-3 majority. Conservative Justice Patience D. Roggensack is retiring, leaving one seat open and a chance for liberals to flip control.
There’s no public polling, but both sides believe the race to be close, according to Politico. Reflecting the tightness and the stakes, the campaigns and outside groups had spent a combined $27 million by mid-March, making this the most expensive judicial election ever, according to FiveThirtyEight.
With Wisconsin a swing state in presidential elections, its Supreme Court composition could impact the whole country. In 2020, the Trump campaign raised a legal challenge to have over 220,000 votes invalidated, from predominantly urban and Democratic Milwaukee and Dane counties. Witness testimony to Congress placed Dan Kelly in “pretty extensive conversations” in Trump’s plan to reverse Biden’s win, although Kelly denies he endorsed or supported it, arguing he just acted as an attorney.
It would have been enough to flip the state’s 10 electoral college votes to Trump. But the Wisconsin Supreme Court ruled 4-3 against Trump, thanks to one conservative justice joining liberals in the majority.
The court will also make many decisions, however, that will deeply impact Wisconsin’s 5.9 million residents—on drug policy and far beyond.
Abortion rights are high on the list. After the United States Supreme Court’s 2022 Dobbs decision overturned Roe v. Wade, Wisconsin has become a key battleground for abortion access. Way back in 1849, the state passed a total ban on abortions except to protect the life of the mother. But in 1985, it passed a law that bans abortions only after “fetal viability,” with the same exception.
Since June 2022, Wisconsin Attorney General Josh Kaul (D) has been fighting in court to have the 1849 law overturned, since the two conflict. Despite the legal ambiguity, doctors in Wisconsin are behaving like the full ban is effective: After Dobbs, abortions performed statewide fell from 600 per month to zero, according to the Wisconsin Examiner. The case is still in the Dane County court; it would not be surprising if it ultimately reached the state Supreme Court.
”The state legislative maps are the key to unlocking a whole host of policy issues—whether it’s abortion access or legalizing cannabis or expanding Medicaid.”
Beyond issue-specific cases, flipping control of the court could usher in a legal challenge to legislative maps for the state’s Assembly and Senate districts. And if those change, it could mean a state legislature with entirely different priorities.
“The state legislative maps are really the key to unlocking a whole host of policy issues—whether it’s abortion access or legalizing cannabis or expanding Medicaid,” Nicole Safar, executive director of Wisconsin nonprofit Law Forward, told Filter. “All these things poll in the 60s or 70s, the voters of Wisconsin clearly want those. The way the maps are drawn in the state legislature is what is blocking those.”
Back in 2011, when Republicans held a trifecta of power in Wisconsin, they redrew both congressional and state electoral districts. The maps gave a huge advantage to Republicans, respresenting one of the worst US gerrymanders of the past 50 years. According to one Stanford statistics expert, the party is “virtually 100 percent” sure to hold onto large majorities in the state legislature. Republicans have controlled both houses for all but two of the last 28 years. In 2020, Democrats won 46 percent of the vote in Assembly elections but only 38 percent of the seats. (It’s a similar story with Wisconsin’s US House representatives.)
This issue finally reached the state Supreme Court in 2022, when Safar’s organization argued for a fairer map. The court voted 4-3 to accept a new map submitted by Governor Tony Evers (D); as Wisconsin Public Radio described, that map still favored Republicans, but “could mean the difference between simple Republican majorities and supermajorities that could override any governor’s vetoes.”
But then the US Supreme Court overruled the state court, sending the case back. At which point, the Wisconsin Supreme Court voted 4-3 to accept a new map drawn by the Republican-controlled legislature.
While part of the gerrymandering problem concerns heavily Democratic areas like Milwaukee and Madison, Safar believes it’s also about empowering suburban, exurban and rural voters, many of whom are politically silenced by the current map.
“The idea that Democrats only live in urban spaces and Republicans only live in exurbs or rural spaces is just not true,” she said. Democrats “are getting votes statewide in places like Green Bay, Superior, Eau Claire and La Crosse, but those voters are not allowed to be competitive because of how the maps are drawn.”
“We think we have a very strong legal argument to show our state constitution prohibits partisan gerrymandering.”
While there isn’t currently an active lawsuit on gerrymandering, a new state Supreme Court would raise the prospects for a new one, with a different legal argument. In 2022, SCOTUS refused to weigh in on any claim about partisan gerrymandering, leaving that issue to the states.
“We weren’t able to argue that last time,” Safar said. “That is absolutely what could be argued in a state court, it has never been adjudicated by the state court and we think we have a very strong legal argument to show our state constitution prohibits partisan gerrymandering.”
Legislative elections with a fairer map could result in a legislature that better represents Wisconsin voters and what they want done.
“Before the [2011] gerrymander, we actually were able to pass reproductive health laws that both Republicans and Democrats voted for,” Safar said. “They were compromise bills because of the public pressure from constituents; Republicans had to vote for them or be afraid they would lose their next election. Fixing the maps gets us back to a place where we have to come together and compromise.”
For now, Wisconsin remains a textbook case of government stalemate. Just weeks after Gov. Evers was elected in 2018, the lame-duck Republican legislature and sitting Governor Scott Walker (R) voted to strip powers from the governor and attorney general’s offices. Republicans continue to control both the House and Senate, and the past few years have featured a toxic relationship between the governor and the legislature—which has blocked many of Evers’ priorities and refused to confirm about 180 of his appointees to different state offices, including five cabinet secretaries.
Arguably the biggest issue where Republicans have refused any compromise is Medicaid expansion.
Evers’ latest budget request, in line with his campaign pledges, includes legalizing both medical and adult-use cannabis—the latter of which, at least, is a nonstarter for many Republican lawmakers. He also seeks to pass stronger gun control laws with expanded background checks, and to raise the age at which a person can be charged for crimes as an adult to 18.
But arguably the biggest issue where Republicans have refused any compromise is Medicaid expansion.
Under Obamacare, any state can “opt in” to expand Medicaid health coverage for low-income residents, with the federal government paying 90 percent of the tab. For 14 years now, Wisconsin Republicans have refused these funds. The Evers administration estimates that doing so would save Wisconsin $1.6 billion in the first two years, while adding 897,000 people to Medicaid—which covers lifesaving opioid use disorder medications like methadone and buprenorphine, among many other needs.
Photograph of Wisconsin Supreme Court by Royalbroil via WikiMedia Commons/Creative Commons 3.0.
