From left, Wisconsin state Supreme Court candidates Waukesha County Judge Jennifer Dorow, former Wisconsin Supreme Court Justice Dan Kelly, Dane County Judge Everett Mitchell, and Milwaukee County Judge Janet Protasiewicz participate in a forum at Monona Terrace in Madison, Wis., Jan. 9, 2023. Wisconsin's high-stakes Supreme Court race is expected to shatter national spending records as both Democrats and Republicans try to secure majority control of the court headed into the 2024 presidential election, with key issues like abortion, the fate of gerrymandered legislative maps and union rights waiting in the wings. (John Hart/Wisconsin State Journal via AP, File)

Wisconsin voters today are voting on a new state supreme court justice, winnowing a field of four candidates to just two who will face off on April 4. The stakes are immense: As the U.S. Supreme Court continues to relegate the adjudication of basic rights and safeguarding of fair elections to states, control of this seat could determine the future of elections not only in the Badger State but in the entire country.

The pending retirement of Chief Justice Patience Roggensack leaves a 3-3 split on the panel between conservatives and liberals. Control of Roggensack’s seventh seat will determine the court’s ideological leaning for at least the next two years. Technically, candidates for the state’s highest court run as nonpartisans. Still, the candidates are ideological and receive the backing of various liberal and conservative interest groups.

Because Wisconsin’s elected government is deadlocked—Democratic Governor Tony Evers won reelection in November, and Republicans hold the legislature—the state supreme court will arbitrate important questions typically left to other branches. The court is slated to hear a lawsuit brought by Evers and Attorney General Josh Kaul against Wisconsin’s draconian 1849 abortion ban that automatically went into effect when  Roe v. Wade was overturned. (Though most Wisconsin residents support legal access to abortion, Republican lawmakers blocked Evers’s repeal of the 19th-century law last summer.) The court is also likely to hear challenges to the state’s radically gerrymandered congressional map and voting restrictions like the state’s strict voter ID law, which helped tip the 2016 election to Donald Trump by suppressing Black turnout. Liberal control, Wisconsin Democratic Party Chair Ben Wikler told me, could “shift Wisconsin from being a state where Democrats routinely win statewide elections but our policies reflect the reddest of red states and turn it into a state where, as [Progressive Era Governor] Bob La Follette once said, ‘The will of the people shall be the law of the land.’”

Meanwhile, Wisconsin’s pivotal role in the 2024 national elections has made this election a cause célèbre for donors and Democratic leaders. The perennial bellwether went for Trump in 2016 and Joe Biden in 2020, each time by less than 23,000 votes. Democrats in Washington see control of the court as essential. Ahead of the November elections, Wisconsin Republican lawmakers touted an audacious plan to shift voting certification from the bipartisan Wisconsin Elections Commission to the Republican-controlled legislature. “Republicans will never lose another election in Wisconsin after I’m elected governor,” promised Tim Michels, Evers’s GOP challenger for the governorship. Had Michels won, or had Republicans secured a veto-proof supermajority in the legislature—they came within 2,499 votes of such a supermajority—the plan might have passed. “Wisconsin, in 2022, was at the edge of a thousand-foot cliff,” Wikler says. Democrats worry a conservative supreme court might rubber stamp such a plan.

Just as alarmingly, in December 2020, the state supreme court came within one vote of greenlighting Trump’s legal attempt to overturn 200,000 votes in Milwaukee and Madison, the state’s liberal strongholds. Conservative Justice Brian Hagedorn sided with the three liberals, thwarting the MAGA coup. “We do not want to get that close again in 2024,” Wikler says.

The importance of state supreme court races in Wisconsin and across the country was thrown into stark relief during last year’s midterms. Parties and affiliated groups spent over $63 million on races in 11 states. In Kansas, voters retained all six justices up for election, returning an ideologically diverse bench unlikely to overturn the state’s recent pro-abortion ballot referendum, despite an expensive campaign to oust the judges. Michigan, too, retained its liberal majority. But conservative candidates for the Supreme Court of Ohio swept all three of its races, extending a 36-year run of control of the court ahead of a hearing over the state’s ban on most abortions and a new round of congressional map drawing in 2024. North Carolina’s court flipped conservative and, in early February, took the extraordinary step of moving to rehear two previously settled decisions, one blocking a heavily gerrymandered map of state senate districts and the other tossing out a restrictive new voter ID law.

Observers anticipate spending on the Wisconsin race could surpass $30 million, making it the most expensive U.S. judicial race on record. More than 75 percent of that money will come from opaque special-interest groups like Fair Courts America, Susan B. Anthony Pro-Life America, and the Republican State Leadership Committee.

For over a decade, state supreme court races have been as well financed as they are obscure. After the Citizens United decision deregulated campaign financing in 2010, “you see this national dark money infrastructure start to dominate spending in the most competitive races in ways that it never really did before,” Douglas Keith, counsel at the Brennan Center for Justice, says.

In Wisconsin, the post-Citizens United money surge coincided with an aggressive new era in Republican politics. Wisconsin’s judicial elections are officially nonpartisan, but “judicial campaigns became extensions of parties’ attempts to control the policy agenda,” Howard Schweber, a political science professor at the University of Wisconsin-Madison, says. Beginning with the elections of conservative Justices Annette Ziegler in 2007 and Michael Gableman in 2008, Wisconsin Republicans pioneered the practice of recruiting and fielding marketable candidates. “Political operatives who had run legislative election campaigns for Republican candidates came in and took over these judicial campaigns,” Schweber says. They deployed partisan campaign tactics. “It’s a very different approach to electioneering,” Schweber says. “Lots of television ads, very little discussion about qualifications, lots of discussions of things like who will keep you safe at night, that sort of thing. Scare tactics.” This was one prong of the GOP’s plan in the 2010s to control the state government; another was durable one-party control of the legislature, which Republicans established in 2011 by pushing through the state’s first heavily gerrymandered congressional map. The party has dominated both the court and the legislature since then.

Control of the Wisconsin bench has helped the Republicans insulate their power from public will for over a decade. The court has ruled to undercut collective bargaining rights for public employees, the base of Democratic support; to allow political appointees of Governor Evers’s Republican predecessor to remain in office after the expiration of their term; to block the use of ballot drop boxes; and, in 2022, to uphold an even more radically gerrymandered congressional map than the 2011 original. As a result, though the electorate leans slightly Democratic, Republicans’ dominance of the legislature is virtually election-proof. Once a leading light of voter access, the state has plummeted to 47th place on ease of voting.

Democrats have been slow to respond. When Ziegler ran for reelection in 2017, she ran unopposed. “The Democrats of Wisconsin could not be bothered to find someone with a pulse to stand up and even just debate her,” Schweber recalls.

But that’s finally begun to change. Research from the Brennan Center suggests that Wisconsin has had almost equal spending on the left and right in supreme court elections since 2018. Leading liberal candidate Janet Protasiewicz, a county judge from a Milwaukee suburb, has raised more funds than her two conservative opponents, Jennifer Dorow and Dan Kelly. She hopes to emulate the Democrats’ success mobilizing around abortion. Hence, it’s no surprise that her first TV spot, and the first by any candidate for the top court, touts “a woman’s freedom to make her own decision on abortion.”

Democrats are betting that Protasiewicz’s bullish style, once the province of Republicans, will keep the party on a roll and deliver a new era. Holding on to the governorship and avoiding a Republican legislative supermajority in November staved off the worst for Wisconsin, but “as long as that Republican hold on the legislature remains as solid as it has, there really is no way for the more progressive forces in Wisconsin to make much affirmative headway on their priorities,” Robert Yablon, a colleague of Schweber at the University of Wisconsin-Madison, says.

Going on offense and enacting a policy agenda will require legislative seats, which can only be accomplished with a fair new congressional map. Wisconsin Democrats are encouraged by neighboring Michigan’s example. In 2018, Michigan voters passed a ballot referendum giving the state an impartial new map in 2020, which increased the number of competitive races and allowed Democrats in November to take control of all three branches of government for the first time since 1984. In Wisconsin, the path to enshrining rights, as Michigan has now done with abortion, goes through the court. Wikler promises “a more intensive effort than we’ve ever mustered in a state supreme court race” this spring. “Instead of plummeting down the cliffside, we are now taking the first steps on the path to the mountaintop.”

Will Norris

Will Norris is an editor at the Washington Monthly.