The Wisconsin Supreme Court Election that Everyone Should be Watching

The Wisconsin Supreme Court election will impact reproductive rights, voting rights, and could even decide the 2024 presidential election. Yet, almost nobody is familiar with what's at stake.

---

Millions of voters across the country are breathing a sigh of relief now that the contentious 2022 midterm cycle and all of its chaos has been resolved for another two years. However, under the surface, a seldom-discussed state supreme court election is set to take place this spring in Wisconsin. This is a key election, whose results will determine the fate of reproductive rights in the Badger State and possibly the 2024 presidential election.

With the looming retirement of Justice Patience Roggensack twenty years after she first ascended to the court, a new statewide election will determine her successor. On February 21st, a non-partisan jungle primary will take place, situating the top two most popular candidates in a runoff election on April 4th, 2023. Although both elections are nominally non-partisan, the current candidates for office all have well-identified ideological leanings even without the capital D or R next to their name.

Circuit Judges Everett Mitchell and Janet Protasiewicz are known for their liberal-leaning verdicts, while the conservative candidates are former Wisconsin Supreme Court Justice Daniel Kelly and Circuit Judge Jennifer Dorow. Although technically all are competing against each other, the runoff is almost certainly slated to pit a liberal candidate against a conservative one.

This election will determine the ideological balance of Wisconsin’s current conservative majority Supreme Court. State supreme courts are the highest court in the state judiciary, and their decisions can only be overturned by the US Supreme Court. Additionally, the uniquely deadlocked nature of Wisconsin’s state government means that the State Supreme Court often adjudicates disputes between the Democratic Governor/Attorney General and the Republican State Legislature.

The results of the 2022 election only continued this divide. The Democratic incumbent governor, Tony Evers, won reelection and the Republicans maintained a majority in both chambers of the Legislature. Thus, Wisconsin remains in a state of partisan deadlock.

The current balance of the Court stands at three liberal-leaning justices and four conservative-leaning justices (with conservative Justice Brian Hagedorn as an occasional swing vote). Retiring Justice Roggensack is a part of the current conservative majority, meaning that this election could flip the balance of the body if either Mitchell or Protasiewicz win in the runoff.

What is at stake?

After the Supreme Court decision in Dobbs v. Jackson (2022) overturned decades of precedent set by Roe v. Wade (1973), state governments are once again responsible for determining the legality of abortion procedures within their borders. Already, there is a major deviation between the policies that different states have set, with some banning the practice for all abortions except those deemed necessary to save the mother’s life, while others have enshrined the right to reproductive healthcare in their state constitutions. As it stands, Wisconsin is on the former end of the spectrum, being one of fourteen states to have enacted a near-total ban on abortion within the state. The Wisconsin State Legislature enabled this change by refusing to overturn a ban first implemented in 1849 that was nullified only by Roe v. Wade in the 1970s.

Although Wisconsin is surrounded by states with protections for the practice within their laws, that still requires a long and often costly trip out-of-state to Minnesota or Illinois, which is a socioeconomic barrier.

Wisconsin’s Attorney General has filed a challenge (with the support of Governor Evers) to the law, and it is nearly certain that it will make its way up to the Wisconsin Supreme Court within the next couple of years. The balance of the court will prove decisive for the future status of reproductive healthcare for millions of Wisconsinites, especially given that the current “swing vote” of the court, Justice Hagedorn, has previously spoken against abortion even before the overturning of Roe v. Wade, dashing hopes that the current Court would rule against the ban.

Meanwhile, in the context of upcoming legislative elections in 2024, the State Supreme Court may also hear a challenge against the current Wisconsin State Legislature maps. The current maps were drawn by the Republican State Legislature after maps preferred by the Governor and approved by the Court (with Hagedorn and the 3 Liberal Justices in favor) were struck down by the Federal Supreme Court. The newly drawn Republican maps were approved instead and have been widely seen as a continuation of a partisan gerrymander that effectively bars Democrats from controlling the State Legislature regardless of the outcome of the popular vote. If a challenge against these maps succeeds, it could dramatically shift the balance of Wisconsin politics for the next decade.

Even more shocking is just how much of an impact this race could have on the national level. In the 2020 presidential election, Wisconsin was one of the closest states nationally, with approximately 21,000 votes separating President Biden from former President Trump. Additionally, Wisconsin was the “tipping point state” of 2020, a term which essentially means that if the margins were shifted in each state equally in the loser’s (Trump in this instance) favor, it would be Wisconsin that would break the 270 electoral vote threshold needed to win the presidency.

This is important because, after the 2020 Elections, Wisconsin’s Supreme Court ruled that drop-off absentee ballot boxes would be illegal. Unlike mail-in voting, drop-off boxes allow absentee voters to avoid the risk of mail delays invalidating a ballot. With approximately two million Wisconsinites voting by mail or absentee last cycle (although that number will be lower in 2024 due to Covid), such a change could easily flip the results of state and national elections. The ruling sparked voter suppression concerns, especially among Democrats, given in the last couple of cycles, absentee voting has skewed heavily Democratic while in-person voting skewed more Republican. However, if the Wisconsin Supreme Court were to flip, the new rule could be reverted, allowing absentee drop boxes to resume functioning in the state. Even if such ballots aren’t pivotal, the Wisconsin Supreme Court was the entity that rejected the attempt to block the results of the 2020 Presidential Election in the state, but the decision was 4-3. While the seat will not change the outcome, all other things being equal, as Judge Roggensack voted in favor of the challenges, it would allow for greater safety against such attempts in the state.

No matter how one looks at it, Wisconsin voters have a critical choice to face this spring, which could alter the nation's course.

Note: For any students from Wisconsin who are still eligible to vote in the state, here is a link to an absentee ballot request: https://myvote.wi.gov/en-us/Vote-Absentee-By-Mail

Alex Yang is a junior International Studies major in the School of International Studies (SIS). He is a staff writer for the American Agora.

Image courtesy: PBS Wisconsin