Victory in Wisconsin:

But Can We Trust Elections to Protect the Courts?

In the most significant statewide election since Trump took office, Judge Sara Crawford won a 10-year term on the Wisconsin Supreme Court, besting her conservative opponent, former Republican Attorney General Brad Schimel, by a ten point margin. Her victory ensures that the liberal majority on the seven-member court, in place since Janet Protasiewicz’s win in 2023, will remain until 2028. But her victory does not answer serious concerns about the increasing role of big money in the popular election of judges, and what that means about the composition of supreme courts and the independence of the judiciary.

President Trump won the state in 2024 by 30,000 votes, but Crawford’s margin approaches 250,000 in a race where turnout was 40% higher than the Protasiewicz’s election in 2023. Major Democratic gains were made in most counties in the state, including those that Trump won in 2024. The Democrats needed a win—and they got it. At the same time, Wisconsin voters made voter photo-ID part of the state’s constitution.

Supreme court elections in Wisconsin may be ostensibly nonpartisan, but the philosophical differences between the candidates were clear as a bell. Unlike the 2023 contest, where abortion rights took center stage following the Dobbs decision, this election was a proxy fight between national Democrats and Republicans. Elon Musk and other billionaire conservatives like Diane Hendricks, Elizabeth Uihlein and the Koch-funded Americans for Prosperity backed Schimel, while large Democratic donors like George Soros, Lynde Uihlein, and J.B. Pritzker supported Crawford.

The race morphed into one much larger than the candidates, and became not just about Trump, but Musk as well. The King of DOGE personally and through groups associated with him donated millions to the contest, making him the largest single contributor in any judicial election in United States history. During the campaign, he offered two Wisconsinites who signed petitions opposing so-called “activist judges” a chance to receive million dollar checks. Though many viewed this as politically tone deaf and even illegal, Musk delivered on his promise, and gave checks to the winners just before the election. By March 25, campaign spending of $81 million had shattered the previous record of $53 million set in 2023.

IT WASN’T ALWAYS THIS WAY

Only 15 years ago, the Badger state was cited as a model of supreme court election reform. In 2009, the state passed bipartisan legislation that provided public financing of state supreme court races, so candidates could run without turning to special interests for money (North Carolina and New Mexico had similar arrangements at the time). That was before the 2010 Republican landslide that elected Scott Walker as governor and brought massive GOP majorities to the legislature. It was also prior to the U.S. Supreme Court decision in the Citizens United case that upended campaign financing nationwide. In 2011, the Republicans scuttled the 2009 legislation, and eventually removed all prohibitions on contributions. Wisconsin judicial spending was off to the races. The elections became increasingly politicized and nationalized; contributions skyrocketed and increasingly came from out-of-state. In 2016, a supreme court race cost about $ 4.3 million. The 2024 contest will exceed $100 million.

UNDERSTANDING THE SYSTEM

Our understanding of the judicial system is often gleaned from our experience with local courts or reading news about U.S. Supreme Court decisions. The public knows little about state supreme courts, but those bodies are increasingly taking center stage in debates about everything from education spending to voting rights. Most criminal justice issues are resolved in state courts, and with Dobbs essentially kicking abortion debates to the states, the parameters of reproductive freedom frequently are determined by state supreme courts interpreting their respective state constitutions. State courts handle many more cases than their federal counterparts, and their highest tribunals are typically the final word on state law. The judges sitting in those seats and how they are selected greatly impact where jurisprudence is headed in our nation.

A court’s philosophy can change dramatically based on appointments and elections. In Iowa, a state where judges are initially appointed by governors, the court in 2018 ruled that abortion is a fundamental right under its state constitution. After a Republican governor appointed 4 new judges beginning in 2019, the court overruled itself in 2022, finding that no such right existed. Similarly, a North Carolina court with a Democratic majority found a redistricting map drawn by the Republican legislature was illegal under the state’s constitution. After a popular election changed its composition, the court changed position and approved the plan.

At the founding of the country, all states selected judges through either gubernatorial or legislative appointments. That began to change in the 1800s, and by 1861, the majority of states used popular elections for judicial selection. Those elections were often partisan affairs and the public gradually became concerned about the role of party politics in the selection process. Some states then changed their process, and supreme court elections became nonpartisan contests. Few states returned to the process by which governors or legislatures chose judges (South Carolina and Virginia are presently the only states where legislatures primarily make the appointments).

Today, Wisconsin is one of 21 states where the primary choice of judges rests with the voters. Of the 21, elections in eight are exclusively partisan affairs, where candidates run with a “D” or “R” next to their name (Alabama, Illinois, Louisiana, New Mexico, North Carolina, Ohio, Pennsylvania, and Texas). Two of these–North Carolina and Ohio– are recent converts to partisan contests, their GOP-legislatures having concluded that judges running as Republicans have a better chance at victory. Montana is also considering such a change, the legislature dissatisfied with some of the court’s recent rulings on the environment and abortion.

In fourteen states, including California and New York, governors typically appoint judges to their highest courts, with several selecting from a merit pool of eligible candidates created by nonpartisan nominating commissions. In many of these states, the electorate nonetheless retains some control. A governor may appoint a judge for an initial term, but continued service can depend on voter approval in retention elections, a unique process that occurs in 20 states (including those where initial selection is by the voters) where the incumbent judge does not face a named opponent but must secure a majority of "yes" votes to remain in office for another term. Very rarely are judges ousted in retention elections; one celebrated recent example occurred in Iowa, where three judges were defeated in retention elections in 2010 after they ruled in favor of marriage equality.

Only two states leave selection almost exclusively to the legislature. In Virginia, there are no popular election of judges, and governors are only involved if an opening occurs when the legislature is not in session, when they can make a “recess appointment” that is subject to legislative confirmation when the body returns. The Virginia legislative approval process is certainly political (the party in power chooses). And when the Republicans controlled the body, they would occasionally assert their prerogatives by rejecting qualified candidates such as Jane Marum Rousch merely because she received a recess appointment from Democratic governor Terry McAuliffe. But there are informal norms that have ruled for decades, and have tended to operate as a moderating force on the character of the court. In Virginia, there is no campaign arms race, and rarely are judges criticized for being “activist” in favor of conservative or liberal causes.

The Brennan Center has a terrific interactive map that explains judicial selection in all 50 states and the District of Columbia.

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ELECTIONS HAVE PROBLEMS

The Wisconsin election is good news for those who support reproductive freedom, redistricting reform, and voting rights. But the dynamics of judicial selection is increasingly problematic.

Judicial elections, even nonpartisan ones, run the risk of undermining the independence of judges and increasing the power of special interests. In many states, most of campaign money is derived from out-of-state interests who may or may not understand the unique character of the state or its people. The Brennan Center, in arguing for the elimination of all judicial elections, suggests that this process creates conflicts of interest on the bench, and generates rulings influenced by the donors. Evidence suggests that elections can affect judges who may be less likely to rule for criminal defendants and instead support harsher sentences to avoid being labeled as “soft on crime” in future elections. No wonder the vast majority of the public entertains questions about the legitimacy of the judiciary.

MONEY INCREASES THE PROBLEMS

While Wisconsin has become the poster child for runaway spending, other states’ direct elections are becoming increasingly expensive. Campaign spending in the 2024 Pennsylvania supreme court race exceeded $19.5 million in a contest where the ideological majority was not at stake. The 2024 North Carolina contest saw over $6.5 million raised.

As the stakes rise in these races, so too do campaign contributions. In this fall’s upcoming election, three Pennsylvania judges, all Democrats, face retention elections. The present 5–2 Democratic majority in Pennsylvania could be imperiled if the voters do not vote to retain them. While any empty seat would then be filled temporarily by Gov. Josh Shapiro (D) until a special election can be called, the governor’s appointments would need confirmation from the Pennsylvania State Senate, where Republicans now have a four-vote majority. Judges are rarely defeated in retention elections, but the prospects of changing the ideological character of a state’s supreme court in one election will be hard to ignore. Expect substantial monies to be spent in this race.

When contributions are unlimited, major investments from special interests can skew an election. Moreover, judges are not supposed to be either political or partisan; we value them for their independence and sound judgment. Expensive campaigns disrupt that impression at a time when the reputation of the judiciary is lower than ever. Once the legitimacy of the courts is undermined, it is difficult to win back. And support for the courts is key to maintaining the legitimacy of American democracy.

AND WE CONTINUE TO HAVE NORTH CAROLINA

Judicial elections are often viewed as democratic; everyone gets a vote and the majority decides. But the situation in North Carolina is making that argument more tenuous. In November, 2024, Judge Allison Riggs, the Democratic incumbent, narrowly won a free and fair reelection to the state’s highest court. Her Republican opponent requested, as was his right, a recount. Losing that, he obtained another (this one, by hand). Riggs's margin remained solid at 743 votes. Her opponent refused to concede, and the state GOP filed suit, alleging that the registrations (not the votes) of 60,000 North Carolinians were technically deficient.

This ruse was designed to get the election before the state’s Supreme Court, where Republicans had a clear majority and could overturn the election. There was no claim that the registrants were not qualified to vote, and no evidence that their votes changed the results. The GOP knew about these so-called deficiencies much before Election Day, but took no action to address them. If the North Carolina supreme court and its 5-2 majority orders a new election or awards victory to the losing Republican, it will undermine the rule of law and further discredit this selection process. Other state parties may then use this strategy to undo an election that they do not like.

WHAT IS TO BE DONE

A state judge’s job is to apply the law fairly and protect rights established within that state’s constitution framework, even when doing so is unpopular or angers the wealthy and powerful. The reality of competing in costly, highly politicized elections is at odds with this role.

It is time to eliminate elections for initial appointments to state supreme courts and install a gubernatorial selection system in states where it does not exist coupled with a merit based approach that relies on nonpartisan commissions for recommendations. Terms should be at least 12 years in length. Retention elections can be useful, if only to inject some popular accountability into the system. If elections cannot be eliminated, state legislatures should impose campaign spending limits and robust reporting requirements for them, and argue that Citizens United should not apply since judicial races are fundamentally different from other elections.

Supreme Court Justice Sonia Sotomayor recently emphasized the importance of judges being “fearlessly independent.” While no judicial selection system is perfect, the direct election of supreme court judges—whether through partisan or nonpartisan elections—raises serious concerns about long-term judicial independence and institutional legitimacy. Given recent experiences with judicial elections, whether victories or setbacks, it is clear that a change is necessary.