WISCONSIN EARTHQUAKE: VOTERS BRING LIBERAL TO STATE SUPREME COURT.
Fights of Our Lives: States and the Future of Democracy- 4.7.2023
A lightning bolt struck the state of Wisconsin last Tuesday with the decisive win of Janet Protasiewicz over Dan Kelly in an election for a 10 year term to the state’s Supreme Court. Though Wisconsin is like most states in selecting Supreme Court judges in popular nonpartisan elections (Virginia is a major exception–the legislature in the Commonwealth generally selects judges), it was clear that Protasiewicz was the liberal and Kelly the conservative in the race. In a sign of our polarized times, over $45 million was spent in the contest, making it the most expensive supreme court race in history.
Protasiewicz’s election shifts the political balance of the court in a liberal direction, and therefore creates the potential to thwart Republican efforts to curtail abortion rights in the aftermath of Dobbs v. Jackson Women's Health Organization. It threatens to upend a hyper partisan redistricting plan that has enabled GOP control of the legislature for over a decade. And Wisconsin’s Act 10, the state law backed by former GOP Gov. Scott Walker that undercut the collective bargaining rights of state employees, could also be overturned, Protasiewicz having opined that the measure is "unconstitutional."
A host of issues affected the outcome of the election. And Kelly was not helped by being linked to Wisconsin’s version of the fake electors scheme of 2020. But just as Dobbs motivated Kansas and Kentucky voters to reject ballot initiatives prohibiting abortion, and inspired Michigan, Vermont, and California voters to approve constitutional amendments to protect it, last July’s SCOTUS decision drove turnout, and Protasiewicz was the beneficiary.
WALKER’S DISMAY
Those disappointed by Tuesday’s result undoubtedly included former Wisconsin Republican Governor Scott Walker. Walker was only 6 years old when Roe v. Wade was decided. By the time the U.S. Supreme Court in Dobbs attempted to cast Roe into the dustbin of history, Walker had served two terms (2011-19) as Governor, and presided over the most dramatic political retrenchment in the Badger State’s glorious history. Once known for Progressives such as Bob La Follette, William Proxmire, and Russ Feingold, Wisconsin under Walker became captured by the conservative wing of the Republican party, and the speed with which they brought change was nothing short of breathtaking. Walker and his allies undermined the collective bargaining rights of public employees and made Wisconsin a right-to-work state, supported abortion restrictions, and pushed tax breaks for large corporations.
In 2009, Democrats controlled both the Wisconsin House (50-45) and Senate (18-15). But in the 2010 midterm elections, these margins were upended, as state Democrats joined their colleagues across the country by sustaining massive losses in what President Obama described as a political “shellacking.” Walker also won election that fall, and when Republicans took control, their redistricting plan made Wisconsin the most gerrymandered state in the nation. The line-drawing Republicans did in 2011 remains the basis of wide margins they still hold in both legislative bodies.
Despite this Republican control, Wisconsin Democrats remained successful in national and statewide elections during the next decade. Obama prevailed in 2012 and Biden in 2020, Mandela Barnes and Sara Rodriguez each won Lieutenant Governor races. Present U.S. Senator Tammy Baldwin won twice, as did present Attorney General Josh Kaul and Governor Tony Evers (his first win was a defeat of Walker in 2018). But the 2011 gerrymander ensured Republican control of the legislature, and the GOP now enjoys a 64-35 majority in the House and 22-11 margin in the Senate. This has made life for Governor Evers exceedingly difficult, as his ability to sustain a veto often depends on who is in the legislative chamber when key votes are taken. With Protasiewicz’s election, the redistricting map is up for grabs. Several of the sitting justices have rejected these partisan gerrymanders in the past, and Protasiewicz has stated that the lines “are rigged”.
CHANGE IS COMING—THE POWER OF THE STATE SUPREME COURT
How fast change will come as the result of this election is not clear. State Supreme courts have flexibility to act more quickly than the U.S. Supreme Court. Under the principle of original jurisdiction, a state supreme court has the power to accept certain cases without a requirement that they first be heard in lower courts. Some 44 states have some form of original jurisdiction, but Wisconsin’s constitution is more expansive than most. Article VII, section 3(2) provides its Supreme Court with broad constitutional power to “hear original actions and proceedings,” which some legal thinkers argue is “practically unlimited in scope.” This “original jurisdiction” clause in the state’s constitution was enacted in 1848, only one year before the passage of Wisconsin’s statute on abortion that is the subject of so much debate. The Supreme Court has already assumed such jurisdiction in an earlier redistricting case, and they might do so again. And it is possible that Josh Kaul, the state’s Attorney General, could take his existing challenge to the state’s 1849 abortion law directly to the Supreme Court.
Tuesday’s election will have a huge impact on Wisconsin. But beyond that, it shows how the nation is increasingly focused on the states, and on contests that previously garnered little attention. This is a good thing, and it bodes well for the future of democracy.
COMING SOON IN FIGHTS OF OUR LIVES:
WHY DO WE VOTE FOR STATE SUPREME COURTS JUSTICES ANYWAY?
DISSENT, DECORUM, AND DUNCES IN TENNESSEE
David J. Toscano is an attorney and a former member of the Virginia House of Delegates. He is the author Fighting Political Gridlock: How States Shape Our Nation and Our Lives, University of Virginia Press, 2021, and Bellwether: Virginia’s Political Transformation, 2006-2020, Hamilton Books, 2022.
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