February 23, 2023

Pay Attention to the Wisconsin Supreme Court Race

Russ Feingold President

This week, voters in Wisconsin went to the polls in the primary election for a single seat on their state supreme court. We routinely say that courts matter and that state courts matter. It is harder to find a more poignant example of courts mattering than the Wisconsin Supreme Court.

Wisconsin is a swing state, with the ability to swing the outcome in a presidential election. Recall how much attention was paid to the state in 2020 and know that that is likely to repeat next year with the 2024 presidential election.

There are seven justices on the Wisconsin Supreme Court. Right now, the Court has a 4-3 conservative majority. The election underway is to fill the seat of Justice Patience Roggensack, one of the conservative justices, who is stepping down. This makes the election for her seat effectively an election for majority control of the Court.

Taking a step back, I can recall a time when the partisan make-up of the Wisconsin Supreme Court was less discussed because it was less relevant. Decisions could not be reliably predicted based on the party affiliation of the seven justices. As with the U.S. Supreme Court, that time is long gone. Today, decisions by the Court can often be reliably predicted based on the 4-3 conservative majority.

For instance, in the months leading up to the 2022 midterms, the Wisconsin Supreme Court ruled drop boxes illegal in a 4-3 decision along party lines. A year prior, the Court issued a similarly partisan 4-3 decision upholding state Republicans’ gerrymandered electoral maps. These two decisions indisputably impacted the midterm elections.

One notable case defied this partisan 4-3 split. In 2020, one of the four conservative justices broke rank and joined the three liberal justices to reject Donald Trump’s attempt to thwart the will of Wisconsin voters. In a case that should have been unanimous, the rule of law was upheld by a slim 4-3 vote.

U.S. elections have become increasingly litigious. The months before a general election are now routinely crowded with litigation over voting rights, electoral maps, and ballot access. The weeks after Election Day see more litigation by candidates turning to courts to defy voters. I worry and expect that 2024 will be no different. In fact, I expect we will see even more litigation than the last two election cycles. This puts state courts – specifically state supreme courts – on the frontlines of preserving the will of voters and safeguarding our democracy.

In a swing state, a state supreme court charged with deciding a case about election results could effectively determine who is elected president of the United States. In 2000, the U.S. Supreme Court was in such a position in Bush v. Gore. In 2024, it’s just as likely to be a state supreme court.

More immediately, the WI Supreme Court is poised to decide whether Wisconsin protects abortion rights or whether it will enforce a strict abortion ban from the 1850s. The lawsuit is expected to reach the state supreme court after the April election, potentially making the winner of the upcoming election the deciding vote in the case. As more states restrict or ban abortion services and more patients have to cross state lines to access reproductive healthcare, the Wisconsin Supreme Court’s decision in the case will certainly have regional, if not national, implications.

Given these high stakes, it is unfortunately no surprise that the race is shaping up to be one of the most expensive judicial races in history. The primary for the election was this past Tuesday, narrowing the candidates from four to two. We’re now roughly six weeks from the April 4 election, and millions more are likely to be spent in that short timeframe. Voting rights, redistricting, abortion rights, a lot is on the line in this race.

Whether you live in Wisconsin or not, this is an election to pay attention to.