Wisconsin Supreme Court Election Has Large National Implications

More than $42 million was spent on the April 4 Wisconsin Supreme Court election, making it the most expensive state supreme court race in U.S. history. The millions poured in by liberal donors from around the country, including Illinois Governor J.B. Pritzker (D) , paid off, as the race was called by 9:00 pm local time for the Democratic-backed candidate, Milwaukee County Judge Janet Protasiewicz, who defeated former Wisconsin Supreme Court Justice Dan Kelly in a contest to fill the vacancy left by the retirement of Justice Pat Roggensack.

“I am surprised of the results and the magnitude of the victory here,” Protasiewicz said on election night. “We are absolutely delighted and thrilled.” Protasiewicz’ victory puts Democrats back in control of the Wisconsin Supreme Court for the first time in 15 years. Many landmark reforms that progressives would like to repeal, but lack the legislative power to do so, have been enacted since Democrats last had a majority on the court.

Many progressives now hope this shift in the balance of power on the Badger State’s high court will allow Democrats to accomplish through the courts in Wisconsin what they have been able to enact legislatively in nearby Michigan, where Right-to-Work law was recently repealed, meaning workers can once again be forced to join a union as a condition of employment, and where prevailing wage mandates, which inflate the taxpayer cost of state-backed infrastructure projects, have been reinstated. As in Michigan, Wisconsin is a state where, during the past decade, Republicans enacted Right-to-Work and repealed prevailing wage mandates. Undoing those reforms is a top priority for Wisconsin Democrats.

“This is a bit of a watershed moment in judicial elections in America,” says Eric Bott, Americans for Prosperity’s Wisconsin state director, who described this Wisconsin Supreme Court race as “one of the first instances in which a state supreme court candidate was saying ‘I will be an activist.’” Bott points out that Protasiewicz “campaigned openly and aggressively as an activist who said she would pre-judge cases.”

This shift in control of the Wisconsin Supreme Court to a majority aligned with Democrats has national implications, as it could affect the balance of power in Congress. That’s because Protasiewicz’ win puts the reconfigured Wisconsin Supreme Court in a position to overturn congressional and state legislative maps drawn by the Republican-run Wisconsin Senate and Assembly. Many Democrats are now hoping to replicate in Wisconsin, what a Democratic-led state supreme court has done in North Carolina for the past decade.

North Carolina voters elected the Republican nominees in both state supreme court races on the 2022 ballot, which moved the North Carolina Supreme Court from a Democratic to a Republican majority. After being forced to use court-drawn maps for the past decade, Republican legislators in Raleigh are planning to redraw the maps again this year. Unlike what transpired in the past, those new maps are expected to ultimately be upheld by the reconstituted North Carolina Supreme Court after the inevitable legal challenge.

The change of power in the North Carolina Supreme Court means that, after more than a decade of being prevented from doing so, in 2024 North Carolina might finally hold elections using the maps approved by democratically elected legislators. While Democrats no longer have the ability to strike down legislative maps from the bench in North Carolina, they’ve acquired that capability in Wisconsin with a Protasiewicz win.

Protasiewicz has already announced her opposition to Wisconsin’s current district maps. She has said Wisconsin’s maps are “rigged” and “a problem.” With Protasiewicz’ victory on April 4, the Wisconsin Supreme Court is now in position to overturn district maps drawn by elected representatives and replace them with judge or special master-draw maps like North Carolina has been force to use.

$42 Million Is A Modest Amount Compared To The Potential Return On Investment

In addition to the district maps, Protasiewicz has also declared her opposition to Act 10, the historic entitlement reform signed into law by Governor Scott Walker (R) in 2011. Protasiewicz argues the Wisconsin Supreme Court got in wrong in 2014 when they ruled the law is constitutional. If the new Democratically-aligned state supreme court revisits Act 10, it could have multi-billion dollar implications for Wisconsin taxpayers.

Under Act 10, collective bargaining for government employee unions is limited to the issue of wages. Act 10 also requires government employees to contribute to their own pension plan. Since its enactment 12 years ago, Act 10 is estimated to have saved Wisconsin taxpayers more than $15 billion.

Those billions in Act 10 savings have allowed Wisconsin legislators to make significant progress over the past decade in reducing the state tax burden. “Driven down by a $1 billion income tax cut and tight limits on property taxes, Wisconsin’s state and local tax burden fell in 2022 to its lowest level on record,” noted a January 2023 Wisconsin Policy Forum report. “Local taxes as a share of income have never been lower in more than a half century of data, and state and federal taxes on families and businesses are also near historic lows.”

Bott notes that Protasiewicz “did openly say during the campaign that she had pre-judged Act 10 as unconstitutional and despite that won’t commit to recusing herself from cases seeking to overturn the law.” By repealing Act 10, Democrats would grow government expenses by more than a billion dollars annually, creating pressure for future tax increases. With Republicans holding a supermajority in the Wisconsin Senate, however, progressive Democrats recognize they’re unlikely to repeal Act 10 or get other legislative priorities enacted in Madison anytime soon, hence the heightened importance of the April 4 election result.

Aside from Act 10, Bott points to Right-to-Work and the REINS Act as other laws that could be overturned by the reconfigured Wisconsin Supreme Court. Right-to-Work laws prevent workers from being forced to join a union as a condition of employment, while Wisconsin’s REINS Act subjects costly regulations to legislative approval.

Recent developments in other states demonstrate the high stakes for state supreme court elections and why so much money is now flowing into them. In March, the Washington State Supreme Court upheld a new capital gains tax in a ruling that, as one legal analysis put it, “disregarded the actual language of the statute.” In 2022, less than three months before voters put Republicans in charge of the North Carolina Supreme Court, the then-Democratic-controlled court overturned constitutional amendments requiring voter ID and lowering the state’s income tax cap, even though both measures had been approved by elected legislators and voters in 2018. That brazen action was held up for voters in 2022 as one of a number of reasons to put Republicans in charge of the North Carolina Supreme Court, which they subsequently did.

The outcome of the supreme court election on April 4 makes Wisconsin another state where progressives can overcome legislative and electoral deficits through the courts. $42 million may sound like a high price tag for one state supreme court seat, but it’s modest in comparison to the potential multi-billion dollar return on investment for those seeking to ratchet up local, state, and federal spending.