Why the Wisconsin Supreme Court election could have huge national implications.
One of the most consequential elections of 2023 will happen on April 4 in Wisconsin. The race for an open state Supreme Court seat will determine the partisan balance of the Badger State’s highest court and either maintain the 4-seats-to-3 hold that conservatives have on the court, or the race will flip it to a liberal majority. The result could not only determine whether abortion is legal in Wisconsin after the Supreme Court last year overturned Roe v. Wade, but it could also lead to a redraw of the state’s heavily gerrymandered legislative and congressional maps. New maps in Wisconsin could flip control not just of the statehouse but even of the US House of Representatives where Republicans currently only have the slimmest majority.
Jessie Opoien is the capitol bureau chief for the Capital Times and has covered Wisconsin politics for over a decade. We spoke about the race and what it means not just in Wisconsin but nationally.
This interview has been edited for length and clarity.
Ben Jacobs
Who is running in this race, and why is it getting so much attention?
Jessie Opoien
So the two candidates are Janet Protasiewicz, who is a Milwaukee County circuit judge, and Daniel Kelly, who is a former state Supreme Court justice. And although the race is ostensibly nonpartisan, it’s extremely influenced by partisan entities. So. again, Janet Protasiewicz is linked with Democrats and the liberal side of things. And Kelly is linked with Republicans and the conservative side of things. It’s getting so much attention because it’s one of the only huge races on a ballot anywhere this year because the ideological ballot balance of the state Supreme Court could flip in favor of liberals for the first time since 2008.
That could open the door to challenges to a number of policies that were passed by Republicans over the last 10 years. And I think, most notably, it would open the door to the court, looking at a challenge to the state’s abortion ban, which was passed in 1849 and had been unenforceable until the Dobbs decision.
Ben Jacobs
How much does redistricting come into play as well?
Jessie Opoien
Yeah, redistricting is the number two issue on voters’ minds. At this point, I think abortion is definitely driving the race. The state has seen a number of challenges to its electoral map. I think it’s pretty widely agreed throughout the country that Wisconsin’s maps are among the most gerrymandered in the country. Janet Protasiewicz has certainly talked about those maps. She has said outright that they’re rigged. That’s something that the Kelly campaign has hit her on. But I think we could definitely expect if, if she were to win, we could expect another challenge or a revival of one of the old challenges to make its way back to the court.
Ben Jacobs
Judicial races are nominally supposed to be nonpartisan. Is there any pretense at this point that this is removed from party politics?
Jessie Opoien
Not really; both of the candidates pretty much acknowledge that this is the way it works at this point. It’s kind of one of those things where, as a reporter, you have to note that it’s nonpartisan, and then explain that it’s really nonpartisan in name only. So I think both candidates are pretty well-linked to their respective political parties. We’re seeing both parties get pretty involved. It’s really just a difference between saying liberal and Democrat or conservative or Republican.
Ben Jacobs
So there’s a lot of money being spent in the race. How much is being spent, and who is doing it?
Jessie Opoien
Yeah, it’s huge. We’ve already surpassed the record for the most expensive judicial race in the country. … We’ve already passed $20 million, and I’ve been hearing as high as $27 million. We are going to keep seeing that go higher and higher in the final days of the race. The Protasiewicz campaign is spending more than Kelly, who is relying a little bit more on outside groups. But we’re just seeing so much money flooding in from groups that have an interest in this race.
Ben Jacobs
You mentioned this has been a major ideological battle, but how much is this about the personalities of the two candidates?
Jessie Opoien
Yeah, I think this is probably the most that we’ve seen a judicial candidate talk about their personal values or their personal beliefs on the trail. We’ve definitely seen candidates do it in the past, but not to this degree. Janet Protasiewicz is very open about her support for abortion access and very open about believing that the maps are rigged.
Daniel Kelly isn’t out there with his personal opinions in that way. But you can certainly look at the work that he’s done in the past, and the fact that he’s worked with the Republican Party to get a sense of what his personal beliefs are. [Kelly and Protasiewicz] differ pretty strongly on whether it’s appropriate for a judge to share those beliefs. They both do acknowledge that judges are humans, and they do have beliefs. But yeah, I do think personality is coming into it a fair amount, at least in terms of just how much they’re willing to share of themselves or not.
Ben Jacobs
You mentioned that the big issue is the state abortion ban. Why is that an issue for the courts and not the legislature?
Jessie Opoien
So we have a Republican majority in the state legislature here that’s pretty well-entrenched, and will be for some time. And we have a Democrat in the governor’s office, which means [they are] kind of at an impasse on any changes to the state’s law. So the law that we have right now was passed in 1849, and it bans abortion in all cases, except for a pretty vaguely defined life of the mother exemption.
At the legislative level, some Republicans had said they would like to pass a bill adding exceptions for rape and incest cases; the governor, Tony Evers, has said he would not sign anything that keeps that ban in place. So that’s a no-go for him, even though it would loosen up the law a little bit. So nothing’s going to happen at the legislative level, as long as the partisan balance remains what it is. In the meantime, the state’s Democratic attorney general has filed a lawsuit … so that case is definitely going to make its way to the state Supreme Court. And it is likely the only way in the near future that we would see any changes to the state abortion policy.
Ben Jacobs
So at this point, is the only way anything major can happen is via the state judicial system and ultimately the state Supreme Court?
Jessie Opoien
Yeah, very much. So, I mean, we, those of us who cover politics here, we have a saying of how a bill becomes a lawsuit. And that’s just how it works in a lot of cases here, because it is the only way that you’re going to get an outcome that differs from that gridlock or in your past. When there was Republican control of all branches of government, that was the only way for Democrats to potentially challenge any of those things.
Ben Jacobs
So Wisconsin is a key swing state in presidential elections and has a Senate race coming up in 2024. Is there anything we can learn about 2024 from this election?
Jessie Opoien
I think on a practical level, you can’t ignore the possibility that the state Supreme Court will be involved in either the way those elections are run or potentially litigation afterward. If you look back at what happened in 2020, the state Supreme Court was pretty important in Donald Trump’s challenges to the outcome here. So that element of it, I think, is important.
I think Wisconsin is going to continue to be one of those top three to five states that people are paying attention to, and spending time on and pouring money into.
Ben Jacobs
Is there a broader lesson nationally from this as well?
Jessie Opoien
Wisconsin is somewhat interesting … if you look at our state as a whole, it looks much redder than the other results would indicate. You’re seeing kind of liberal powerhouses in particular areas [of the state], but I think overall, just the closeness of the races here probably is a reflection brought more broadly of how closely divided the country is. I think seeing what works here — thus far, abortion has worked for Democrats and liberals. This might be a test, to find out how much [abortion] is going to continue to play in races throughout the country, depending on the outcome.
