Wisconsin’s Supreme Court election between liberal judge Janet Protasiewicz and conservative judge Daniel Kelly set high stakes for both parties. A liberal-leaning Supreme Court could be the only way to counteract a reliably Republican legislature. But Kelly’s victory could insulate Republicans from any significant power challenges for years to come. Within the context of such a critical race, here are four issues to watch as election results unfold.
Recusal
As a side effect of a competitive election climate, interest group spending in the Wisconsin Supreme Court election has been exorbitant. According to WisPolitics data from mid-March, spending totals reached $27 million. The Brennan Center’s Buying Time 2023 database reveals outside groups alone have spent more than $7 million on television and radio ads that will run through election day. Further, campaign finance records show partisan and other interest groups have donated to both candidates’ campaigns.
Such contributions and expenditures raise concerns about interest groups holding influence over an election for a supposedly nonpartisan government office. Some of these groups may eventually be involved in cases before the Wisconsin Supreme Court. Current rules allow justices to decide when to recuse themselves, or abstain, from cases when personal interests may influence their ability to rule impartially.
This system lacks accountability for justices who have the discretion to reward their supporters or punish their critics. According to Wisconsin Public Radio, Kelly supports this system, arguing that adopting a standard would be too difficult. But this position is dismissive of the looming reality — Supreme Court elections are deeply political.
While Protasiewicz is unsure how to create a standard, she does advocate for a rule that takes the decision out of justices’ hands. Ultimately, adopting a recusal rule is the only way to maintain a sense of justice within the chaos of unfettered outside influence.
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Abortion
After the Supreme Court overturned Roe v. Wade, Wisconsin’s abortion policy defaulted an 1849 ban that criminalizes the provision of an abortion. In opposition to the ban, Attorney General Josh Kaul and Gov. Tony Evers filed a lawsuit, which is expected to stand before the Wisconsin Supreme Court.
Protasiewicz has said her personal values reflect the right to choose. She added that any judicial decisions she makes will be rooted in constitutional law, not “right-wing partisan beliefs.”
Conversely, Kelly was endorsed by the Wisconsin Right to Life PAC, which doesn’t support abortion exceptions in cases of rape and incest. The group says it supports exceptions when the life of the mother is at risk. But Wisconsin’s current laws regarding this exception are too vague. As a result, some seeking miscarriage management are unable to access it because miscarriage treatment often involves a dilation and curettage procedure, which is also the standard for abortion. Thus, physicians are reluctant to treat miscarriages, according to Wisconsin Watch. If untreated, this can lead a person who is miscarrying to bleed to death or develop a life-threatening infection.
These bare-minimum exceptions tell Wisconsinites they don’t deserve a right to bodily autonomy, and Kelly’s victory would reinforce this belief. A conservative state Supreme Court could mean Wisconsinites may only be able to receive reproductive healthcare in circumstances deemed morally acceptable by conservatives.
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Voter laws
Voting regulations are another issue that will touch the lives of thousands of eligible Wisconsin voters — regardless of the election outcome. Policies that affect the ability for eligible voters to participate in democracy include those regarding absentee ballots, ballot drop boxes, voter ID and registration laws — even being considered an eligible voter.
The Wisconsin Supreme Court recently banned the use of absentee ballot drop boxes and requiring a photo ID for voter registration. Both of these laws adversely affect marginalized communities, as absentee drop boxes increase voting access for disabled and low-income people who may not have transportation to polls. Similarly, photo ID laws create barriers for those who, again, don’t have access to reliable transportation since obtaining a photo ID requires getting to a DMV or other government office.
Protasiewicz said she will change the rules laid out in these rulings if elected. This would return voting abilities to many Wisconsin voters who lost them within the past few years. A victory by Kelly, however, would likely mean a continued streak of voter suppression by a majority conservative court.
Currently, individuals in Wisconsin convicted of felonies serving their sentence are not permitted to vote. With Black adults making up 42% of the state’s prison population but only 6% of its overall population in 2021, this creates a disturbing racial disparity in who is allowed to vote in Wisconsin. Depending on the result of this election, this issue may improve or worsen — with Protasiewicz potentially granting voting rights to felons serving time, and Kelly potentially revoking voting rights from all convicted felons.
Whether it be further voter disenfranchisement or attempts to restore voting access to underserved communities, this election has much at stake for the future of democracy in Wisconsin.
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Redistricting
Wisconsin’s political district maps have been described as the most gerrymandered in the country. The current political district maps were selected in 2021 after the Supreme Court decided to adopt maps submitted by Gov. Tony Evers and the Republican-controlled Legislature. The adopted maps were required to have minimal changes from the maps in 2011 in adherence to a methodology known as “least change.”
But, the maps drawn in 2011 were also drawn by Republicans to heavily favor their own political party, as evidenced by the GOP’s strong control of both houses of the legislature from 2011 to 2021, even in years when Democrats did well in statewide elections.
Kelly is in favor of the ‘‘least change’’ methodology and Wisconsin’s current political maps. Kelly has said during a candidate forum that courts must avoid the idea of fairness in political maps as it is a political question — not a legal one.
Protasiewicz has openly expressed her opposition to the current state of the political maps in Wisconsin, calling them rigged on several occasions. Protasiewicz said in an interview with the Cap Times she would reevaluate the maps if elected, as the dominant Republican majorities in the Legislature are not reflective of Wisconsin’s close statewide elections.
Having a conservative or a liberal majority within the Wisconsin Supreme Court has major implications for the 2024 presidential election. The outcome of the Supreme Court race will determine if gerrymandered political maps will be reassessed, which directly influences how Wisconsin will swing in the 2024 election.
The Badger Herald Editorial Board serves to represent the voice of the editorial department, distinct from the newsroom and does not necessarily reflect the views of each staff member.
