By Barry Burden
A Judicial Election
In the cold days of winter, a perfect storm has formed in Wisconsin politics. The storm is turning what would be a humdrum nonpartisan judicial election into an intense ideological showdown that may well shape state policies for years to come. The chair of the state’s Democratic Party described it as “the most important election that nobody’s heard of.” The New York Times has called it the “biggest, most unusual race” happening anywhere in the U.S. in 2023.
For many years the Supreme Court of Wisconsin was largely insulated from partisan acrimony. Elections to the court are officially nonpartisan and occur early in the year to isolate them from the partisan influences of a November general election. To encourage their independence, the seven justices serve staggered 10-year terms and often remain in office after governors and many state legislators have moved on.
The Storm
The nonpartisan veneer of the Court’s has been wearing away in obvious ways over the last 15 years. If there was any lingering hope that the design of Supreme Court elections would keep them above the partisan fray, the upcoming 2023 contest is ending that fiction once and for all. Four major factors are colliding this year to create the perfect storm.
First, as with its federal counterpart, the Supreme Court of Wisconsin has generally become a more partisan venue. Justices are ensconced in fairly reliable camps (with one notable exception in Justice Brian Hagedorn) and closely divided 4-3 votes have become more common than ever.
Second, the impending retirement of conservative Justice Patience Roggensack leaves three identifiable conservatives and three identifiable liberals on the court. Both sides believe they can win the open seat that will create a 4-3 majority in their favor. Because the next election will not occur until 2025, this year’s contest would give one camp control of the court through at least the next presidential election when issues around absentee ballots and appointment of electors could emerge again.
Third, last year’s Dobbs decision from the U.S. Supreme Court brought abortion policy to the surface. A law enacted in 1849 – the second year that Wisconsin was a state – is ambiguously written but appears to essentially outlaw nearly all abortions. The Dobbs decision thus led abortion providers in the state to immediately end their services and spurred Democratic Attorney General Josh Kaul to launch a lawsuit challenging the law. It seems all but inevitable that the case will end up before the state’s Supreme Court.
Fourth, the dysfunctional lawmaking process of the two “political” branches has pushed most hot-button issues to be decided in Wisconsin courts. The logjam between Democratic Governor Tony Evers and the Republican-controlled legislature (Evers has set a record for gubernatorial vetoes) has all but stopped normal policy making in the state. The two sides have turned to the courts to get their way. Over the past four years it has been lawsuits rather than lawmaking have been how policies concerning public health precautions, rights of parents, powers of the governor, labor union rights, absentee voting rules, and legislative redistricting have been settled.
Issues and Turnout
That final issue, partisan gerrymandering of the state legislature, has also been to the U.S. Supreme Court and has become a fixation for Democrats who see the courts as condoning rigged elections.
Criminal justice and policing are also concerns in the election. One of the conservative candidates, Jennifer Dorow, rose to prominence last year when she presided over the trial of Darrell Brooks, Jr. Brooks was sentenced to life in prison when he committed a deadly attack after paying a $1,000 bond to be released after a prior charge.
In an attempt to make the Supreme Court contest about these issues, Republican legislators are hoping to place issues on the ballot that will motivate their voters, one of which would lead to changes in the state’s cash bail policies. Liberals have tried similar gimmicks in previous years by placing issues on the ballot that would drive turnout among their supporters.
In previous years when a Supreme Court contest was the main race on the April ballot, voter turnout ranged between 15% and 30%. In a low turnout environment, small increases in voter participation on one side of the spectrum can decide the outcome.
These efforts to spur turnout are more important this time because the candidates running in the February primary are an usual mix two conservatives and two liberals. It is likely that one candidate from each side will finish in the top two and face off in the April runoff. But it is also theoretically possible that the top two finishers could both be from the same ideological camp. This possibility is creating more complication for parties and advocacy groups as they coordinate about the most effective strategies to win the seat.
Also particular to the election is how quickly public knowledge about the candidates must ramp up. Wisconsinites have just shaken off the intensive the 2022 general election and emerged from the holiday season, so many citizens are not yet turned in to the current election cycle. Other than some public familiarity with Dorow from the Brooks trial and Dan Kelly from his prior stint on the court, the candidates are largely unknown. They will be defined almost entirely by last minute adverting, much of it in 30-second TV ads.
The most recent Supreme Court election took place in April 2020, just as the coronavirus pandemic had taken hold. Despite that massive disruption, total spending in the race set a state record of $10 million, about equally split between the candidates’ campaigns and outside groups. Some have suggested that $30 million could be spent this time around, making the race twice as expensive as the priciest high court race ever held in any state.
The eye-popping price tag is probably the best indicator of the extreme importance of this race. A judicial candidate who today is unknown to most state residents will be elected in a fire storm of spending and become the pivotal vote on a court that could decide the most important political matters in a state on the political knife-edge. The “biggest, most usual” race of 2023 sounds about right.
About the Author
Barry Burden is Professor of Political Science and Director of the Elections Research Center at the University of Wisconsin-Madison. He can be found on Twitter at @bcburden.
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