What April's Supreme Court election may tell us about the 2024 partisan races in Wisconsin
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There was a time when a spring election for judge told you next to nothing about a fall election for president or governor. And vice versa.
But that time is gone.
Wisconsin’s April 4 election for state Supreme Court is a huge political story for two reasons.
One is that it has massive political consequences. It will determine whether a liberal or conservative majority will shape future court rulings on abortion and gerrymandering, and settle legal fights over elections.
But the other reason is that these judicial races have far more political meaning than they used to. Interest groups and average people view them through a much more partisan lens than in the past, which gives the results more partisan significance.
“The court vote and the presidential vote are looking a lot more like one another over time,” says Charles Franklin, director of the Marquette Law School poll.
If you’re interested in where this battleground state is headed in advance of the 2024 presidential race, the outcome of this court election won’t tell you who is going to win Wisconsin’s 10 electoral votes next year. (Two to three times as many people vote for president as vote in a typical Supreme Court race here).
But it will give you some clues about the election trends that have defined Wisconsin politics in the Trump era — the growth of the urban-rural divide, the Republicans’ struggles in the suburbs of Milwaukee and Madison and the Democrats’ decline in small towns and the countryside.
The contest between liberal Janet Protasiewicz and conservative Dan Kelly will be the first big Wisconsin court race of the Biden presidency, the first since the failed effort to overturn the 2020 presidential election, and — probably most important — the first since the U.S. Supreme Court’s decision overturning Roe. v. Wade. That has put abortion at the center of this fight and helps explain the huge resources that Democrats and liberal groups especially have poured into the campaign.
Partisanship in Wisconsin court races is growing
But there is also a broader election context to this Wisconsin race, and that’s what this column is about.
There used to be almost no correlation between voting trends in these nonpartisan spring races and voting trends in partisan fall races. How an area voted for state Supreme Court wasn’t all that closely related to how it voted for governor or president.
That has changed entirely over the decades.
On a scale of zero (no correlation) to 1 (perfect correlation), the relationship between the county-by-county vote for state Supreme Court and the county-by-county vote for president has risen from almost zero in the 1970s to an average of 0.2 in the 1980s, almost 0.4 in the 1990s, more than 0.6 in the 2000s, more than 0.8 in the 2010s to 0.92 and 0.94 in the past two court contests (2019 and 2020), according to figures compiled by Franklin.
There are several explanations for this. Even in partisan races, voters are more consistently voting for one side as public opinion grows more polarized. And they’re seeing the courts settle hugely contentious issues, including political disputes.
“I think we have seen the state Supreme Court more deeply involved in political conflicts, things that the governor and Legislature can’t resolve or things outside groups want to litigate and that has pushed the court into a more political role than it might have had 30 years ago,” Franklin said.
More:Nonpartisan in name only, Wisconsin Supreme Court race has political overtones
One result is that even at much lower turnouts, voting patterns for court races mimic those of partisan races.
“The counties that vote very Republican also vote very conservative (for Supreme Court), and the counties that vote very Democratic also vote much more consistently liberal for the court,” Franklin said. “The landscape has become the same.”
Milwaukee County appears no longer within reach for conservatives
The best illustration of this trend is Wisconsin’s biggest county, Milwaukee, which has turned into a much more reliable voting base for liberal court candidates than it used to be.
The conservative Supreme Court candidate won Democratic-leaning Milwaukee County in 2000, 2003, 2007 and 2013, by anywhere from 2 to 23 points. This happened even though Republicans in this period were losing the county in presidential races by anywhere from 20 to 40 points.
The ability to compete very effectively for court votes in the state’s biggest blue county was a boon to conservatives in these contests. One reason this happened is that the most Democratic voters in the county — city of Milwaukee residents, especially voters of color — didn’t always turn out in nonpartisan April elections. And the higher-turnout suburbs inside Milwaukee County included some very purple and even red places.
Today, Milwaukee County is out of reach for conservatives. The liberal candidate has won the last three court contests by 32, 25 and 35 points. The fact that court elections have become more partisan makes it harder for a conservative court candidate to do well on Democratic turf. And the highest-turnout suburbs within the county (places like Whitefish Bay and Wauwatosa) have become much, much bluer.
Here and elsewhere, the regional shifts that have defined today’s partisan election map — conservative decline in the big metropolitan suburbs and conservative gains in rural counties and small towns — have begun to define these court races as well.
Consider the state’s last ultra-competitive Supreme Court election, the 2019 contest won by half a percentage point by conservative Brian Hagedorn.
This was the closest court race since 2011 when conservative David Prosser won reelection by half a point during the uproar over Act 10 and Gov. Scott Walker’s battle with public sector unions.
But even though these two races eight years apart had identical statewide outcomes, the voting patterns were quite different.
Hagedorn did significantly worse than Prosser in the blue and red suburbs of Milwaukee and the big blue bastion of Dane County. His winning margin in Republican Ozaukee County was 18 points smaller than Prosser’s and his margin in Republican Waukesha County was 11 points smaller. His deficit in Democratic Milwaukee and Dane counties was 12 points bigger than Prosser’s.
At the same time, Hagedorn did better than Prosser (far better in many cases) in 53 of Wisconsin’s 72 counties — mostly smaller counties in western, northern and central Wisconsin.
Hagedorn and Prosser eked out tiny victories, but they got there in very different ways, and those differences mirrored the changes that were happening in partisan elections.
These changes include the dramatic growth of Dane County’s electoral clout. Anchored by the city of Madison, Dane always performed well for liberal court contestants. But the margins are much more lopsided than they used to be and Dane’s impact on statewide elections is much greater because it has been adding far more people than any other part of Wisconsin.
In 2020, liberal Jill Karofsky won Dane County by 63 points and 123,308 votes (159,735 to 36,427). Turnout in that race was boosted by a Democratic presidential primary on the same ballot. Nevertheless, her vote margin in Dane in a nonpartisan spring election was almost as big as Barack Obama’s landslide November margins for president in the county in 2008 and 2012 (about 132,000 votes).
Another region where the court vote is following the trend of the partisan vote is suburban Milwaukee. The Republican WOW counties of Waukesha, Ozaukee and Washington have been foundational to conservative court victories. In the nine contested court races from 2000 through 2016, they invariability ranked among the top four performing counties for conservatives; in most of those races, they were the top three.
But that started to change in the Trump era. Ozaukee was the 19th-best county for the conservative court candidate in 2019 and the 21st-best in 2020.
Waukesha was the fourth-best county for the conservative candidate in 2020. But it only delivered a 23-point victory margin, compared to an average conservative margin of 39 points in the previous 11 contested court races.
These shifting margins are having a major impact on how court elections are won in the state. While the WOW counties once neutralized the voting power of Dane in these races, that is no longer true.
In the big 2011 court race, the conservative margin in the WOW counties (about 93,000 votes) was bigger than the liberal margin in Dane (about 85,000 votes).
Dane County eclipsing the WOW counties for Democrats
But in the equally close 2019 race, Dane easily “outpunched” the WOWs: Hagedorn won the WOW counties by roughly 68,000 but lost Dane by around 88,000.
In the 2020 race, boosted by the Democratic presidential primary, the liberal margin in Dane (about 123,000) obliterated the conservative margin in the WOW counties (roughly 52,000).
While metro Madison and Milwaukee have been shifting in a blue direction, rural Wisconsin has been moving the other way.
This has widened the urban-rural political gap in Wisconsin, most dramatically in partisan races, but now in court races as well. Before 2016, there typically wasn’t much difference in how metro and non-metro counties voted for state Supreme Court. From 2000 to 2015, conservative court candidates did about two points better in non-metro counties (a rough proxy for the rural vote) than in the metro counties.
But in the spring of 2016, the voting gap between metro and non-metro counties grew to 9 points, and in the past three court races (2018, 2019, 2020) the gap has averaged 17 points.
Hagedorn owed his 2019 victory to rural Wisconsin. He lost the combined vote in Wisconsin’s more populous metro counties by 4 points. Since these counties make up about three-quarters of the statewide vote, that was a big hurdle to overcome. But he won the combined vote in non-metro counties by more than 13 points, which was just enough to win statewide.
Comparing Hagedorn to Prosser by region, Hagedorn lost ground in the big Milwaukee and Madison TV markets, did slightly better in the large Green Bay market in northeastern Wisconsin, and made major inroads in the state’s smaller northern and western media markets.
Trends in the Trump era have favored Democrats in statewide races
The burning question in Wisconsin elections — for the court, for governor, for U.S. Senate, for president — is whether all these changes, taken together, advantage one side over the other.
The early evidence of the Trump era suggests that in statewide elections these trends may be posing a bigger challenge to Republicans and conservatives than to Democrats and liberals.
I say that with a lot of caution because Wisconsin has seesawed for a long time. Both parties have lost ground with key parts of their traditional coalitions. Both parties have suffered demoralizing defeats in recent cycles. And both parties have their struggles with swing voters.
But in the six years since Trump was elected president and redefined the image of the Republican Party, the right has just won just two narrow victories in Wisconsin’s most consequential statewide races (president, governor, U.S. Senate and state Supreme Court).
These were Hagedorn’s 2019 court race, which he won by half a point, and Sen. Ron Johnson’s 2022 reelection bid, which he won by one point.
The left has won six important races, some of them quite comfortably: two Supreme Court elections by double-digits (2018 and 2020); a U.S. Senate race by 11 points (Tammy Baldwin in 2018), a governor’s race by 3 points (Tony Evers in 2022) and 1 point (Evers in 2018), and a presidential race by less than 1 point (Biden in 2020).
Nothing about this history says that Republicans can’t win Wisconsin for president or U.S. Senate in 2024 or that conservatives can’t win the April 4 court race.
But it appears as though the party’s billowing deficits in high-growth Dane County and its slide in the populous Milwaukee suburbs have made the electoral math more difficult for Republicans than it was a decade ago, despite their rural gains.
Going back to the 2016 election, no Republican or conservative candidate in these races — even in victory — has reached 51% (something former Republican Gov. Scott Walker did three times between 2010 and 2014).
Johnson won with 50.2% in 2016 and 50.4% in 2022. Hagedorn won with 50.2% in 2019. And Trump won with 47.2% in 2016.
By comparison, Democrats and liberal candidates have reached 55.7% (in the 2018 court race), 55.4% (in the 2018 Senate race), 55.2% (in the 2020 court race), and 51.2% (in the 2022 governor’s race).
Both sides can win and will win elections in Wisconsin.
But it may be that one side right now has a lower ceiling and a smaller margin for error.
Craig Gilbert provides Wisconsin political analysis as a fellow with Marquette University Law School's Lubar Center for Public Policy Research and Civic Education. Prior to the fellowship, Gilbert reported on politics for 35 years at the Journal Sentinel, the last 25 in its Washington Bureau. His column continues that independent reporting tradition and goes through the established Journal Sentinel editing process.
Follow him on Twitter: @Wisvoter.
This article originally appeared on Milwaukee Journal Sentinel: Wisconsin Supreme Court election will give clues about 2024 races
