Wisconsin state Supreme Court election could prove decisive in 2024

A little-known off-year election in Wisconsin could determine the crucial swing state’s Electoral College votes in 2024, according to local experts.

The state Supreme Court, which rejected then-President Donald Trump’s effort to overturn the 2020 election in Wisconsin by a vote of just 4-3, is holding an election to replace a retiring member of the court’s conservative majority, with an open primary next Tuesday and a general election on April 21 between the top two primary finishers.

In addition to affecting major potential rulings on hot-button issues such as abortion, the outcome of this year’s race could determine which side the court will take in future cases over how votes are cast and counted in presidential elections.

“The 2023 Wisconsin state Supreme Court race is the most important election that nobody’s ever heard of,” Wisconsin Democratic Party Chair Ben Wikler told Politico. “It has implications that will affect national politics for years to come, really at every level of government.”

Four out of the last six presidential elections in Wisconsin have been decided by less than 1% of the vote, Wikler noted, so rulings that increase or decrease voter turnout by even a small amount could determine the outcome.

Although the judicial elections are officially nonpartisan, the court has a 4-3 conservative majority, which has sided with Republicans in crucial cases in recent years, including upholding a photo ID requirement for voters and issuing a ruling that made it harder to vote by absentee ballot. That ruling, from last June, outlawed drop boxes for absentee ballots and having absentee ballots returned by a third party, such as a nonprofit organization doing voter mobilization.

“That has the effect of making it more difficult to return absentee ballots, which more Democrats than Republicans use,” Jay Heck, executive director of Common Cause in Wisconsin, told Yahoo News.

Last year, the court also signed off 4-3 on a state legislative map drawn by the Legislature’s Republican majorities that was so favorable to the GOP that if the parties split the statewide vote evenly, 63 out of 99 Assembly seats and 23 out of 33 Senate seats would go Republican.

However, one of the conservative-leaning justices, Brian Hagedorn, has occasionally sided with the court’s left flank, most notably in rejecting Trump’s effort to overturn the outcome of Wisconsin’s results in the 2020 presidential election, which Joe Biden won by more than 20,000 votes.

The Wisconsin Supreme Court’s seven justices are elected to staggered 10-year terms — only one seat is up for election at a time — in odd-year spring elections. There are two major conservative candidates and two major liberal candidates in the primary, and politics experts in Wisconsin expect one of each to advance to the general election. Although Wisconsin is an evenly divided swing state, an odd-year, spring election is likely to favor conservative candidates, who tend to do better in lower-turnout elections, as the voters most likely to skip off-year elections skew toward Democratic-leaning constituencies such as young people, lower-income voters and voters of color, according to experts.

This year, Justice Patience Roggensack, a conservative, is not running for reelection, giving liberals a chance to flip her seat and form a majority that could go the other way on issues like voter ID, absentee voting rules and redistricting. But progressive activists also say that installing a liberal majority on the court would eliminate the risk that Trump, who is seeking the 2024 Republican nomination, could get Wisconsin’s next presidential election overturned.

“Depending on Brian Hagedorn, who’s a very conservative guy, to be the arbiter of who’s going to win Wisconsin is a very dangerous thing,” Heck said. “Whoever replaces Roggensack, if it’s a conservative, it’s still going to be up in the air as to what happens if there’s a false claim put forward by Trump or somebody in 2024.”

Conservative legal experts agree that it is impossible to predict how Hagedorn would rule on a potential challenge to an election outcome.

“It's kind of hard to assess how such a challenge would come out without knowing the circumstances of the challenge,” said Rick Esenberg, president and general counsel of the Wisconsin Institute for Law & Liberty, a conservative legal advocacy organization.

“The challenge brought in state court in Wisconsin was very, very different than some challenges brought in other jurisdictions,” Esenberg noted. “It didn’t really allege voter fraud, in the sense of [ineligible] votes or misreporting the count or anything like that. It had to do with what the Trump camp called departures from the law in the increase of absentee ballots because of the COVID pandemic.”

So it's impossible to infer how Hagedorn would rule in an effort to overturn a future election that hinges on a different argument. And replacing Roggensack with a liberal would give Democrats more breathing room.

On the other hand, even if a conservative wins in April, it won’t necessarily guarantee that the justices would rule in favor of a future election challenge. One of the conservative candidates, Daniel Kelly, who spent four years on the state Supreme Court and was endorsed by Trump when he lost his seat in 2020, has said on the campaign trail this year that he “did not see an argument that would be capable of disenfranchising all of the people who cast votes in [the 2020 presidential] election,” implying that he would have ruled against the Trump campaign. The other conservative, Jennifer Dorow, a Waukesha County judge, has not given her opinion of the case.

Progressive voting rights advocates may ask a liberal-majority court to revisit the rulings on absentee voting and voter ID, decisions that were criticized by civil rights groups for disproportionately disenfranchising certain groups of voters, such as African Americans and voters with disabilities.

“If a liberal candidate is elected, I certainly think that we would be much more likely to see a court that would rule in terms of expanding the right to vote,” said Doug Poland, an election lawyer in Madison who has represented Democrats in voting rights and election administration cases.

Esenberg argued that those rulings may not be reversed even if liberals do take the majority on the court, because reversing a ruling is a heavy lift. He added that Wisconsin law clearly disallows drop boxes and third-party return of ballots. “Changing precedent is always a difficult thing,” he said. “It requires a whole other layer of justification, so it’s not as easy or as automatic as you might expect it to be.”

“The statute says that the voter either has to place the absentee ballot in the mail or must return it in person to the clerk — and there really isn’t another English-language interpretation that’s available,” Esenberg said.

The legislative district map could also be challenged by voting rights advocates who argue that the partisan gerrymander is illegal under the state constitution. “We have a heavily gerrymandered state Legislature that has a locked-in Republican majority, even though the majority of votes counted are for Democrats year after year,” Poland observed.

“If the progressives gain control of the court, then my organization and other organizations will bring an action to open up the partisan gerrymandering on constitutional grounds,” Heck of Common Cause said. A change to the legislative districts could in turn determine control of the state Legislature, which not only makes laws for Wisconsin but draws legislative boundaries for its congressional districts and has the power to change the voting laws even if the courts do not.

While shaping the outcome of future Wisconsin elections might be the most significant feature of this race to outsiders, Wisconsin voters may be more concerned with how the court affects their day-to-day lives. In particular, a law from 1849 that bans almost all abortions is currently being litigated in front of a trial court judge in Madison.

According to the Washington Post, the liberal candidates, Milwaukee County Judge Janet Protasiewicz and Everett Mitchell, a Dane County judge, have criticized the court’s rulings on voter ID and absentee voting and praised the ruling against Trump, but they have perhaps focused most of all on abortion rights.

Both Kelly and Dorow have been endorsed by anti-abortion groups. In total, the Milwaukee Journal-Sentinel estimated that roughly $11 million will be spent on the campaign, largely by outside groups on both sides. And sitting justices have broken with tradition and endorsed candidates in the race. Two of the liberal justices have backed Protasiewicz, and Dorow and Kelly are each supported by one sitting conservative.

“The stakes are monstrous,” Barry Burden, the director of the Elections Research Center at the University of Wisconsin, told the Guardian. “There’s a confluence of factors that have come together, intentionally or not to make this a terribly important race for the future of the state.”