AMAC Exclusive – By Daniel Berman
While Americans will not vote again for Congress until November 2024, and the first presidential primaries are almost a year away, 2023 will see several important elections worth watching. One of the most significant races of the year will be in less than two months, when voters in the battleground state of Wisconsin will elect a new state Supreme Court Justice in an election that will be watched by political observers both for its own sake and for potential early signs of national political trends.
Politico has termed the race “The most important election nobody’s ever heard of.” New York Times reporter Reid Epstein, who evidently has heard of it, agreed that the election is “arguably the most important election in America in 2023.”
The first step is a non-partisan primary on February 21, with the top two candidates facing off in the general on April 4. There are both policy and political reasons why this race is so significant. Wisconsin’s Supreme Court is currently composed of three reliable liberals, three reliable conservatives, and one conservative swing justice who occasionally sides with the liberals when it comes to issues of procedure or elections. One of the conservative justices is retiring, and if Democrats are able to win the seat, Wisconsin’s Supreme Court would have an activist liberal majority.
The wider context of Wisconsin politics would make such a majority revolutionary. While Democratic Governor Tony Evers won reelection in 2022 by 3.5%, Republicans enjoy a lock on the legislature, including a 64-35 majority in the State Assembly and a 21-10 majority in the State Senate, enough to impeach officeholders.
Democrats allege the majority is the result of gerrymandering, and took that argument all the way to the United States Supreme Court, which rejected it in 2018. According to expert testimony provided by Sean Trende of RealClearPolitics, who as a special master helped draw Virginia’s non-partisan maps, while gerrymandering may have enhanced the GOP margins, natural geography is poor for Democrats in the state. This was confirmed by the U.S. House elections in 2022. Despite races being fought on a map proposed by Evers, after the swing conservative justice on the State Supreme Court chose to accept it over the proposal of the GOP legislature, the result was the election of six Republicans and two Democrats.
Nonetheless, “fairness” has a subjective definition, and the Democratic-controlled North Carolina Court famously associated it with proportionality, not a lack of malice, in a case which is also now before the U.S. Supreme Court. Democrats have made no secret of their expectation that if they win a majority on the Wisconsin Supreme Court this spring, one of its first acts will be to strike down the legislative maps, possibly with an instruction to redraw them to create a proportion of Biden-Trump seats approximating the popular vote result. This could only be achieved by ignoring county boundaries and aesthetic sanity.
Redistricting was not the only issue where the GOP legislature has deadlocked with the Democratic governor. They have clashed over control of election administration, executive agencies, and the right to place measures on the ballot.
Most significantly, they have clashed over abortion. The Dobbs decision revived an 1839 Wisconsin law criminalizing abortion within the state. Evers demanded the legislature repeal the legislation, which it refused to do, recessing within 30 minutes when he summoned them into a special session. In turn, the Republican leadership has offered to amend the 1839 law to allow greater exceptions for health, rape, and incest, but Evers has refused to compromise in a way that would recognize the law. Instead, Josh Kaul, the Democratic Attorney General, is refusing to enforce it, and suing in state court to have it overturned.
Whether he succeeds or fails will be decided by whoever wins the race this spring. Whoever controls the state Supreme Court will also likely decide whether the starting point for the abortion debate will be abortion-on-demand as a right or amending the 1839 law as the legislature wishes. This has led Democrats to try to make the election a referendum on abortion, an issue that has helped deliver high turnout among their core voters.
But by turning the Supreme Court election into a partisan contest with clear ideological dividing lines, Democrats are taking a risk with history, or at least electoral history in Wisconsin.
Wisconsin Supreme Court races have often reflected the closely divided nature of the state’s politics, with narrow conservative victories with enormous policy implications and more comfortable Democratic margins when “normality” prevails. The last decade has seen two comfortable Democratic victories, both when the majority on the court was not at stake. A liberal justice won reelection 58%-42% in 2015, and in 2020, in the middle of COVID-19 and the Democratic primary campaign, a liberal challenger unseated a conservative incumbent 55%-45%.
However, when the races have become referendums on the future direction of the state, especially when Democrats have sought to sell a victory as a means of bypassing the elected branches of government, their success has been dicier. In 2011, the election between incumbent conservative David Prosser and liberal challenger JoAnne Kloppenburg became a proxy battle over newly-elected Republican Governor Scott Walker’s collective bargaining reforms. Turnout more than tripled from 450,000 in the all-candidate primary, to nearly 1.5 million in the general election, with Prosser prevailing 50.2%-49.8%. The victory allowed Scott Walker’s reforms to proceed. In 2019, conservative swing justice Brian Hagedorn defeated liberal Lisa Neubauer by an almost identical 50.2%-49.8% margin, evidence that Republicans will turn out and do well when the conservative majority is on the line, as it is this year.
In 2023, Democrats have made no secret that they see the court as a tool to remake Wisconsin. Whether it is sold to their own supporters as the “last chance to preserve democracy in Wisconsin” or as a means of keeping abortion legal, allowing Democrats to win the legislature, and ensuring the state casts its electoral votes for a Democrat in 2024, there is more than enough in the Democratic campaign to motivate Republicans to turn out.
There are enough Republicans in Wisconsin to elect a conservative Republican against a liberal, as was proven by Ron Johnson’s 2022 reelection. If they cannot hold the Supreme Court seat, it would indicate that, at least in Wisconsin, Dobbs mattered to enough moderate Republicans to make them overlook their opposition to the wider liberal agenda Democrats are campaigning on imposing. The latter would act as confirmation bias for many strategists in both parties that 2022 was not a one-off, and that Democrats have found their “silver bullet.” The interpretation may or may not be true, but that won’t stop the narrative if Democrats prevail in the battle for the Wisconsin Supreme Court.
Wisconsin’s spring election, then, matters outside Wisconsin on at least three levels. First, a liberal state Supreme Court will seek to either transfer control of election administration to Governor Evers or assume that power itself. Second, a victory for Democrats, especially by a wider margin, using abortion as a primary issue will suggest Democrats can repeat the feat in Wisconsin in 2024, or that Republicans at least need to find a new way to counter it. Finally, it will encourage Democrats to repeat the tactics that “worked” in Wisconsin elsewhere, whether in Virginia’s legislative races this fall, or across the country next year.
While a Republican candidate for president can theoretically win the Electoral College without Wisconsin’s 10 electoral votes, it is the most likely tipping-point state in 2024. The states Trump won in 2020, when combined with Georgia, Arizona, and Wisconsin, provide an electoral college majority for any Republican candidate. It is also, unlike Michigan and Pennsylvania, a state where the electoral machinery is not yet under Democratic control. It would not be far off to say that in 2024, as goes Wisconsin, so goes the country. What happens this spring will say a lot about which direction Wisconsin goes in 2024.
Daniel Berman is a frequent commentator and lecturer on foreign policy and political affairs, both nationally and internationally. He holds a Ph.D. in International Relations from the London School of Economics. He also writes as Daniel Roman.
