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EXPLAINER: Why is the Wisconsin Supreme Court race so important?

Wisconsin State Capitol Building.
Stock Adobe
Wisconsin Supreme Court primary election is on Feb. 21.

What does a Wisconsin Supreme Court Justice do?

The Wisconsin State Supreme Court is comprised of seven justices, elected to 10-year terms in statewide, nonpartisan April elections. The court needs at least four votes for a majority opinion to make law. Otherwise, concurring, dissenting or plurality opinions are non-binding.

The Supreme Court has the final say on a lot of state issues, including the interpretation of the Wisconsin Constitution, the interpretation of Wisconsin state laws and reviewing the actions of other state officials, like governors and agency officials at the state and local level.

If a case requires the state court to interpret the Wisconsin Constitution, the Supreme Court’s decision can't be appealed to the federal courts.

Former Wisconsin Supreme Court Justice Daniel Kelly and Judge Janet Protasiewicz are facing each other in the April 4 election. Learn what they stand for, job history, education and about their endorsements.

What’s at stake?

As the New York Times writes: “In narrowly divided Wisconsin, a one-seat edge [on the Supreme Court] is all the majority needs to change the state’s politics.”

In recent court terms, there has been a 4-3 conservative majority, including swing Justice Brian Hagedorn. In the most recent term, there were more 4-3 rulings than any other time in the last 73 years.

A 4-3 Surge

Now that conservative Justice Patience Roggensack is retiring from the court, liberals could take the majority and dramatically influence policy on the topics below and would likely favor Democrats. If conservatives keep the seat, they’re likely to continue to tip decisions toward Republicans.

As the Times writes: “For 14 years, conservatives have controlled the Wisconsin Supreme Court, issuing decisions that upheld limits on unions, affirmed a voter ID law, expanded gun rights, curbed the powers of the Democratic governor, banned absentee ballot drop boxes and established political districts that ensured Republican dominance in the state legislature.”

What’s the impact of the court on elections and voting laws?

The Supreme Court has a big hand in determining election law and how we vote. The Court decided a number of cases that affected voting during the 2020 election, like requiring the state to hold its April presidential primary during the COVID-19 pandemic. When then-President Donald Trump attempted to overturn his election loss by asking the courts to disqualify more than 200,000 ballots from Dane and Milwaukee Counties, a narrowly divided court (4-3, with Justice Hagedorn siding with liberals), rejected Trump’s lawsuit.

The Supreme Court has also ruled that most ballot drop boxes aren't allowed in Wisconsin and that a voter can't have someone else return — in person — their completed absentee ballot on their behalf. A new court could revisit this issue.

The court will be able to take up many more voting and election law cases that could determine how the 2024 presidential election is administered in Wisconsin.

Will Wisconsin uphold an 1849 law that criminalizes abortion?

Wisconsin currently has a strict 19th century law on the books that criminalizes abortion—opening up healthcare workers who provide abortions to prosecution and prison time. This law wasn’t enforceable because of Roe v. Wade, but with the Dobbs decision in 2022 overruling Roe, one of the legal questions is whether this 150-year-old law would go into effect and how it would be enforced.

Democratic Attorney General Josh Kaul has sued several state district attorneys to block the law, and the Wisconsin Supreme Court will be instrumental in deciding the legality of this abortion ban. According to Marquette politics professor Paul Nolette, “This is, without a question, one of the most important races for the issue of abortion that's happening across the entire country.”

Redistricting: Will the Wisconsin Supreme Court uphold voting lines that have locked in a permanent Republican majority in the Legislature?

Redistricting means producing state and congressional-level voting district lines that are formed every ten years when new Census data come out. In Wisconsin, legislative Republicans after the 2010 and 2020 Census have created maps. Professor Nolette says: "Many would argue, and there's certainly a lot of evidence for this, that [these maps have] locked in almost a permanent majority for Republicans at the state level."

The courts had largely let the Republican redistricting go into effect for recent elections. However, there are still a number of challenges and potential challenges to these district lines under the Wisconsin Constitution that could proceed with a much greater likelihood of success if liberals have control of the court. According to Nolette, "This could have an absolutely dramatic impact on [state legislative] elections in Wisconsin, [as Republicans currently have] the majority in both the Senate and the Assembly at the state level."

How will the court impact the [currently Democratic] governor’s and attorney general’s powers?

The Wisconsin Supreme Court determines the emergency power of the governor or other executive agencies, like mask mandates or safer-at-home orders like during the early days of the COVID-19 pandemic.

The court also has lame duck law passed by the Republican-led legislature that dramatically restricted the powers of the governor and attorney general in 2019. The court will have to take up a pending legal question that will determine the state attorney general's ability to settle civil lawsuits. If corporations settle lawsuits on environmental or consumer protection issues, a current restriction enacted by the Legislature requires the attorney general to go to the state Legislature to get approval for the settlements, which sometimes involve millions of dollars. The Supreme Court will decide whether that is still allowed.

This election is nonpartisan. What does that mean and is that actually true?

Wisconsin Supreme Court races are nonpartisan race, so you're not going to see a D (Democratic) or an R (Republican) next to the candidates' names.

You’ll hear some candidates say that politics do not have a place in deciding cases. But, candidates have ways of making their ideological leanings known. Voters can determine a candidate’s leanings based on what groups or individuals have endorsed them. The parties are very much involved in the race, with Republican and Democratic political action committees spending money on advertisements and Republican and Democratic leaders endorsing candidates and coalescing behind different candidates.

Need help learning how to vote on April 4, 2023? Our voter guide has the information you need on the voting process, how to participate and who the candidates are.

Maayan is a WUWM news reporter.
Eddie is a WUWM news reporter.
Joy is a WUWM host and producer for Lake Effect.
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