Workman sat on West Virginia’s supreme court in 2018—one of the three Democratic justices in the court’s majority—when Republican lawmakers decided to impeach that entire court. The GOP had flipped the legislature in 2014 for the first time in decades, and it had seized the governorship in 2017; only the supreme court stood in the way of one-party rule in the state. 

“All of a sudden, we had this right-wing legislature wanting to impeach everybody,” she recalls, “and they wanted in my opinion to get rid of us so they could put their own.”

When Workman read this summer that Protasiewicz may be impeached, shortly after her victory flipped Wisconsin’s high court to the left, she was struck by the parallels with what she herself went through. “The Wisconsin situation is a complete power grab to undermine democracy,” she told Bolts. “It shocks me because it even goes further than the one that I experienced.” 

She added, “It’s this whole thing that’s scary going on in this country, that if you can’t defeat people’s votes then you do it in some other way.” 

Protasiewicz won Wisconsin’s supreme court election in April, giving liberals a 4-3 majority on the court, their first in 15 years. But Republicans began to float impeaching Protasiewicz before the results were even known. The party has already locked down control of the legislature, using aggressive gerrymanders to protect itself from election defeats. It has also deflated the powers of the Democratic governor, Tony Evers, undercutting his authority to appoint people to executive branch positions. 

But by electing Protasiewicz, voters threatened the GOP’s hold on power by opening the door to an anti-gerrymandering ruling by the court. Just days after Protasiewicz was sworn-in, voting rights groups filed two lawsuits asking for the state’s legislative maps to be struck down as unconstitutional gerrymanders. 

Speaker Robin Vos, former Governor Scott Walker, and other Republicans have demanded that Protasiewicz recuse herself from these cases or else risk impeachment. They say comments she made while running—she notably called the state’s current legislative maps “rigged”—mean that she has “prejudged” the cases. Candidates in Wisconsin routinely share views on issues or are attached to political parties, though, and the Wisconsin Judicial Commission dismissed complaints filed by the GOP that her statements violated ethics rules.

Vos, who leads the Assembly, where impeachment proceedings would start, is still pushing forward this month. Thanks to the large majorities the state’s gerrymandered maps have delivered the GOP, his party currently holds enough seats to impeach Protasiewicz in the Assembly and then convict her in the Senate if all Republican lawmakers hold together.

Removing Protasiewicz would go far beyond the legal guardrails for impeachment laid out in the state constitution. Legal experts in Wisconsin say a plain reading of the document undermines the Republicans’ case against Protasiewicz.

But these legal barriers may not constrain the GOP. Constitutional protections are only as strong as the will to enforce them. Republican lawmakers may try to blow past them even if there is little legal justification, because at that point it’s uncertain at best who or what could stop them. 

Most notably, the allegations against Protasiewicz do not seem to fit the circumstances under which Article VII of the state constitution contemplates impeachment: It reserves it for “corrupt conduct in office, or for crimes and misdemeanors.” Protasiewicz is not accused of criminal conduct, she has yet to do much of anything “in office,” and she faces no allegations of bribery or personal gain, which is traditionally how corruption was defined. 

“It’s a difficult fit with the historical understanding of corrupt conduct in office,” says Chad Oldfather, a professor at Marquette University Law School. “You are talking about a justice being impeached before even hearing or deciding a case,” says Doug Keith, senior counsel in the Brennan Center’s Judiciary Program, a national program that tracks state courts. “This is not how impeachment has been used, or how I would expect it to be used.” 

In fact, Wisconsin has a separate procedure, known as “removal by address,” allowing lawmakers to remove judges for “misconduct”—a broad category that would better fit the GOP’s charges against Protasiewicz. Republicans lack the votes for the far higher threshold that this procedure requires in the Assembly (two-thirds, rather than a simple majority).

But Keith added that this may not matter in practice to how this confrontation unfolds, saying, “it’s a separate question of what would happen if the legislature followed through on this.” 

Miriam Seifter, a professor at the University of Wisconsin-Madison Law School, also says she does not think that the allegations against Protasiewicz meet the constitutional standards of impeachment, but she too warns that lawmakers may decide they don’t care, betting that no one will check them.

“That is one of the precarious aspects of this situation,” says Seifter, “once one legal actor does not adhere to the constitution, it’s hard to predict the rest of the legal trajectory.”

A lawsuit would likely follow Protasiewicz’s impeachment, but it’s unclear whether any judge would agree to even consider if the charges against her fit the circumstances laid out in Article VII. Courts have typically deferred to lawmakers on impeachment, treating it as a “political question” that is not subject to judicial review, Oldfather and several other legal experts told Bolts. Still, Oldfather also said there is no telling how that question would go in Wisconsin because there’s virtually no precedent in Wisconsin’s court system. (No public official has been impeached in Wisconsin since 1853.) 

Even if courts agreed to review the articles of impeachment, the core effect of the GOP’s actions is to affect who sits on the highest court—targeting who gets to even interpret the constitution in the first place. Protasiewicz recused herself this month from a lawsuit asking the state supreme court to block attempts by the legislature to impeach her, signaling that liberals have already lost their edge on the supreme court for cases that touch on her removal.

“It’s a legal question that’s to a greater extent than most floating in this sea of politics,” says Oldfather on the matter of whether impeachment is an appropriate response to the accusations against Protasiewicz.

Vos, the state Speaker, did not respond to a request for comment on these constitutional concerns. On Sept. 13, he said he was setting up an advisory panel made up of former supreme court justices to consider when a justice can be impeached. One of the members is a former conservative justice and former Republican lawmaker who donated to Proasiewicz’s opponent.

West Virginia’s GOP in 2018 similarly tested the bounds of their power once they had the votes. “Impeaching the entire court was entirely political,” says Robert Bastress, professor at the West Virginia College of Law, “it was motivated by Republicans who had just recently taken over the legislature, and they were flexing their muscle.” 

The overhaul of West Virginia’s supreme court dates back to 2018, when Chief Justice Allen Loughry, a Republican, was federally indicted on fraud and witness tampering charges that stemmed from allegations of him using state funds for his personal enjoyment and spending excessive amounts of money on furnishing his office. A concurrent fraud scandal also engulfed Justice Menis Ketchum, a Democrat. By mid-2018, Ketchum had pled guilty in a federal case and resigned, and Loughry was suspended from the court. 

But Republicans also went after the remaining members of the supreme court, alleging in part that they were all responsible for the court’s insufficiently clear ethics policies. 

“They had very good reasons for impeaching two of the justices—two of them were convicted of federal felonies—there were no grounds for impeaching the other three,” Bastress says. 

Workman stood her ground after her impeachment and fought the proceedings until a panel of state judges blocked the Senate from holding a trial and ruled that the legislature was violating procedural requirements in its impeachment proceedings. The state Senate, which by then had acquitted the GOP chief justice and was gearing up for a trial against Workman, fought the ruling but the U.S. Supreme Court let it stand. As a result, Workman got to stay on the court, though she then chose not to seek re-election in 2020. 

But by the time a court intervened to stop West Virginia’s impeachment trials, another Democratic justice, Robin Davis, had already chosen to resign rather than let the proceedings against her drag out. To replace Davis, Governor Jim Justice appointed Evan Jenkins, one of the state’s Republican U.S. representatives. 

“What the legislature was attempting to do was to stack the court with what I would call their puppets,” Davis told Bolts. “They were hell bent on getting control of the court.” She says she did not want to participate in what she viewed as “a very unfair, highly political proceeding.”

Unlike West Virginia in 2018, Wisconsin is a closely divided swing state with obvious stakes for national politics, making it likely that a judicial impeachment would receive far more attention and become a magnet for fundraising and political activism. That also gives Democrats an additional avenue to respond: activating public opinion.

In an interview with Bolts, Ben Wikler, chair of the Wisconsin Democratic Party, stressed that he is focused on putting pressure on Republican lawmakers. Democrats have also launched a multimillion-dollar campaign to air ads on this situation. 

“Our number one goal in the first phase of this fight is to make sure that every Wisconsin voter knows Republicans are threatening to overturn the election, and to encourage them to contact their legislators to let them know how they feel about it,” Wikler says. “It’s going to remind voters exactly why they voted for Democrats in the midterms and threw out Trump in the first place, which is that the Wisconsin Republicans are a clear and present danger to democracy.”

Politically-speaking, Democrats’ strongest asset in the confrontation over their new supreme court majority is the governor’s mansion: If Republicans manage to remove Protasiewicz, Evers would have the power to appoint a new justice to fill the vacancy, and he would presumably pick another liberal-leaning justice to replace her.

Vos and his allies may still be thinking it’s worthwhile to float impeachment because the threat alone could persuade Protasiewicz to bow to their demand and recuse herself on at least redistricting cases; Protasiewicz has not at this stage indicated what she would do. In addition, if they do impeach and convict Protasiewicz before Dec. 1, it would trigger a special election in 2024, giving conservatives a shot to flip back the court next year. 

Still, even if there is an election in 2024, Evers’ interim appointment would sit on the court for long enough that the court would have time to strike down gerrymanders.

To tie Evers’ hands, Republicans may turn to a very aggressive maneuver. If the Assembly impeaches Protasiewicz, it would suspend her and therefore deprive liberals of their majority until the Senate holds a trial that results in either an acquittal or conviction. But the Senate could indefinitely delay trial on the articles of impeachment and keep Protasiewicz sidelined without allowing Evers to appoint a replacement. The state constitution sets no timeline for how quickly the Senate has to take up articles of impeachment. 

“It’s one of those situations where the constitution assumes good faith, regularity of proceedings, and doesn’t spell it out,” Oldfather says.

Protasiewicz could still try to sue to force a resolution, some legal observers say. But here again, she and state Democrats also have political leverage that may prove more important than possible lawsuits. 

At any moment, Protasiewicz could break the logjam by resigning, allowing Evers to appoint a replacement even if at a personal cost to her. In a bizarre twist due to the particularities of state law regarding the timing of elections (there can be no more than one supreme court seat on the ballot on any given year), if Protasiewicz resigned on or after Dec. 1, Evers’ replacement appointee would get to serve until 2031 without facing an special election (seats on the court are currently scheduled for re-election each year from 2025 to 2030)—hardly an appealing prospect for the GOP. 

Seifter, the University of Wisconsin professor, also envisions a scenario in which Evers could claim the authority to appoint a justice if the Senate is delaying a trial.

“It’s hard to say how the courts or other actors will respond in this unprecedented situation,” says Seifter. “For example, the governor could declare that the legislature’s inaction creates a temporary judicial vacancy, or a court—whether the high court or a lower court—could reject the holdup as an encroachment on the judicial function. There isn’t clarity at this point on who would have the final word.”

Republican lawmakers this week also introduced articles of impeachment this week against the state’s elections chief, Meagan Wolfe, whom they have been aiming to fire all summer. The charges against Wolfe stem largely from conspiracies about the 2020 presidential election that have been debunked. Either Protasiewicz or Wolfe would be the first Wisconsin official impeached in roughly 170 years.

Such extraordinary events, if they unfold in coming months, may also ratchet up what other politicians are willing to consider in other states. Republican lawmakers in Montana, Ohio, and Pennsylvania in recent years have talked about impeaching state supreme court justices whose decisions they disliked, but have ended up not moving forward. 

“You see states learning from one another and adopting the strategies that legislators have found successful in other states to gain an upper hand in their courts,” says Keith of the Brennan Center. “And so if this happens in one state, I would not be surprised to see other states follow.”

The post With Impeachment Push, Wisconsin GOP Tests Bounds of Political Power appeared first on Bolts.

As the administrator of the Wisconsin Election Commission, Meagan Wolfe is the nonpartisan manager of the office that advises and aids Wisconsin’s 72 county clerks and nearly 2,000 local election officials. 

Wolfe is widely respected by local clerks and election experts from both parties. But she has become a target for right-wing conspiracy theorists touting false claims that the 2020 election was stolen from former President Donald Trump, and Republican lawmakers who want to appease their base have turned her into a convenient scapegoat.

After state senate Republicans made clear earlier this summer that they were unlikely to confirm her for another four-year term, the commission’s Democrats moved to block a procedural step to allow that vote to happen at all. Now, to keep Wolfe in office past her term expiration on July 1, Democrats are banking on the courts to uphold the precedent of a controversial ruling that they had decried and Republicans cheered just a year ago.

This unprecedented and unpredictable situation is the result of Republicans’ yearslong attacks on the state’s election governance—and could undermine Wisconsin’s ability to run a smooth election in 2024, when it could well be the state to determine the next presidential election.

Wolfe’s employment status will likely be decided at the state supreme court—which is set to flip to a liberal majority on Aug. 1—adding another layer of uncertainty and practically ensuring that the process will drag on for months before any resolution.

Republicans’ barrage of partisan attacks on Wolfe and her office have already depleted staffers’ morale and could lead to a staff exodus that saps the office of crucial institutional knowledge ahead of what will be a supercharged presidential election in a crucial battleground state. Two sources told Bolts that the Wisconsin Election Commission’s head of information technology recently announced she was leaving—and they’re worried others may decide to depart as well.

“My fear is that the uncertainty around Meagan is going to create uncertainty around her staff and what their future could look like. Some of them have already been through a ton, just like all of us, with 2020. And maybe this might just be the last straw,” Milwaukee County Election Commission Executive Director Claire Woodall-Vogg told Bolts. “That really scares me.”

And there’s no good solution in the offing.

If Wolfe is forced out, the commission will have to scramble to find an adequate replacement for a highly specialized, incredibly difficult, and closely scrutinized job that few competent administrators would want given the partisan fury that it draws. But if the courts rule that Wolfe can stay in her job through the next election even though her term has expired, it gives Republicans an easy foil if they narrowly lose the state’s presidential election next year.

“Either way, we’re screwed,” warned Jay Heck, the executive director of the good-government group Common Cause’s Wisconsin chapter.

A Badgered State

The fight over Wolfe’s reappointment is just the latest dust-up in a long-running battle over election administration in Wisconsin. Republicans have been crying foul over the state’s election system for years, using their gerrymandered supermajorities in the state legislature to repeatedly change the rules and oust nonpartisan officials they thought were biased against them. That partisan sniping got supercharged during and after the 2020 election, when many embraced President Trump’s claims that the state’s election had been stolen from him in spite of numerous investigations that proved that was false.

This tension began building more than a decade ago. In 2007, following a bipartisan legislative campaign finance scandal, lawmakers of both parties teamed up to create a Government Accountability Board (GAB) composed of retired state judges to oversee the state’s elections. 

That board drew national praise from good-government groups for its nonpartisan setup, which—unlike many states where elected or appointed partisans run elections—helped inoculate it from the day’s politics. But Republicans became disenchanted, then furious, when the board approved an investigation into whether then-Governor Scott Walker, a Republican, illegally coordinated with outside groups during his 2012 recall election. That investigation dragged on for years before it was ended by a controversial decision by the conservative-dominated Wisconsin Supreme Court in 2015. 

Walker and Republican lawmakers soon passed legislation to dissolve the board and replace it with the Wisconsin Election Commission. It was modeled in part on the Federal Election Commission, with three appointed Democrats, three appointed Republicans and a majority required to make any decisions—meaning that it was designed to deadlock on controversial issues.

The commission’s first administrator was a holdover from the GAB, and Republicans accused him of favoring Democrats, pushing him out of that role at the beginning of 2018 as part of a flurry of partisan power-grabs right before Walker left office after losing to Democrat Tony Evers.

Wolfe was, at the time, Republicans’ choice for an administrator they thought would treat them fairly. She had already spent years working for the state on elections at that point, first at GAB then WEC, and was promoted to interim administrator by a unanimous vote by the committee’s six members that spring. 

The GOP-run Senate unanimously confirmed her to a full four-year term a year later.

Since then Wolfe has earned accolades from local election clerks from across the political spectrum.

“I couldn’t tell you whether she’s a liberal or conservative in all the years I’ve worked with her,” former Wisconsin Republican Sen. Kathy Bernier, a former local election clerk who regularly worked with Wolfe during her time in the legislature, told Bolts.

Fond du Lac County Clerk Lisa Freiberg, a Republican, said Wolfe “puts everything and more” into the job. 

But Republican legislators were enraged that the commission, in response to the COVID-19 pandemic, expanded voting procedures for the 2020 presidential election—and the commissioners and Wolfe soon became targets of conspiracy theories that they had intentionally rigged the election against Trump.

One specific policy changing nursing home voting practices became a central theme of the GOP conspiracy theory that the election was stolen. Wisconsin law mandates that voting deputies are supposed to visit nursing homes to help residents vote and make sure everything is on the up-and-up, but because most nursing homes banned all visitors during the peak of COVID-19, the commissioners waived that rule and encouraged absentee mail voting instead.

Racine County’s Republican sheriff claimed intentional voter fraud, alleging that a handful of nursing home residents who had been declared incompetent to vote by judges had cast ballots anyways. The county’s Republican district attorney declined to bring charges but many Wisconsin Republicans still accused the commissioners of willfully misinterpreting the law . 

President Trump soon added the allegations to his conspiracy fodder, falsely claiming that Wisconsin nursing homes had sent in “thousands and thousands and thousands of crooked votes” in campaign speeches.

Republicans even went after their own committee members, bullying GOP commissioner Dean Knudson into stepping down from the commission for, in their view, siding too often with Democrats. They replaced him with Wisconsin Elections Commission Chairman Don Millis. 

And they turned on Wolfe as well. Chris Kapenga, the Republican Senate President, demanded in late 2021 that Wolfe and all of the WEC’s commissioners resign.

Michael Gableman, the archconservative former state supreme court justice who was commissioned by Republican legislative leaders to investigate the 2020 election, and who repeatedly pushed false conspiracy theories as part of that process, called for the commission to be dismantled. And he singled Wolfe out for her appearance.

“Black dress, white pearls—I’ve seen the act, I’ve seen the show,” Gableman said during a 2022 radio interview, comparing Wolfe’s outfits to Hillary Clinton’s.

But Wolfe was not even a member of the commission. Her job was to carry out the decisions determined by its members, all while providing guidance to local officials, helping them overcome challenges, making suggestions and implementing the commissioners’ instructions as they tackle any policy decisions and legal interpretations themselves.

“All the complaints that I’ve heard about drop boxes, special voting deputies, all of that—none of those were Meagan’s decision,” Millis told Bolts. “My concern is that she has become a lightning rod for people who are angry with the decisions of the commission.”

Putsch and Shove

It became clear this spring that state Republicans wanted Wolfe gone by the end of her term in June. 

According to state law, the commission gets to select an administrator, but the Senate must then confirm them. Kapenga told the Associated Press in mid-June that “there’s no way” that the Senate would vote to give her another term. He promised he would “do everything I can keep her from being reappointed.” 

Wolfe responded in an open letter to Wisconsin’s election clerks in mid-June making the case for why she should get another term. 

“It’s clear that enough legislators have fallen prey to false information about my work and the work of this agency that my role here is at risk,” she wrote. “There is no substitute for my decade-plus of experience in helping run Wisconsin elections at the state level. It is a fact that if I am not selected for this role, Wisconsin would have a less experienced administrator at the helm.”

To help Wolfe stay in office, the three Democrats on the commission turned a recent supreme court precedent they strongly disagreed with to their advantage.

Last summer, the supreme court, which had a conservative majority at the time, ruled in a 4-3 decision that a Republican appointee who refused to leave office when his term ended could stay in the job indefinitely. The extraordinary ruling validated Republican efforts to stymie Evers, the Democratic governor who took office in 2019, and prevent him from installing new appointees at the head of the state’s agencies.

Democrats were furious at the time. But this summer they decided to test the precedent to let Wolfe stay in office by virtue of her prior term, rather than ask the GOP Senate to approve a new term. When the board met to vote to re-appoint Wolfe in late June, the three Democrats abstained from the vote. Even with all three Republicans voting for Wolfe, that left the commission without a majority, halting the nomination rather than sending it to the Senate.

“It’s a terrible decision. But it is a decision, right? Like, it’s the final answer on this,” Democratic commissioner Ann Jacobs told Bolts, referring to the 2022 state Supreme Court ruling. “So that appears very specifically to deal with the situation we found ourselves saying with the elections commission.”

Republicans slammed the Democratic commissioners for circumventing the normal process.

“It’s just highly hypocritical and that makes it harder to revive confidence in our elections,” Millis said.

Senate Republicans responded by essentially pretending the committee’s deadlock vote didn’t happen and voted to take up her reappointment when the chamber reconvenes in September. But their interpretation that the commission’s 3-0 vote with three abstentions meant that Wolfe’s reappointment had been approved for the Senate to review flies in the face of the law’s actual language, which requires a majority of the 6-member commission to approve, not simply a plurality, or majority of those voting. 

Millis, the commission’s Republican chair, ruled that the commission’s vote to reappoint Wolfe had failed even though he supported it.

Senate Majority Leader Devin LeMahieu has privately admitted as much. He acknowledged in an email he sent to conservative activists in mid-June that was obtained by the Wisconsin State Journal that because of the state supreme court’s recent precedent, “If WEC doesn’t reappoint Wolfe or a replacement, the senate would have no power to get rid of her through the confirmation process.”

What’s Next?

It’s unclear where the process goes from here. Spokespeople for LeMahieu and Kapenga declined to make them available for an interview, or answer questions about Senate Republicans’ plans to try to remove her from office.

The most likely scenarios are that Republicans will either file a lawsuit to try to get the courts to determine that Wolfe can no longer stay in her job because the commission didn’t confirm her for another term, or they’ll try to remove Wolfe on their own with a Senate vote, in which case Democrats will go to court.

The conservative majority that ruled to allow appointees to stay in office indefinitely will no longer exist in just a few days. Liberal judge Janet Protasiewicz will be sworn in to a ten-year term she won in April, giving the court a left-leaning majority for the first time in a generation. This means that the three liberal justices, who last year ruled against allowing people to stay in office past their terms, are now in the court’s ideological majority. 

But there’s no guarantee that the members of the court won’t reverse themselves now that the shoe is on the other foot. Judges can side with their side’s best political interest even if it conflicts with their prior legal reasoning. Protasiewicz has yet to weigh in on the matter. 

“I will take my shots with the court, rather than at the Senate,” Democratic Commissioner Mark Thomsen said during the hearing where the Democrats abstained from voting on Wolfe’s renomination..

Jacobs, another Democratic commissioner, admitted to Bolts she does not know how the court will rule. “I don’t know the answer to that. I don’t think anyone does. We’re all just sort of dealing with this unusual situation we find ourselves in,” Jacobs said.

“It’s hard for me to predict what’s going to happen,” Millis, a Republican commissioner, said. “I have no grand strategy. This is sort of unprecedented.”

If Wolfe is removed, the six commissioners would have to execute a rapid job search for her replacement who would remain in the position for a year, likely through the 2024 elections. But the law stipulates that commissioners only have 45 days to find, hire and then vote to appoint a temporary replacement. If they fail to do so or can’t agree on a replacement, the choice would go to the Republican-controlled Joint Committee on Legislative Organization, which includes Republicans who have lobbed baseless attacks against Wolfe.

Wolfe declined to be interviewed for this story.

Freiberg, Fond Du Lac County’s Republican election clerk, told Bolts that she’d recently had a 50-minute phone conversation with Wolfe, who she considers a friend. She said Wolfe kept wondering: “Am I going to have a job tomorrow?”

But Freiberg said in spite of that uncertainty, she knew that Wolfe would continue to put “nothing less than 100 percent into her day-to-day job”—as long as she was still employed.

And if she’s forced out?

“It’s gonna be hard to find anyone qualified to do it. It is a difficult job,” Millis told Bolts. “The worst-case scenario is we’re in some sort of limbo for months.”

Correction: An earlier version of this story misstated the position that Wolfe was promoted to. She was made interim election administrator by a commission vote in 2018.

The post Wisconsin’s Election Office In Limbo After GOP Tries To Force Out Its Director appeared first on Bolts.

Their cursed streak ended on Tuesday. Janet Protasiewicz, a Milwaukee judge who ran with Democratic support, won the seat of a retiring conservative justice after a heated campaign that pulverized national spending records.

Her victory hands liberals a majority on the supreme court for the first time since 2008. They will keep it until at least 2025, when Justice Ann Bradley’s term expires. 

Protasiewicz easily beat her conservative opponent, former Justice Dan Kelly. She leads by 11 percentage points as of Wednesday morning, a feat powered by huge margins and comparatively strong turnout in Milwaukee and Madison’s Dane County, the state’s two urban cores.

Turnout in Dane County on Tuesday was at least 50 percent higher than in 2019, when conservatives scored a narrow win to retain the court. In past elections, liberals fell short due to paltry turnout among their base; off-year races tend to favor more conservative candidates. But the issue of abortion dominated the campaign this year and likely helped mobilize voters in Protasiewicz’s favor. She heavily featured her support for reproductive rights in her campaign ads, while anti-abortion groups rallied around Kelly.

“I always said we have to hit rock bottom before people realize what’s going on here, and I think we’re there,” Christine Sinicki, a Democrat who represents Milwaukee in the state House, told Bolts last week. “If they can strip away our rights to control our own healthcare, what’s next?”

Now the court’s flip could pave the way for abortion rights to return to Wisconsin. The newly-liberal majority makes it far more likely that the court strikes down the state’s 1849 ban when it hears a lawsuit that is working its way through state courts, much like other state courts have done since the fall of Roe last summer. 

As conservatives have solidified control on the federal judiciary, civil rights organizations have looked toward state courts and state constitutions as an alternative pathway of litigation. “State courts are getting so much attention because they can—and often do—interpret their own state constitutions in ways that differ from federal constitutional doctrine,” says Miriam Seifter, the co-director of the State Democracy Research Initiative at the University of Wisconsin-Madison law school. 

“State constitutions typically contain more rights than the federal constitution, and they prioritize democracy,” she added. 

Democrats hope that the new supreme court majority also changes course on matters relating to ballot access and voting rights. Last year, the conservative justices issued a 4-3 ruling that banned the use of drop boxes. They also required that the state use a “least change” approach when redistricting, dashing Democrats’ hope of moving away from the heavily skewed maps that locked them out of power through the 2010s.

As a result, Wisconsin districts are among the nation’s most gerrymandered. Its legislative maps virtually guarantee that Republicans will secure majorities in the state Assembly and Senate, even if Democratic candidates get more votes. While Democrats hold other statewide offices, like governor and attorney general, they have also been constrained to winning just three congressional districts out of eight in this divided state. 

But while gerrymandering has made the GOP’s stronghold on Wisconsin’s state government largely election proof, the supreme court race gave Democrats a rare opportunity to crack this wall. State advocates have already signaled that they will challenge the current maps, which Protasiewicz has called “rigged,” based on provisions in the state constitution.

“There’s really only one path in the next several years to undo the most extreme gerrymander in the country, and that’s the April supreme court race in Wisconsin,” Ben Wikler, head of the Democratic Party of Wisconsin, told Bolts earlier this year. 

If the newly liberal court majority forces new maps, it may help Democrats compete for legislative power in the state. It would also affect the national battle for Congress in 2024.

Republican lawmakers have signaled that they will use their gerrymandered majorities to fight the court. Several Republican said in the run-up to Tuesday, before Protasiewicz even won, that they would consider impeaching her and removing her from office.

The GOP needs a supermajority in the state Senate to pull off that move and the resignation of a longtime Republican senator late last year left them one vote short. The special election to replace her was also held on Tuesday in a red-leaning district in the Milwaukee suburbs, and Republican Dan Knodl narrowly prevailed, handing the GOP sufficient votes to impeach and remove public officials on party-line votes. 

Such a move may be politically and constitutionally explosive but Republican lawmakers may be largely insulated from electoral consequences as long as they head off any new judicially-ordered maps that curb their power in the statehouse. In Ohio last year, prominent Republicans similarly considered impeaching their chief justice after she voted to strike down GOP-drawn gerrymanders in 2022 but she was already set to retire that year.

Should there be a vacancy on Wisconsin’s supreme court, the governor is entitled to appoint a new justice. The governor through January 2027 is Democrat Tony Evers. Republicans have also floated targeting other officials like Milwaukee’s prosecutor; no public official has been impeached in Wisconsin since the 1850s, according to the Milwaukee Journal Sentinel.

Liberals on Tuesday also scored another judicial win, this one for the Appeals Court, with labor lawyer Sara Geenen ousting conservative incumbent Bill Brash. Democrats won other local elections from Racine to Outagamie County.

The supreme court race saw extraordinarily levels of spending, more than tripling the previous national record set by a judicial race. Billionaires donated millions in support of both candidates, and outside groups poured in money as well, taking advantage of lax campaign finance rules. 

Judicial elections in Wisconsin are technically nonpartisan, but political parties are heavily involved on behalf of the candidates. Kelly, who was appointed to the supreme court in 2016 by then-Republican Governor Scott Walker, has close ties to the GOP and advised the party on a proposed scheme of installing fake presidential electors after the 2020 election.

Kelly amassed a record that was broadly hostile to civil rights and friendly to prosecutors and law enforcement while on the court between 2016 and 2020, when he was ousted by liberal challenger Jill Karofsky. During that campaign, Kelly demonized Karofsky as a danger to public safety. Three years later, he recycled that same playbook against Protasiewicz—once again unsuccessfully. 

Republican advertising lambasted Protasiewicz over crime, alleging that as a judge she offered too lenient sentences against defendants. “Law enforcement’s hands are tied when judges like Janet Protasiewicz refuse to hold dangerous criminals accountable,” one sheriff, Dodge County’s Dale Schmidt, says in a Kelly ad. (In Chicago, just south of Wisconsin, another prominent candidate who anchored his campaign on law enforcement support also lost on Tuesday.)

Last week, Kelly was endorsed by another Republican sheriff, Racine County’s Christopher Schmaling. A prominent far-right figure, Schmaling has threatened local election administrators with prosecution since 2020, amplifying the efforts by many conservatives to spread false conspiracies about Donald Trump’s loss in the state. 

Election deniers have harassed public officials like Green Bay Mayor Eric Genrich, a Democrat who has faced an ethics complaint and a recall effort for accepting an outside grant to help run the 2020 elections during the pandemic—as did hundreds of localities across the state of Wisconsin and around the nation. 

Genrich was also on the ballot on Tuesday, running for re-election in Green Bay, the state’s third most populous city, against a Republican challenger. He prevailed, riding the coattails of Protasiewicz’s strong performance in the region.

Editor’s note: The piece was edited on April 5 with the result in Wisconsin’s legislative special election. 

The post Liberals Flip the Wisconsin Supreme Court After Fifteen-Year Wait appeared first on Bolts.

In the church vestibule, someone had put out free “Justice 4 Wisconsin” spice packets from the outspokenly progressive spice company Penzeys, which is headquartered in the Milwaukee area and has trademarked the phrase “Season liberally.” “Wisconsin’s Republicans lie and cheat, and when we stay silent they win,” says the messaging on the packet. “Speak out for Justice, our environment, a fair playing field for all, and the importance of voting April 4.”

The event itself was nonpartisan and the candidates’ names were barely mentioned. Instead, the panelists discussed how they grapple with getting out the vote in underserved Milwaukee communities that are struggling with gun violence, underfunded schools, and food deserts.

They lamented the challenges of organizing in Milwaukee given some state conservatives’ undisguised hostility toward the voters of color who make up the majority of the city’s population. Most recently, a GOP member of the Wisconsin Elections Commission bragged to other Republicans in a January email about a successful voter-suppression campaign “in the overwhelming Black and Hispanic areas” of Milwaukee; the commissioner, Bob Spindell, refused calls to step down and has not been disciplined.

“There’s so many needs pressing our community today. When we talk about disparities in this country, Milwaukee leads the nation,” said panelist Sharlen Moore, who co-founded the local youth leadership program Urban Underground in 2000. To energize voters, “we got to get back to the block” and build community with neighbors.

Another panelist, 20-year-old activist Deisy España, shared a message that she said resonates with her peers, many of whom—like España—have immigrant parents who cannot vote. “I tell them they’re voting for their parents,” she said.

After the town hall, attendee Deborah Thompson told Bolts that in her neighborhood of Heritage Heights, a small middle-class, majority-Black community about six miles northwest of the church, she is talking with her family, friends and Bible study group about voting on April 4.

“Democracy is a big concern of mine because I do see it as under threat,” said Thompson, who is 75. To encourage people to vote, she first brings up the erosion of voting rights and the loss of ballot drop boxes, which the state supreme court disallowed last year in a 4-3 ruling. 

“If I feel safe enough, then I’ll bring up women’s rights,” she added.

Tuesday’s election will settle if conservatives keep a majority on Wisconsin’s supreme court or if it flips to the left, and all of those issues hang in the balance. Amid an outpouring of national attention and spending, the urgent questions the race will decide have dominated the campaign and its coverage. Will the state’s abortion ban from 1849 survive a legal challenge, will Wisconsin end up with fairer electoral maps for the rest of the decade, will voters regain access to drop boxes? For people who are volunteering their time on this race, these stakes are as enormous as they are self-evident.

But they also face a difficult reality. This momentous showdown is taking place in an off-year, springtime, low-turnout election, far from the energy that greets a presidential race.

Mobilizing people to come out in elections that aren’t synced with national cycles is always a challenge, and there’ve been efforts across the country to move their time. “Historically these spring elections have extremely low turnouts. This election is going to be all about who gets the people out to vote,” Christine Sinicki, a Democratic Assembly member who represents the southernmost parts of Milwaukee and some adjacent suburbs along Lake Michigan, told Bolts. 

Roughly 960,000 people statewide cast ballots in the first round in February that decided which two judicial candidates would move on to next week’s general election. That’s a huge drop from November 2020, when nearly 3.3 million Wisconsinites voted for president. It’s an especially pressing headache for liberals: The drop-off is far more prevalent in Milwaukee, an engine of Democratic politics, than in the outer ring of conservative suburbs that power Wisconsin’s GOP candidates.

As a share of all registered voters, turnout in February was 26 percent in Milwaukee County and 33 percent in the WOW counties. Within just the city of Milwaukee, it reached only 22 percent.

In Wisconsin’s nail-biters, these shifts can make all the difference. And now, control of the state’s supreme court hinges in part on whether organizers in Milwaukee persuade and help enough city residents to vote.

Restrictions that have been blessed by that same court, like the ban on drop boxes, have not helped. A Republican law adopted in 2018 also cut back early voting in Milwaukee from nearly six weeks to two weeks before an election. That makes it harder for working families in Milwaukee to find time to vote, Sinicki said. “There’s a lot of people out there working two jobs who just can’t get there on Election Day.”

Even within the city of Milwaukee, turnout is not spread evenly. According to an analysis by Marquette University researcher John Johnson, Milwaukee’s overall voter turnout in recent years has declined, with the biggest losses in low-income and predominantly Black and Latinx areas. That pattern held in the first round in February: Turnout varied wildly, from roughly 5 percent of registered voters in some wards to roughly ten times that rate in more affluent neighborhoods.

In the ward that contains St. Gabriel Church of God in Christ, turnout reached only 12 percent in February—down very precipitously from where it stood in the November midterms, 51 percent.

LaToya White, another panelist in the town hall, pointed to the disparities felt by residents on the north side of Milwaukee, especially younger people. “Being an organizer, you’re in the community every day, and you see our youth,” she said. “They feel like they’re left out.”

White works at Wisconsin Voices, a community organization that promotes civic participation; she saw “amazing” engagement here last fall but this has not carried into the judicial race. “This election is so quiet,” she said. “A supreme court race to them, they don’t see how important this is and don’t know that this election here is one of the most important out of the next ten years.”

In a race where so much is at stake, organizers and party representatives aren’t sticking to one issue to energize voters.

“A lot of people until recently I don’t think understood the importance of the supreme court and how important it was to our day-to-day lives and our rights,” Sinicki said. “People are finally waking up. I always said we have to hit rock bottom before people realize what’s going on here, and I think we’re there. If they can strip away our rights to control our own healthcare, what’s next?”

A lawsuit against the state’s abortion ban is working its way through state courts, and Janet Protasiewicz, the liberal candidate in the race, has campaigned on her personal support for abortion rights. Last week, in her only public debate with her conservative opponent Daniel Kelly, Protasiewicz said, “If my opponent is elected, I can tell you with 100 percent certainty, that 1849 abortion ban will stay on the books.” 

For reproductive rights advocates, anger over the ban is tied in with concerns about democracy in Wisconsin. There is no plausible path for Democrats to overturn it legislatively because Republicans have maintained ironclad control over Wisconsin’s legislature thanks to the heavily gerrymandered electoral maps they have drawn. The maps are widely considered some of the most skewed in the country. Sam Munger, an election consultant and panelist at the town hall, said the maps have “rendered voting largely irrelevant.”

But the supreme court election is a statewide race, so it offers Wisconsinites the opportunity to vote outside the confines of those gerrymanders. Protasiewicz has called the state maps “rigged” and many Democrats hope that a liberal court could strike them down. 

Protasiewicz’s supporters talk up the election’s implications for the future of voting rights. The Democratic Party of Wisconsin held a “Voting Rights Panel” in mid-March on Milwaukee’s north side to address issues of gerrymandering and voter suppression, in the presence of prominent Democrats like former Lieutenant Governor Mandela Barnes, who lost the U.S. Senate race last fall.

Conservatives are mobilizing around the same issues. Wisconsin’s leading anti-abortion groups have rallied around Kelly. 

Scott Presler, a young, pro-Trump conservative from Virginia and founder of the Super PAC Early Vote Action, has spent the last couple of weeks in Wisconsin, door-knocking and making appearances to get out the Republican vote for Kelly, with the long-term goal of advancing what he calls “election integrity” in swing states to ensure a win for Trump in 2024. On a March 16 episode of Steve Bannon’s War Room show, Presler called the April 4 election “one of the most consequential elections in Wisconsin history” because of the state supreme court’s control over voter access issues like ID and proof-of-residency requirements.

“If the liberals are able to win on April 4, we will have unmanned drop boxes in Milwaukee and Madison going into the 2024 election,” he warned. The morning after the first day of early voting last week, Presler took to Twitter to celebrate strong turnout numbers in conservative Waukesha County and to call on people to vote in a string of counties that did not include Madison and Milwaukee.

Other Republicans are also treating Milwaukee, where Protasiewicz serves as a local judge, as a foil for the rest of the state. That’s a frequent campaign tactic for the GOP in Wisconsin. Some are already floating impeaching her over her work as a Milwaukee judge if she wins. (On the same day as the supreme court race, a special election for a state Senate seat will decide if the GOP has the Senate supermajority it would need to remove a state official on a party-line vote.)

The judicial race is ostensibly nonpartisan but Democratic groups are backing Protasiewicz and Republican groups are supporting Kelly, a lawyer who used to sit on the state supreme court and has a long history in conservative politics.

Money has poured into the race, reflecting national interest but also lax campaign finance rules that allow for massive expenditures. Total spending in the supreme court race is already near $45 million with a week to go, according to WisPolitics, which triples the national record for a judicial election.

That includes at least $15 million in independent spending since Jan. 1, according to the Wisconsin Ethics Commission. Groups supporting Protasiewicz have a slight edge in spending as of publication, but far more of the money on the liberal side has gone directly into the candidate’s campaign coffers. Billionaires George Soros and J.B. Pritzker, the Illinois governor, are among the largest liberal donors, while conservatives include megadonors Richard and Elizabeth Uihlein and Federalist Society co-chairman Leonard Leo. People and groups with ties to the efforts to overturn the 2020 presidential election have also donated millions to help Kelly. 

But as the panelists of the St. Gabriel Church town hall attested, that noise isn’t heard equally in all parts of the state. 

After the March 18 town hall, a few groups of volunteers left to canvass nearby. They handed out nonpartisan fliers that listed general election and early voting information.

Milwaukee resident Jodi Delfosse, 55, took a stack of fliers and walked up and down a nearby block knocking on doors. It was a finger-numbing 16 degrees and the weather switched disorientingly between blizzard-like snow and clear sunshine every few minutes. She was met mostly by Ring security systems, with residents answering the door through their intercom, and a few face-to-face interactions. In a friendly voice, one resident told her through a closed door to leave the flier outside because “I’m not dressed.”

These obstacles to reaching voters door-to-door was one reason Linea Sundstrom started Supermarket Legends, a nonpartisan Milwaukee voter advocacy group that is run exclusively by volunteers, mostly retirees. They pass out informational literature and register voters outside local supermarkets and food pantries, at bus stops, on college campuses and on public sidewalks or outside any business that gives them permission.

“Everybody has to eat, and what we’re trying to do is go where people are instead of expecting them to come to us,” she told Bolts. The group’s flier for the supreme court race does not advocate for a candidate but identifies issues with a series of questions, such as “Is the 1849 abortion ban right for Wisconsin today?” and “What regulations are right for tap water?”

Supermarket Legends focuses on low-turnout areas and wherever “people don’t have a lot of resources,” Sundstrom said. They pay attention to where other groups are working and “try to fill in the gaps.” Right now, she said, the biggest gap is on the near-south side, a predominantly Latinx area where voter turnout outside of major elections is typically very low. 

Sundstrom described her group’s work in a ward where only 29 people voted in February, which is only 6 percent of registered voters. “One person standing in front of El Rey Supermarket on the south side can talk to 60, 70 people an hour, face to face,” Sundstrom said. 

Sylvia Ortiz-Velez is a Democratic lawmaker who represents the Wisconsin Assembly district with the highest share of Latinx residents in Wisconsin. Two weeks out from the runoff, she was canvassing her constituents in Milwaukee’s Polonia neighborhood, which is located about three miles south of the El Rey supermarket. Voter turnout is reliably higher in this neighborhood—26 percent in the primary—as is household income.

Going door to door is a way to reach the registered voters who regularly vote because they are the “lower-hanging fruit” of any get-out-the-vote campaign, she said. Plus “you learn a lot about what’s landing.”

At one house, the barrel-chested 64-year-old who opened his door to Ortiz-Velez already had his mind made up about the two candidates. “Get rid of ’em both. They’re wishy-washy. We need law and order,” he told her. He was wearing a National Latino Peace Officers Association T-shirt. He said Protasiewicz is too soft on crime, echoing GOP attacks. He called Kelly, who was paid by state Republicans to advise them in a covert scheme to overturn the 2020 election, “a crook.”

Then he added: “The one thing I like about (Protasiewicz) is giving women their rights.”

This comment surprised Ortiz-Velez. “In my district, abortion might come up, but it might not come up. It’s not something I would lead with,” she told Bolts. “Most of the people in our community make maybe $35,000 per year and work very hard for their families and they’ve always had to do a lot with less.” If she has time, she said she’ll “absolutely talk” with voters about gerrymandering, rigged district maps and voter access.

Here in Polonia, Ortiz-Velez made sure to mention that Protasiewicz is homegrown—she grew up on the south side, her parents are buried in a nearby cemetery and she attends a Catholic church about eight blocks away.

As she walked, she consulted a canvassing app on her phone called MiniVAN. It tells her the name, age and voting history of registered voters on the block. 

“Back in the day we put this all on index cards,” she said.

Ortiz-Velez has been canvassing in the district for over 20 years. Some things have not changed. “My father was an evangelist and he always told me, ‘Smile, smile, smile,’” she said outside one house while waiting for an answer at the door.

The post “This Election Is So Quiet”: Inside the Scramble to Mobilize Milwaukee in a High-Stakes Judge Race appeared first on Bolts.

The suspense on Tuesday rested largely on which of the two conservatives would make it to the runoff. Kelly, who finished narrowly ahead of local judge Jennifer Dorow, with 24 to 22 percent, was Democrats’ preferred opponent due to his arch-conservative record, connections to Donald Trump, and re-election loss three years ago, and at least one liberal organization spent heavily in the run-up to the primary to hurt Dorow’s chances.

But Protasiewicz’s dominant showing became a story of its own. She finished with 46.4 percent of the vote, more than the two conservatives combined, with another liberal-aligned candidate, Everett Mitchell, coming in a distant fourth. Overall, the two liberals combined for 54 percent of the vote, with 46 percent going to the two conservatives. Judicial elections are ostensibly non-partisan in Wisconsin, but parties are heavily involved and the state bench is deeply polarized, with reports that one altercation between justices turned violent last decade.

Should Protasiewicz prevail in April, it would flip control of the court to the left for the first time since 2008. 

This would have huge ramifications for abortion, redistricting, ballot access, and a host of other issues that are often decided by courts, including, potentially, the fate of presidential elections in 2024 and beyond. 

Heavy gerrymanders have enabled the GOP to lock down control of the Wisconsin legislature with majorities largely impervious to shifts in the popular vote, an advantage the party has used to dilute the authority of the state’s Democratic governor and deny him routine appointments. The state also has no popular initiative process, so progressives cannot put measures on the ballot to protect abortion or voting rights, as they have in neighboring Michigan. 

For years already, Democrats have eyed this spring’s supreme court race as their rare opportunity to crack the GOP’s iron-clad and largely election-proof control on state government.

“There’s really only one path in the next several years to undo the most extreme gerrymander in the country, and that’s the April supreme court race in Wisconsin,” Ben Wikler, head of the Democratic Party of Wisconsin, told Bolts. 

Democrats hope that a supreme court with a newly liberal majority may strike down the state’s current political maps. This is what happened last decade in Pennsylvania after Democrats flipped control of the court, which later imposed mid-decade redistricting. If Wisconsin’s congressional map is redrawn, it may sway several seats. New legislative maps, if they make Democrats competitive, could also open the door to a swath of other policy changes.

“As long as Republicans can lose the popular vote but still control majorities, democracy essentially doesn’t exist in Wisconsin,” Wikler said. “But if the conservative dominance of the supreme court ends, the entire apparatus could unravel. Ideas that have enormous popularity in Wisconsin could become law,” he added, mentioning Republican lawmakers’ refusal to expand Medicaid as provided by the Affordable Care Act.

A spokesperson for the state Republican Party did not reply to a request for comment.

Both candidates have made their views on redistricting clear. Protasiewicz has called the maps in place in the state “rigged.” Kelly said this week that he would oppose a court intervention against them. 

Both sides of the spectrum have also cast this supreme court election as a de facto referendum on abortion rights in the state. 

The state has an abortion ban, adopted in 1849, that was triggered into effect by the U.S. Supreme Court’s decision last summer to overturn Roe vs. Wade. Democratic officials in the state are now suing to strike it down, and the case is expected to be heard by the state supreme court after a new justice joins it. 

Gracie Skogman, a spokesperson for Wisconsin Right to Life, which endorsed Kelly in January, told Reuters, “This is Wisconsin’s Roe moment.” Asked what she meant by this remark, Skogman told Bolts, “In the same way that the Roe decision prevented pro-life legislative efforts to fully protect preborn life, a state supreme court decision that finds a right to abortion in our state constitution could have a similar effect.” 

Protasiewicz has campaigned explicitly on her support for reproductive rights. “I believe in a woman’s freedom to make her own decision on abortion,” she says in one ad. A liberal majority, should she join the court, would be likely to overturn the state’s abortion ban, as state courts have done in Kansas and South Carolina.

Republicans are denouncing Protasiewicz as a “left-wing activist,” with Kelly saying on Tuesday that she would replace the rule of law with “the rule of Janet.” They have also attacked her as too lenient on crime. This is a near-exact repeat of their unsuccessful playbook against Jill Karofsky, the liberal contender in the state’s last supreme court race in 2020.

And they will have the same flag-bearer as they did that year. Kelly, who at the time was a sitting justice and was endorsed by Trump, lost that race to Karofsky by ten percentage points. And while he faults Protasiewicz for signaling how she will rule on key issues, Kelly has an intensely right-wing record.

A former president of the local chapter of the Federalist Society, the conservative legal organization, Kelly has a long history of statements that fan the flames of the culture wars. He criticized the U.S. Supreme Court’s decision to legalize same-sex marriage by writing that this “will eventually rob the institution of marriage of any discernible meaning.” He has said affirmative action and slavery are morally equivalent. He called Barack Obama’s presidential win a victory for “the socialism/same-sex marriage/recreational marijuana/tax increase crowd.”

And he has called Medicare and Social Security forms of “involuntary servitude,” Isthmus reported.

After then-Governor Scott Walker appointed him to the court in 2016, Kelly was a reliable member of the court’s conservative bloc, for instance authoring a decision in 2017 that struck down a local ordinance in Madison banning guns in public transit. He also consistently ruled in favor of prosecutors and against defendants.

Before and after his stint on the supreme court, Kelly worked and counseled prominent conservative organizations in the state. The Milwaukee Journal Sentinel reported last week that Kelly had advised the Republican Party on matters related to elections in late 2020, including in the aftermath of the 2020 presidential election. 

The former chair of the state Republican Party told the congressional committee that investigated the Jan. 6 attack on the U.S. Capitol that Kelly was part of “pretty extensive conversations” about conservative efforts to install fake electors that would vote for Donald Trump despite the Republican’s loss. Kelly’s team has denied supporting the scheme and has said attorneys should not be blamed for their clients’ views.

The state supreme court in December 2020 was bitterly divided when it rejected Trump’s bid to reverse his loss in the presidential race in a 4-3 vote. 

Since then, Wisconsin has remained a hotbed for election denialism, a movement in large part overseen by Michael Gableman, a former supreme court justice, and fears remain about similar efforts to overturn a presidential election in the future. Karofsky, the supreme court justice who ousted Kelly three years ago, wrote an article in Slate last week denouncing the harassment she has experienced since her vote rejecting Trump’s lawsuit.

Fueled by this confluence of issues, a slew of organizations, PACs, and billionaires injected millions into the race in the run-up to Tuesday and are preparing to spend far more over the next six weeks. Wisconsin stands nearly alone in the spotlight this year as one of only two supreme court elections this year, alongside Pennsylvania’s this fall, after a far busier 2022. 

It’s also led to increased public attention. Turnout on Tuesday was just a sliver of the turnout in the 2020 presidential election and the 2022 midterms, but it also soared—by 30 percent—compared to the most recent primary for a supreme court election three years ago. The turnout surge was far higher in liberal Dane County, home to Madison.

“The explosive turnout for the progressive candidates in the state Supreme Court primary demonstrates the intensity of Wisconsinites’ desire for reproductive freedom and democracy,” Wikler told Bolts.

The winner of Wisconsin’s runoff will replace conservative Justice Patience Roggensack, who is not seeking re-election, and secure a ten-year term. If Protasiewicz wins, liberals will have a majority on the court until at least 2025, when liberal Justice Ann Bradley’s term expires. 

But if Kelly prevails, keeping the court in conservative hands, liberals won’t have another chance to flip it until conservative Justice Rebecca Bradley’s term ends, in 2026. 

The post Wisconsin’s Supreme Court Runoff Takes Shape as Referendum on Abortion and Democracy appeared first on Bolts.

Wisconsin Supreme Court Justice Daniel Kelly and his Republican backers executed the tough-on-crime playbook perfectly. They stoked fear about violent crime and lenient judges. They tarred his challenger, a judge who has talked openly about the need to reduce incarceration, as an “activist.” They racked up law enforcement endorsements. In the final stretch, they also exploited a global pandemic to restrict voter access, with help from conservative judges on both the state Supreme Court and the U.S. Supreme Court. 

But in the end, that wasn’t enough. On Monday, trial court judge Jill Karofsky claimed victory over Kelly, a staunch conservative who was appointed to the court by former Republican Governor Scott Walker and endorsed, at a raucous Milwaukee rally, by President Trump. Karofsky enjoyed help from the Democratic Party, including endorsements by former Vice President Joe Biden and U.S. Senator Bernie Sanders.

The win gives Karofsky a ten-year term, and narrows the court’s conservative majority to a single vote, 4–3. 

Liberals will have an opportunity to flip the majority in 2023, when Chief Justice Pat Roggensack is up for reelection. Conservatives have controlled the court, which is often at the center of Wisconsin’s most contentious policy disputes, since 2008. 

Karofsky’s victory adds a voice in support of criminal justice reform to a court not known for protecting the rights of people involved in the criminal legal system. On the whole, its decisions favor the power of police and prosecutors over people accused or suspected of crimes, often unanimously. 

During the campaign, Karofsky acknowledged the need for criminal justice reform in Wisconsin, and said that judges have some role in enacting it, in part by offering their perspective from the bench to lawmakers. “As someone who’s been on the frontlines of the judicial system for the last 30 years, let me tell you—if you’ve been in that system for five seconds you can see that it’s in need of reform,” she said during one debate. “The Department of Corrections budget in Wisconsin is more than the Department of Education budget,” she said at another event. “How does that make sense?”

She said that Wisconsin should reform its cash bail system to protect low-income people. She also proposed that judges lead efforts to create specialized courts that provide pathways to mental health and addiction treatment over incarceration. Karofsky’s proposal invokes the same administrative rulemaking authority that in 2017 the Wisconsin Supreme Court used to launch a special court to hear major commercial disputes. (Critics said that the court, ostensibly designed to resolve commercial cases more efficiently, unfairly favors big business.) 

Kelly’s campaign and his supporters, meanwhile, fearmongered about crime, a well-worn template in judicial elections, with attacks on Karofsky’s record as a prosecutor and trial judge. Kelly’s campaign said that Karofsky let “hardened criminals off easy.” One ad from the Republican State Leadership Committee claimed that, as a prosecutor, Karofsky “went easy on criminal predators”—a claim supported by reference to a single case that Karofsky had nothing to do with, according to the fact-checking website PolitFact. It was the same Willie-Horton style politics that for decades fueled mass incarceration in America, and that helped build the Wisconsin court’s conservative supermajority that Kelly was running to preserve. 

There were a number of other issues at stake, including voting rights, education policy, and the rights of consumers and workers. Indeed, some of the soft-on-crime attack ads were paid for by the state’s largest business group, Wisconsin Manufacturers & Commerce, which doesn’t even list criminal justice as one of its nine issue areas. The court is a key arbiter of power in the state, which explains why its elections have become so expensive, and why, in this case, there was a chaotic partisan fight over whether, and how, to hold the election amid a pandemic.  

The election was expected to be competitive—the previous race for a seat on the court was  decided by fewer than 6,000 votes—and Republicans feared that holding the election on the same day as Wisconsin’s presidential primary, as had been done for decades, would hurt Kelly since only Democrats had a competitive primary. (In an effort to protect Kelly, Republican lawmakers in 2018 pushed a measure that would have split the two elections, moving the primary to March while leaving the supreme court and other state elections in April, but eventually backed down.)

But COVID-19 shuffled expectations. With public health orders to stay home, poll workers dropped out, and polling locations closed down. By election day, Milwaukee had reduced its polling locations from 180 to five, and Green Bay was down from 31 to two. At the same time, a surge in requests for absentee ballots created a backlog that election officials had no hope of clearing by election day. Tens of thousands of people did not receive their absentee ballots in time to return them—eligible voters, disenfranchised through no fault of their own. 

The pandemic presented an opportunity for Republicans. With poll closures hitting Milwaukee hard and affecting Black voters, and more mail-in ballot requests in Republican-majority areas, letting the election proceed could result in massive voter suppression to their—and Kelly’s—advantage. Even as many other states postponed their primaries, Republican lawmakers refused to move the election or even order absentee ballots sent to every voter, as Democratic Governor Tony Evers requested. For his part, Evers failed to take unilateral action—and even announced at one point that he lacked the legal authority to do so—until the eleventh hour, when he issued an executive order postponing the election until June 9. Evers’s order followed a federal court ruling that gave voters an extra week to return absentee ballots.     

Republicans challenged both Evers’s order and the federal ruling, underscoring a crucial though often overlooked aspect of voter suppression: Whatever the tactic to reduce turnout—closing polling places, voter ID laws, purging voter rolls, exploiting a pandemic—it only works if you have judges on your side. Judicial selection, whether through elections or appointments, is an essential cog in the voter suppression machine. 

In this case, the machine worked as designed. First the Wisconsin Supreme Court struck down Evers’s executive order in a 4–2 decision (Kelly did not participate), and then, hours later, the U.S. Supreme Court issued an unsigned 5–4 opinion that erased the delay for submitting absentee ballots. Both decisions broke along usual ideological lines, with conservative justices in each majority. And both prompted stinging dissents that accused the majorities of ignoring how holding the election as planned, with many people forced to vote in-person if at all, would endanger entire communities and force people to choose between voting and their health.

Deepak Gupta, an attorney in Washington, D.C., and one of the Supreme Court’s most prominent practitioners, wrote on Twitter that, “as someone . . . who likes to believe that there is such a thing as ‘law’ that can be kept in a separate sphere from raw partisan politics, a moment like this makes me almost physically sick.”

The partisan maneuvering in this case fits a pattern of Wisconsin Republicans manipulating election rules to their advantage. As the New York Times reported, “Tuesday’s mess of an election in Wisconsin [was] the culmination of a decade of efforts by state Republicans to make voting harder, redraw legislative boundaries and dilute the power of voters in the state’s urban centers,” through tactics such as partisan gerrymandering and a discriminatory voter ID law. 

Karofsky’s win does not dispel concerns about courts’ indifference toward ensuring high and healthy democratic participation. The rulings did not dictate the outcome, but they still matter. Many people were disenfranchised. Others waited in long lines, placing their health at grave risk. Poll workers had to wear protective gear. Turnout decreased by more in Milwaukee County compared to the 2016 and 2018 general elections than it did in Milwaukee’s conservative suburbs. 

And the courts’ failure to protect democracy even in this dire scenario is a distressing harbinger in the run up to November’s general elections. 

This year was already expected to set a new record for election-related litigation, law professor Rick Hasen wrote on Election Blog. Now, Hasen wrote, “with election changes proliferating and a fight over expanded absentee balloting necessary to combat the COVID crisis, the amount of litigation is going to skyrocket.”

That ultimately puts voting rights in the hands of the courts, including the federal appellate courts that Donald Trump has reshaped at record pace. In just one term he has appointed more than a quarter of all federal appellate court judges, filling the judiciary with ideological conservatives picked because they’ll side with Republicans on a number of issues, including voting rights. Just as Trump opposes vote-by-mail because it “doesn’t work out well for Republicans,” he is appointing federal judges who are ready to strike down expanded access to the ballot. 

If Wisconsin’s elections signaled the importance of judicial selection, there is much more to come. The Wisconsin Supreme Court could soon rule on a conservative interest group’s lawsuit to purge more than 200,000 people from the voter rolls.

“There is a lot of work to do now to try to avoid election meltdown,” Hasen wrote.

The post In Wisconsin, Liberal Challenger Wins Despite Voting Restrictions and Tough-on-Crime Playbook appeared first on Bolts.

Over the last dozen years, the Wisconsin Supreme Court has been in the midst of a heated power struggle, with enormous stakes for statewide policy. The court has been a battleground for many of the state’s most important and contentious disputes, from labor rights to election law to education policy. 

Amid massive outside campaign spending on both sides and especially negative campaigns, the court has shifted, as Lincoln Caplan wrote in the New Yorker in 2015, “from a congenial, moderately liberal institution into a severely divided conservative stronghold.” Conservatives have held a court majority since 2008, and now hold a reliable 5-2 advantage. 

The latest fight in this struggle is a Supreme Court election that will be decided on April 7, and criminal justice reform has been front and center.

State officials have decided to maintain the election during the COVID-19 pandemic despite mounting calls to postpone it due to the health risks posed by this crisis.

Jill Karofsky, a trial court judge and former prosecutor, is challenging incumbent Daniel Kelly, who was appointed by Republican Governor Scott Walker in 2016. The winner will serve a 10-year term. If Karofsky wins, liberals will narrow conservatives’ majority to a 4-3 edge, and will then have a chance to regain control of the court when Chief Justice Pat Roggensack is up for election in 2023. 

The campaign has taken familiar form: personal, ideological, and expensive. Groups such as Planned Parenthood, the Wisconsin League of Conservation Voters, and the National Democratic Redistricting Committee are supporting Karofsky, while Americans for Prosperity (the group funded by the Koch brothers) and Wisconsin Manufacturers & Commerce (or WMC, the state’s largest business organization) have lined up to support Kelly. 

Listening only to Kelly’s campaign rhetoric, one could miss these ideological stakes. He has stuck to the typical but misleading line among judicial candidates that they are apolitical, though he has done so through the distinctly conservative claim to “textualism.” “The campaign that I’m running is one of constitutional fidelity and faithfulness to the text of the laws that we apply,” he said at a recent debate. He merely applies legal texts, he says, deciding cases with “rigorous logic” free of personal beliefs. 

Karofsky has been more open about the reality that judges shape and inform public policy. She too talks of “independent” courts and says she is “not running to reform the system,” but she has talked openly about her values—including commitments to racial justice and the need for criminal justice reform.  

But Kelly’s own career signals a consistent set of values as well, values that closely align him with the politics of Walker, the conservative governor who appointed him, and President Trump, who endorsed Kelly at a Milwaukee rally in January. 

Trump’s endorsement makes sense. Kelly is a Trump-appointee archetype. He is a white man. He led a local chapter of the Federalist Society, the conservative legal network to which nearly every Trump appointee belongs. He spent his legal career defending corporations and Republican policies, including the legislature’s 2011 redrawing of State Assembly districts to favor Republicans. In 2014, Kelly equated affirmative action with slavery, writing that “neither can exist without the foundational principle that it is acceptable to force someone into an unwanted economic relationship,” and so, “morally, and as a matter of law, they are the same.” (Never mind that affirmative action, far from an “unwanted economic relationship,” is typically a voluntary program that schools and employers use to increase diversity.) That same year, he wrote that the right to same-sex marriage “will eventually rob the institution of marriage of any discernible meaning.” In blog posts, he repeatedly expressed contempt for safety net programs like Social Security and Medicare. “It is true that there will always be people who need help,” Kelly wrote in 2012, “but to the extent we conclude from that datum that government must intervene, we do a disservice to those we are supposedly helping, as well as the people from whom we are stealing to provide the ‘help.’”

Kelly’s views have led to a consistent conservative record ever since he was appointed to the state Supreme Court. In 2017, for example, Kelly wrote the 5-2 majority opinion that reversed a lower court decision and struck down a Madison transit agency rule barring passengers from bringing concealed firearms on city buses.

Kelly has also ruled in favor of the conservative Wisconsin Institute for Law & Liberty (WILL) in all nine opportunities that he has had, including two cases in which the organization took a position in amicus briefs, according to an analysis by One Wisconsin Now. Kelly previously served on the litigation advisory board for WILL, and has said that he won’t decide until after the election whether to recuse himself from WILL’s litigation to purge more than 200,000 names from voter registration rolls.

Kelly’s campaign did not reply to requests for comment on these cases and his broader record.

This contrast between Karofsky, who acknowledges some of the values that inform her jurisprudence, and Kelly, who, despite his predictable results, sells the fiction that judicial decision-making can be reduced to “logic,” has been dramatic on criminal justice issues.

Karofsky, the former prosecutor, has promoted the need for reform. She has said that Wisconsin needs to reduce prison populations, address racial disparities in the criminal legal system, reform the use of money bail, and provide more pathways to drug and mental health treatment instead of criminal prosecution. 

“We have over 23,000 people incarcerated in this state, four times as many as they have next door in Minnesota,” she said at an event with the University of Wisconsin Pre-Law Society. “The Department of Corrections budget in Wisconsin is more than the Department of Education budget. How does that make sense?” 

During a recent debate, she also said the legislature should reform the cash bail system—ensuring that people are not jailed simply because they lack the money to buy their way out—because “if you hold someone just one night, that has an incredible effect on their livelihood, has an incredible effect on their ability to work, on their family, [on] them getting to school.” Karofsky’s campaign did not respond to a request for comment about her views on criminal justice reform, nor about her prosecutorial record.

Kelly, on the other hand, says that it’s inappropriate for judicial candidates to even acknowledge the need for reform. But he and his supporters have deployed hackneyed fearmongering tactics, attacking Karofsky as “soft on crime.” The Republican State Leadership Committee released attack ads, replete with ominous music, saying that, as a “prosecutor, Karofsky even went easy on criminal predators, like no jail time for a monster who sexually assaulted a 5-year-old girl.” The ad refers to a case that Karofsky had nothing to do with, however, as the fact-checking website PolitiFact established. Kelly’s campaign has also accused Karofsky of “letting hardened criminals off easy,” including by showing compassion when she sentenced a man convicted of first-degree murder. 

In that case, Karofsky could have sentenced the man to life in prison without any chance of release, but she allowed him to petition for parole after 20 years—when he will be 81 years old.

Kelly’s tough-on-crime campaign tracks with his record on the Supreme Court. Dean Strang, a longtime criminal defense lawyer in Wisconsin, told me that Kelly and the court’s current majority “tend to look for the most restrictive view of individual liberty and the most robust realm for police powers” in criminal cases. 

That view is supported by the analyses conducted by Marquette professor Alan Ball, which show that, on the whole, Kelly and the court’s conservative majority are deciding in favor of prosecutors far more often than is the court’s smaller liberal bloc. Kelly was in the majority of every criminal case the court decided last term, when prosecutors won 14 of 16 decisions. The court divided—that is, was not unanimous—in seven criminal cases, providing opportunities to identify fault lines within the court and compare the relative views of individual justices. Of those seven cases, Kelly cast his vote in favor of prosecutors six times.  

This isn’t a result of using “rigorous logic” or strictly applying legal texts, Strang said, but rather of the court’s inability to identify with the people who are brought into the criminal legal system at disproportionate rates: low-income people, people of color, people with mental illnesses and addictions. “In my view,” Strang said, “the through line over the last 12 years of the Wisconsin Supreme Court has been that criminal defendants succeed only to the extent that they’re within the contours of the conservative majority’s cramped capacity for empathy.”

Keith Findley, co-founder of the Wisconsin Innocence Project, offered a more pointed critique. “[Kelly] and the conservative majority have gone out of their way at every turn to undermine claims and evidence of innocence, including by ignoring precedent,” he told me. 

In the 2017 case State v. Denny, for example, the court overturned a 12-year-old case providing that, under Wisconsin law, any convicted person had the right to test physical evidence for DNA if the evidence was relevant to his or her case. The 5-2 decision, with Kelly in the majority, replaced that rule with a more restrictive one. Justice Ann Walsh Bradley wrote in dissent that the decision “imped[es] the search for the truth by erroneously limiting access to post-conviction DNA testing.” Findley agrees. The Denny decision “was a remarkable example of judicial activism by a conservative court,” he said, “and its only purpose was to make it harder for convicted individuals to even get the DNA testing they need to try to prove their innocence.” 

But Karofsky’s record as a former state and local prosecutor also merits attention. When former prosecutors present “themselves in campaigns as progressive reformers,” Strang said, voters should expect “some honest reckoning with their past role in the excesses of criminal prosecutions and punishment.” 

For Karofsky, that would include her role in a so-called “shaken baby” case—a prosecution premised on the dubious medical assumption that certain injuries in infants could only be caused by severe shaking or other acute trauma, like falling out of a window or experiencing a car crash. 

As a young prosecutor, Karofsky brought one of these cases against Audrey Edmunds, a daycare worker who in 1996 was convicted of shaking to death a 7-month-old infant, and was sentenced to 18 years in prison. In 2008, lawyers with the Wisconsin Innocence Project presented new research on Edmunds’s behalf, showing that there could have been other causes for the infant’s death, and convinced a state Court of Appeals to overturn her conviction. Edmunds walked free after 12 years in prison, and the state decided not to retry her. Karofsky’s campaign did not respond to a request for comment about her role in prosecuting Edmunds.

There is at least one case that Karofsky admits she got gravely wrong. In 1998, as journalist Bill Lueders describes in his book “Cry Rape,” Karofsky filed charges against a visually impaired woman named Patty Murphy for making false claims about a sexual assault. In court, Karofsky said that the police officers who interrogated Murphy and concluded that she was lying “ought to be proud of what they did.” But DNA evidence from the crime scene later supported Murphy’s account, and Karofsky dismissed the charges against her.

Karofsky recounts this case in her American Civil Liberties Union questionnaire, saying that she “apologized publicly, and . . . apologized privately” to Murphy, who has forgiven her and now supports her campaign. 

Kelly has employed a different approach to past controversies, altogether deleting blog posts on a conservative website in which he attacked President Barack Obama and same-sex marriage.

“The future of Wisconsin” is at stake in this election, Karofsky told Isthmus in March. The court will decide cases, she added, that will determine no less than “what democracy in this state is going to look like.” But while both candidates have relatively transparent values that will guide these decisions, one of them has been more willing than the other to make this reality part of the election.

Explore the Political Report’s coverage of 2020 state and local elections.

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