Liberals Flip the Wisconsin Supreme Court After Fifteen-Year Wait

The high court’s new majority may strike down the state’s abortion ban and gerrymanders, but Republicans have already signaled they’ll try impeaching judges.

Daniel Nichanian   |    April 5, 2023

Judge Janet Protasiewicz won the April 4 election for Wisconsin Supreme Court. (Facebook/Janet for Justice)

Twelve years ago almost to the day, Wisconsin liberals were giddy on election night. With all votes counted, their candidate led by 204 votes, flipping the state’s supreme court their way. But when a red county discovered the next day that it had forgotten to count thousands of ballots, conservatives won the race and defended their court majority—and they haven’t let it go since. In 2013, 2016, and 2017, liberals had three more chances to flip the court, and each time they faltered; in 2017, they didn’t even field a candidate.

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.

(Facebook/Janet for Justice)

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.