You have probably read, at some point, about the upcoming April 2023 Wisconsin Supreme Court election. A conservative justice on the Wisconsin Supreme Court is retiring, opening up a golden opportunity for liberals to retake the court and save Wisconsin from its Republican one-party state.
There are two conservatives and two liberals running for the open seat this year. One of the conservatives is Daniel Kelly, a former justice of the court who lost in the highly publicized 2020 court election, after republicans unsuccessfully tried to suppress the vote in the early days of the pandemic. The other conservative is an extremely cooky woman who thinks Lawrence v. Texas was wrongly decided, and only received fame after prosecuting the assailant in a brutal drive-by murder in a Waukesha Christmas parade.
The two liberals running are named Everett Mitchell and Janet Protesiewicz. Unlike the two conservatives, who were both co-endorsed by Wisconsin Right-To-Life, and who have both raised roughly $300,000, Protesiewicz is the clear frontrunner for the liberals. She's raised $750,000, while Mitchell has only raised $100,000, and she's endorsed by every major organization and union carrying political weight in the state.
The top two finishers in the February 21st primary will advance to the April general election, and while it is technically possible that Protesiewicz and Mitchell could both finish 1st and 2nd, ending the entire conversation, that is likely not going to happen. Protesiewicz is near-certain to advance to the general election, but the real question will be who she faces on the conservative side. The general election will be held on April 4th, and that election will be for all the political marbles in Wisconsin.
Here's the timeline of what will happen (or should happen) if Janet Protesiewicz wins the election in April:
The Day After:
The Democratic Attorney General of Wisconsin, or possibly some other legal group supported by Wisconsin Democrats, will immediately renew their lawsuit against the state legislature of Wisconsin for gerrymandering both the constituencies for the state legislature and the federal House of Representatives.
This Summer:
The Supreme Court of Wisconsin is poised to rule on the legality of the state's 1849 abortion ban that doesn't even include exceptions for rape or incest. With a new 4-3 liberal majority on the Wisconsin Supreme Court, the law will almost certainly be overturned as unconstitutional under the Wisconsin Constitution. Abortion will become legal in Wisconsin until the point of fetal viability, which allows for abortion at <24 weeks, and allows for full access to post-24-week abortions when the fetus is no longer alive or cannot survive.
In June, the United States Supreme Court will rule in the case of Moore v. Harper. If the Supreme Court rules that state courts do not have power to overturn the maps for the federal House of Representatives, this will effectively end any chance of the Wisconsin federal election maps being rewritten fairly until at least 2032. However, because the Supreme Court does not have the ability to prevent state courts from overturning state maps, democrats would still have an opportunity to fix the federal maps if they held on to the state legislature. At the moment, most court-watchers believe that the court will likely not go as far as to ban state courts from overturning their own state's election maps, but it's not a certainty.
Early 2024:
The lawsuit against the maps created by the state legislature will likely reach the Wisconsin Supreme Court by late 2023 or early 2024.
Assuming that at least two conservative justices on the U.S. Supreme Court side with the three liberals to stop an unfavorable ruling in Moore v. Harper, the Wisconsin Supreme Court will have the ability to strike down three sets of maps: The Wisconsin Senate, the Wisconsin House, and the eight seats in the United States House.
Currently, republicans in Wisconsin hold a two-thirds majority in the state senate, and are two seats away from a two-thirds majority in the state House. The majorities are not because republicans are super popular in the state; democrats won the state popular vote in 2018, but the maps are so gerrymandered that democrats, under the current iteration of the maps, would need about 60% of the vote to take control of the legislature. With a new court-drawn map, democrats would have a once-in-a-decade opportunity to finally take control of the legislature.
In terms of the U.S. House maps, republicans currently hold a 6 out of the 8 House seats in Wisconsin, and Donald Trump won 6/8 of those seats despite losing the entire state by 0.63%. With a court-drawn map, democrats would almost certainly flip one seat, and have a 50/50 shot of flipping a second seat. Because democrats are not well-dispersed in the state - they basically reside only in Milwaukee, Madison, and a few Native American reservations, it is unlikely they could achieve victories in more than four seats, even with a fair map.
November 5, 2024
The 2024 General Election. If Joe Biden can win Wisconsin, and especially if he wins it by 2-3% more than he did in 2020, democrats will have the perfect opportunity to take control of the Wisconsin state legislature with a fair court-drawn map. One factor that will especially play in favor of the Democrats is that with new maps, many of the incumbent republicans in the legislature will not be familiar with their new constituents, and will have a harder time winning with name recognition.
January 3, 2025
If all of the events listed above can come together, this will be the day Democrats take control of the Wisconsin state legislature - for the first time since 2011.
After taking control of the legislature in 2024, the democrats' job will not be done. First, they can do a few things to bring the state back to life, including -
- Repeal the state's voter suppression laws passed under the governorship of Scott Walker.
- Repeal Scott Walker's 2011 anti-union bill
- Pass a bill codifying the right to abortion
But there's more that needs to be done, specifically in the realm of constitutional amendments. Wisconsin is a state where the constitution is extremely difficult to amend, which is one of the reasons democrats have struggled to take back the state. It has been easier for democrats in other states where the Constitution is easier to amend. For example, in Michigan, the state allows ballot measures signed by enough registered voters to make the ballot without the approval of the state legislature. That was how the democrats were able to break the republican gerrymander and take control of the Michigan legislature in 2022. But in Wisconsin, a constitutional amendment must be passed twice by the state legislature in two consecutive legislatures, and then placed for a vote by the people of the state.
This would mean that the democrats in Wisconsin need to not only take control of the legislature in 2024, but hold the legislature in 2026, which may be a rough midterm election with a democrat in the White House. But democrats did not lose control of a single legislative chamber in 2022, so accomplishing this goal is very possible, especially if Tony Evers remains popular as the governor. Because elections are so polarized in the post-Trump political environment, the race at the top of the ballot can essentially determine the entire outlook for the House races, the lower statewide race, and the state legislature races. If Tony Evers wins a third term, he may carry vulnerable democrats in the state legislature along with him to victory.
The democrats should pass the following constitutional amendments:
1. Amending the state Constitution's amendment process so that a certain number of registered voters can sign a petition for a constitutional amendment to be placed on the ballot. It is inevitable that republicans will one day take back control of the Wisconsin legislature - that's what happens in a democracy - but if democrats can block another power grab by initiating constitutional amendments via the people of the state instead of the legislature, it will be very difficult for republicans to turn Wisconsin into a one-party state again. This Constitutional Amendment would almost certainly pass; I'm pretty sure the people of Wisconsin will be happy to give themselves the power to amend their own Constitution without being blocked by their power-hungry politicians.
2. Amending the state Constitution to establish the right to reproductive freedom, including abortion up to the point of fetal viability. This is would be identical to Michigan's Prop 3 in 2022. While the liberal justices on the Supreme Court will likely overturn the abortion ban, it will be under the legal premise of more "unwritten but implied" parts of the Wisconsin Constitution. If conservatives ever regained control of the state court, they could easily change the court's legal interpretation of the law, and make abortion illegal again. But if the state Constitution was written with an explicit right to abortion, it would make such efforts by Wisconsin republicans dead in the water.
3. Amending the state constitution to establish voting rights. This would be similar to Michigan's Prop 2 in 2022, which established -
-"A fundamental right to vote.
-Use of an early voting site up to nine days before election day.
-Counting of absentee ballots distributed to military personnel or those living overseas
if properly completed and postmarked on or before election day.
-Use of a photo ID or a signed affidavit to verify voter identity.
-Placement on a permanent absentee voter list.
-Prepaid ballot postage and a state-funded ballot tracking notification system.
-Access to ballot drop boxes."
4. Amending the state constitution to ban partisan gerrymandering and establishing a bipartisan redistricting commission to redraw the maps every 10 years after the census. This would codify fair maps in the state of Wisconsin forever, and no conservative majority on the state Supreme Court could stop it.
Yeah, this is a lot of stuff. And I must remind you that there are still a few more roadblocks that could get in the way. In April of 2025, the term of one of the liberal justices on the Wisconsin Supreme Court, Ann Walsh Bradley, will expire. Although there are no age or term limits, at the age of 72, she might decide to retire, which would take away the incumbency advantage. If democrats were to subsequently lose this election, the court would flip back to a 4-3 conservative majority. It should be noted, however, that in 2026, a conservative justice named Rebecca Bradley would be up for re-election, which would give democrats an opportunity to flip back the Supreme Court if the unthinkable happens in 2025. And, it would give democrats a 5-2 majority if they can hold the line in 2025 and flip the seat in 2026.
This situation reminds me a lot of Dr. Strange in Infinity War. Out of a million scenarios, there is only one in which we win. If just any one of these pieces of the puzzle doesn't materialize, the whole plan falls apart. But we can't give up. The fight starts right here, right now.
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