The Wisconsin Supreme Court Election: A Decidedly Mixed Outcome for Democracy

Editor's Note: The following op-ed was authored by Kevin Johnson and Alexander Vanderklipp.

Tuesday’s election for the open 7th seat on Wisconsin’s Supreme Court smashed records for campaign spending and drew huge media attention to the “most important election” of the year. When the votes were counted and liberal candidate Janet Protasiewicz emerged ahead, declarations of “a victory for democracy” emerged from a range of organizations and media outlets. 

The result was clearly a political victory for Democrats, but for democracy itself, the meaning of this election is decidedly mixed, and both Wisconsin and the nation should reckon with that outcome.

On the one hand, the result brings an end to many years of a conservative court that made ethically-compromised decisions, seemingly designed to weaken democratic norms and tilt elections in favor of the GOP.

On the other hand, we should lament this next major milestone in the continuing descent toward extreme partisanship and away from impartial and independent institutions capable of separating the rule of law from the national partisan feud.

It's hard not to conclude that the court’s conservative justices sought not just to apply conservative principles to legal questions but to keep Republicans in power.

The court ruled in 2015 to end the investigation of seemingly illegal campaign coordination between Republican Governor Scott Walker and outside expenditure groups -- a decision based on a dangerous theory (later overturned by the U.S. Supreme Court) allowing such coordination as long as independent campaign ads do not expressly say which way to vote.

Worse, all four of the conservative justices received hundreds of thousands if not millions of dollars in campaign contributions from the groups under investigation but refused to recuse themselves. Prior requirements to recuse had previously been stripped away by the conservative majority. 

In 2020, during the post-election desperation of the Trump campaign, three of four conservative justices voted in support of the radical plea to throw out all votes from two democratic counties on technicalities and give Trump the state. One justice who had left the court led a widely criticized state Senate audit of the 2020 election, alleging, but not finding, evidence of fraud. 

In 2021, the court ruled that the coming redistricting cycle should be guided by the principle of “least change” to the maps drawn by the Republican legislative majority during the prior decade. They did so despite substantial evidence that those maps constitute an extreme partisan gerrymander and a prior court ruling that the legislature had “systematically dilute[d] the voting strength of Democratic voters” and "intentionally burdened their representational rights.” 

These actions by the conservative justices suggest a kind of desperation to stop Democrats, echoing the existential tone of conservative media. Judges with such partisan views making it to the state’s highest court points to the core problem with the state supreme court, and the core negative of this mixed outcome: the election of justices. 

As the state has polarized, electing justices has favored candidates with views capable of mobilizing voters and funders, while closing out opportunities for moderate candidates. This process was turbocharged when Republican legislation loosened campaign finance restrictions in 2015.

Republicans, and Wisconsin more generally, have now reaped the whirlwind, in the form of massive, aggressive ad wars of this most recent campaign. At least $42m was spent on the election concluded Tuesday, nearly triple the prior record.

Some will argue that this is appropriate, that justices must be accountable to the electorate. For others what matters most about Tuesday is the win for their side and for policies, such as abortion rights, that are important to them. The counterargument to both perspectives is the perilous state of the rule of law in America. 

Contempt for court rulings over the 2020 elections is the predominant view of one of our two largest parties. The media fight over the indictment of President Trump will mean scorched earth condemnation of New York’s courts, where partisan elected judges also have a role. It is increasingly common to hear from both parties a narrative bordering on civil disobedience, of refusal to certify election results as required by law, or of district attorneys pledging not to prosecute violators of laws that they personally oppose. 

Now we will add to that dangerous mix more of the blatant conflict of interest of justices elected with party money ruling on gerrymandering and other cases that directly impact their party. 

To her credit, Justice-elect Protasiewicz has committed to recuse herself from all cases involving the Democratic Party (source of $9.3M for her campaign). But what about cases involving the Republican Party? Or independent candidates? Or election law challenges not brought by a party but directly affecting them?

The underlying problems with elected justices are too fundamental to be solved using the tool of recusal.   

Electing judges is not intrinsic to democracy. In fact, the vast majority of democracies around the world don’t do it. And in 23 U.S. states, supreme court justices are not elected but selected by judicial nominating commissions, which in most states are responsible for naming a short list of qualified candidates from which the governor must pick the appointee.

Being human run, these commissions are not flawless, and improvements in the formula for a broadly representative commission can be imagined. But at least the commissions have as their primary goal an independent and impartial judiciary, a goal that many scholars and good government organizations argue they get closer to realizing than any other method of judicial selection in use in the US. 

Wisconsin Supreme Court elections seem designed around a different goal: rewarding the winning party with its own dependent and partial judiciary. 

The state now has a court majority that has in effect made a campaign promise to overturn the existing redistricting plan, but the Wisconsin Constitution (unfortunately) does not necessarily provide them with a clear argument for doing so. A partisan approach to such a ruling would likely increase the likelihood of repeal by the U.S. Supreme Court, perhaps on the dreaded grounds of Independent State Legislature Theory

Some argue this is the inevitable order of things, that we are all so inherently partisan that any structure trying to insulate rule making from partisanship is doomed to fail. “There is no such thing as a nonpartisan commission,” former Wisconsin Speaker Robin Vos has said. 

But a look at our peer democracies shows clear evidence of functioning nonpartisan bodies running courts, elections, redistricting, and other institutions. And this discrediting of the very concept of nonpartisanship flies in the face of a core credo of our Founders; specifically, the critical importance of putting country above party. 

In Wisconsin, just 15 years ago, leaders of both parties did exactly that when they launched the nation’s first nonpartisan state election commission, the highly-praised Government Accountability Board. The GAB ran elections in the state from 2008 to 2016 before it was dismantled by Republicans in the same existentially partisan whirlwind on display Tuesday. 

Our great challenge right now is to push back on the belief that if one side loses all is lost, and to go back to first principles and design our courts, our election administration, and our other core institutions, so they can stand apart from the partisan feud. Wisconsin has done this before and can do so again.

Wisconsin citizens of every political persuasion should be able to trust that their state’s highest institution of justice can’t be won by one party, and that its justices are committed as much as humanly possible to putting country, not party, first.

WI Supreme Court