Wisconsin Supreme Court candidates Republican-backed Dan Kelly and Democratic-supported Janet Protasiewicz participate in a debate Tuesday, March 21, 2023, in Madison, Wis. (AP Photo/Morry Gash)
If you want a good summary of all that’s wrong with U.S. politics right now, you could do worse than “The most important U.S. election this year is the runoff for a seat on the Wisconsin State Supreme Court.”
The April 4 run-off vote for a swing seat on the court would typically attract little notice. But Wisconsin, a fiercely divided state, is expected to be a battleground in the 2024 presidential contest, giving the seven justices enormous influence should the White House face a court challenge.
The State Supreme Court also could wind up ruling on abortion rights and other hot-button topics that could reverberate nationally.
That such a small election has taken on such import is fascinating for political observers. Yet it’s an election that shouldn’t be occurring in the first place. Judicial elections are a terrible idea — bad for voters who don’t have the specialized knowledge to evaluate the candidates and bad for the courts because it undermines their proper role in the system.
That judicial elections in Wisconsin and many other states are ostensibly nonpartisan makes matters worse. Partisan affiliations at least would give voters useful information about candidates who are generally unknown to the average voter.
Because the vote is so consequential, the national political parties are pouring money in; including a first-round election that took place in February, spending on TV advertising has passed $27 million, making it the most expensive judicial election ever.
Wisconsin Supreme Court decisions tend to follow standard party divides, with Republicans holding a 4-3 majority right now and a judge who voted with that majority retiring. The first-round vote in February narrowed the field to Democrat Janet Protasiewicz and Republican Daniel Kelly, and the winner of the final round will establish a new majority.
Key court decisions already have upended Wisconsin’s political landscape. Most prominently, a ruling last year allowed Republicans to implement an extreme version of gerrymandering that gave the party large majorities in the state legislature, even though the state is evenly divided between Republicans and Democrats.
The stakes will be even higher in 2024. Courts in swing states have frequently been called upon to rule on legitimate election controversies, such as in Florida in 2000. And given the popularity of former President Donald Trump in the Republican Party, we can expect attempts to overturn any Democratic victories by putting party pressure on Republican judges to go along with even entirely bogus lawsuits. (That was the case in 2020 and it hasn’t stopped there; for example, losing Arizona gubernatorial candidate Kari Lake has been trying to overturn her defeat in the courts since November.)
With so much riding on the court, it’s dismaying that its composition is an outgrowth of a flawed process. For one, it is traditionally difficult to get voters interested in selecting judges, and even if they were, it’s unlikely that voters have a real representational relationship with judges, which is at the core of how elections work to further democracy. (Representation involves candidates making promises to voters, governing with those promises in mind, and then explaining their actions in the context of those promises. It’s extremely difficult to see how that fits what judges do.)
Since the Wisconsin judicial contest is non-partisan, it also lacks the most helpful shortcut for voters to understand the candidates’ perspectives. (Non-partisan ballots also make it much harder for political parties to vet their candidates and select competent candidates with the appropriate skills for the job. They can easily lead to random selection of candidates, since voters have little to go on in picking the ones they would vote for with additional information. As it has turned out, Democrats in Wisconsin were able to pick the candidate they wanted in the first-round election, while Republicans may well have selected the candidate they would have chosen in a party primary or nominating convention. But it’s an added obstacle for them to overcome.) It’s also an off-year spring election, so voters accustomed to having important elections in November of even-numbered years might not be paying attention.
This means these elections often have very low turnout. That heightens the influence of the handful of voters most tuned in to the system, but democracy isn’t the rule of the best educated or the most attentive. It’s the rule of all the people.
It’s bad for the courts, too. There is nothing wrong with the fact that in a democracy judges are affected by politics. It’s naïve to think that judges could be walled off, and we shouldn’t want that anyway. And if they are political actors in a partisan era, they are going to be aligned with parties as well, whether the judges are elected or appointed.
But we generally don’t want judges to be only political actors.
We want them to take legal principles and reasoning seriously even while understanding they will bring their full experiences, including partisan ones, with them to the bench. Subjecting them to elections is apt to exaggerate the partisan aspects of their background and diminish everything else.
One reason the Wisconsin election matters so much is because of the Republican Party’s turn against democracy. Republicans from state to state have passed legislation making it harder to vote, laws that friendly partisan judges are likely to uphold. Those laws have taken on a greater significance now that the leading Republican presidential candidate is also a former president who tried to overturn the results of a legitimate election, culminating in the attack on the Capitol in January 2021.
Many Republican judges stood up to Donald Trump and ruled against him and for democracy. But plenty of Republicans took Trump’s side, and it’s hard to know in advance what any particular judge (or election official or state legislator) will do next time. In other words, this election is a reminder of the current threats to U.S. democracy. And yes, it’s especially pernicious when judges rule against democracy. Governors and state legislators, like their national counterparts, at least have the advantage that they can run on their records; the norms of judicial elections make it difficult for candidates to do so, which means they don’t have to face the awkward task of promising voters they’ll disenfranchise them — a task that may in fact deter some candidates from being anti-democracy in the first place.
And then there is the question of nationalization of politics. Once upon a time, a state judicial election would be entirely contested by local political figures using local resources, even if the national implications were important. Now, national organizations rally supporters and devote resources to the contest.
In some ways, that’s a positive. This election will have national consequences, so it’s reasonable that Americans in every state could try to affect the outcome. In addition, all the money spent on the contest will raise the election’s profile for Wisconsin voters, informing them about the candidates and drawing more people to the polls.
But the national influence leaves Wisconsinites less able to govern themselves on state and local issues, and therefore primed to lose one of the chief benefits of federalism, namely the ability of all of us to meaningfully affect important political outcomes. There is no perfect balance, but we’re leaning toward the more nationalized extreme.
While the first-round election in February had a record turnout for Wisconsin judicial elections, it still only drew 21% of the voting-age population, with the 960,000 ballots cast well under a third of the 3.3 million who turned out for the 2020 presidential election. Even the November 2022 midterm had some 2.7 million ballots cast. Money helps, but this is fundamentally just a bad way of doing democracy. Whatever the outcome.
Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. A former professor of political science at the University of Texas at San Antonio and DePauw University, he wrote A Plain Blog About Politics.