One year after a watershed election, Wisconsin’s Supreme Court is at the center of the battle for democracy
One year after a watershed election, Wisconsin’s Supreme Court is at the center of the battle for democracy
A year into the new liberal majority, the pace of cases being heard by the Wisconsin Supreme Court has slowed, mammoth cases are being decided, and much more lies ahead. And the clock is ticking.
The Recombobulation Area is a thirteen-time Milwaukee Press Club award-winning weekly opinion column and online publication founded by longtime Milwaukee journalist Dan Shafer. Learn more about it here.
This piece is written by Phil Rocco, associate professor of political science at Marquette University. Rocco is a regular contributor at The Recombobulation Area.
There was a sense everywhere in Wisconsin that an edifice was crumbling. It was April of 2023, and the resounding election victory of Janet Protasiewicz to the Wisconsin Supreme Court had flipped the ideological balance of power on the state’s high court to a 4-3 liberal majority.
This, observers suggested, would finally be the tipping point. The moment at which a Republican gerrymander in the legislature might finally meet its demise, when an assault on workers’ rights might finally be reversed, and when abortion rights in Wisconsin–following the overruling of Roe v. Wade–might be cemented. As The Recombobulation Area’s own Dan Shafer put it at the time, “the ground just shifted.”
Yet while the election itself constituted a Wisconsin political earthquake — especially given the hold that conservatives have on state high courts across the country — the pace of legal change can often feel closer to that of plate tectonics. Judges cannot bring policy into being on their own. Plaintiffs must file complaints, legal advocates must prepare their briefs. Appeals must be made, oral arguments heard, and lengthy decisions written.
The present session of the Wisconsin Supreme Court (SCOWIS) is no exception. If conservatives horrified by Protasiewicz’s victory were expecting a judicial revolution right out of the gate, they were sorely mistaken. As Marquette University history professor Alan Ball notes at his blog, SCOWIS will likely hear only 16 cases this term — a low number that is “stunningly unparalleled” in the recent history of the court.
In prior terms, the court has routinely decided more than 40 cases. The reason for the dropoff this term is not entirely obvious. On one hand, there have been fewer merits petitions to the court this term. At the same time, however, the justices have also been reluctant to put a number of important cases on the court’s docket. Some legal observers suggest this could reflect the court’s desire to save time and resources for large, complex cases. There are also indications that the court has seen no small amount of conflict over the internal procedures governing its management of cases. Whatever the explanation, the result is that petitions for SCOWIS to take up urgent matters of election law and abortion rights have continued to languish.
The pace of decisions took on a new significance last month, when Justice Ann Walsh Bradley — the court’s longest-serving member and a keystone of its new liberal majority — announced she would not seek reelection. This will create an open seat in the judicial election scheduled for April, 2025, setting the stage for what will likely be the most expensive judicial election in American history.
As the clock on the court’s 2023-24 term winds down at the end of June, where do the most important legal issues confronting Wisconsin’s democracy stand today?
Litigation at the ballot box
Following the 2020 presidential elections, legislative Republicans appointed former Supreme Court justice Michael Gableman to helm an investigation of election conspiracy theories; over two million taxpayer dollars later, the investigation ended in scandal, with Gableman producing no evidence of fraud and being held in contempt of court for refusing to disclose public information related to the investigation.
Yet the conspiracy theories continued to animate a line of attacks on election procedures — especially procedures that reduce administrative burdens associated with voting. In 2022, Kenneth Brown, a GOP chairman in Racine County, sued the city of Racine and the Wisconsin Election Commission, charging that the city’s 21 in-person absentee voting sites violate state law because they are too far from the city clerk’s office, advantage Democratic voters, and impermissibly allow for mobile voting, among other reasons. In January of 2024, a Racine County judge agreed with several of these arguments, striking down the use of mobile voting units and applying a fringe standard for evaluating unfair partisan advantage in the siting of absentee voting locations–one that would make it impossible for cities to create alternative voting sites outside the premises of the city clerk’s offices.
Last month, the Wisconsin Supreme Court, over the vigorous objections of its conservative justices, agreed to hear the case, Brown v. WEC, bypassing the court of appeals. Oral arguments have been slated for this fall, likely with weeks to go before the 2024 elections.
Brown v. WEC is not the only challenge to the ballot box in Wisconsin. Last month, the court heard oral arguments in a case brought by voter-mobilization group Priorities USA, which could overturn its 4-3 decision in Teigen v. Wisconsin Elections Commission, a 2022 ruling which effectively banned the use of drop boxes for returning absentee ballots.
The arguments featured a rhetorical tactic that has become frequently used over the last term. Both conservatives on the court as well as legal counsel representing the state legislature, which is acting as an intervenor in the case, employed the concept of stare decisis (Latin for “let the decision stand”) to argue that decisions made by prior conservative majorities should not be overruled unless the court is presented with significant new facts. Yet, as Justice Jill Karofsky was quick to point out at oral argument, following the stare decisis principle does not require courts to adhere to precedent they believe was “egregiously wrong from the start.” Indeed, serious analyses of the doctrine of stare decisis conclude that it is applied inconsistently at best, with numerous exceptions that render it, as Alan Ball suggests, “a slippery (or flexible) tenet to employ in practice.” In any case, it seems unlikely that the current majority on the court will be quick to unanimously bless the 4-3 decisions made when Protasiewicz’s seat was held by Daniel Kelly.
As the 2024 campaign season ramps up, we can expect to see even more election-law challenges. In late May, a Marinette County judge issued a temporary injunction prohibiting the Wisconsin Election Commission from requiring clerks to use the state’s absentee ballot form (form EL-122). The plaintiff in the case has in the past repeated conspiracy-theory claims about voting machines used in the state. Should the judge issue a permanent injunction, the Wisconsin Election Commission says in its filing, it would risk disenfranchising tens or even hundreds of thousands of Wisconsin voters” with only weeks to go before the deadline for mailing absentee ballots in the August primaries.
In short, while the claims of widespread election fraud have been roundly debunked, the attacks on voting procedures they inspired live on. The question is how, and how quickly, the Supreme Court will intervene to reverse the decision.
Abortion Rights: When will SCOWIS take the case?
Since the U.S. Supreme Court effectively overruled Roe v. Wade–eliminating the federal constitutional right to abortion–the status of elective abortions in the state has been in dispute. Anti-choice advocates have claimed that an 1849 law bans abortions in all cases except when “the life of the mother” is in jeopardy. Thus in the wake of Dobbs, Planned Parenthood initially ceased providing abortion services in the state of Wisconsin. Yet lower courts have not agreed with this argument.
Last year, Dane County Judge Diane Schlipper ruled in a case brought by Attorney General Josh Kaul that “there is no such thing as an 1849 abortion ban” because the law is a ban on infanticide, not abortion. That decision, which relied in large part on the Wisconsin Supreme Court’s opinion in the 1994 case of State v. Black, led Planned Parenthood to restart abortion services in Milwaukee, Dane, and Sheboygan counties. Yet, as can be expected, the conflict did not end there.
In February of 2024, Joel Urmanski — Sheboygan County’s Republican District Attorney — filed a bypass petition, asking the high court to take up the case immediately, without waiting for a ruling from the appeals court. Kaul agreed, filing a brief urging the court to accept the bypass petition. Simultaneously, Planned Parenthood filed a separate petition arguing SCOWIS should also decide whether the 1849 law–if interpreted as an abortion ban–would violate the Wisconsin Constitution’s protections of inherent rights to life and liberty. Two months later, the Supreme Court ordered the parties to prepare responses to that petition.
Yet since late April, we have seen no SCOWIS action on the abortion case. The court has not yet even accepted the bypass petition. Thus, while the Dane County Circuit Court’s order allows abortions to proceed in Wisconsin, the long-term legal fate of abortion rights remains in dispute.
Workers’ Rights: The struggle continues
In 2011, then-governor Scott Walker signed the now-infamous Act 10 into law, which decimated public sector workers’ collective-bargaining power. Together with the passage of “right to work” legislation, these anti-labor moves slashed Wisconsin’s unionization rate in half within a few short years.
In the years following Act 10’s passage, a conservative-dominated Supreme Court played an instrumental role in upholding the law, despite allegations that it violated the state constitution’s protections of equal rights, contract rights, and local home rule.
In November of 2023, a group of unions again filed suit in Dane County arguing that Act 10 violated the Wisconsin Constitution by arbitrarily exempting certain categories of unionized public-safety employees (police and firefighters) from Act 10’s onerous requirements, a move that plaintiffs in the case describe as a form of political payback.
“During the 2010 campaign that led to the election of Scott Walker as Governor, only five public employee unions and associations publicly endorsed him,” the complaint reads, “and each of those unions represented workers who are classified in Act 10 as favored ‘public safety’ employees — a classification never before known in Wisconsin law.”
On May 28, Judge Jacob Frost heard the first oral arguments in that case, Abbotsford Education Association et al vs. Wisconsin Employment Relations Commission. During the arguments, Frost seemed skeptical of the defenses of Act 10 made by lawyers for the Wisconsin Employment Relations Commission as well as the Wisconsin State Legislature, noting that there numerous reasons why the anti-labor bill’s might have violated the state constitution’s guarantee of equal protection.
Frost indicated that he would soon issue a ruling in the case. Yet within 24 hours of the hearing, conservatives launched a counterattack. Conservative talk radio host Dan O'Donnell reported that Frost’s name had appeared on a 2011 petition to recall Scott Walker, following Act 10’s passage — leading to calls for the judge to recuse himself from the case.
What this means for the future of Act 10 litigation is not clear. There is no legal requirement for Frost to recuse himself; judges have clear rights to free speech and political participation. Moreover, Frost signed the petition long before becoming a judge. Still, this case will further delay legal proceedings that will — as with other cases — need to bypass the court of appeals if it is to be considered by the Wisconsin Supreme Court anytime before the next judicial election. When it does, the recusal issue will likely resurface. Justice Protasiewicz also signed the Walker recall petition in 2011. For his part, Justice Brian Hagedorn helped to draft Act 10 as chief legal counsel to then-governor Walker.
The bottom line: the political battle over reversing the deleterious effects of Act 10 on workers’ rights is far from over.
Legislative Overreach: A Wisconsin perennial
Another high-profile case with major implications for state government — Evers v. Marklein — is moving more quickly than the Act 10 challenge. The seven justices heard oral arguments in the case in April.
In this case, the governor argues that the legislature is overstepping its constitutional authority by giving vast powers to a single unrepresentative committee, the Joint Finance Committee (JFC). While the 16-member JFC has significantly expanded its powers in recent years, the lawsuit here focuses on a statute that allows a five-member minority of the committee to block land acquisitions under the Knowles-Nelson program. Additionally, any individual committee member can simply — and, remarkably, entirely anonymously — block conservation-project funding. Using this power, the committee has blocked millions of dollars in conservation efforts around the state, including in northern Wisconsin’s Pelican River Forest.
At the core of this case is a political dynamic that has come to define Wisconsin politics in recent years. Since the 2018 election of Gov. Tony Evers — which divided partisan control of government for the first time in nearly a decade — Republicans in the gerrymandered state legislature have gone to great lengths to consolidate their own power by weakening the power of statewide elected officials in the executive branch.
This began mere days after the 2018 elections, during a lame-duck session in which the legislature took the unprecedented step of stripping powers from the governor and attorney general before they took office. While a conservative majority of high court justices ultimately rejected what’s known as a “facial” challenge to the lame-duck laws, they left open the possibility of future lawsuits challenging how these lame-duck laws have been applied.
In Evers v. Marklein, the court is only taking up the JFC’s powers under the Knowles-Nelson program, yet the issues in the case extend well beyond that program. JFC has used similar veto authorities to block executive branch plans for everything from K-12 education to the distribution of funds under the multistate agreement with opioid manufacturers and distributors. Similarly, the legislature’s Joint Committee for the Review of Administrative Rules (JCRAR) has in recent years given itself the sole authority to determine whether rules made by the executive branch comply with the law — decisions that are typically the domain of the judicial branch.
Just as the parties in Evers v. Marklein were headed to oral argument, the legislature sued the governor in Dane County Circuit Court over his partial veto of legislative constraints contained in a $50 million literacy funding bill. Evers then filed a countersuit, alleging that the legislature’s delay in releasing the education funds is unlawful.
While SCOWIS will soon issue a decision in the case, it will by no means end the dispute over legislative overreach in Wisconsin.
Fair Maps: A watershed decision
Without question, the court’s most significant decision this term, Clarke v. WEC, concerned the state legislature’s infamously gerrymandered maps.
The story of the case begins over a decade ago. For the members of the Republican State Leadership Committee, the 2010 elections were a once-in-a-generation opportunity to remake American politics. Through its Redistricting Majority Project (REDMAP for short), the Committee targeted an unprecedented level of funding to typically low-profile state legislative races in 16 states around the country. By winning “trifecta” control of state legislatures and governorships in the year of the 2010 Census, Republicans ensured control of redistricting. The result in Wisconsin was one of the most severe legislative gerrymanders in American history.
If Republicans’ 2010 electoral strategy made this gerrymander possible, conservatives’ decades-long movement to remake the judiciary helped to keep it in place. In 2019, after repeated post-2010 redistricting challenges, a conservative 5-4 majority on the U.S. Supreme Court held that partisan gerrymandering claims presented a “political question” that was beyond the reach of federal courts and should be settled, instead, in the states. With what was then a 5-2 conservative majority on Wisconsin’s Supreme Court, this more or less settled the matter. In 2021, Wisconsin voters filed a petition for the state’s high court to adopt new maps following the 2020 Census. Yet not only did the court’s conservative majority refuse to take the maps’ partisan bias into consideration when laying down standards for redistricting, they also announced an entirely novel rule for evaluating legislative maps: they would adopt maps that complied with federal and state election laws while changing incumbent maps the least — “least change.”
This guaranteed that legislative gerrymanders would continue. And even when the Court accepted maps submitted by Gov. Evers that complied with these rules, the gerrymanders were not strong enough for the leaders of the Republican-controlled legislature. They appealed to the U.S. Supreme Court under the pretext of a Voting Rights Act claim, arguing that the Court had not considered a “race-neutral” alternative to Evers’ maps, which added a seventh majority-black assembly district. The Court agreed, and sent the decision back to Wisconsin, where the state’s high court approved the state legislature’s preferred maps. The gerrymanders lived on.
The 2023 judicial election, which flipped the balance of power on the court for the first time in more than 15 years, created a window of opportunity. Wisconsin voters, and their legal advocates, were ready to jump through it. Four months after the election, and one day after Protasiewicz term began, the legal team at Law Forward —in collaboration with a team that included the Campaign Legal Center and the Harvard Law School’s Election Law Clinic, as well as lawyers at the firms of Arnold & Porter and Stafford Rosenbaum — petitioned the state’s high court to take up another challenge to the gerrymanders. By late December, the first effects of the new majority could be felt. In a 4-3 decision, the court struck down the gerrymanders, finding that a number of districts were non-contiguous, made up of separate tracts of detached territory. This, the majority found, was a clear violation of the Wisconsin Constitution, which requires that districts be contiguous.
After no small amount of sparring, Republican legislative leaders took up the court’s invitation to draw new maps — perhaps reasoning that it would be their last, best, and final opportunity to avoid a redistricting plan that would further advantage their opponents. Under the new maps, nearly half the members of the Wisconsin State Legislature will be running in new districts in the fall. And while the new plan did not dramatically stack the deck in Democrats’ favor, but it did give them the chance — their first in over a decade — of retaking the State Assembly. Whether they will do so remains to be seen. But without the court’s intervention, Republican control of the legislature would assuredly have been locked in for another decade.
Home Rule: A sleeping dog?
In contrast to redistricting, one dog that has not barked in the courts over the last year has been legal challenges to unwind state level attacks on municipal home rule, the ability of local governments in Wisconsin to govern their own affairs without interference from the governor or the state legislature.
In principle, Wisconsin’s constitution grants cities and villages extensive home rule over localized policy matters. Yet, over the last several decades, Wisconsin’s Supreme Court has issued a number of decisions that limit the scope of home-rule authority —often by broadening the scope of subjects it considers primarily a matter of statewide concern (as part of what’s called the “paramountcy” test). This has given the legislature the green light to restrict local governments from making policy in a variety of areas, ranging from regulations on fire safety to the minimum wage and worker protections. Wisconsin is now among a group of states that lead the nation in the preemption of local regulations.
Preemption came to the fore last year in the legislative debates over Act 12, the sweeping overhaul of Wisconsin’s system of turning state-collected tax revenues back to local governments. In addition to a $274 million boost to the County & Municipal Aid program, which had flatlined in recent decades, the funding legislation contained a number of new restrictions on local autonomy. New revenue in the bill can be used only for police, fire protection, and emergency services, and local governments must maintain or increase their spending on these services, or else lose a significant share of their total County and Municipal Aid payments. The legislation also banned virtually all local advisory referenda across the state and limits public health officials’ ability to intervene during disease outbreaks.
Arguably the most legally dubious provisions of the bill are those that single out “first-class” cities in Wisconsin, a category which contains only one municipality: the City of Milwaukee. Among other things, Act 12 imposed new rules requiring a two-thirds vote on all new spending in Milwaukee, a ban on tax-levy expenditures on the city’s streetcar, and the gutting of civilian oversight of Milwaukee’s police department. Milwaukee would also see additional penalties (a 30% cut to supplemental shared-revenue payments) if its investments in police, fire, and emergency services fall below current levels.
In the better part of a century that followed the passage of the state’s home-rule amendment, legislative provisions like these would have drawn serious judicial scrutiny. Yet in several decisions made over the last decade, conservative majorities on the Wisconsin Supreme Court have essentially chosen to take the legislature at its word that preemption statutes cover matters of “statewide concern,” even in the face of overwhelming evidence to the contrary.
With a new majority on the court, will local officials seize the moment to restore some measure of home rule?
Thus far, we have seen relatively little movement in that direction. If we do, it will likely begin in Milwaukee. The city has been the primary target for attacks on local autonomy.
Last summer, following the passage of Act 12, the city’s Common Council unanimously enacted a resolution indicating the city’s intent to pursue legal action to overturn some provisions of the legislation, including a prohibition on “using tax-levy funding for any local government positions whose principal duties consist of promoting individuals or groups on the basis of their race, color, ancestry, national origin, or sexual orientation.”
To date, city officials have not yet given a sense of what their legal strategy might be. This delay likely reflects the fact that 2023 marked the last full year in the City Attorney’s office for the embattled Tearman Spencer. In the April 2024 elections, Spencer’s challenger, State Rep. Evan Goyke, won a resounding victory.
Given the high stakes of Wisconsin’s trend towards preemption, it seems likely that the restoration of the home rule is the less the dog that didn’t bark than the dog that hasn’t barked yet.
State courts and Wisconsin democracy
While the world of the state judicial branch can seem esoteric, rarified, or far removed from the “grassroots” of democracy, the cases moving through Wisconsin’s courts are anything but. At stake is nothing less than the democratic principles of popular sovereignty, majority rule, and political equality that are at the core of Wisconsin’s Constitution.
And whereas the federal judiciary was born out of an explicit distrust of majoritarian democracy, Wisconsin’s courts — right down to the elected judges themselves — were designed with the opposite principle in mind. Delegates to the state’s first constitutional convention argued explicitly that an elected judiciary would fulfill “an axiom of government in this country, that the people are the source of all political power, and to them should their officers and rules be responsible for the faithful discharge of their respective duties.”
That the members of Wisconsin’s Supreme Court are elected by statewide vote gives them, in short, a measure of democratic legitimacy that their counterparts at the federal level simply lack. One could easily argue that the court’s claim to legitimacy far exceeds any made by the leaders of a gerrymandered state legislature. In any case, Wisconsin’s courts were designed not to punt on important political questions, but to be responsive to public opinion.
Or, to put it simply: judicial elections matter.
This piece is written by Phil Rocco, associate professor of political science at Marquette University. Rocco is a regular contributor at The Recombobulation Area, and the winner of a gold award from the Milwaukee Press Club for his work at the publication.
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Thank you for this comprehensive look at what is before the Wisconsin Supreme Court.