Having just emerged from a busy election season, Wisconsin is already turning its attention back to the polls where control of the state Supreme Court hangs in the balance.
State Supreme Court Justice Pat Roggensack is retiring and after a contentious four-way blanket primary, Daniel Kelly and Janet Protasiewicz have emerged to face off on April 4. While the race is nonpartisan, Kelly is the conservative candidate and Protasiewicz is the liberal candidate. The court’s current makeup is widely considered to have a 4-3 conservative majority, with Justice Brian Hagedorn as a swing voter.
The winner of this election will either preserve the conservative majority until at least 2026 or give the liberal bloc a majority until at least 2025. With the stakes this high, supporters of conservative legislative reforms like right to work, voter ID requirements and the reining-in of state agencies, are highly invested in this contest. Further, the makeup of the Wisconsin Supreme Court after the April election could directly impact election-related litigation in what is shaping up to be the most consequential swing state in the 2024 presidential election.
Dan Kelly is a former Wisconsin Supreme Court justice. He was appointed by Scott Walker, but lost reelection to current Justice Jill Karofsky in the 2020 general election. Janet Protasiewicz is a circuit court judge in Milwaukee County. She was first elected in 2014 and has been in the position since that time.
While it’s impossible to say how a judge would vote on any case, we can examine the holdings in some of Wisconsin’s most important cases and how previous judges ruled. There have been many important issues decided by one vote, including redistricting and right to work. Further, any change in the makeup of the state Supreme Court may be the catalyst to renew efforts by clever attorneys and interest groups to throw out sweeping conservative reforms.
Wisconsin’s Voter ID laws require most voters to present an identification, such as a driver’s license, when voting. In Milwaukee Branch of NAACP v. Walker, 851 NW 2d262 (2014), the plaintiffs contended that such a requirement was unconstitutional because it created an undue burden on voters. The Wisconsin Supreme Court disagreed, with all conservatives upholding the law and all the liberals dissenting. In a related decision issued that day, League of Women Voters of Wisconsin v. Walker, 851N.W.2d 302 (2014), the same justices again upheld voter ID against a constitutional challenge that the legislature acted beyond its authority in creating the law.
In 2015, Wisconsin became the 25th right to work state in the country. This law makes it illegal for a Wisconsin private-sector employer to enter into a collective bargaining agreement with a union that requires employees to join or pay dues. Several unions sued Gov. Scott Walker and other related officials in state and federal court, claiming the law was unconstitutional and preempted by federal law. At the state level, the plaintiffs alleged in part that the duty to represent non-members, coupled with a ban on collecting dues, was an unconstitutional taking. The state appeals court ruled against them, holding that the law prohibiting an action did not amount to a taking simply because a union might choose to spend money on non-members. Ultimately, both the Wisconsin Court of Appeals and the 7th Circuit upheld right to work against the numerous challenges. The 2015 legal challenges never reached the state Supreme Court.
The 2011 Budget Repair Bill, also known as Act 10, in part changed the collective bargaining power of public sector unions and required members to contribute more to health insurance premiums. The bill was introduced by Walker and became law in the summer of 2011.
Unions and opponents of the bill protested at the State Capitol for months, drawing national attention. In Madison Teachers, Inc. v. Walker, 2014 WI 99, the plaintiffs claimed unions had certain constitutional rights, like the freedom of association, that made Act 10 illegal. In a 5-2 decision, the court upheld Act 10 in its entirety with all conservatives and swing vote Justice Crooks voting to uphold and the two liberal justices dissenting
Every 10 years, the Wisconsin Legislature is tasked with drawing legislative districts to adapt to population movement and other electorate-related factors. In 2011, the Republican Legislature drew maps that Walker signed into law. In 2021, the Republican-controlled Legislature proposed a map to Gov. Tony Evers. As was expected, litigation ensued and the Wisconsin Supreme Court compared dueling maps drawn by the Wisconsin Legislature and Evers. In early March 2022, by a vote of 4-3, with Justice Hagedorn joining the “liberals,” the Court selected Evers’ maps, which would have significantly altered the makeup of the electorate in a number of legislative districts. Unsurprisingly, the democrat-drawn map would have significantly advantaged democrats. However, that decision was struck down by the U.S. Supreme Court, which requested the state Supreme Court reconsider the maps and apply requirements of the federal Voting Rights Act. After reconsideration, Justice Hagedorn cast the deciding vote, joining the conservatives 4-3 to approve the map drawn by the Legislature.
In addition to the issues important to employers, the outcome of the presidential election potentially hangs in the balance with the Wisconsin Supreme Court race. While there will be federal litigation regarding the November 2024 elections, the Wisconsin Supreme Court may be the final arbiter on several critical election matters, including oversight of the Wisconsin Elections Commission’s application of the law, determinations regarding ballot access (e.g. whose name appears on the ballot), and last-minute changes to voting rules, like early voting and ballot curing. Wisconsin could be the most watched swing state for this upcoming election, so it should be no surprise that an army of strategists and lawyers will have their eyes trained here for opportunities to sue.
Any of these cases could easily have a different outcome if the composition of the state Supreme Court changes. A number of conservative-backed legislative reforms are at stake and their fate might well be determined by the outcome of the Wisconsin Supreme Court election in April.
If you care about these issues, whether you support or oppose these reforms, you should care about this election. It is easy to experience election fatigue, especially these days where it seems the election cycle never ends. However, it is likely your opposition on these issues is counting on your fatigue to carry forth their victory. All elections are important and have consequences, but this election is in a league of its own.
All it takes is one vote to completely undo years of reform.