If you’re not from Wisconsin, you may not have paid close attention to what could be the most important election of 2023 — the battle for control of that state’s Supreme Court.
The election, the first round of which took place Tuesday with a result that cheered progressives, will have national effect. Wisconsin is one of the country’s most closely divided swing states and the campaign there has demonstrated how potent abortion remains as an issue driving American politics.
In the November midterm election, concern about efforts to restrict abortion helped drive strong Democratic turnout in swing states, including Michigan, Pennsylvania and Wisconsin, where Democrats won the races for governor.
Afterward, some Republicans, including former President Trump, blamed the GOP’s losses on antiabortion activists.
Others predicted that abortion would fade in importance as a political issue over time. That prediction appears wrong.
Earlier this month, Gallup reported that the share of Americans who are dissatisfied with policies on abortion had hit the highest point in the 23 years the firm has asked about it — almost 7 in 10 adults.
The upsurge came from a 16-point increase since last year in the share of Americans who said they want current policies changed to make abortion rules less strict — a view now held by 46%, compared with 15% who want stricter policies and 26% who are satisfied with the policies in place.
The share of Americans who feel abortion should be legal in all or most cases has also gone up, according to a new survey by the Public Religion Research Institute. Roughly two-thirds of American adults now take that view. The share saying that abortion should be illegal in all cases has dropped to 7%, down from 15% in 2010.
Not all of those shifts have come in reaction to the U.S. Supreme Court’s ruling last year in Dobbs vs. Jackson Women’s Health, which overturned Roe vs. Wade and ended half a century of a nationwide guarantee of legal abortion: The trends began earlier. But the Dobbs ruling has added speed to the shift and intensified the political reaction.
Among Republicans, support for making abortion illegal in all cases dropped from 21% in September 2021 to 14% in December 2022, the Public Religion Research Institute survey found.
But the most politically salient finding was this: The share of Americans who say they would only vote for a candidate who agrees with them that abortion should be legal in all or most cases has risen from 15% in 2020 to 26% in the current survey.
Wisconsin shows how that shift continues to roil politics.
For more than a decade, Wisconsin has been a political bellwether. The election of Republican Scott Walker as governor in 2010 ushered in an era of intense party polarization in the state, accompanied by high-turnout elections, both of which prefigured trends that swept the country in the following years. Trump’s success in the state in 2016 sealed his election as president; his loss in 2020 confirmed President Biden’s victory.
Through it all, however, the state Supreme Court has maintained a conservative majority, which began in 2008. The court has played a key role in maintaining significant Republican power in Wisconsin, even after Walker lost in 2018 to Democratic Gov. Tony Evers.
Now, that 4-3 conservative majority may be on the verge of flipping, as a liberal judge stands a good chance of being elected to replace one of the conservatives, who is retiring.
Judicial elections in Wisconsin are theoretically nonpartisan. In reality, the races have become increasingly ideological, with the two parties making clear which candidates they support and millions of dollars flowing into the opposing campaigns.
A lot rides on the outcome. A court with a 4-3 liberal majority would, for example, probably rule against the aggressive gerrymanders that Republicans have used to maintain large majorities in the Wisconsin Legislature.
In 2012, Democrats won 51% of the vote in elections for legislative races in the state, but Republicans still won 60 of the 99 seats in the state Assembly because Republicans had drawn the legislative lines so artfully to preserve their majority.
The U.S. Supreme Court ruled against Democrats in their effort to overturn that gerrymander, deciding in 2018 that federal courts had no authority to do so. But the court said gerrymanders could be challenged in state courts, and Democrats hope a liberal majority on the Wisconsin high court would rule that the political line drawing violated the state constitution.
But although a ruling against gerrymandering may have a huge long-term effect, “it’s abortion that has been the central issue” in the campaign, “and I expect it to stay that way,” said Paul Nolette, a political scientist and expert on judicial politics at Marquette University in Milwaukee.
“Liberals are really using abortion as a focusing issue” to drive turnout in the race, he said. “It’s clearly working for them.”
As in Pennsylvania and Michigan in the midterm elections, the judicial election in Wisconsin presents voters with a clear choice and tangible consequences. With the end of Roe vs. Wade, Wisconsin reverted to an abortion law passed in 1849 that bans the procedure in almost all cases. That law is being challenged in court, and the Wisconsin Supreme Court will rule on it after a new justice is elected.
Unlike nominees to the U.S. Supreme Court, who have mastered the art of dodging questions about their stands on important issues, the leading liberal in the judicial race, Milwaukee County Judge Janet Protasiewicz, has not been shy about declaring her position.
“I believe in a woman’s freedom to make her own decision on abortion,” Protasiewicz declared in one of her television advertisements.
That stance allowed Protasiewicz to tap into a clear majority of the state’s voters who oppose the current law.
A poll by Marquette Law School, which conducts the leading survey of the state, found in the fall that 55% of the state’s voters oppose the Dobbs decision, compared with 37% who favor it.
And 84% support allowing abortions in cases of rape and incest, which the state’s 1849 law does not allow.
“The Dobbs decision has thrown the politics of abortion into the states, and it’s continuing to play a role in our elections,” said the poll’s director, Charles Franklin.
On Tuesday, Protasiewicz ran far ahead of the other three candidates in the race — another liberal and two conservatives — taking 47% and moving into the April 4 runoff. The two liberals overall took 54% of the statewide vote.
Turnout hit a record for the first-round voting — 958,835 in total, about 20% of the state’s voters, compared with the previous record of 705,138 set in 2020. Voting was especially strong in liberal strongholds, such as Dane County, which includes Madison, the state capital, where it hit roughly 40% of the level for a presidential election, Nolette said.
The Republican whom Protasiewicz will face, Daniel Kelly, is a former state Supreme Court justice who lost to a liberal candidate when he sought reelection in 2020.
Kelly has objected to Protasiewicz’s clear statements of her views about abortion, but, at the same time, attacked the other conservative in the race for not being sufficiently to the right, Nolette noted. And he has a long record as a conservative activist — a former head of the state’s Federalist Society — who opposes abortion rights and has criticized the U.S. Supreme Court decision legalizing same-sex marriage.
“When marriage eventually means anything imaginable, we will find it means nothing at all,” he wrote in an essay when he sought his initial appointment to fill a vacancy on the state’s high court in 2010. The decision to legalize same-sex marriage, he wrote, “will eventually rob the institution of marriage of any discernible meaning.”
Kelly presumably will attack Protasiewicz as soft on crime — the main thrust of his unsuccessful campaign in 2020. But that failed, and the liberal side now has a powerful additional issue that it lacked then.
“Abortion is getting liberals out and voting,” Nolette said. “They’re going to hope to keep that message going.”
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