Wisconsin’s Supreme Court election could have a major impact on abortion in the state and the 2024 election.
Milwaukee County Judge Janet Protasiewicz’s victory in Tuesday’s Wisconsin Supreme Court election gave the state’s highest court a liberal majority, and that will have major consequences for abortion rights and redistricting in the state. Politically, Protasiewicz’s win sends a signal from a key battleground state about voters’ priorities heading into the 2024 presidential race.
The race was one of the country’s most consequential this year and the most expensive judicial contest in US history. In the end, it wasn’t even close. Protasiewicz was ahead of her conservative opponent, former Wisconsin Supreme Court Justice Dan Kelly, by more than 10 percent of the vote as of Wednesday morning.
She will serve a 10-year term on the nonpartisan bench, meaning liberals will control the court with a 4-3 majority until at least 2025 — that is, if the GOP-controlled legislature doesn’t impeach her.
Republicans including Dan Knodl, who won a special election for state senate Tuesday, have indicated they’re open to the idea, and he delivered his party the two-thirds supermajority it needs to do so. They would need 50 votes in the state assembly to initiate impeachment and two-thirds of votes in the state senate to convict. However, while they might be able to impeach her in her current position as a Milwaukee county judge, it’s not clear whether they would be permitted under state law to impeach Protasiewicz once she’s sworn in as a justice.
Barring that possibility, the court will be able to ensure that abortion remains legal in Wisconsin following the Supreme Court’s decision last year to overturn the decades-long precedent established in Roe v. Wade as part of its decision in Dobbs v. Jackson Women’s Health Organization. Justices will also have the opportunity to redraw the state’s gerrymandered electoral maps, which could make them more competitive for Democrats in both the state legislature and the US House of Representatives.
Protasiewicz’s blowout win should also be seen as validation for Democrats continuing to invoke abortion rights as a central pillar of their pitch in 2024. She broke with convention for judicial candidates in making her support for abortion rights plain, and voters rewarded that Tuesday.
“The Wisconsin elections showed that choice is still as salient as a driving force for turnout and persuasion as it was in last year’s midterms,” said Tom Bonier, the CEO of the political data firm TargetSmart. “Republicans continue to underperform due to the widespread perception of their extremism, something that the Dobbs decision brought into clear focus.”
How the results in Wisconsin will impact redistricting
Democrats have long been at a disadvantage in Wisconsin, despite the fact that the state is practically evenly divided by party. President Joe Biden won the state by a less than 1 percent margin in 2020. Democrats blame the state’s gerrymandered maps, which Republicans redrew in 2021 to further boost their advantage in the legislature, for their electoral struggles.
The Democratic Legislative Campaign Committee was already targeting both chambers of the Wisconsin legislature, hoping to take on Republican supermajorities and protect Democratic Gov. Tony Evers’s veto power in 2024. Republicans now have a supermajority in the state senate, but not in the lower chamber.
But if the state Supreme Court is able to redraw the legislative maps, making them more competitive, Democrats might be able to expand their ambitions.
“[T]he only reason that the GOP is even within reach of a supermajority is because of rigged GOP maps that prevent Democrats from gaining a majority, even in a state where Democrats often win statewide,” said interim DLCC president Heather Williams. “With a fair court, challenges to that rigged map could mean that Democrats have a shot at an outright majority in the legislature.”
Abortion rights in Wisconsin are likely to be upheld
Wisconsin has a 173-year-old abortion ban that makes no exceptions for cases involving rape or incest but does allow the procedure when the pregnant person’s life is in danger. Under that ban, doctors who perform an abortion could face up to six years in prison and $10,000 in fines, though Evers has offered clemency to those doctors.
Evers has called for a special session to repeal the law. But the GOP-controlled state legislature, which has repeatedly sent anti-abortion bills to Evers’s desk, has rejected that call.
Wisconsin Attorney General Josh Kaul has said he will not enforce the ban, though he can’t stop local law enforcement officials from doing so. He filed a lawsuit last year arguing that the ban should be struck down on the basis that it’s superseded by laws passed since, including one that establishes criminal penalties for doctors who perform abortions after a fetus is considered viable outside the womb.
That lawsuit is likely to come before the Wisconsin Supreme Court soon, and with a liberal majority on the court, it’s likely that Kaul will get his way.
What the results signal about 2024
Much as the results of a Kansas ballot initiative last year signaled that abortion rights were top of mind for voters even in red states heading into the midterms, Protasiewicz’s win is also a sign that outrage over the end of Roe has not ebbed. She made the issue a centerpiece of her campaign, saying in one advertisement that she supports “a woman’s freedom to make her own decision on abortion.”
Last August, voters in deep-red Kansas also showed up in supercharged numbers to vote against a proposed constitutional amendment that would have allowed state lawmakers to further restrict abortion access. It later turned out that abortion was one of the top issues driving the results of the midterms: Democrats running on pro-abortion rights nearly swept the table in 2022, and every ballot initiative aimed at restricting abortion lost, while ballot initiatives strengthening abortion rights prevailed and even outperformed Democratic candidates in some cases.
Bonier, who has analyzed voter registration data following the end of Roe, said the results in Wisconsin Tuesday show there’s “no reason to believe this will fade by next year’s elections.”
“Where voters perceive a connection between their vote and the future of abortion rights, we will likely see higher turnout from pro-choice voters, while Republicans are likely to continue to lose moderate independent voters on the issue,” he said.
