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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.
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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 decision 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.
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.
Since the Wisconsin judicial contest is non-partisan, it also lacks the most helpful shortcut for voters to understand the candidates’ perspectives. 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 US democracy.
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.
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. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.
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