With Liberals in Charge, Wisconsin Supreme Court Could Rule on These Issues

Patrick Marley / The Washington Post
With Liberals in Charge, Wisconsin Supreme Court Could Rule on These Issues Wisconsin Supreme Court candidate Janet Protasiewicz, center, holds hands with Wisconsin Supreme Court Judges Rebecca Dallet, on left, and Ann Walsh Bradley, on right, after the race was called for her during a watch party in Milwaukee on Tuesday. (photo: Evelyn Hockstein/Reuters)

Democrats made clear to voters that the Wisconsin Supreme Court election this week centered on one key issue: giving liberals a majority on the court so they can overturn the state’s abortion ban.

But the race was also about getting the votes to redraw gerrymandered legislative and congressional districts. And protecting the outcome of the 2024 presidential election. And, potentially, a long list of other issues.

Wisconsin has a Democratic governor and a Republican legislature, so many of its most consequential disputes are resolved by the state Supreme Court. Milwaukee County Judge Janet Protasiewicz, a liberal, beat former justice Daniel Kelly, a conservative, by 11 points. When she is sworn in on Aug. 1, liberals will obtain a 4-3 majority, ending a 15-year run of conservative control of the court.

Exactly what will happen in the coming years is uncertain because so much depends on what cases get filed and which ones the justices decide to take. Here’s a look at some of the issues that could come before the court, starting with the cases that brought this week’s election so much attention:

1

Abortion

Wisconsin abortion providers stopped offering the procedure last summer after the U.S. Supreme Court overturned Roe v. Wade, the 1973 decision that guaranteed a right to abortion. Soon after, Gov. Tony Evers (D) filed a lawsuit to overturn the 1849 law that bans all abortions except those needed to save the life of a mother. The case is now before a trial judge and is expected to eventually make it to the Supreme Court. Protasiewicz has repeatedly professed her support for abortion rights and the new majority is expected to invalidate the ban.

2

Redistricting

The state Supreme Court approved election maps last year that gave Republicans nearly two-thirds of the seats in the state legislature and six of the state’s eight congressional seats. Liberal groups plan to file a lawsuit this summer in hopes of getting more neutral lines. The majority is sure to establish new districts — the liberals already on the court dissented over how the court drew the lines, and Protasiewicz called the maps “rigged” during her campaign. Whether the justices could put new districts in place for the 2024 election is less certain because they would need to act by the spring.

3

2024 results

The state Supreme Court rejected challenges in 2020 to Joe Biden’s presidential victory brought by Donald Trump and his allies in a string of 4-3 rulings, with one conservative joining the court’s liberals. Democrats feared they could not count on the conservative justice in future cases, and now they won’t have to rely on his vote if there is a challenge over the 2024 results.

4

Voting rules

Challenges to voting rules happen every campaign cycle and this new majority is expected to generally support expanding voting rights. One lawsuit to watch involves a bus used by city officials in Racine to conduct early voting.

5

Voter ID

Wisconsin’s voter ID law, approved in 2011, withstood a decade of legal challenges. Given the new majority, liberal groups see an opportunity to bring new litigation over the issue.

6

Veto power

Wisconsin governors have some of the broadest veto powers in the country, allowing them to creatively strike out parts of budgets and some other bills. The state Supreme Court in 2021 issued a muddled decision that limited the veto authority of Evers but created as many questions as it answered. The new majority could restore many or all of his veto powers, strengthening his hand as Republican lawmakers write the state budget.

7

Union rights

Republicans in 2011 effectively eliminated collective bargaining for most public workers in Wisconsin, sparking massive protests, waves of recall elections and seemingly endless court battles. Courts upheld the law, known as Act 10, but unions could bring a new lawsuit over the issue.

8

School vouchers

State lawmakers in 1990 created the country’s first school voucher program in Milwaukee and have expanded it ever since. While the program is well established and now available across the state, opponents could now launch challenges over aspects of it.

9

Public records

Republican lawmakers over the last two years have lost lawsuits over withholding records from the public about their controversial review of the 2020 election. Assembly Speaker Robin Vos (R) has been appealing those decisions, but he will have a tough time winning before the high court.

10

Republican electors

The state’s presidential electors are suing the 10 Republicans who in 2020 filed official-looking paperwork claiming to be the state’s rightful electors and seeking to name Trump as the state’s winner instead of Biden. The case is novel and probably would have gone nowhere with the conservative majority. Those bringing the case will still face difficulties but could have an easier time convincing the new majority that the Republican electors should pay fines.

11

Lame-duck laws

Evers and state Attorney General Josh Kaul (D) first won their offices in 2018, but before they were sworn in, Republican lawmakers approved last-minute laws limiting their power. Courts have upheld the bulk of those laws so far, but litigation continues over an aspect of them that allows legislators to get involved in lawsuits that ordinarily would be handled by the attorney general alone.

12

Trans students

Conservatives have sued over school policies that allow students to change their names or pronouns in class without parental consent. Those bringing the cases will have a more difficult time before the new majority.

13

Court transparency

In 1999, the Wisconsin Supreme Court became one of the first courts in the country to hold its administrative meetings in public so that anyone could watch their deliberations on court policies and budgets. The live-streamed meetings at times turned nasty, and conservatives in 2012 ended the practice so they could conduct the meetings behind closed doors. The liberals have said they will start holding the meetings in public again.

14

A new chief justice

The court last month gave conservative Justice Annette Ziegler another two-year term as chief justice. The new majority wants to name liberal Justice Ann Walsh Bradley as chief justice. It’s not clear whether the liberal justices will wait until Ziegler’s term as chief justice ends in March 2025 to do that or try to do it sooner.

15

Judicial ethics

A decade and a half ago, conservatives on the court adopted ethics rules written by a business lobbying group that say justices do not have to step aside from cases involving campaign contributors. Liberals have railed against the policy and pushed for change. Now they will have a chance to write new rules. What precise policies they might adopt are unclear. Conservatives are sure to use the debate to question whether Protasiewicz can participate in the abortion and redistricting cases after spelling out her views on those issues.

16

Attorney sanctions

A judge filed an ethics complaint last year against conservative former state Supreme Court Justice Michael Gableman for his conduct as the attorney leading Republican lawmakers’ review of the 2020 election. Liberals on the court are likely to have more appetite to discipline Gableman than his conservative former colleagues would have.

The next Supreme Court election is in April 2025, when Bradley’s 10-year term is up. Bradley announced Tuesday she plans to seek reelection, and the race will give conservatives an opportunity to try to reclaim the majority.

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