Everything’s on the Line in Wisconsin. So What’s My Prediction?

Graphic courtesy of Democracy Docket

Forget the 34-count indicted, twice-impeached ex-president’s arraignment on felony charges of falsifying business records in Manhattan later today. My attention now is mostly on the state Supreme Court race in Wisconsin. That election could have far more long-reaching consequences for our democracy than what is likely the first of many indictments of Trump. 

Much digital ink has already been devoted to why the Wisconsin race is important for our democracy, not the least of which are abortion rights, but today I want to review three areas in particular: gerrymandering, voter suppression and election denialism.

I’ll also weigh in, against my better judgment, on what many folks really want to know going into today: What are the chances the progressive candidate, Milwaukee Superior Court Judge Janet Protasiewicz, will actually prevail over her extremist opponent, former state Supreme Court justice Daniel Kelly?

And there’s a twist a few folks are talking about: Even if she does win, if the special election for a vacant state Senate seat also being held today gives the GOP a supermajority in the Senate, will they try to impeach Protasiewicz and remove her from power, cementing what state Democratic Party chair Ben Wikler has called “a democracy free zone”? 

Let’s take a look at what’s at stake and where things stand.

The stakes are high for democracy

Gerrymandering. Wisconsin is one of the most heavily gerrymandered states in the nation, and many argue it is the worst. In a state that narrowly went for Biden in 2020 and where statewide elections are usually within a margin of one percent, the GOP has drawn itself maps that return a near supermajority in each chamber. 

To put hard numbers to this, Republicans and Republican-backed candidates have lost 13 out of 16 of the last statewide elections, including in 2022 when Gov. Evers was re-elected with 51 percent of the vote. But in that same election, Republicans retained 67 percent of state Senate seats and 65 percent of the state Assembly seats—just two shy of what is needed to override Gov. Evers’s vetoes.

Efforts to redraw the maps hit a wall with the state Supreme Court, which voted 4-3 to adopt a “least changes” criteria for newly drawn maps—meaning it left the unfair lines in place. Judge Protasiewicz has publicly called the system “rigged,” and if she is elected, progressive groups intend to launch challenges to the maps. Their hope is that a new 4-3 liberal court majority will strike down the maps, perhaps in time for the 2024 election.

Voter suppression. In 2011, the state enacted some of the strictest voter laws in the country. Since 2019, the GOP-controlled legislature has attempted repeatedly to add to those laws making it harder to vote. According to the ACLU, which sued the state over its voter suppression, Wisconsin law requires voters to produce one of a few specified forms of identification in order to vote—forms many voters, especially minority voters, simply do not have.

Republicans have often prevailed in the courts and been successful at outlawing ballot drop boxes and in curtailing the right of county clerks to assist in correcting defective mail-in ballots. The Wisconsin Supreme Court has repeatedly sided 4-3 with the Republicans.

Lately, they aren’t even trying to hide their voter suppression efforts. Bob Spindell, a GOP member of the Wisconsin Election Commission, sent out an email to some 1,700 people boasting that Republicans “can be especially proud” of depressed midterm election turnout in Milwaukee among “overwhelmingly Black and Hispanic areas.”

Election denialism. Dan Kelly, the candidate backed by the GOP, is an election denier. According to reporting by Mother Jones, Kelly is “closely allied with the Republicans who tried to subvert democracy and free and fair elections in 2020 and 2022.” This includes being one of the featured speakers on the state GOP’s “Election Integrity Roundtable” in 2022, which was a smorgasbord of conspiracy theories on a nine-city roadshow.

Kelly also apparently held “extensive conversations” with former Wisconsin GOP chair Andrew Hitt over approving an illegal “alternate slate” of electors supporting Trump in the 2020 election. Kelly was paid over $120,000 to advise the GOP on “election law matters,” and ultimately that “alternate slate” was nearly handed to Mike Pence on January 6 by Sen. Ron Johnson (R-WI). (Pence refused to countenance the use of the alternate slates.)

In 2020, the Wisconsin Supreme Court narrowly voted 4-3 not to throw out the ballots of hundreds of thousands of mostly African American voters. Had the vote gone the other way by one, the electoral college would have been thrown into disarray far earlier in December of 2020, giving Trump an opening to pressure friendly state legislatures to similarly reject already certified outcomes.

Is Judge Protasiewicz likely to win?

There isn’t much reliable polling on this race, despite being the most expensive court race in the state’s history with some $45 million spent. But we can glean from some data, compiled by the election analysis outfit Split Ticket, that she has the advantage going into Election Day.

First, progressives showed up enthusiastically in the primary earlier this year, and Protasiewicz garnered more votes than her two conservative opponents combined. Kelly will have to not lose any of the voters who backed the third-place finisher, Judge Jennifer Dorow. Here, the GOP is facing a familiar challenge. Dorow was considered far more moderate than Kelly, who is anti-abortion, anti-same-sex marriage and pro-gun. Dorow fared well among college-educated, moderate voters in the Milwaukee suburbs, and Kelly will need them to have any chance of defeating Protasiewicz. But many of these voters may consider him too extreme for the state’s highest court.

Second, Protasiewicz trounced Kelly more than 10 to 1 when it came to candidate fundraising. This meant Protasiewicz was able to dominate the airwaves for the many weeks leading up to the election, because candidate dollars go much further than outside group dollars due to cheaper advertising rates. According to industry analysts cited by Split Ticket, she booked 66 percent of all air time through March 23 , meaning her message dominated during early voting. Kelly made up a bit of the difference with a massive, late influx of outside dark money, which brought him to near even on airtime in the final week, but this may have come too late.

Third, based on a map created by election analyst Ryan Brune, early voting patterns show that voters in the large population centers such as Madison are turning out pre-Election Day in a higher share than in the November 2022 midterms, and that Milwaukee is close to unchanged. Yet in the Republican rural areas, the data shows a big drop in early voter turnout, with no offsetting spike from GOP-friendly suburbs outside of Milwaukee. This is bad news for Kelly, who needs to perform better than the GOP candidate did in the governor’s race in 2022 in order to win.

There are of course some wild cards. The weather looks to be fairly nasty today across some key population centers near Milwaukee which could keep voters home. Trump’s arraignment could turn out additional protest votes this Election Day.

But based on the data, it seems more than likely that Protasiewicz will carry the day, possibly by two or as much as five percentage points. (I sincerely hope I am correct.…)

What’s this talk about impeaching her?

The Associated Press noted, rather ominously, that should the special election also being held today for a vacant state Senate seat go to the GOP candidate, as is expected given the way the district is drawn to favor Republicans, that will give the GOP a supermajority in the state Senate. This means the Assembly could in theory vote to impeach, and the state Senate could vote to convict and remove, any state official—including Protasiewicz. In fact, the GOP candidate, Dan Knodl, who is running for the open state Senate seat, has suggested that he “would consider” impeaching Protasiewicz should she remain a Milwaukee County judge for being weak on crime.

There is, of course, no basis for such a move, as Protasiewicz has done nothing illegal or unethical. But in a state where the GOP has shown it is willing to exercise raw political power as necessary and no matter the cost to retain its stranglehold on the state, we should take every threat seriously.

It isn’t clear whether Wisconsin law actually permits impeachment of state Supreme Court justices, but it could certainly be interpreted that way, based on federal laws that permit the impeachment of federal judges and justices.   

But to those who have wrung their hands over the prospect of Protasiewicz winning only to be removed by a wily GOP legislature, I ask this: Who would name her replacement? Last I checked, vacancies on the court are filled by the governor Tony Evers, who would move quickly to appoint another liberal. 

So for all this talk about the legislature voting to remove liberal justices, the balance of power in the state Supreme Court isn’t likely to shift so long as Evers is governor. 

So nice try, GOP. Looks like you’ll have to win fair and square at the ballot box. And if you lose, you might soon have to win fair and square going forward, in a state with newly enfranchised voters, casting ballots with fairly drawn maps.