Wisconsin Supreme Court Election Raises New Questions About Judicial Election Reform

Mike Webb, 212–998–6746
James Sample, 212–992–8648
 

An African American justice on the Wisconsin Supreme Court lost his bid for re-election Tuesday in a racially charged and interest group-dominated campaign that raises new questions about the role of money in judicial campaigns.

Louis Butler, the first black Supreme Court Justice in Wisconsin, is the first incumbent to lose a seat on the bench in more than 40 years.  Butler’s loss may be attributed, in part, to a nasty television advertising campaign that featured an ad so racially offensive that editorial boards across the state called for Mike Gableman (Butler’s successful opponent) to take it off the air.

“It is hard to imagine a better advertisement for the need for public financing of judicial elections,” said James Sample, Counsel in the Democracy Program at the Brennan Center for Justice.  “The special interest groups who paid for 90% of the ads in this campaign, essentially paid to mislead voters and to present caricatures rather than true pictures of the candidates.”  With public funding, a judge would have an opportunity to respond to such attack ads.

Late last year, all seven Wisconsin Supreme Court Justices signed a letter in support of public financing for judicial campaigns.  “We write to support the concept of realistic, meaningful public financing for Supreme Court elections to facilitate and protect the judicial function… The risk inherent in any non-publicly funded judicial election for this Court is that the public may inaccurately perceive a justice as beholden to individuals or groups that contribute to his or her campaign. Judges must not only be fair, neutral, impartial and non-partisan but also should be so perceived by the public.”

The Butler-Gableman campaign also highlights the trend in which African Americans who receive interim appointments to the bench have difficulty retaining their seats when they stand for election.  “Public financing levels the playing field and gives judicial candidates a fair opportunity to present themselves to voters,” said Deborah Goldberg, Director of the Democracy Program at the Brennan Center.  “All too often – particularly in Southern states – initially appointed judges of color serve with distinction and then are knocked off the court because they cannot successfully compete in privately financed contested elections.”

Recently, some judges who have won election after big-money campaigns have rendered decisions in cases in which their campaign donors or closely related interests were parties before the court. It is critical that the fundamental right to due process not get short shrift in such circumstances.  A new Brennan Center report, Fair Courts: Setting Recusal Standards addresses this challenge both nationally, and specifically in Wisconsin.

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