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Wisconsin’s Judicial Election Tests Democratic Norms

Will Republicans in the legislature overturn the will of the voters?

April 10, 2023
Janet Protasiewicz
Evelyn Hockstein/Alamy Stock Photo

The results of Wisconsin’s 2023 election, shifting control away from the conservative majority after 15 years, have set up a critical test for Republicans and, more broadly, for that state’s democratic systems. As a nation, we should pay attention.

Wisconsin has long been an example of one party solidifying its political power at the expense of democratic norms. For over a decade, Wisconsin Republicans have entrenched themselves in the legislative majority with two of the worst gerrymanders in the country, drawing districts that have yielded them legislative majorities wildly out of step with their actual share of votes in the state. In 2018, after losing both the governorship and the attorney general’s office, they called a special session to pass, in the literal dead of night, omnibus legislation stripping power from those offices, confirming 82 last-minute executive appointments, and making it harder to vote in future elections. Unfortunately, Wisconsin is far from alone in this respect: in multiple states, such as North CarolinaIowaMontana, and Alaska, Republican legislators have been stripping power from other democratically elected branches. And of course, both parties have engaged in gerrymandering, though not to the same degree. 

In the past, the Wisconsin Supreme Court, in closely divided decisions, has often allowed the legislature’s power grabs and sided with antidemocratic interests — upholding extreme gerrymanders, increasing the legislature’s power at the expense of executive authority, limiting absentee voting, and barring local officials from setting up drop boxes outside of election offices. Most alarmingly, in 2020, the court came within a single vote of overturning the election results at Trump’s behest, without any credible basis for doubting the validity of those results.  

Last week, Wisconsin voters responded. They resoundingly elected Janet Protasiewicz to the state supreme court by a margin of 11 percentage points after a campaign in which she vowed to protect democratic norms. In electing Protasiewicz by a landslide, voters flipped the state supreme court majority from conservative to liberal. The biggest factor in the race may have been the U.S. Supreme Court’s decision overruling Roe v. Wade; that watershed change has allowed an 1849 abortion ban to take effect in Wisconsin, and the court will almost certainly be called on to rule on its constitutionality. The new court is also likely to reconsider prior decisions upholding Wisconsin’s extremely gerrymandered legislative districting. 

While last week’s election shifted the court, it also expanded the Republicans’ legislative majority by one seat, bringing it to a supermajority. In contrast to the judicial election, the Republican candidate who won this additional seat, Dan Knodl, won by less than 1 percentage point, or 1,300 votes. But thanks to Republicans’ gerrymandering, those 1,300 votes give them sufficient power to impeach and remove elected officials, without garnering a single vote across the aisle, for any act they deem “corrupt conduct in office.” 

During his campaign, Knodl expressed openness to using this impeachment power, including against Protasiewicz, and he’s not the only Republican discussing it. One legislator raised the possibility of impeaching her if she based decisions on her “personal beliefs” rather than “the law.” This threat echoes criticism she faced for stating her views on abortion rights and redistricting. In truth, this was a politicized race that reflects the country’s polarization and the undeniably powerful role court decisions play in shaping public policy. While professing judicial neutrality, Protasiewicz’s opponent had represented Republicans in redistricting litigation and several other matters, publicly railed against abortion, advised the state Republican Party on its 2020 scheme to appoint fake electors supporting Trump, and derided Justice Brian Hagedorn as a “supremely unreliable” conservative after he joined the narrow majority rejecting Trump’s bid to overturn Wisconsin’s election results.

This loose talk of impeachment raises major concerns: now that the legislature faces strong checks in both other branches of the government for the first time in over a decade, will it abuse the impeachment process as a means of weakening these checks?

To be clear, cooler heads may prevail. There are strong bipartisan norms against the use of impeachment to remove political opponents, and the Wisconsin legislature has never before impeached and removed a justice. Even if the legislature were motivated to take this extreme and unprecedented step, there are open questions about whether such a move would hold up in court. But the fact that we are even discussing this possibility speaks to the dangers of this moment. In ways we couldn’t have imagined a decade ago, we’re having to ask whether the representatives we elect are willing to freely transfer power when political winds shift.