If Democrats Triumph in Wisconsin, It's Game Over for Republicans

• The Wisconsin Supreme Court election on Tuesday could have wide-ranging consequences for the whole country.
• Democrats are backing Janet Protasiewicz while Republicans are supporting Dan Kelly.
• The election could re-open the issue of the state's congressional maps and have an impact on any future 2024 presidential election challenge.

Voters in Wisconsin go to the polls on Tuesday to elect a member of the state's supreme court in an election that could have wide-ranging consequences for the whole country.

The race is technically nonpartisan, but Democrats are supporting liberal candidate Janet Protasiewicz over the conservative former state Supreme Court Justice Dan Kelly.

If Protasiewicz defeats Kelly, the state's highest court will have an effective 4-3 liberal majority that could open the door to challenging district maps for the U.S. House of Representatives that currently favor Republicans.

Battle Over Maps

Wisconsin's current congressional maps were decided following a legal battle that arose when Democratic Governor Tony Evers and the GOP-led state legislature couldn't agree on the maps following the results of the 2020 census.

That fight involved both the state supreme court and the U.S. Supreme Court, while the current maps were proposed by Evers but still favor Republicans. That's because of a previous ruling that said the maps must be based on the last decade's district lines.

Tuesday's election could re-open the issue if the Democrat-backed candidate triumphs.

Six of Wisconsin's eight members of Congress are Republicans but a new liberal majority on the state supreme court could see a renewed legal challenge to current maps.

Republicans at Risk from Redistricting

GOP Representatives Bryan Steil and Derrick Van Orden, who represent GOP-leaning districts, could see those districts redrawn in a way that could endanger their chances of re-election, Politico reported on March 28, citing operatives on both sides.

Representative Mike Gallagher, whose district is more solidly Republican, could also find himself facing a more competitive map.

Given that tight margins in the House are now common, any new congressional maps in Wisconsin could prove to be of national importance.

"I don't think anybody thinks those maps are fair. Anybody," Protasiewicz said during the one and only debate with Kelly.

"The question is am I able to fairly make a decision on a case? Of course, I would," she said.

Ben Wikler, chair of the state Democratic Party, told The Economist on March 26 that he was concerned about the way a conservative majority court might rule on a potential 2024 presidential election challenge.

"To live in Wisconsin is to disabuse oneself of the fantasy that the threat to democracy is gone," Wikler said. "It is very much alive."

However, concerns about unfair maps are not confined to Democrats. Former Wisconsin Governor Scott Walker, a Republican, told The Economist that the court could adopt "a purely partisan gerrymandering map, as opposed to some sense of compromise" if Protasiewicz wins.

'Rigging Electoral Rules'

Thomas Gift, founding director of University College London's Centre on U.S. Politics, told Newsweek that Wisconsin pointed to wider problems.

"The potentially sweeping consequences of reshaping electoral districts in Wisconsin shows just how much gerrymandering has become a dominant factor in who controls the levers of power in America," Gift said.

"We don't get far-left and far-right representatives simply because America's electorate is becoming more polarized," he said. "We also get it as a functional byproduct of rigging electoral rules to create 'safe seats,' which in turn, dis-incentivizes politicians from moderating.

"In that sense, Wisconsin is only a microcosm of what's become one of the biggest scourges in U.S. politics," he went on.

Gift said that both Democrats and Republicans "are guilty of the practice, and each side gets on its moral high horse about solving the problem only when it's politically expedient."

"Much of the Republican advantage in legislative contests exists merely because Democratic voters are packed together in urban areas, especially Milwaukee and Madison, while Republican voters are distributed more efficiently across suburban and small-town districts," Paul Quirk, a political scientist at the University of British Columbia, in Canada, told Newsweek.

"But the Republicans also have major advantages from state legislative and congressional district lines that were drawn for their benefit," Quirk said.

"Before the 2022 elections, the state supreme court's 4-3 conservative majority resolved a redistricting impasse between the Republican legislature and the Democratic governor by ordering the adoption of the severely gerrymandered Republican map," he added.

Quirk said that Protasiewicz "has signaled an inclination to support a Democratic suit calling for revision of the current districts. If the suit succeeds, the Democrats could credibly compete for majority status in legislative elections through 2030."

A 2024 Election Challenge?

The Wisconsin Supreme Court may also be asked once again to rule on a challenge to a presidential election. In 2020, the court threw out a challenge brought by former President Donald Trump with conservative Justice Brian Hagedorn joining the liberal members of the court.

While a majority of the justices refused to hear Trump's challenge to the election, three justices on the seven-member court wanted to take up the case.

President Joe Biden won the state of Wisconsin, which had previously been won by Trump in 2016 and the state is likely to be crucial in securing a 2024 electoral college victory.

If margins in Wisconsin are tight and a presidential candidate brings a challenge, the makeup of the court would be all-important.

If Dan Kelly wins the seat, the court will have an effective conservative majority, though Justice Hagedorn, who joined the liberals in rejecting a challenge to the 2020 election, remains in office.

Paul Quirk told Newsweek that if Kelly wins "not only will the Republican districting remain in place, but Wisconsin may be vulnerable in 2024 and thereafter to a reprise of the 2020 Republican efforts to overturn the state's election results."

He pointed to the fact that three current conservative supreme court judges "all wanted the court to consider the Trump team's appeal from lower court losses in the 2020 'stop-the-steal' cases."

"We don't know if they—alone among state and federal judges in more than 60 cases—would have made significant rulings in Trump's favor," he said, adding that Kelly, "a Trump ally then working for a conservative advocacy group, consulted with leading Republicans on plans for the fake-elector scheme.

"With Kelly and the other three conservatives forming the majority, the Wisconsin Supreme Court could be a friendly venue for possible Republican efforts to overturn legitimate election results in 2024," Quirk said.

A Functioning Democratic Country

It is too early to tell if Trump will be the Republican candidate or who will win Wisconsin next year but there are already real concerns about the role the state's supreme court might play.

Nonetheless, the outcome of Tuesday's race could have far-reaching consequences beyond Wisconsin.

"It's deeply indicative of the problems with contemporary U.S. elections that the distribution of state—and possibly even national—power could be significantly affected by a single state supreme court election, rather than by the aggregate pattern of voter preferences," David A. Bateman, an associate professor of government at Cornell University in Ithaca, New York, told Newsweek.

"This is not a way a functioning democratic country operates, where institutions of independent districting or proportional representation, plus neutral election rules designed not primarily for partisan advantage, are insulated from small changes in partisan control," he added.