In a state characterized by a divided electorate and government, the Wisconsin Supreme Court has been forced to play arbiter between a Republican-controlled state Legislature and Democratic Gov. Tony Evers on critical issues of rights, representation, and democracy. On a number of occasions, the court has decided election disputes, such as when it banned ballot drop boxes in 2022 and narrowly tossed out then-President Donald Trump’s lawsuit to overturn the state’s 2020 general election result. Last year, the court also had the final decision on redistricting in Wisconsin and ultimately voted to enact maps that increased partisan bias in one of the nation’s most gerrymandered states. Additionally, the court will soon determine whether or not one of the oldest and most restrictive abortion bans in the country survives in a post-Roe America.
The Wisconsin Supreme Court’s recent decisions and likely upcoming cases illustrate the growing importance of state courts in deciding foundational democratic disputes.
Yet while justices sitting on the nation’s highest court are appointed, Wisconsin voters elect state Supreme Court justices. Conservative Justice Patience Roggensack’s retirement following two 10-year terms has opened up a judicial seat that will shape the future direction of the court for at least the next two years. While Wisconsin Supreme Court justices are elected for nonpartisan positions, its ideological divide has recently grown, with the bench handing down more 4-3 rulings during its last term than in any other term over the past 70 years. Voters recently cast their ballots in a primary election, advancing two candidates to the general election in April.
At a time when so many rights and protections are under attack across the country, a look at the Wisconsin Supreme Court’s recent decisions and likely upcoming cases illustrates the growing importance of state courts in deciding foundational democratic disputes.
Election laws, voting rights, and the Wisconsin Supreme Court
The Wisconsin Supreme Court’s recent decisions in election law and voting rights cases, the majority of which have been decided along ideological lines, demonstrate the outsize role the court has played in resolving key disputes—and the likely role it will continue to play on these critical matters in the near future.
Following the outbreak of the coronavirus pandemic and the declaration of a national emergency on March 13, 2020, presidential primary elections across the country were thrown into chaos. Eleven states were scheduled to hold primaries in April 2020, but only Wisconsin failed to delay its primary or move to administer elections solely by mail. After the state Legislature refused to act, Gov. Evers issued an executive order as a last-ditch effort to protect voters and poll workers. The state Supreme Court blocked the governor’s action along ideological lines, forcing the April primary to go ahead even as more than a dozen states—including Louisiana, Georgia, West Virginia, and Kentucky—successfully delayed their elections to the summer. The consequences for Wisconsin were dramatic. Thousands of poll workers dropped out because of health and safety concerns. Milwaukee, home to more than half a million people, ended up having just five operational polling places instead of the usual 180. Madison had 66, compared with its usual 92. And a last-minute decision by the U.S. Supreme Court only exacerbated the situation.
Later that year, the Wisconsin Supreme Court was again in the national spotlight as it weighed a lawsuit by President Trump seeking to disqualify more than 221,000 ballots in Milwaukee and Dane counties after he lost Wisconsin by fewer than 21,000 votes. In December 2020, the court narrowly ruled 4-3—with right-leaning Justice Brian Hagedorn joining the court’s three liberals—to reject this and related lawsuits just about one hour before Wisconsin’s votes were cast in the Electoral College.
In April 2021, in another closely watched case that had been pending for two years, the Wisconsin Supreme Court ruled 5-2 to prevent the removal of nearly 70,000 voters by the Wisconsin Elections Commission. The court ruled that local election officials—not the state commission—were responsible for removing voters and ordered the case dismissed. The lawsuit received a lot of attention prior to the 2020 general election because of its potential impact on the outcome. Ultimately, the presidential general election in Wisconsin was decided by less than one-third of the number of voters who were at risk of being purged.
In its most recent closely watched voting rights case, the court weighed the legality of ballot drop boxes. During the 2020 election, nearly 2 million Wisconsin voters cast their ballots by mail and had access to approximately 530 drop boxes in 430 municipalities. But in 2021, the Wisconsin Institute for Law and Liberty challenged the use of drop boxes in the state, and the Wisconsin Supreme Court ruled 4-3 that ballot drop boxes were not permissible under state law and that a third party—including a family member—could not return a ballot on behalf of another voter (Wisconsin voters are still permitted to return ballots to municipal clerks’ offices during business hours, by mail, or to polling places and central count locations on an election day). The court released its ruling in July 2022, just one month before the state’s midterm primary election, and the court’s rulings on both fronts conflicted with guidance the bipartisan Wisconsin Elections Commission issued in 2020.
Redistricting and the Wisconsin Supreme Court
The Wisconsin Supreme Court has also played a significant role in the state’s redistricting process and, consequently, in its legislative representation for the next decade.
For years, experts have regarded Wisconsin as one of the most severely gerrymandered states in the country. Yet experts report—and the 2022 midterm election results show—that this decade’s maps are likely even more severely skewed than the heavily litigated maps of the previous decade. The final decision for which set of maps to adopt following the 2020 census was made by the Wisconsin Supreme Court, which has the final say over state Legislature redistricting disputes.
It is difficult to imagine how Wisconsin’s current maps could be more skewed than the previous decade’s, which were also drawn by a Republican-controlled state Legislature. A federal district court eventually concluded that the 2011 maps drawn by the state Legislature were among the most heavily skewed maps in the country in more than 40 years and ruled that the maps were unconstitutional. As a result of this severe gerrymandering, Democrats running for the state Legislature in the 2012 general election received more votes than Republicans but won only 40 percent of State Assembly seats. But a decade later, during the 2022 midterm election, despite Democratic candidates for governor, attorney general, and secretary of state securing narrow statewide victories, Democratic candidates for the State Assembly won just 35 percent of seats. While all statewide races were decided by a margin of 3 percent or less, only four of the 99 assembly races were decided by 5 percent or less, demonstrating just how uncompetitive the approved legislative maps made these races.
The state Legislature has primary authority over drawing maps in Wisconsin, with the governor holding veto power. However, due to a deadlock between the state Legislature and the Democratic governor, the state Supreme Court eventually took over the redistricting process—the first time it had assumed this responsibility since 1964. Between November 2021 and March 2022, the court issued a number of split rulings, initially setting parameters for choosing a redistricting plan with the “least changes” before deciding that the plan submitted by Gov. Evers best met those parameters. Ultimately, however, the U.S. Supreme Court struck down the approved map but made clear that the Wisconsin Supreme Court could reconsider the governor’s redistricting plan. Instead, in April 2022, the Wisconsin Supreme Court adopted the state Legislature’s maps.
Because of the Wisconsin Supreme Court’s authority over redistricting disputes, the upcoming judicial election will also have an impact on likely litigation challenging the state’s maps. The state court’s role was further cemented by the U.S. Supreme Court decision in Rucho v. Common Cause, which found that federal courts do not have the authority to review disputes involving political gerrymandering but that state courts may intervene.
Reproductive rights and the Wisconsin Supreme Court
The Wisconsin Supreme Court will soon be called upon to determine the fate of the state’s abortion ban, which contains only a vague exception for care when necessary to save the life of the patient.
Effectuated after the U.S. Supreme Court’s decision in Dobbs v. Jackson, Wisconsin’s law is considered one of the most arcane, confusing, and punitive abortion bans in the country: arcane, because it was written in 1849—just one year after Wisconsin became a state and 70 years before women won the right to vote in America—and has yet to be substantially updated; confusing, because there is no guidance on what the only exception noted above permits in practice, invoking fear and hesitancy among both patients and providers; and punitive, because not only are there no exceptions for rape or incest, but the criminal penalty for providing abortion care is a felony charge that carries up to six years in prison and a loss of medical licenses for physicians. These dire consequences are real: At least one county district attorney has already promised to press charges for any alleged abortions that violate the ban.
Effectuated after the U.S. Supreme Court’s decision in Dobbs v. Jackson, Wisconsin’s abortion ban is considered one of the most arcane, confusing, and punitive abortion bans in the country.
The ban has brought significant harms to the state and the region, as those seeking abortion care either are forced to travel outside the state—if they can afford to do so—or are blocked from getting care altogether. Furthermore, providers report fear of even providing miscarriage treatment due to the high penalties and lack of clarity around the law. Other reports have emerged of women giving up on having more children given the politicized state of medicine in Wisconsin.