Why the Wisconsin Supreme Court race tells us more about the state of American politics than the arrest of Donald Trump

The headlines in early April were dominated by the arrest of former US President Donald Trump, in New York. It is undoubtedly a historic moment in American history, however, a thousand miles away, an equally, if not more significant result was emerging in the Wisconsin Supreme Court race.

On April 4 2023, the same day as Trump appeared in court accused of 34 felony counts of falsifying business payments relating to alleged “hush money” payments to pornographic film actress Stormy Daniels, it was confirmed that Janet Protasiewicz had beaten Daniel Kelly in a state-wide election for the final seat on Wisconsin’s Supreme Court. Technically a nonpartisan election, the defeat of Kelly – a pro-life, conservative former Justice – was nevertheless a win for the Democrats, who heavily backed Protasiewicz’ liberal, pro-choice campaign. Although a state-level Supreme Court race in an off-cycle year may not seem like ‘big’ news, Protasiewicz’ victory is likely to have a significant impact, not only in Wisconsin, but also for Democratic and Republican strategists across the nation.

Protasiewicz’ victory is likely to have a significant impact, not only in Wisconsin, but also for Democratic and Republican strategists across the nation

In Wisconsin, the Protasiewicz victory brings an end to the court’s 15-year conservative majority. This has far-reaching consequences for the state’s law, most notably for abortion. Protasiewicz vowed in her campaign to work with the other three liberal Justices to overturn Wisconsin’s draconian abortion restrictions, which, since coming into effect last summer immediately after the federal Supreme Court ruled that the right to an abortion was not constitutionally protected (the “Dobbs Decision”), have prohibited all abortions in the state with the only exception being when the mother’s life is in danger.

 Protasiewicz’s admission to Wisconsin’s Supreme Court will also have a long-term impact on the state’s political redistricting. Provided that the court retains its liberal majority over the next decade, the state legislature is likely to pass laws restricting the use of partisan gerrymandering. Partisan gerrymandering is a feature of “first-past-the-post elections” whereby the majority political party manipulates voting district boundaries in order to maximise their party’s electoral advantage. This is a huge issue in Wisconsin. Already considered one of the nation’s most gerrymandered states in favour of the Republican Party, Ben Wikler, the Chairman of the Democratic Party in Wisconsin, attributed Protasiewicz’s large margin of victory (she beat Kelly by a landslide 11 percentage points) to voters’ rage at the perceived “democratic backsliding” in Wisconsin, where despite commanding 53% of the vote, Democratic officials only control 39% of the legislature.

 From a national perspective, the sheer level of support for Protasiewicz (she accumulated a record $42 million in campaign donations – the most ever for a state-level Supreme Court race) raises interesting questions about Wisconsin’s status as a “purple” state (a state with similar levels of support for Democrats and Republicans). Having swung from Democrat to Republican and then back to Democrat in the last two Presidential elections, Protasiewicz’s majority of over 100,000 votes was unexpected, as Biden won the state by less than a quarter of that total in 2020. These results indicate that the political trends that emerged in last year’s midterms have continued into 2023 as the fallout from the Dobbs Decision continues to mobilise the Democrat voter base, while Republicans continue to suffer electorally for fielding anti-abortion candidates in competitive races.

 While Protasiewicz surged in the polls, Kelly was further hampered by his association with Trump’s attempts to overturn the results of the 2020 Presidential Election. During the campaign, 12% of political adverts focused on how Kelly provided legal counsel for the Wisconsin Republican Party’s “Stop the Steal” movement in the aftermath of the 2020 election. Kelly received a lower proportion of the vote in 2023 compared to when he last ran for the Supreme Court in early 2020, suggesting Protasiewicz’s strategy resonated with voters. 

These results indicate that the political trends that emerged in last year’s midterms have continued into 2023, while Republicans continue to suffer electorally for fielding anti-abortion candidates in competitive races.

In such polarised times, some may feel that the claim that American democracy is under an existential threat is over-exaggerated. However, it is critically important to remember that in December 2020 Wisconsin’s Supreme Court came within one vote of invalidating over 200,000 ballots in the state’s most Democratic districts at the direct request of Trump; a decision that, if taken, would have swung the state to the Republicans, handed the Presidency to Trump, and undermined the legitimacy of the 2020 presidential election. Protasiewicz’s victory over Kelly ensures that democracy in Wisconsin is a little stronger.

It remains to be seen whether Trump’s indictment will exacerbate or mitigate the political trends of last year that are worrying many other Republicans, including prominent GOP fundraiser Eric Levine, who believes that the former President is the “only Republican… who can’t beat Joe Biden.” Unfortunately for Levine, Trump’s charges have boosted his re-election campaign in the short term at least. Since his arrest, Trump has received over $15 million in political donations, while his polling lead for next year’s GOP primary election to be Republican presidential nominee has also increased.

In such polarised times, some may feel that the claim that American democracy is under an existential threat is over-exaggerated.

However, the long-term political consequences of Trump’s arrest are yet to be established. Though the former President is not scheduled to return to court until 2024, he is subject to three more ongoing criminal investigations for election interference in Georgia in 2020, inciting insurrection on January 6th 2021, and mishandling classified documents. Each of these cases are considered a lot more serious than the current charges against the former President, especially the Georgian case (where Trump pressured Georgia’s Secretary of State, Brad Raffensperger, to fabricate votes to win him the state), which, according to Fulton County District Attorney, Fani Willis, could see Trump face substantial time in prison if convicted. Despite vowing to run his campaign, even from jail, it remains to be seen whether the base that won Trump the Presidency in 2016, and a record number of votes for a Republican Presidential candidate in 2020, will continue to support their idol in the face of mounting political and legal pressure.

Though the image of Trump, once the most powerful man in America, being escorted into a courthouse under arrest is unlikely to ever be forgotten, both Democrats and Republicans may be better placed by focusing their attention on Wisconsin.