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“Whoever wins this election will determine whether our freedoms expand in Wisconsin, or whether our freedoms shrink in Wisconsin.” – Matthew Rothschild, Wisconsin Democracy Campaign
“The Wisconsin Supreme Court spent its 2021–22 term systematically weakening our democracy ... [with rulings] that had dramatic implications for how our vote counts and how our government works.” – Law Forward, in a November 2022 report.
Who wins the Wisconsin Supreme Court election on April 4 will determine the ideological direction of the court for years to come. Whether the court remains radically conservative or a new, progressive majority takes control will a have huge impact on the people of Wisconsin. Literally, freedom and democracy on the ballot.
Fourteen years of conservative control in the state Supreme Court has drastically altered the legal, political, and economic landscape of Wisconsin. The two quotes above are not exaggerations. Over the last fourteen years the Supreme Court has become more partisan. More money is being spent on Supreme Court elections and respect for the court and its decisions have decreased. The results have not been good for the people of Wisconsin. There is a clear historical record of numerous Supreme Court rulings that diminished individual rights, restricted freedom, made voting harder and resulted in Wisconsin being less democratic.
In 2014 the Supreme Court upheld all of Act 10, the 2011 law that decimated public employee unions. The law overturned decades of labor relations law by prohibiting most collective bargaining by public employee unions. The ruling imposed dues collection and representation requirements that greatly weakened pubic unions.
Emboldened by this ruling the Republican controlled state legislature enacted laws making Wisconsin a “right to work” state, abolishing “prevailing wage” requirements for public contracts and repealed the equal pay law for women. As a result workers in both the public and private sectors had their real pay and benefits decline as economic inequality increased.
In 2018, following the election of Gov. Evers and other Democrats to statewide office, the lame duck Republican controlled legislature passed restrictions on the long established powers of the governor and attorney general. The Supreme Court upheld these blatantly vindictive and partisan actions. These weakened the new governor's ability to enact his program and shifted powers of the attorney general to the legislature.
Another Supreme Court ruling weakened the state's procedures for Freedom of Information requests. The conservative majority made it harder for the public to get information and to do so without onerous financial costs.
In 2022, the Court ruled that an appointee of former Gov. Scott Walker to the DNR Board could refuse to leave the job when his term of appointment expired. The Court said political appointees don’t have to leave their posts until the Senate confirms their successor. The Republican controlled Senate has refused to act on many appointments, which has gutted the governor's ability to make appointments.
In 2020, the Court overturned Gov. Evers “Safer at Home” executive order to deal with the pandemic. This limited the long accepted executive authority to deal with emergency situations. Again this was a blatantly political action that had no justification from a public health standpoint.
Weakening voting rights is another example. In 2020, the Court outlawed secure ballot drop boxes, making it harder for people with disabilities to vote using absentee ballots. There is no evidence or logical reason to believe drop boxes result in voter fraud. They also took away the right of voters with disabilities to get assistance in returning their absentee ballots. This was another partisan action that makes no sense and does nothing to make elections more secure. The Court also ruled against local election clerks “curing” minor omissions or errors on absentee ballots. These minor clerical corrections had nothing to do with anyone voting fraudulently. All these actions tend to suppress legal voting and unnecessarily disenfranchise voters. But reducing the number of people voting has been a long standing goal of right wing politicians.
The most damaging undemocratic ruling was the Court rubber-stamping the highly partisan, extremely gerrymandered redistricting maps coming out of the Republican controlled legislature. Instead of ruling on the fairness and legality of the maps, the Court delivered a political decision supporting partisan gerrymandering.
Law Forward is a non-profit organization using legal advocacy to strengthen free and fair elections. In their report “DECONSTRUCTING DEMOCRACY: The Wisconsin Supreme Court, 2021-22” (November 2022) they discuss how the court's recent rulings weakened democracy and voting rights. They identify three areas of concern.
• Direct attacks on democracy with three decisions on gerrymandering, absentee ballots, and undermining the Governor's authority.
• Increasing legislative power at the expensive of the Governor, administrative agencies, and local governments by weakening the division of powers and check and balances of the three branches of state government. The Court issued six decisions that shifted power to the gerrymandered legislature.
• Legislating from the bench. The report documents eight cases where judges who claim to be “neutral” interpreters of the law ruled in partisan ways. Clear statutory language was ignored and long-standing procedural rules changed to reach their political rulings.
The report concludes that the conservative controlled Wisconsin Supreme Court “has been undermining our democracy by embracing or expanding on right-wing arguments that are antithetical to democratic principles.”
It should be noted that undermining democracy will have a negative impact upon minorities, the poor, people with disabilities, and women.
But the real issue for voters on April 4, is what will the future bring? This Supreme Court election is the last chance until 2030 (the next census) to end the extreme partisan gerrymandering of congressional and legislative districts. The only hope is that a progressive majority on the Supreme Court will overturn past undemocratic district maps and create a more fair playing field for future elections. Without competitive elections the will of the people will not translate into public policy. Most people are not as extremely conservative as the Republican legislature.
The future of Wisconsin's women to control their own reproduction is also at stake. Wisconsin has a 1848 law outlawing all abortions that is supported by the Republican controlled legislature. Only a progressive Wisconsin Supreme Court can protect 21st century women from an archaic 19th century law.
The fate of many other popular public policies will depend on a progressive Supreme Court reining in right wing extremism. Vote April 4 for freedom and democracy.