Wisconsin’s Supreme Court Race Could Restore Democracy in America’s Most Gerrymandered State

Wisconsin’s Supreme Court Race Could Restore Democracy in America’s Most Gerrymandered State

Wisconsin’s Supreme Court Race Could Restore Democracy in America’s Most Gerrymandered State

If a liberal flips a conservative seat on Tuesday, a new majority would have the power to draw fair maps and renew Democrat prospects in a key battleground state.


Gerrymandering, the process by which elected officials draw legislative and congressional district maps that benefit themselves and their parties, is widely understood as antithetical to democracy. Decrying the maneuvers by which partisan politicians use the redistricting process to gain “control of state legislatures and congressional delegations before a single vote is cast,” former President Barack Obama explains, “That is not how democracy is supposed to work.”

Yet, in the battleground state of Wisconsin, that is exactly how democracy has worked—or, to be more precise, not worked—for more than a decade. In 2018, when a Democratic state legislator referred to Wisconsin as “the most—if not Number 1, number 2—gerrymandered state in the country,” the nonpartisan fact-checking team at PolitiFact verified the statement as “mostly true.”

Wisconsin voters didn’t really need a fact-checker to confirm their circumstance. In election after election, since legislative Republicans drew radically gerrymandered maps in 2011, and since the Wisconsin Supreme Court refused to upend those maps or subsequent ones, Democrats have won statewide elections but gotten nowhere in fights for control of the state Assembly and state Senate. In 2022, for instance, Wisconsinites elected a Democratic governor, a Democratic attorney general, and a Democratic secretary of state, yet Republicans retained a 64-35 advantage in the state Assembly and a 22-11 majority in the state Senate. The GOP also secured a 6-2 advantage in the state’s congressional delegation.

“What we saw in Wisconsin [in 2022] is every candidate at the statewide level who ran as a Democrat, get close to 50% of the vote. Some a little over, some a little under. And, yet, those same results yielded 35 percent of seats for Democrats in the Assembly,” said Assembly minority leader Greta Neubauer, a Racine Democrat.

This pattern will not change unless a majority of justices agree to revisit the issue.

That certainly won’t happen if conservatives retain their current 4-3 majority following the April 4 election, when voters will decide between two candidates to fill the seat being vacated by a conservative justice. If the seat flips and liberals take charge of the court, however, Wisconsin’s legislative and congressional maps could be challenged on a variety of grounds, and perhaps redrawn.

So it is that, in a race where hot-button issues such as abortion and labor rights have been highlighted from the start, the debate about gerrymandering has become increasingly crucial as election day approaches.

The stakes could not be higher. And the contrast between the candidates could not be clearer.

The conservative candidate, former Justice Dan Kelly, who was appointed to the court by former Republican Governor Scott Walker in 2016 and defeated by the voters in 2020, has a long history of representing conservative groups and causes. As a lawyer, he actually defended the Republican-drawn maps in a 2012 federal court case. “It’s a good map,” Kelly said at the time. “It’s a solid map. It’s constitutional. It reflects the judgment of the people of the state of Wisconsin.”

Kelly’s opponent, Milwaukee County Circuit Court Judge Janet Protasiewicz, takes a decidedly different view. Arguing that “everybody deserves to be represented and represented in a fair way, where their votes are meaningful,” the judge told UpNorthNews, “Wisconsin is a battleground state. You look at the state of Wisconsin and you look at how close the statewide races are, and then you look at our maps and have to recognize that something is wrong—and that our Supreme Court allowed that.”

Protasiewicz, who won 46 percent of the vote in the February primary for the seat, has drawn strong support from Democrats, unions, and reproductive rights activists. Kelly, who won 24 percent in the primary, is a favorite of the Republican Party, anti-choice groups, and right-wing mega-donors in what is now the most expensive judicial race in US history.

But Protasiewicz says the gerrymandering issue goes beyond politics.

“Let’s be clear here: the maps are rigged,” she declared at a candidate forum in January. “Absolutely, positively rigged. They do not reflect the people in the state.”

In a PBS Wisconsin interview in March, Protasiewicz explained,

“This is where I say democracy’s on the line. You look at what’s happening in our state. You look at what the Republicans did with the redistricting. You look at the fact that the maps were—10 years ago—a problem. I would say that the maps are a bigger problem. You’ll hear people argue that the Republicans used very, very sophisticated computer technology to draw those maps and to draw those maps in a way that are absolutely the most favorable to them. So that’s when I say, yes, those maps are rigged.”

As a justice, serving with three other liberals who are inclined toward ending gerrymandering and drawing “fair maps,” Protasiewicz could be in a position to unrig them. While she won’t say how she would rule on any particular case, the judge’s statements have boosted the hopes of Democrats in Wisconsin and nationally that they might be competing on a level playing field in elections for the legislature and congressional seats as soon as 2024.

“If Wisconsinites elect Judge Janet, it could deliver a historic opportunity to level the playing field with a commonsense court instead of the current court which recently adopted some of the nation’s most gerrymandered maps,” says former US Attorney General Eric Holder Jr., an outspoken critic of Republican gerrymandering of Republican gerrymandering schemes. “But if Dan Kelly wins, Wisconsin Republicans will continue to have a far-right majority on the court, endangering democracy and making it difficult for Democrats to fairly compete down the ballot in a state that is highly competitive.”

Holder and others have focused on the race because they see Wisconsin as a potential game-changer in the ongoing fight for the sort of balanced maps that could shift control not just of Wisconsin’s legislature but also of the US House—where Democrats need to flip five seats in 2024 to gain a majority. “If we had fair maps, Democrats could be shooting to flip at least two House seats, and that’s 40 percent of the national margin,” explained Democratic Party of Wisconsin chair Ben Wikler. “I don’t think there’s any other election in America in 2023 that will have a bigger impact on the House majority.”

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Katrina vanden Heuvel
Editorial Director and Publisher, The Nation

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