It’s been a long time since Wisconsin could feel anything close to hope.
More than a dozen years ago – when the first Harry Potter movie still played in theaters, and Katy Perry’s Firework and Bruno Mars’s Grenade topped the pop charts – Republican operatives and lawmakers locked themselves in a Madison, Wisconsin, law office and then locked themselves into power.
They haven’t lost since. That painstakingly designed gerrymander gutted majority rule in a closely contested purple state. Sure, they still hold elections for state senate and assembly every two years. The Republican party simply can’t be defeated – indeed, they approach veto-proof supermajorities – even when voters award Democrats hundreds of thousands more votes.
The entrenched Republican legislature, immune to voters and proven protected from public opinion, has run roughshod over labor unions, public employees and the state university system. When Governor Tony Evers, a Democrat, has called the legislature into special session to enact overwhelmingly popular provisions on gun violence and reproductive rights, among other issues, Republican leadership gavels in and out in mere seconds. The rigged maps explain why an 1849 law that criminalized abortion in almost every circumstance reverted into effect after the Dobbs decision – even though more than 70% of Wisconsinites want it changed.
The lack of anything resembling a basic, functioning democracy in an American state placed outsized importance on Tuesday’s state supreme court election, won decisively by liberal Janet Protasiewicz. Her victory flipped what had been a 4-3 conservative majority on a court that not only aided and abetted the newest Republican gerrymander, but only narrowly declined a Trumpian gambit to toss out 220,000 votes from Democratic-leaning counties after the state’s tight 2020 election.
The stakes of this race were huge. There’s a good reason why this election shattered records for the most expensive state supreme court race ever. There will be an immediate effort to bring new litigation to un-gerrymander the state’s toxic legislative map. The 1849 anti-abortion law will be challenged before a court that is now friendly to reproductive rights. It will be more difficult for Republicans to use Wisconsin courts in 2024 to subvert presidential election results in a state where the outcome could determine the nation’s leader.
Nevertheless, democracy has not been restored in Wisconsin and the threat has not receded. No one should be under any delusion that Wisconsin Republicans, so accustomed to ruling with impunity, will operate any differently. They don’t have to change. On Tuesday, just as voters statewide tipped the court to progressives, a special election for a crucial state senate seat went Republican, ensuring a Republican supermajority. Republicans have already threatened that they might impeach liberal justices, including Protasiewicz.
There’s no reason not to take them at their word. When voters elected Evers, a Democrat, governor along with an entire slate of Democratic statewide officeholders in 2018, the legislature immediately passed wide-ranging legislation reining in the Democrat officeholders’ power, or claiming what had been executive powers for themselves. They refused to consider Evers’s appointments to crucial committees and allowed Republican officials to stay in those offices even after their terms expired.
And even if the liberal justices are allowed to serve, and then a new state supreme court overturns the gerrymandered legislative maps, there’s the problem of the US supreme court and the dangerous independent state legislature theory. When North Carolina citizens looked to free themselves of a toxic Republican gerrymander by similarly flipping the state supreme court and successfully suing to overturn the maps, Republicans took it to high court, arguing that the power to draw lines has been handed to the legislature and only the legislature, free from the review of state courts.
After oral arguments in Moore v Harper last fall, North Carolina Republicans won back the state supreme court and decided to revisit the previous court’s decision, potentially rendering that case moot. But at least five conservatives on the court have expressed some interest in this theory. It is not going away for good – and it’s easy to foresee Wisconsin Republicans making the same challenge. And by the time the court rules, another seat on the Wisconsin court will be up in 2025, forcing Democrats to win yet again.
It is dreary to be cynical the day after a hard-won victory that activists worked many years to secure. Yet it is hard not to look at Wisconsin and see Charlie Brown and the football once more. Democrats spend a decade playing by the rules and executing a 12-point plan to undo the after-effects of the 2010 redistricting, step by careful step. And if Democrats win, Republicans use their gerrymanders to take away their power or make some pretend doctrine and take it to their equally unearned and illegitimate supermajority on the US supreme court.
One outcome of the news from Wisconsin is that it might finally be clear to everyone that, in today’s America, judges have become little more than robed partisans. But it needs to become equally clear that without a national fix for gerrymandering and structural reform to the US supreme court, that hope in Wisconsin – and perhaps your state next – will be little more than fool’s gold.
David Daley is the author of Ratf**ked: Why Your Vote Doesn’t Count and Unrigged: How Americans Are Battling Back to Save Democracy. He is a senior fellow at FairVote
