MADISON, Wis. (AP) — The Wisconsin Supreme Court will shift from conservative majority control to liberal control in August and Democrats have high hopes the change will lead to the overturning of the state’s abortion ban and its redrawn maps to weaken GOP control over the Legislature and congressional districts.
The perennial battleground Democrats have focused on abortion to elect a liberal majority to the court for the first time in 15 years. The Democratic Party spent $8 million to swing the court’s 4-3 conservative majority by one seat with the election of Janet Protasiewicz, who spoke out in favor of abortion rights and against the map drawn by Republicans during a campaign. His victory in April broke national spending records for a state Supreme Court race.
Yet, there are no guarantees. Republicans were angered when a conservative candidate they backed in 2019 turned out to side with liberal justices at times.
While the court is expected to intervene on abortion and redistricting, liberals are also talking about bringing new challenges to school choice, voter ID, the 12-year law that effectively ended collective bargaining for most public servants, and other Republican-backed laws.
“When you don’t know the extent of the battle you may have to fight, it’s concerning,” said attorney Rick Esenberg, president of the conservative Wisconsin Institute for Law & Liberty. “It’s very concerning.”
Some issues could take years to get to court, said liberal attorney Pester Pines, who, like Esenberg, has argued many times in the state Supreme Court. Unlike the conservative majority, Pines said the new liberal court is unlikely to rule on cases until the lower courts have heard them.
“They’re not going to do it,” Pines said.
There’s already a pending case challenging Wisconsin’s pre-Civil War abortion ban, and a circuit court judge ruled earlier this month that it could proceed, while questioning whether the law actually banned abortions.
The case should reach the Supreme Court within a few months. Protasiewicz nearly promised to reverse the ban as he repeatedly championed abortion rights, winning support from Planned Parenthood and others.
“When you’re a politician and you’re seen by voters as making a promise, and you don’t keep it, they get angry,” Esenberg said.
There are no pending redistricting trials, but Democrats or their allies are expected to file a new challenge this summer seeking new districts ahead of the 2024 election.
The state Supreme Court upheld the maps drawn by Republicans in 2022. These maps, widely considered to be among the most manipulated in the nation, have helped Republicans increase their grip on the Legislature to near-supermajority levels, even as Democrats have won statewide elections, including Tony Evers as governor in 2018 and 2022 and Joe Biden in 2020.
Protasizewicz said these cards were “rigged” and said during the campaign that they should be reviewed. Democrats are also hoping new congressional maps will improve their chances in the state’s two most competitive Republican-held House districts.
“What we want to see are maps that are fair and that represent the will of the people and the actual makeup of their state,” said Democratic strategist Melissa Baldauff.
Four of Wisconsin’s last six presidential elections have been decided by less than a percentage point. The outgoing conservative court has come within a vote of overturning Biden’s 2020 victory. The new court will have control to hear all challenges leading up to the election and in the months after.
This includes voting rules. Courts have repeatedly upheld Wisconsin’s voter ID requirement, in place since 2011, but some Democrats see a chance to challenge it again, particularly on IDs that can legally be presented. There is also a looming fight over the state’s top election administrator.
“It seems to me that the most important topics that could come before the new court would have to do with the election,” said Alan Ball, a history professor at Marquette University Law School who runs a blog analyzing court statistics and judge trends.
Given the comments Protasiewicz made during the campaign, “it’s really hard for me to imagine that she wouldn’t side with the liberals on these issues,” Ball said.
A National Democratic law firm filed a lawsuit on Thursday seeking to overturn a Wisconsin Supreme Court ruling last year banning mail-in ballot boxes. The case could go to the state High Court ahead of the 2024 presidential election.
Other sensitive issues that have drawn bipartisan criticism, including the powers of the governor, could also come before the new court.
Evers surprised many with a veto this year enacting increased school spending for 400 years. Republicans said a challenge was likely.
In 2021, the court overturned three of Evers’ previous partial vetoes, but gave no clear guidance on what is allowed.
A Wisconsin governor’s veto power is broad and used by Republicans and Democrats, but the new court could decide whether it should be reduced. Esenberg, who brought the previous case challenging Evers’ veto powers, said he expected another legal challenge in light of the 400-year-old veto.