Could Tuesday’s election for one seat on the Wisconsin Supreme Court determine the future of our country or even the next president of the United States? Maybe not. But liberal judge Janet Protasiewicz’s victory over conservative judge Dan Kelly may be the most important election result of 2023.
This state Supreme Court election, in which a record $45 million was spent, flipped the balance of power on the swing state’s highest court. That, in turn, is likely to determine the future of abortion rights, election laws and voting rights — three hot-button issues in the swing state.
The balance of power on the state Supreme Court could determine the balance of political power in the state.
Let’s begin with abortion rights. Protasiewicz’s victory could provide a road map for Democrats in the 2024 elections. Wisconsin’s 1849 law banning almost all abortions has been in effect since the Supreme Court’s decision in Dobbs v. Jackson last June, which overturned Roe v. Wade. A challenge to that 19th century law is making its way to the state’s high court. Many of the more than $10 million in ads Protasiewicz aired in the election’s final weeks highlighted her views on abortion rights. Now she will most likely be the deciding vote when the 1849 law and other abortion issues reach Wisconsin’s highest court.
But this is about more than abortion. The balance of power on the state Supreme Court could determine the balance of political power in the state. While there are roughly the same number of Republicans and Democrats in Wisconsin, Republicans have drawn district lines to all but ensure that they win two-thirds of the state’s eight congressional districts. The state legislative lines are similarly rigged. Republicans would need to lose the statewide vote by more than 10 percentage points to lose the State Assembly. Democrats are eager to challenge those district lines, and with Protasiewicz’s victory, the state Supreme Court could now recognize those extreme gerrymanders as violating the state law.
Finally, Wisconsin is expected to be a battleground state in the 2024 presidential election. This means its election laws matter not just for the voters of Wisconsin, but also for people throughout the country. While Democrats tend to push for laws that make it easier for people to vote, the opposite is true for Republicans. The state Supreme Court could rule on challenges to election laws related to the availability of absentee voting and ballot drop boxes and possibly voter registration and voter identification laws. We need only look back to the 2020 election to remember how much each of these rules can affect the outcomes of elections. If the presidential election comes down to Wisconsin, in a tangible way, the presidential election could come down to how the state’s Supreme Court rules on challenges to state election laws. Neither Protasiewicz’s nor Kelly’s views on the issue of election laws are really in question. Kelly worked for the Republican Party of Wisconsin and the Republican National Committee in the aftermath of the 2020 election, when Republicans tried to overturn the valid presidential election results in the state. Protasiewicz, by contrast, has telegraphed a more liberal legal ideology on those rules. There is a reason Wisconsin’s Supreme Court race was the most expensive judicial race ever conducted in our country. While many of us tend to focus on the U.S. Supreme Court and the federal judicial system, over 90% of legal cases are heard in state courts. State court judges usually play a large and underappreciated role in shaping the legal framework in this country. But for one election, their role was recognized. Voters in Wisconsin have now helped chart the state’s course on many of the biggest issues facing our country. The ideological makeup of one state’s Supreme Court does make a difference.
Jessica Levinson is a Loyola Law School professor and MSNBC columnist. 
