Wisconsin Supreme Court Race Results in a New Majority

 Joe Murray, WRA Director of Political & Governmental Affairs  |    June 01, 2023

On April 4, Wisconsin voters elected judicial liberal Janet Protasiewicz to the state Supreme Court, flipping control to a liberal majority ahead of rulings on the Wisconsin abortion ban and other critical issues. The result of the April 4 election turns a court with a 4-3 conservative majority to a liberal majority after 15 years, which will likely affect several hot-button issues that have polarized voters in Wisconsin and other states, including voting rights and partisan control over drawing new legislative maps.

While Supreme Court elections are technically nonpartisan, neither Protasiewicz nor her conservative opponent Dan Kelly tried to hide their judicial philosophy or ideological bent. 

The state Democratic and Republican parties poured millions of dollars into their favored campaigns, and outside special interest groups spent millions more.

Democrats viewed the race as an opportunity to erode GOP dominance in Wisconsin that began with Gov. Scott Walker in 2010 — a victory that was followed by the passage of legislation to end collective bargaining for most public employees, turn Wisconsin into a right-to-work state and other significant policy changes over the last 13 years.

For over a decade, Republican lawmakers have set Wisconsin’s policies on everything from labor laws to voting rights, taxes and more. For that same decade, conservatives on the state Supreme Court have protected those GOP priorities. That could all change when Justice-elect Protasiewicz takes her seat on the Supreme Court in August.

What does this mean for Wisconsin?

In the immediate future, there are four big issues that were discussed and debated during the spring election that are almost certain to make their way to the Wisconsin Supreme Court, including abortion, legislative and congressional district maps, voting rules and regulations, and public employee collective bargaining. Only time will tell which other major issues will make it to the state’s highest court.

There are several issues that could come before the state Supreme Court that would have a significant impact on the real estate industry. One such issue could be the state’s prohibition on rent control. Since 1990, Wisconsin has prohibited local municipalities or the state from implementing any form of residential rent control. This issue has emerged in a big way in several states and cities across the U.S. since 2020. It’s not a stretch to anticipate a case before the state Supreme Court that challenges the constitutionality of the rent control statute in Wisconsin.

Here’s a brief look at those four major issues from the 2023 election that are expected to be taken up by the soon-to-be 4-3 liberal majority on the Wisconsin Supreme Court.

1849 abortion law: The Wisconsin abortion ban, which was enacted in 1849, again became law after the U.S. Supreme Court overturned Roe v. Wade in 2022. This law is currently being challenged by democratic Wisconsin Attorney General Josh Kaul. This case is all but certain to advance on appeal to the state Supreme Court later this year. Protasiewicz made the 1849 abortion law central to her campaign. During her victory speech on April 4, she made it clear this would be a priority: “Our state is taking a step forward to a better and brighter future where our rights and freedoms will be protected.”

Congressional and legislative district maps: The Protasiewicz win guarantees a legal challenge to the state’s current legislative and congressional district maps. State legislative maps were drawn by Republicans in 2011 and 2021, with very little change. Jeffrey Mandell, the president of Law Forward, a progressive law firm that has represented Gov. Tony Evers, said he would file a legal request for the Supreme Court to hear a redistricting case the “day after” Protasiewicz is seated. Protasiewicz called the maps “rigged” and made her position clear: “They do not reflect people in this state. I don’t think you could sell any reasonable person that the maps are fair,” she said.

2024 voting rules: The state Supreme Court could reset the rules for the 2024 presidential election if potential legal challenges to current voting laws make it to the court. Two issues raised during the election included the current requirement for a state-issued voter identification as well as the current ban on ballot drop boxes.

Public employee collective bargaining: Protasiewicz said she believes the law that limited collective bargaining abilities for most public employees, known as Act 10, is unconstitutional. The Wisconsin Supreme Court upheld the law on a 5-2 vote in 2014. Protasiewicz also said she would consider recusing herself from a case involving Act 10 because of her participation in protests against the law back in 2011.

Again, these are the four issues that are most likely headed up to the state’s highest court. It’s very possible other issues, including those that are related to real estate, could be on the Supreme Court agenda in the future.

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