Wisconsin Court Win Primes Democrats for US House Map Challenge

The Wisconsin Supreme Court is exiting a trench warfare period with a breakthrough liberal win that could give Democrats a leg up in the fight for Congress.

Susan Crawford’s 10-point victory Tuesday night over Brad Schimel will give the state high court’s progressive justices three years of runway—through 2028—to select cases, including potential challenges to the swing-state’s congressional lines that currently send two Democrats and six Republicans to Washington.

The race was about “a vote for which party controls the US House of Representatives,” Elon Musk said during a rally on Sunday in which he handed out two $1 million checks to Wisconsinites who cast ballots.

Crawford’s 55-45 win sets the stage for a half-decade where it’s possible that court control could shift multiple times leading up to the 2030 Census, when the justices will control the fate of new lines that could put Democrats in contention for more of the state’s House seats.

Leaders on the political left decried Musk’s tactics, but agreed with the stakes. State Democratic officials raised money on redistricting and US House Minority Leader Hakeem Jeffries urged on voters saying Wisconsin needed an “enlightened Supreme Court” to revisit lines.

In the end, Musk’s efforts were drowned out by donations from liberals across the country—including George Soros—who outspent conservative groups $43 million to $34 million, according to AdImpact. The race’s impact will reverberate across the state and the country, Scott Manley, executive vice president of government relations for Wisconsin Manufacturers & Commerce, the state’s largest business trade association, said in an email.

Democrats “raised money for her campaign on the premise that she would use her seat on the Court to redraw our Congressional maps to flip two Republican seats to the Democrats, and her national donors are expecting a return on their investment,” he said. “Her election to the Court may be enough to guarantee Democrats a majority in the US House of Representatives next year.”

Abortion, Unions, Elections

In appellate litigation timing can mean everything. While Crawford was elected too late to hear some key cases, she’s taking the bench as others make their way through the legal system.

A pair of abortion related cases—both challenging aspects of the state’s 1849 abortion ban—will be handled by the court before Crawford takes her seat this summer. However, Crawford, a former lawyer for Planned Parenthood who touted her abortion rights beliefs in her campaign, could preside over litigation seeking to expand pregnancy termination protections.

“A Crawford win would cement” a decision to remove the state’s ban, said Jay Heck, executive director of Common Cause Wisconsin, in an email.

A liberal majority will also tackle an emerging challenge to “Act 10,” a series of labor regulations that have decimated the state’s public sector unions.

A state court ruled the law’s disparate treatment for public safety workers violated the Wisconsin Constitution. Crawford herself brought a challenge to Act 10 more than a decade ago while representing a teachers union, indicating the law is likely headed to the scrap heap, said Rick Esenberg, of the Wisconsin Institute for Law & Liberty, a conservative legal institute.

“Act 10 was challenged four times immediately after passage, and all challenges were unsuccessful,” said Esenberg, the institute’s president and general counsel. “Who sits on that case will matter.”

Tale of Two Concurrences

The progressive and conservative wings of the Wisconsin Supreme Court have been further fracturing lately, setting the bench up for some potential tumult in the years to come, litigators and researchers say.

On the conservative side, Justice Rebecca Grassl Bradley has led the charge to revive the “non-delegation” doctrine, a legal theory limiting how much legislatures can empower state or national administrative agencies under a governor, or president.

With Crawford on the bench, conservative litigants and Wisconsin business groups, will likely struggle to win cases rebalancing the separation of power in Wisconsin between Democratic Gov. Tony Evers and the Republican-controlled state legislature, Esenberg said.

The conservatives hew to an originalist interpretation of the law, generally rejecting new or expansive readings of rights stemming from the state’s 1848 constitution. However, now the the progressives will have years to expand on theories pushed by Justice Rebecca Frank Dallet and other that the Wisconsin constitution contains expansive rights—including equal protection rights—even beyond that of the federal constitution.

This court’s divide is starkest on voting and political cases, where the bench often splits 4-3. That includes a decision in 2020 that was one vote away from eliminating over 200,000 ballots from Democratic counties and giving the state’s electoral votes to Donald Trump.

High profile political cases are legion in Wisconsin. Law Forward, a Wisconsin progressive litigation organization, has a running tally of more than a dozen high-profile cases in the Wisconsin Supreme Court pipeline—lawsuits ranging from absentee ballot requirements to voter roll purges and citizenship status checks for registered voters.

Those suits are now more likely to tip liberals’ way. However, the danger ahead is that with frenetic flips of court control, voters might see the Wisconsin justices overrule recently-decided cases and lose faith in the court as an impartial, independent institution, said Bryna Godar of the University of Wisconsin Law School State Democracy Research Initiative.

“The court will have to grapple with stare decisis going forward and the importance of judicial elections for the people to express where they want the court to go, but in a way that maintains the integrity of the courts,” she said.