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Wisconsin’s Supreme Court Race Is the Left’s Opening to Reverse Years of Conservative Victories

BY: DAVE CRAIG AND JAKE CURTIS | APRIL 03, 2023

Read more at https://thefederalist.com/2023/04/03/wisconsins-supreme-court-race-is-the-lefts-chance-to-reverse-years-of-conservative-victories/

DAVE CRAIG AND JAKE CURTIS

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On Tuesday, Wisconsinites will once again head to the polls in a race that has garnered national attention and set national spending records for a judicial race. According to the most recent Wispolitics.com tally, the two Wisconsin Supreme Court candidates and outside groups have combined for over $45 million in spending. What’s at stake? All of the reforms of the Gov. Scott Walker era, and more.

Home to Walker, former Speaker Paul Ryan, former RNC Chairman and White House Chief of Staff Reince Priebus, and conservative star Sen. Ron Johnson, Wisconsin has enjoyed an outsized role in national politics since 2010. Instead of cautiously governing like so many administrations in purple states, Walker and his allies advanced some of the boldest reforms in the nation. Starting with the historic Act 10 that resulted in a siege of the Capitol (and over $15 billion in taxpayer savings), conservatives advanced bold reforms like Right to Work, voter ID, concealed carry, castle doctrine, and a dramatic expansion of school choice.

Now, Wisconsin’s growing leftist base sees an opportunity to overturn all of the hard-fought reforms by flipping the state’s high court. Politico recently proclaimed the race “could be the beginning of the end for GOP dominance.” This would obviously be bad news for conservatives nationally since Wisconsin will undoubtedly play a huge role in who is president in 2025.

The two candidates running to replace the former conservative Chief Justice on the current 4-3 conservative court could not be any more different, and whoever wins will determine the ideological control of the court for years. Running as the progressive is Milwaukee County Circuit Court Judge Janet Protasiewicz. Instead of articulating a coherent judicial philosophy, she has consistently emphasized her “values” and how they will influence her decisions. She has also troublingly declared that Wisconsin’s legislative maps are rigged –  announcing her thoughts on an issue that is likely to come before the court if liberals gain the majority. She has stated that she disagrees with the U.S. Supreme Court’s Dobbs decision that returned abortion law to the states. She is also the candidate that the left apparently sees as showing they “are done pretending that judges are merely legal umpires.”

Contrast Protasiewicz’s activism with the originalist approach of former Justice Dan Kelly, appointed to the court by Gov. Scott Walker, who authored historic decisions during his four years on the court and consistently quotes from the Federalist Papers on the campaign trail. His lead opinion in Tetra Tech upended decades of deference to administrative agencies.

While Kelly has been supported by the Republicans and Protasiewicz by the Democrats, it is clear that Protasiewicz views the job of a judge as a super partisan legislator, supplanting the legislature’s authority with that of her own. Forecasting what a liberal majority would do Wisconsin’s duly-enacted reform regime, liberal Justice Jill Karofsky herself has declared specifically that “everything that Wisconsinites care about is on the line in this election, from abortion rights to fair maps to the 2024 election to democracy itself, all of those things are going to be on the ballot on April 4th…” These are all issues that have been settled by the democratically elected legislature but are apparently all on the table for a liberal majority of the court.

While abortion, crime, and redistricting have been the main focus of the media and outside groups during the campaign, several other cases could be brought which would fundamentally transform the landscape in Wisconsin. Even cases that have already been addressed by the U.S. Supreme Court are at risk of novel interpretations under the Wisconsin constitution by a new progressive majority.

An issue impacting tens of thousands of Wisconsin families that could be dramatically affected by the balance of the state Supreme Court is school choice. In 1998, the Wisconsin Supreme Court upheld the choice program for religious schools in Jackson v. Benson. There, the court reversed the lower court, holding that the Milwaukee Parental Choice Program was valid under both the Establishment Clause and Article I, Section 18 of the Wisconsin Constitution, which prohibits the use of money from the public treasury to be used for the benefit of religious societies, religious schools, or seminaries. The holding was based in large part on the fact that students in the program were not compelled to attend sectarian schools nor forced to participate in religious activities. The Court further held that public funds may be given to third parties as long as the program on its face is neutral between sectarian and nonsectarian alternatives and that the transmission of funds is guided by the decisions of independent third parties.

While the decision in Jackson has been in place for a generation, a court viewing itself as a super-legislature could undo the decision in part, or in whole, based on a narrowed view of the constitutional provisions reviewed in that case, particularly relative to monies “drawn from the treasury” that are used in the choice program. A court decision holding a strict view of the provision could decimate a program that provides alternatives to families desperately looking for an alternative to failing public schools.

Another issue likely to surface in the event the ideological makeup of the court shifts, as it has recently in other states, is the constitutionality of Wisconsin’s voter ID law. In League of Women Voters v. Walker and Milwaukee Branch of NAACP v. Walker, leftist groups challenged Wisconsin’s 2011 voter ID law, claiming the legislature lacked authority to enact a voting qualification under the Wisconsin constitution and that the law was an undue burden on the right to vote. Upholding the law, the Court noted that requiring an ID was within the legislature’s authority to provide for laws relating to elector registration under Article III, Section 2, that the law was a reasonable regulation that “could improve and modernize election procedures, safeguard voter confidence in the outcome of elections and deter voter fraud,” and that the burdens of gathering the required documents, traveling, and obtaining a photograph ID were not a substantial burden.

In a challenge to the voter ID law under the state constitution’s right to vote, an activist court could hold that a record demonstrating that numerous individuals claiming to have been deterred from voting because of the burden of obtaining an ID is evidence of a “substantial burden” that outweighs the threat of voter fraud and could strike down the law. The left will undoubtedly come after this important law ahead of the 2024 election as it has recently in other states. In a state with razor-thin margins of victory for conservative super-stars like Sen. Ron Johnson, opening the gate to fraudulent votes in the absence of a voter ID law could have major consequences in 2024 and beyond.

Finally, and least covered by the media, are the ramifications the court race might have on the shift of power back to the deep state. In the 2018 case Tetra Tech EC, Inc. v. Wis. Dep’t of Revenue, the court departed from its practice of “deferring to administrative agencies’ conclusions of law.” In a case where a citizen may be challenging an agency’s interpretation of law or administrative rule, the court would no longer review the agency’s action with a “bias” toward the agency’s own interpretation. Agency interpretation is an issue that arises in courts every day across the country, measuring the amount of authority an agency wields on virtually any issue, ranging from taxation to education to election administration – many times involving an agency seizing authority the legislature never gave it. A restoration of agency deference by an activist court could result in an immediate shift of authority from the legislative branch to the unelected officials in the executive branch.

During the final days of the race, former Justice Dan Kelly is sprinting across to the state with a final closing message: saving the court. But the race is about more than just the court. It could impact policies duly enacted by the legislature that conservatives have worked for a generation to obtain. It will make a difference in securing elections and electing strong conservatives like Ron Johnson, who has demanded Covid transparency and has taken on the deep state, or electing central planners like Tammy Baldwin who want to strip us of our freedoms. The election on Tuesday presents a fundamental choice to voters.

Do they want Wisconsin to lurch backward with a progressive court that will undo so many of the reforms the legislature and Gov. Walker worked to implement over the last decade, or are they going to vote to save the court by elevating a former justice that will ensure a conservative majority that respects the law as written by the legislature? The choice is obvious. Save the court and save the state.

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Dave Craig is a Waukesha attorney and served in the Wisconsin Legislature from 2011 to 2021. Prior to his election, he worked as an aide to Congressman Paul Ryan. Jake Curtis is an Ozaukee attorney who previously served as an agency Chief Legal Counsel in the Walker Administration.