The State Democracy Research Initiative and the University of Wisconsin-Madison Election Research Center hosted an expert panel on Friday to explore funding, impact and the legal context of the upcoming Wisconsin Supreme Court race.
The “Understanding State Supreme Court Elections: Wisconsin and Beyond” event invited three experts to discuss the race: political science professor and UW-Madison Elections Research Center Director Barry Burden, Michigan State University law professor Quinn Yeargain and Northwestern law professor Michael Kang.
Each of the featured panelists gave insight into campaign finance, state constitutional law and judicial elections.
Pathologies of Wisconsin Supreme Court elections
Burden started the panel by discussing the pathologies of the Wisconsin Supreme Court system, noting the increased public participation and enormous jump in spending. Public participation in particular has changed dramatically.
“These [state Supreme Court elections] were once relatively sleepy affairs,” Burden said. “In the last Supreme Court election two years ago, the turnout rate was 40%. That is higher than the turnout rate in midterm elections in many states, and in some cases, it approaches presidential election turnout.”
The second factor is the amount of money spent on these campaigns.
“There was actually one year when public funding was available… that era is over,” Burden said. “The last Supreme Court election two years ago set a record for the most expensive judicial election in American history… north of $50 million between the candidates and supportive groups and political parties.”
While the 2023 state Supreme Court race — which flipped the court to a liberal majority for the first time in 15 years with the election of liberal-leaning Justice Janet Protasiewicz — saw record spending, this year’s race is expected to rake in even more money and attention.
While Wisconsin Supreme Court races are officially nonpartisan, the race has become increasingly polarized in recent years as the two major political parties continue to back their preferred candidate.
“Supreme Court elections have started to resemble presidential elections in Wisconsin, and in terms of turnout and money, they are close. The voting patterns in the Supreme Court elections now almost perfectly mimic how people vote in presidential elections,” Burden said.
Burden said this has resulted in a sort of “proxy war” between the two parties, with big spending being funneled into the race from both major political parties.
Lastly, Burden discussed the historical context of Wisconsin Supreme Court races, and the state’s current political climate. Citing the 2018 election of Governor Tony Evers and the resulting divide between the Republican state Legislature and Democratic governor as well as the general rise of divided government, Burden concluded that he does not foresee a resolution to these issues.
Campaign finance in the national context
Kang discussed the importance of the Wisconsin Supreme Court race on the state’s congressional maps.
“In lots of ways, Wisconsin is exceptional, but in other ways, it’s representative of what’s happening all over the country,” Kang said, adding that the “control of the state Supreme Court is particularly important because it helps determine whether gerrymandering will continue.”
Kang said state Supreme Court races are a “good return on investment” for parties due to how the elections are “relatively cheap” compared to a presidential election but still make a large impact on the ideological makeup of a state.
In terms of campaign finance, Kang said the Supreme Court treats “judicial campaign finance differently than it treats other types of campaign finance.”
So why does money affect judicial decisions?
Kang said when “candidates get elected to the bench on the strength of that money, it’s no surprise that their decisions align with the money.”
Biases can play a role in judicial decisions. Kang said judges who run for reelection will “continue to serve their donors’ interests” to position themselves better ahead of an election.
It is no surprise that money is a vital piece of elections, but in the context of a judicial race, it can get complicated as the law is also a stronghold in many decisions.
Broader trends in judicial elections
Lastly, Yeargain discussed the growing levels of engagement in nonpartisan and partisan elections, including judicial races.
“There is a high level of engagement in partisan elections, especially in swing states. But, we’re also starting to see growing engagement in formally nonpartisan elections,” Yeargain said, adding that this is because states that are “on the balance” are “deciding these important issues.”
A few of the issues that are now being left up to the state’s jurisdiction are contemporary issues such as gun control and abortion rights, on which both parties have different stances.
“As courts sort of achieve this higher level of salience in the public’s mind, then it seems as though we get this higher level of engagement,” Yeargain said. In the future, as state courts are “increasingly deciding these high profile issues that voters are able to appreciate the stakes of, it seems very likely that we’ll see increasing [participation] in many states.”
Voter knowledge of the Wisconsin Supreme Court election
An audience member asked about how much voters seem to know about the judicial candidates, and Burden responded with an analysis of the Marquette Law School poll that was released on March 5.
Burden said only a third of respondents could say if they had a favorable or unfavorable opinion of liberal-backed Dane County Circuit Judge Susan Crawford. For Republican-backed candidate Brad Schimel, a Waukesha County judge and former Wisconsin attorney general, Burden said the familiarity was higher and that about half of the respondents could give an answer saying they were favorable or unfavorable.
Burden commented on how “quickly the public ramps up its awareness of the candidates” as the judicial candidates go from being “unknown figures two or three months before the election.”
It was not until after the new year that people began to pay attention as attack advertisements ramped up.
“The way that people have become informed is mostly through advertisements, and that’s unfortunate, because the ads are not well-matched to the criteria that are probably valuable for making a good justice,” Burden said.
On behalf of the Crawford campaign, A Better Wisconsin Together has spent $1 million on digital and television ads. In 2023, the group spent more than $6 million on behalf of Protasiewicz in 2023.
Schimel and groups backing him have an advantage of more than $7 million in future advertising reservations, with about $7.7 million in reservations supporting Schimel and about $572,000 in reservations supporting Crawford, according to AdImpact Politics.
