Can Democrats Finally Gain the Upper Hand in Wisconsin?

Judge Janet Protasiewicz

One of the complaints I hear from Democrats is that it's harder for us to succeed than it is Republicans.  This is, to an extent, true, largely due to philosophical differences between the two parties.  Much of the bedrock of Republicanism, even pre-Trump, was largely about status quo.  The Republican Party only occasionally stands for reduced government (you can hardly call the party of the Patriot Act a party that wants less government in people's lives uniformly), whereas the Democrats frequently want to change the status quo.  More environmental protections, more human rights, more safety nets & retirement options for Americans.  As a result, Republicans just need one road block in the path to say "no" while Democrats need to have all of the control to get to a "yes."

This has never been quite as clear as it is in Wisconsin, a state that will soon host the most important American election of 2023.  To take a step back, let me give you a history lesson on the Badger State.  In 2010, conservative firebrand Scott Walker, then a Milwaukee County Executive, was facing off against Milwaukee Mayor Tom Barrett (D) for the open seat of incumbent Democratic Governor Jim Doyle.  Despite Walker being far more conservative than the state as a whole (Wisconsin had not gone for a Republican for president since 1984), he bested Barrett.  This proved to be crucial, because in conjunction with the Republican legislature, the state of Wisconsin essentially was gerrymandered to a degree no other state in the nation is.  Wisconsin's state legislature is so gerrymandered, it's basically (and I don't used this term lightly) electoral apartheid.  To illustrate this point, look at 2018, when Democrats swept the statewide offices, including winning a Senate seat by double digits...but actually lost a seat in the State Senate.  While the Democrats won the governorship last year, Republicans maintained a 22-11 majority in the State Senate after the latest round of redistricting...essentially they have drawn lines that are literally impossible for Democrats to win back control.  As I said, electoral apartheid.

In order to fix this, though, the Democrats have been in a tough position.  Since they can't win back the state legislature, they have to do essentially three things simultaneously: hold the Supreme Court, the Governor's Mansion, and the Attorney General's office (and it's worth noting, even this isn't a guarantee).  This is a challenge, particularly for the textbook definition of a swing state (i.e. statewide, no party stays comfortable for long).  It has required not one, but four major Democratic victories to get to where we are today.  In 2018 & 2020, Democrats managed to flip two Republican-held Supreme Court seats with now-incumbents Rebecca Dallet & Jill Karofsky (not easy given these are off-cycle, low-turnout elections that tend to favor Republicans historically).  And in 2022, despite the Democrats being at a serious disadvantage, both Democratic Gov. Tony Evers & Attorney General Josh Kaul hung on, winning reelection.

This means that we are in a position where Dems have almost the entire puzzle.  They have the Governorship and the Attorney General's office, and are sitting with a 4R-3D Court, with one of the Republican seats (retiring Justice Pat Roggensack) up in April, with a top-two primary in less than three weeks.  If the Democrats can win this race, they will regain the Supreme Court majority, and with that almost certainly make abortion legal again in Wisconsin, along with forcing a redraw of the Wisconsin state legislative seats (and possibly congressional seats), likely to the Democrats' favor.  It's not entirely clear if this would hold up in the Supreme Court, but this is the closest the Democrats have been to a fair state since 2010, and this is a huge deal.

Judge Jennifer Dorow

It's not totally evident who will emerge from the primary.  Each side has two candidates, with the top two vote-getters advancing.  This does pose a potential risk of a shutout, but one of the Democrats (Judge Janet Protasiewicz) seems to have something of an edge over her opponent Everett Mitchell, who has faced some personal issues & has not matched Protasiewicz's robust fundraising.  If Protasiewicz wins by even 3-4 points (public polling is nonexistent here despite the stakes being so high, so we're flying blind and going off of intuition here), that would mean that Republicans would likely get the second slot, with District Judge Jennifer Dorow (most noted for presiding over the Waukesha Christmas parade attack trial, which gained her plaudits from both sides of the aisle) seemingly the favorite against former Supreme Court Justice Daniel Kelly.

Protasiewicz vs. Dorow would be a clash of each party's best candidates, neither side ceding advantage, and it would likely be decided by a minuscule margin.  That's the case quite frequently for Wisconsin Supreme Court races.  Democrats have been to this dance before, and it hasn't always ended well.  Democrats would already have the majority right now had they not dropped the ball in 2019, when conservative Justice Brian Hagedorn won his election against Democrat Lisa Neubauer by less-than-one point.  Republican Justice Rebecca Bradley in 2016, as well, won her seat by less than 5-points in a race that only attracted 2 million voters (for comparison sake, the presidential race a few months later would get 3 million voters, and Hillary Clinton, who lost that election, got almost 400,000 more votes than Bradley...so if Dems had shown up, they would've beaten her).  Wisconsin Democrats have been this close to the end zone before without being able to connect the pass twice in the past decade.

All of this is to say, pay attention to this race.  This will be hugely consequential for a major swing state for the next decade if Protasiewicz wins here, and it's proof that while Democrats are tasked with sometimes gargantuan hurdles that aren't fair, occasionally (if they win this race) clearing those hurdles can make things a lot easier for the next generation.