The Daily - The Election That Could Reshape Wisconsin, and the Country

Episode Date: April 4, 2023

Wisconsin will hold an election for a seat on its Supreme Court today, and it is no exaggeration to say that the result could end up reshaping U.S. politics for years to come.The Times political correspondent Reid J. Epstein explains why the race to replace a single judge has become the most important American election of 2023.Guest: Reid J. Epstein, a political correspondent for The New York Times.Background reading: Cash is pouring in to the Wisconsin race, and some of the candidates have shed any pretense of judicial neutrality.Here’s what you need to know about the battle for the seat.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.

From The New York Times, I'm Michael Barbaro. This is The Daily. Today in Wisconsin, a local election to replace a single judge could end up reshaping national politics for years to come. My colleague, Reid Epstein, explains. It's Tuesday, April 4th. So, Reid, tell us about today's election in Wisconsin. Right, so it's election day again in Wisconsin.

And the voters, at least those who haven't voted early, are going to pick between two candidates to fill a vacancy on the state Supreme Court. You know, these elections for years have been pretty boring, low-key, low-money elections. Right. These tend to be very obscure races. Right. These tend to be very obscure races. I can remember filling out a ballot here in New York and struggling to recognize any of the names of the candidates for New York's state Supreme Court. No offense to any of the candidates. Right. And that's how they are in a lot of the country where you have judicial races that nobody knows who they are. A lot of them are uncontested.

Nobody knows who they are. A lot of them are uncontested. But this year, the state Supreme Court election in Wisconsin has soaked up all of the political attention in the state and beyond. And it's become the most expensive judicial race in American history. And that is because this election is probably the single most important election in American politics this year. Wow. That's a very bold proclamation for essentially a local judgeship. Well, Michael, you have to remember we're talking about Wisconsin here, and it's basically a 50-50 state split between Democratic and Republican voters. But despite that being the case, since 2011, it's really become a radical experiment in one-party rule.

Right. Republican party rule. Republican party rule. Republicans won like they did in a lot of states. They won a lot of seats in the legislature in 2010. They swept the statewide offices. And when they did that, they redrew the state's legislative maps to give themselves a hammerlock on power. And just remind us how much of a hammerlock we're talking about. Well, even when Democrats won a majority of the votes for the state assembly, they've never won more than 40% of the seats.

When Democrat Tony Evers was elected governor in 2018 and reelected in 2022, the Republicans still have near supermajority control of both chambers of the state legislature. Right, because in a sense, the Republicans have drawn voting districts that mean they can't lose, even if the sentiment of Wisconsin voters goes against them. They can't lose. And their big ally throughout all of this has been the state Supreme Court, which has enabled Republican control of the legislature, restrictions on voting laws, and a whole host of other conservative priorities for the past 15 years. And now a conservative justice is retiring.

And that means that whoever wins today's election will control the court majority. And the liberals believe that if they can win and take a four to three majority on the court, that a whole host of issues will begin to turn in their favor in Wisconsin on things like abortion, gerrymandering, who gets to vote and how elections are administrated, and perhaps determining the outcome of the next presidential election. Wow. So if control of the court changes, it really would be a political earthquake. So tell us about the candidates who are competing for this single and very pivotal seat on Wisconsin's Supreme Court. Well, Michael, this is technically a nonpartisan race for a nonpartisan seat. But nobody in Wisconsin is fooled about what's happening here. There's two candidates who have clear political affiliations and beliefs, even if they don't have an R or a D next to the name. The term that I prefer to use to describe myself is a constitutional textualist. The conservative candidate in the race is Daniel Kelly. I do what I can to be faithful to the

text of the Constitution. And he sat on the state Supreme Court Kelly. I do what I can to be faithful to the text of the Constitution. And he sat on the state Supreme Court before he was appointed to the bench to fill a vacancy in 2016 by Republican Governor Scott Walker. Kelly lost his reelection bid in 2020 when he ran his campaign out of the state Republican Party headquarters. So not exactly subtle. No. And after he lost, he represented the Republican National Committee in a lot of the challenges to the 2020 election. Got it. So he's clearly the quote unquote Republican candidate. That's correct. Here's what I think.

I think that there are issues that are coming before our Supreme Court that concern everyone. The liberal candidate is a Milwaukee County judge, and you're going to have to practice saying her name with me. It's Janet Protasewicz. Janet Protasewicz. Protasewicz. Her early ads in the race taught voters how to say her name. She is a longtime prosecutor. She's been a judge for about 10 years. And, you know, I've been pretty upfront about my values and upfront about my opinions, because I think the voters deserve to know that.

Protasewicz makes no bones about her politics. She's a liberal. And I think, you know, you have this kind of gauzy, you know, curtain that candidates can hide behind that just seems disingenuous to me. She embraces liberal issues. And on her campaign website, she says, our most closely held constitutional rights are under attack by radical right-wing extremists. That's the sort of thing you might hear from a candidate for Congress or governor, but probably not for a judgeship.

Okay, so where exactly does this race stand at the moment? What are the polls telling us? The polling we know about from the campaigns and the advocacy groups supporting each of the campaigns suggests that Protasewicz is a couple of points ahead. And in Wisconsin, remember, like three or four points in Wisconsin is a blowout given how close some of these statewide elections are. And so if you see a poll that's showing her up by four or five, as some of them have, like that makes her camp feel very confident heading into election day. Got it. So this political earthquake we are talking about could very well happen tomorrow. So walk us through, Reid, what it would mean on a lot of these big issues that you mentioned a few moments ago for either of these candidates to win this seat. You mentioned abortion, you mentioned voting districts and gerrymandering,

and how elections are administered. So let's start with abortion. When the United States Supreme Court overturned Roe versus Wade last summer, a Wisconsin law passed in 1849 went into effect that bans abortion in virtually all circumstances. Right. The Democrats in the legislature don't have nearly enough votes to challenge that law, and the Republicans have very little incentive or interest in changing it themselves. The attorney general and the governor have filed a lawsuit that is at the moment in a

Wisconsin circuit court and the trial court level, and everyone's expectation is that that case will get to the state Supreme Court later this year. After this election. After this election and after whoever wins this election is seated on August 1st. And if Protasewicz wins, it would give the liberals a four to three majority of justices who have all indicated, either publicly or in their rulings, that they would overturn the 1849 law in Wisconsin. Well, what exactly has Protusewitz said about abortion? My personal value is that women should have the right to choose.

She has said that she believes in a woman's right to choose, which is basically the same thing that you hear from Democrats in the Senate, the Democratic governor of Wisconsin, Tony Evers. Do I think that 1849 law is outdated? Of course. In 1849, women weren't even allowed to vote. There's not much mystery about what she believes and how she would rule on the abortion case should it get to the state Supreme Court. So she would very likely overturn this 1849 abortion ban. She has all but said that. On abortion rights, do you want extremist Dan Kelly holding the gavel?

And the other thing that she said in the one debate the candidates held and interviews and her ads. He'll uphold the 1849 criminal abortion law. Is that Dan Kelly, her opponent, will let the 1849 law remain in effect. Got it. And what beyond her attacks do we know about where Kelly stands on abortion? All judges and all justices have political beliefs. The question is whether

you're going to be willing to set those aside. Kelly has not said explicitly how he would rule on the 1849 law, but we know he's been endorsed by all of the major anti-abortion groups in Wisconsin. So before I came to the court, I publicly made known some of my political beliefs, but that doesn't mean I'm any less capable of setting them aside than those who have not expressed them publicly. So we know that before he was put on the court in 2016, he was a prolific blogger, as many of us were. And he wrote at the time about the evils of abortion. And he used language that is familiar to some of the more aggressive anti-abortion activists out there. Got it. So, Wade, what would it mean if Protostewitz wins

and Wisconsin were to legalize abortion? What would it mean for this state to flip over and be a state where abortion is legal? Well, as far as what it means for people in Wisconsin, it would depend on sort of how far and far-reaching that ruling would be, and that we don't know yet. But we do know that Wisconsin is alone among its neighbors in banning abortion. Right. Abortion is legal in Minnesota and Michigan and Illinois. The situation that you have now is women in Wisconsin have to leave the state for some OB appointments or abortion care. I met a doctor when I was in Green Bay

who is going to Minnesota once a week to see patients. And so if the Supreme Court throws out the 1849 law, it would turn back the clock in the state to last summer before the United States Supreme Court's decision that overturned Roe v. Wade. Okay, Reid, what about redistricting? How voting districts are drawn in Wisconsin, which in so many ways has paved the way for Republicans

in Wisconsin to create so much power for themselves. How do these two candidates for this state Supreme Court seat think about and talk about their approach to that? Well, Judge Protasiewicz has said very clearly. So let's be clear here. The maps are rigged, bottom line. That the maps are rigged and that they're illegal. I don't think you could sell to any reasonable person that the maps are fair. And that she would vote to throw them out.

She basically overturned the system by which Wisconsin Republicans perpetuate their own power. Or at least start over, right? She would disallow the current lines that ensconce the legislature's hammerlock on Republican power. The members of this court have not been entrusted with making political decisions, only legal decisions. And Daniel Kelly said that this is a political problem and not a legal problem. All of the politics that will occur have already taken place over in the legislative branch.

That's where we resolve political questions. And said that it's not the Supreme Court's role to draw the lines for the legislature as long as the lines are drawn within the bounds of the state constitution. And he said that he would not overturn the lines. And frankly, if Kelly is elected, there won't even be a legal challenge because whoever would bring that knows that they would lose. So in one version of what happens tomorrow in this race, Republicans will soon wake up to a world in which they have to truly fight for votes in a way they have never done over the past decade in Wisconsin. And they might, in the next election, suddenly face a level of power much more commensurate with their support in the state rather than the disproportionate level of power they have relative to their support. And in another version, nothing changes at all for them, which definitely reinforces

the stakes of this race. That's right. Frankly, on both abortion and redistricting, if Kelly wins, nothing would change. And if Protasewitz wins, there is potential and high likelihood for major shifts in how the state operates. All from a single person winning a single seat on a court. That's the difference between a four to three liberal court and a four to three conservative court. We'll be right back. So, Reid, let's turn to this third issue, voting itself, and how the two candidates in this race think about and talk about that issue.

You know, Michael, the thing to remember is that the Wisconsin Supreme Court, with its conservative majority... Then I will call our first case for the day, Trump versus Biden et al. Attorney Trooper... ...was the only state Supreme Court in America to take a hearing on Donald Trump's challenges to the 2020 election. And so when we think about what is used... In Wisconsin, absentee voting is considered a privilege, right? Meaning they entertained it.

They entertained it. They entertained it. This case is about not just seeding, but watering and nurturing doubt about a legitimate election. And one of the four conservative justices voted with the liberals to uphold the state's election and reject Trump's challenges. But he did so with the argument that they had challenged the election too late, not that the content of their challenge was invalid. So in other words, this court just barely allowed Joe Biden to be certified as the winner of Wisconsin's vote in the 2020 election. That's right. And since then, the court has banned drop boxes in the state. They've limited who has access to absentee ballots. And in one of these rulings last summer, one of the conservative justices, Rebecca Bradley, compared the 2020 election in Wisconsin to elections in places like Syria, North Korea, and Saddam Hussein's Iraq.

Korea and Saddam Hussein's Iraq. Wow. So this is a court that seems to, in a kind of wholesale way, align itself with election denialism? Is that going too far? I mean, it basically aligned itself with the Donald Trump wing of the Republican Party, which over the last couple years has embraced election denialism, and the conservative justices on the Wisconsin Supreme Court have been no different. Right. Which has often meant restricting voting as a response, and it sounds like with voting drop boxes, that's what this court has done as well. That's right.

Okay. So, back to these two candidates. How are they talking about how they would take this issue forward? Well, Janet Protasewicz in their one debate called Dan Kelly a threat to democracy and said that she agrees with the dissents written by the liberal justices in the Dropbox cases and some of the other voting cases. Got it. And the Milwaukee Journal Sentinel, my old newspaper in Wisconsin, discovered and reported that Kelly was on the payroll of the Republican National

Committee from 2020 to 2022, where he worked on election integrity issues, which, as we know, is often used by Republicans as a code word for election denialism and their attempts to reduce voting access for voters likely to vote for Democrats. So Kelly has been involved in these Republican efforts to restrict voting and to cast out on Joe Biden's victory in 2020. That's right. And he has defended that by saying the Republican National Committee was a client of his and that because he defended them, he doesn't necessarily adopt their position. But at the same time, when I asked him if he thought that the December 2020 cases in Wisconsin that upheld Joe Biden's victory were decided properly, he told me that he would not tell me what he thought about that. Got it. So as with these previous two issues,

you have a pretty clear sense that Protasewicz would rule for a Democratic-leaning position on voting and Kelly on the Republican position when it comes to this. There's no question that that's the case. And for National Democrats, I have to imagine that this is arguably the most important reason to have Portisawitz on the state Supreme Court, which is that she could, through a tie-breaking liberal-leaning ruling, either undo or help impose policies that could affect the outcome of an election and, in theory, influence the role Wisconsin plays in a national election, a

presidential election even. Right. And you have to remember how close the last couple presidential elections have been in Wisconsin. Both 2016 and 2020 were decided by fewer than 23,000 votes across the whole state. The last highly competitive Supreme Court race in 2019 was decided by 6,000 votes. And so this is a state where a handful of votes in each precinct really matters, and who administers and how those elections are administered can swing a presidential election, not just in Wisconsin, but in the whole country. Right. And that is one of the reasons why we're seeing Republicans in Wisconsin already talking about

impeaching Protasewitz even before she's elected. Wow. And do these Republicans talking about impeaching her before she's even been elected include Republican legislators? Well, there is a special election for the state Senate in Wisconsin also on Tuesday. have a two-thirds majority, thanks to the gerrymandered lines, which will allow them to impeach executive and judicial officials in the state. If you win, then you will be the 22nd vote in the state summit, getting the two-thirds majority. Should voters have that in their minds? And a candidate in this race, I would hope voters do have that in their mind. I will put it in their mind, has mentioned that if he wins. And I go, if we couldn't talk about it, let's call it the impeachment powers. I would look to exercise

that authority, particularly in the judicial system. He wouldn't be afraid to use that power and has cited that as a reason for voters to choose him in today's election. If the Senate has that authority and that power, I would act upon it. Wow. So the fact that Republican lawmakers in Wisconsin are even talking about the possibility of impeaching Protis Ewits before she wins a seat very much seems to make the case that this is an extraordinarily important race, right? I mean, you don't talk about using all your legal power to get rid of someone unless you are terrified about what their victory means. That's right. And it's a little bit different from sort of the loose

talk of impeachment that you hear from right-wing Republican members of Congress in Washington who don't have the power to remove anyone. In Wisconsin, they could really do it. And I talked with a Democratic state legislator who said that she thought that they would. And so it's not an academic exercise in Wisconsin, this question of democracy and how far one side will go to maintain their power over the state's government. Right. Well, to that point, let's talk about a world in which Protusewitz does win this race, as some of this private polling is suggesting. I mean, it will be, of course, a huge setback for Republicans, and it will likely end up rolling back some of these high-stakes Republican-leaning policies on issues like abortion. But on a very basic level, when it comes to that question of democracy in Wisconsin, it's going to reinforce just how much this

Republican experiment of one-party rule is fundamentally out of sync with what voters want. Because if she wins, it will be the second statewide election in just a few months following the governor's race, in which Wisconsin voters, when they're given a chance to work around Republican partisan district lines, choose a Democrat, right? Which is a pretty strong repudiation of what Republicans are doing with the rules across the state. Well, not just the last two in the last six months, 13 of the last 16 statewide elections, Democrats or Democratic-backed candidates have won statewide. They haven't won by very large margins. It's usually just a couple of points.

But it is clear that voters in Wisconsin have a demonstrated preference in these statewide elections that is not showing up when the district lines are carved across the state. Right. And that makes the Republican talk of impeaching Protasewicz all the more undemocratic sounding, right? I mean, in the face of potential electoral rejection for perhaps 14 of the last 17, if I'm doing my math correct, if she wins, the reaction of these Republicans will be to try to undo it, right? Which sounds a lot like what Republicans in Wisconsin

sought to do after the 2020 election when Biden won and does not make it seem like a party especially interested in representative democracy. Well, they've been much more interested in power across the state than in representative democracy. And that's been the case for a dozen years by now. You don't hear in talking to Republicans a lot of people defending the district lines as fair. They defend them as we won, and so we get to draw the lines.

Right. and so we get to draw the lines. And so there is a bit of an existential fear among both sides in this race that if they lose, that they'll lose power for generations. Right. And no matter what happens, it feels like this race has demonstrated just how openly state Supreme Court races are becoming political.

I mean, it's not a secret that our judiciary has become a very political animal. We talk about that a lot on the show, especially when it comes to our Supreme Court. But there's been a kind of decorum around it. You know, even if you are a partisan, when you get nominated for a judgeship, you hide it. You take pains to hide it. But in this race, especially Protasewicz, has put her politics very much out there in the open, which is, depending on where you sit, and given the history we're talking about here in Wisconsin, either very refreshing, you know, and clarifying to voters or pretty depressing. I mean, I think this race is going to forever change how the state Supreme Court races are run

in the 22 states where state Supreme Court justices are elected. Especially if Protasewicz wins, she has made a bet in her campaign that voters care a lot more about what her positions are and how she would likely rule than on the idea that may be antiquated now that judges come to cases and decisions as impartial arbiters of the facts and the law. Blinders on the face, just the scales of justice. Right. And if that works for her today, it's going to radically change how these judicial elections are run all over the country. Well, Reid, thank you very much.

We appreciate it. Thank you, Michael. Polls in Wisconsin will close tonight at 8 p.m., and the results of the election are expected by midnight. We'll be right back. Here's what else you need to know today. In what is expected to be a dramatic and closely watched scene, Donald Trump will surrender himself to the office of the Manhattan District Attorney today and will be arraigned at a nearby courthouse a few hours later. In preparation, Trump traveled from Palm Beach to New York City on Monday afternoon

and was driven by motorcade to his apartment at Trump Tower in Midtown. While there may be some rabble-rousers thinking about coming to our city tomorrow, our message is clear and simple. Control yourselves. During a news conference, New York City Mayor Eric Adams warned the president's supporters and opponents to behave themselves at protests and rallies, at least one of which will feature a prominent Trump ally, Representative Marjorie Taylor Greene of Georgia. As always, we will not allow violence or vandalism of any kind.

And if one is caught participating in any act of violence, they will be arrested and held accountable, no matter who you are. Today's episode was produced by Mary Wilson and Luke Vanderplug, with help from Rob Zipko. It was edited by Rachel Quester and Liz O'Balin, contains original music by Marian Lozano, Diane Wong, and Rowan Emisto,

and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landferk of Wonderly. That's it for The Daily. I'm Michael Bilboro. See you tomorrow.