A critical electoral battle in Wisconsin on April 1 could have major political repercussions and is seen as a barometer for the state of the national mood. Over $100 million will likely be spent on the race, including from big-name funders such as Elon Musk and George Soros. What is odd about this contest is that it is not for the Senate or the House, nor even for governor. Instead, the battle is for one of seven seats on Wisconsin State Supreme Court.
Electing judges has long been controversial. In the early days of the republic, appellate-level judges were appointed. The Constitutional Convention adopted this model, and to this day all federal judges are appointed for life and can only be removed via congressional impeachment, which has only occurred 15 times (with eight convictions and three resignations). Most other countries also follow an appointment model.
But in the U.S. in the mid-19th century, as the voting franchise was expanded, newly empowered citizens wanted to directly choose their own judges, and elections for state and local judges became popular.
Over time, this led to significant pushback. In 1911, President William Howard Taft controversially vetoed the Arizona and New Mexico constitutions because Arizona had a provision allowing for recalls of judges — an unpopular decision that did nothing to help Taft’s failed reelection run. Arizona removed that recall law and then, following the state’s admission to the union, promptly added it back in.
Today, most state court judges in the U.S. run for some form of election. In some states, they are appointed by a governor and then later must face the voters in mandatory retention elections. In the past, the retention elections were more of a pro forma event, but in recent years judges have been ousted by voters.
In California in 1986, three Supreme Court justices were kicked out due to complaints that their decisions were too liberal — the first time that happened in the state’s history. In Iowa in 2010, three Supreme Court judges failed to win their retention race because they ruled in favor of same-sex marriage. In 2018, a California judge was kicked out in a recall due to his controversially lenient ruling in a rape case, the first recall and removal of a judge anywhere in the country since 1977.
These hard-fought, policy-based retention elections and recalls may be examples of how judicial elections are gaining importance, but they are still different from what is happening in the Badger State. The Wisconsin race, an ostensibly nonpartisan battle between incumbent Susan Crawford, a Democrat, and former Attorney General Brad Schimel, a Republican, will decide which party controls the Supreme Court.
The race is easily the most expensive judicial election in history, and not because of potential rulings that will only affect Wisconsin. Instead, both sides are expecting decisions in the battleground state that will affect future presidential and congressional races. The last Wisconsin judicial race led the chamber to flip from Republican to Democratic control. The result was the ending of an extreme state legislative gerrymander and rulings in favor of absentee ballots and elections drop-boxes that Democrats hoped would benefit the party in 2024.
Other states have seen similar battles. North Carolina’s judicial elections won by Democrats led first to a ruling that overturned a gerrymander, leading to the election of several more Democrats to Congress. Follow-on elections led to Republicans regaining control of the court and allowing the gerrymander to be put back in place. The resulting loss of three Democratic seats in 2024 is the difference in the power of the House of Representatives. The North Carolina court is currently tied up with a lawsuit by the defeated Republican candidate, who lost by a mere 734 votes in November. He seeks to throw out 60,000 ballots.
We can expect these fights, and the nationalization of judicial elections, to continue. Federal judges have become central players in the political sphere and prominent Republicans, including the president, are calling for impeachments after recent rulings against the administration. The role of the judiciary is such that former Senate Majority Leader Mitch McConnell saw federal judicial appointments as his greatest accomplishment — a statement that would certainly have shocked famous senators from the past.
It makes sense that this fight continues to trickle down to the state level. Kansas, a red state that has a history of electing Democratic governors, is looking to move to electing State Supreme Court judges.
Only a few years ago, it would have seemed odd that the race for a Wisconsin Supreme Court judgeship would take center stage. But changes in politics and the increasing focus on judicial battles has turned this into a $100 million affair.
Joshua Spivak is a senior research fellow at Berkeley Law’s California Constitution Center and a senior fellow at Hugh L. Carey Institute of Government Reform at Wagner College. He is the author of “Recall Elections: From Alexander Hamilton to Gavin Newsom.”
