Our Endorsement for WI Supreme Court
It's the Most Important Race this Year. PurpleAmerica Endorses....
When PurpleAmerica was first created, we wanted it to stay above partisan political fray and be a beacon of common sense. It would focus specifically on issues, good or bad, political or not, and try to cut through a lot of the crap that people have a hard time distinguishing fact from fiction on.
When it comes to endorsements, campaigns and the press make them out to be a bigger deal than they actually are. Nobody ever voted for a candidate because they got this or that endorsement, largely from people or outlets predisposed to vote for them anyway. It makes logical sense that typically, we would not endorse anyone under normal circumstances. If the candidates were competent, capable and responsive, and they were fits for their representative districts, then it wouldn’t matter if they were Republican or Democrat, on this side of an issue or that one; they would be fulfilling the wishes of the people who elected them and doing the business on their behalf. That is what democracy is supposed to look like.
However, when it comes to Wisconsin, state legislators have made a mockery of democracy.
A History of Wisconsin Politics since 2010
It started back in 2010, with the national shellacking of Obama and the Democrats at the hands of the Tea Party Republicans. Republicans swept to power in Wisconsin in both houses of the legislature and Scott Walker became Governor. This in and of itself would be no cause for alarm.
Wisconsin, which normally is a 50/50 Democrat/Republican state (and one of the swingiest in Presidential elections, although until 2016 it had voted for a Democrat every election since 1984, often by the narrowest margin in the country), became legislated as if it were the reddest of red states. Walker and the Republicans immediately pushed through Act 10, stripping teachers and public sector unions of financing and protections (all except the Police and Firefighters Unions, which conveniently vote with Republicans). They started changing administrative laws putting more civil servants under the thumb of the Governor, and made it easier for the Governor to enact certain policies without it going through the deliberative body of Government, the Legislature. 1 Even though they had solid majorities in each, why provide the opposition an opportunity to make a case? 2
However, the item that has had the most lasting impact on the state is the legislative gerrymander. Provided and passed by the GOP legislature in 2011, it made most every district in the state uncompetitive, and ensured a Republican Majority in both Houses. How strong was it (which still exists)? In 2020, Democratic candidates for State Assembly won a majority of the statewide vote total, but Republicans maintained a whopping 64% of the Assembly seats, almost a supermajority.
The gerrymander is not only difficult to undo, it makes it impossible to govern. After losing election in 2018, Scott Walker and the GOP legislatively stripped the governorship of power and delegated more to the legislature, which they would still control. Governor Evers has been essentially governing a state with his hands tied, unable and unlikely to ever see a legislative majority of his party in either legislative house.
Back to 2011, this all led to the recall elections of 2011. People were genuinely ANGRY. Democrats were able to get a number of state legislators and the Governor on the ballot, according to the State Constitution, in a recall. The summer and fall turned into a “Hot Cold War” between neighbors, as people in Wisconsin became seriously partisan and loathed others on the other side, whether they lived right next door to them or not. In the end, a few seats switched to the Democrats, but the majority of the seats, firmly in GOP hands, stayed the same, including the Governorship. What gains the Democrats did make were quickly lost when the gerrymander went into effect in the 2012 cycle.
When a government creates for itself a system in which there is no potential electoral consequence for negligence, incompetence or intentional infliction of pain on a discrete minority of voters, there is no longer a democracy. Elections are the great moderator in a democracy. If those in power fear losing, they moderate their stances. If those in power have to face consequences to their actions, they refuse to take such actions that are detrimental to the overall body politic. When no such consequences exist, you have authoritarianism.
With the legislature and the executive firmly ensconced on the right, the only avenue left to correct this downward spiral in governance was the Judiciary. Unfortunately, at the state level, the State Supreme Court, while nominally non-partisan, was also solidly in the Republican camp. When the gerrymander came up before them, the case was quickly dismissed and the gerrymander affirmed. At the federal level, The Roberts Supreme Court took up the case and basically said that the power to make the district boundaries belonged to the states and there was no problem.
Now, in Wisconsin, state supreme court judges are elected. They are “non partisan” statewide contests. The only way that Democrats will ever have to remove this gerrymander is through a majority on the Wisconsin Supreme Court. As a result, since 2012, the State Supreme Court elections, which were previously quiet, uncontroversial affairs, have turned into highly competitive, high turnout partisan elections.
In a nutshell, that is why we are here where we are and why this single race, which may potentially tilt the majority over to the Democrats, allowing them to get rid of the gerrymander and bring democracy back to Wisconsin is such a huge deal. On top of that, it has implications in the 2024 Presidential election in that voter ID, voting machines, drop boxes and other items that may play a role may be heard by a Democratic majority court and may sway a close electoral state election one way or the other. The stakes are high as witnessed by the sheer volume of ads and out of state money pouring into an state judicial election.
The Candidates
The “Republican” (in quotes because the seat it technically non-partisan) candidate is former state Supreme Court Justice Daniel Kelly. Appointed to the court in 2016 by then-Gov. Scott Walker, Kelly lost his bid to keep the seat in the April 2020 election to then-Judge Jill Karofsky by a margin of 10.5% . That election was dramatically impacted by the beginning of the COVID-19 pandemic, with far less polling locations in place across the state, leading to long lines on a very busy Election Day.
Kelly became just the second state Supreme Court incumbent in Wisconsin’s history to lose re-election. He is also the first former member of the court to run again years down the road. As a former justice, Kelly is the only candidate with an actual track record to show how he would rule from the bench. Kelly consistently joined the most conservative members of the court on rulings, and also joined conservative colleagues in criticizing swing vote Justice Hagedorn on cases where that justice voted with the liberal members.
Kelly is largely seen as an ideological hardcore conservative. He defeated a more pragmatic conservative judge, Jennifer Dorow, in the primary who presided over the Waukesha Christmas Parade murderer trial and was seen as more of a practical judge.
On the other side, is Milwaukee County Judge Janet Protasiewicz, usually referred to as “Judge Janet.”
On her campaign website, Protasiewicz describes herself in terms of her judicial record:, “Community leader, a veteran prosecutor, and a lifelong advocate for victims of crime. In nearly a decade as circuit court judge, she has earned the respect of the community, developing a reputation for being fair and impartial.”
Protasiewicz’s campaign language goes on to make a more political case,
“Our system works because the law is predictable. You can read the constitution, the statutes, and case law, and know what to expect, but as we can see on an almost-daily basis, our most closely-held constitutional rights are under attack by radical right-wing extremists,” it reads.
The Purple America Endorsement
As I mentioned at the top of the page, “If the candidates were competent, capable and responsive, and they were fits for their representative districts, then it wouldn’t matter if they were Republican or Democrat, on this side of an issue or that one; they would be fulfilling the wishes of the people who elected them and doing the business on their behalf. That is what democracy is supposed to look like.” Those are the standards of which we would approach any endorsement.
In this case, both candidates are competent; Kelly as a former Supreme Court justice and Judge Janet as a Milwaukee County Judge. They are also more than capable. Their jurisdiction is statewide so being elected would require them to be responsive to their districts (the state) or face being voted out, as Kelly himself was in 2020.
Insofar as the candidates themselves and their issues that they bring, Purple America makes no formal endorsement.
However, there is something much more important on the ballot this time. Democracy itself. When I wrote above, “That is what democracy is supposed to look like,” it should be stressed DEMOCRACY is the most important aspect of all of this. What kind of democracy is there when the outcome is a foregone conclusion; “the battle is won before it is fought” is a great adage regarding the art of war but for a governing principle where the vox populi matters it is counterproductive. If you pride the institution of democracy, then what has happened in Wisconsin is an affront to everything we should respect as Americans. Republican governance in this regard shocks the conscience.
There were multiple opportunities to address and fix these concerns throughout the whole process:
Republican legislators could have shown a level of respect to democratic institutions by refusing to draw maps in such a shameless way.
Republicans could have also chosen not to strip the governership of many powers they entrusted to the Governorship once Walker lost, demonstrating to the world their blatant hypocrisy and making the state practically ungovernable.
The original case that went before the state supreme court should have recognized that the level of gerrymandering here made government worse, by the sheer volume of uncompetitive districts, and ensuring the most extreme candidates in state primaries were then elected. It simply goes against any common sense reading of equal protection under the laws in the State and Federal Constitutions.
The Rehnquist Court failed to acknowledge that when a majority of state citizens vote for a party statewide, but get only 1/3 of the correlating legislative seats, that the idea of equal, fair and just representation, a cornerstone of democracy is essentially turned on its head.
In short, had the standards and institutions held, and our elected officials showed some level of respect toward one another and for some of our most cherished institutions, or at any level of judicial recourse realized the genuine offensiveness that this bastardization of democracy was, we may not be here today focusing so much on a single Wisconsin State Supreme Court election. That they didn’t and partisan Republicans have controlled every recourse along the way, screams volumes to me that a change has to occur and that there needs to be a balancing of the scales.
So it is Purple America’s decision that, unrelated to the candidates themselves, a change in Wisconsin has to occur and that requires voting for Janet Protasiewicz. Her election to the court would demonstrate democracy is not lost, that legislative games and nihilistic governance has consequences and that the Wisconsin body politic can once again restore some level of balance that has been so lacking there the past 13 years.
Judge Protasiewicz could be opposed to everything else we believe. We may disagree with her on many major issues. But on the one item that matters, that every person has a voice and has the fair and equal right to select their representatives, which by necessity and design are responsive to the people, her election would represent and demonstrate that position. To save democracy, we would endorse a horse to fill this seat.3 Democracy gets our endorsement.
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It should be noted that once Walker lost election, in the subsequent lame duck session the legislature repealed all these powers, and instead vested them all in the state legislature.
This can be demonstrated by the number of times Governor Evers has called a special session, and the GOP legislature has repeatedly gaveled in and then immediately gaveled out the sessions without debate.
If you don’t get the reference, back in Roman times, rather than nominate someone to the Senate, Roman Emperor Caligula nominated his horse instead.