Jurisprudence

Liberal Challenger Defeats Conservative Incumbent in Wisconsin Supreme Court Race

Republicans’ voter suppression efforts appear to have backfired.

Voters wait in line at a polling place at Riverside University High School on April 07, 2020 in Milwaukee, Wisconsin. The voters waited sometimes more than two hours at the school, one of the few polling places open in the city.
Voters wait in line at a polling place at Riverside University High School on Tuesday in Milwaukee. The voters waited sometimes more than two hours at the school, one of the few polling places open in the city. Scott Olson/Getty Images

Jill Karofsky, a liberal judge running for the Wisconsin Supreme Court, has defeated Daniel Kelly, the conservative incumbent, according to results from the April 7 election that were released Monday afternoon. Karofsky’s victory narrows the court’s conservative bloc to a 4–3 majority, putting progressives in striking distance of flipping the powerful court. It may also force Republicans to reconsider their position on absentee voting during the coronavirus pandemic. Wisconsin Republicans sought to exploit COVID-19 to suppress Democratic votes, forcing citizens to risk their health to stand in line for hours at a handful of polling places or surrender their right to vote. Donald Trump and his allies appeared to be eyeing a similar strategy for November. But in Wisconsin, at least, that strategy seems to have backfired.

The Karofsky-Kelly race was, by far, the most important contest on the ballot in Wisconsin this spring. Kelly is an archconservative who once said slavery and affirmation action “spring from the same taproot,” stating: “Morally, and as a matter of law, they are the same.” Karofsky is a liberal state circuit court judge who criticized the state Supreme Court’s partisan overreach. The Wisconsin Supreme Court regularly hears cases of immense importance involving voting rights, gerrymandering, gun safety, and the balance of power between the Republican-dominated Legislature and the Democratic governor, Tony Evers. If any of the four remaining conservative justices steps down, Evers can name a liberal replacement, flipping the court. Otherwise, progressives will have to wait until the next state Supreme Court election in 2023 for a shot at flipping it.

Karofsky’s triumph will provide a shot in the arm to demoralized Democrats who feared the judiciary had effectively rigged the election against her. After the Legislature refused to delay the election due to the coronavirus, Evers tried to delay it himself—only to be blocked by the Wisconsin Supreme Court. Understandably, more than 1 million Wisconsinites asked for mail-in ballots, but this surge in requests overwhelmed election officials, who could not process them in time. As a result, some large number of voters did not even receive a ballot until after Election Day. A lower court judge ordered officials to count these late ballots, but the U.S. Supreme Court granted Republicans’ request to nullify them. This one-two punch forced thousands of voters to stand in long lines in the midst of a pandemic, risking their lives to exercise their constitutional rights. And it disproportionately burdened urban residents, who lean Democratic. Milwaukee, for example, consolidated its polling locations from 182 to five after 7,000 election officials refused to work for fear of infection.

The Wisconsin debacle provoked considerable partisan wrangling since both sides correctly understood it to be a dry run for November. This debate largely focused on absentee voting, and whether states should make it easier for voters to mail in their ballots. Trump has vociferously opposed mail-in ballots (which he also uses to vote absentee in Florida), claiming falsely that they are “corrupt” and “fraudulent.” Congressional Republicans have opposed Democratic attempts to establish universal vote by mail in the next coronavirus package. The president and his allies are also considering letting the U.S. Postal Service collapse, starving it of emergency funds so it cannot reliably transport ballots in November.

But it was never entirely clear that Republicans’ hunch—that Democrats benefit from widespread mail-in voting—was correct.  That suspicion seems to have arisen from the fact that more Democratic states have adopted reforms that expand access to the ballot, including mail-in voting, while conservative states retain a slew of restrictions on the franchise. It may also be rooted in liberal advocates’ staunch opposition to severe limitations on mail-in voting; most lawsuits challenging those limitations were brought by organizations allied with Democrats. But in many states, Republican voters, especially older voters, historically use mail-in voting more than Democrats do.

Whatever the reason for Republicans’ intuition, it appears to be inaccurate—at least in Wisconsin, where it may have just backfired. Milwaukee, a Democratic bastion and the epicenter of voter suppression this cycle, had extremely high turnout that clinched the race for Karofsky. Meanwhile, voters in rural Republican-leaning counties simply did not turn out for Kelly like they did for Brian Hagedorn, a conservative justice who narrowly won a state Supreme Court in 2019. Why not? Political operatives will study these returns for months to determine whether GOP voters chose to sit this election out—or if they were simply unable to obtain or return their mail-in ballots on time. If that is, indeed, the case, then the Republican Party may conclude that, by stifling mail-in voting, it is suppressing its own voters while putting everyone’s lives at risk.

Either way, after this upset, expect savvy Republicans to hit pause on their crusade to vilify vote by mail in anticipation of the November election. Conservative groups spent huge sums trying to keep Kelly’s seat and failed. They will want to know why, especially after Hagedorn’s upset victory last year. If the words “Justice Jill Karofsky” do not teach the GOP that Republicans also vote by mail, maybe nothing will.

For more on the Wisconsin election mess, listen to Amicus.

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