Wisconsin Election Alert! Tomorrow's Primary...
"These are the concrete steps that constitute self-government. These are the seemingly innocuous elections that make or break America."
Tomorrow, Wisconsin will hold a primary election in a race that is critical not just to the Badger State but also to the nation as a whole. The ideological balance of the Wisconsin Supreme Court is on the ballot. Currently, the court leans 4-3 conservative, but after a conservative justice announced her intent not to run for office again (Wisconsin state judges are elected), the race is on to see if the narrow majority can be held or if the court will flip left.
Many Americans are very focused on national politics and forget how critical state level politics really is to the health of our nation. In the last three years, critical cases have come before the Wisconsin Supreme Court that underscore its importance at both the state and federal level.
In the spring of 2020, Democrat Governor Tony Evers—citing COVID—issued an executive order delaying the April election until June. The Wisconsin Supreme Court overruled that executive order, and the April election went forward as regularly scheduled. This was a victory for Wisconsin and the country. It is dangerous precedent to permit Democrats to delay elections under the guise of a supposed crisis.
Just a month later, the conservative-controlled court was again faced with a momentous decision. After Governor Evers directed the state’s Department of Health Services to extend stay-at-home orders, the Republican-controlled legislature sued and won. The Wisconsin Supreme Court struck down the stay-at-home order holding it unlawful and unenforceable. This decision was not only a significant win for the people of Wisconsin, it stood out as an example to the nation. It gave hope and energy to those states still struggling to free themselves from the tyranny of the COVID mandates, and it set a concrete precedent to which other states and courts could point in that struggle.
Sometimes, state courts have a direct effect on national politics.
Wisconsin was a hotly contested battleground state in the 2020 election. Donald Trump broke the blue wall when he won Wisconsin in 2016. Holding Wisconsin in the MAGA column was an important piece in Trump’s path to victory in 2020. Sadly, Trump lost Wisconsin in an election that is still debated today.
Unsurprisingly, there was significant dispute over various types of absentee voting. Wisconsin law requires photo ID to vote, but those who are “indefinitely confined” “because of age, physical illness, or infirmity, or [are] disabled for an indefinite period” can request an absentee ballot without showing photo ID.
In the run-up to the 2020 election, several county clerks encouraged voters who were uncomfortable about COVID to simply identify as “indefinitely confined,” which was undoubtedly an abuse of the law. The Wisconsin Supreme Court reprimanded those county clerks, ordering them to stop giving such permissive guidance. But the damage was done. In the presidential election, voters who identified as “indefinitely confined” numbered a staggering 265,979—a massive leap from the 66,611 who voted in this category in 2016.
Many of those approximately 200,000 new “indefinitely confined” votes were likely cast unlawfully. The 2000 Supreme Court case Bush v. Gore made clear that when voters are treated differently, as is the case when otherwise legal voters cast their ballots in an illegal manner, it dilutes the strength of legally cast votes and is a violation of Equal Protection.
The Trump campaign sued, challenging ballots cast by those who identified as indefinitely confined after a certain date, as well as the manner in which other absentee votes were cast—some without proper application and others without proper witness forms, which the county clerks cured on behalf of voters.
A swing-vote on the Wisconsin Supreme Court joined the liberal justices to form a majority and dismiss Trump’s argument against the indefinitely confined votes and deny relief on his other claims on the basis of “laches.” Although it isn’t clear what relief a conservative majority would have or could have given for the indefinitely confined votes, a dissent made clear that the majority’s use of “laches” to dismiss Trump’s meritorious arguments on the other ballot issues was an excuse that would not have gained traction with a conservative majority.
Because Wisconsin was not the only state in dispute, Wisconsin was not outcome determinative for the 2020 election—but it could be down the road.
In June of 2022, the court held that the ballot drop boxes used in Wisconsin during the 2020 election were not authorized by the legislature and that the guidance by the Wisconsin Election Commission encouraging the use of drop boxes was unlawful. That was a critical ruling for future elections in one of the most hotly contested states in the nation.
Hopefully, it is abundantly clear that maintaining a conservative majority on the Wisconsin Supreme Court matters immensely to both the state and the country.
In tomorrow’s primary, four candidates will be on the ballot. Although the race is non-partisan, there are two conservative candidates and two liberals.
Justice Daniel Kelly was appointed to the Wisconsin Supreme Court in 2016 to fill an unexpired term vacated by Kelly’s predecessor. Kelly proved to be a staunch conservative vote on the court for the next four years.
Judge Jennifer Dorow is a judge on the circuit court in Waukesha County. She recently came to state and national prominence, because she was the judge who presided over the trial of Darrell Brooks—the murderer who plowed through Waukesha’s Christmas parade in 2021.
Both Justice Kelly and Judge Dorow are professed conservatives, but I support Justice Kelly in this primary because he has a much longer and stronger track record on the bench. Justice Kelly is well respected (one local attorney described him as Wisconsin’s Scalia) and already acquitted himself well on the very court he seeks in this election. We simply do not know as much about Judge Dorow or her jurisprudence, especially on constitutional issues. That does not mean she isn’t a good judge, but it does mean there are more question marks than I’d like for a supreme court position.
Whether you vote for Justice Kelly tomorrow or for Judge Dorow, if you live in Wisconsin, be sure you get to the polls and contact all your family and friends eligible to vote and remind them—these are the concrete steps that constitute self-government. These are the seemingly innocuous elections that make or break America.
Every four years, Americans get very worked up about the presidential race. It is certainly true that our liberty and stability as a nation are deeply affected by the occupant of the White House. But too many conservatives forget the enormous power we hold through state politics. Grassroots involvement in the years between our national elections can and does help drive our national direction.
If you are a Wisconsin voter, it is imperative that you get to the polls and cast your vote both in the primary (February 21st) and the general election (April 4th). Of the four candidates in the race, Justice Daniel Kelly and Judge Jennifer Dorow, are the two conservatives. Make sure your voice is heard.
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