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An op-ed in Rupert Murdoch’s New York Post called it “America’s most important election of the year.” The New York City mayor’s race? Perhaps a contest for governor? No, the tabloid was hyperventilating about the race for the Wisconsin Supreme Court.
In Wisconsin, as in many states, voters choose high court justices. On April 1, liberal candidate Susan Crawford is vying against conservative Brad Schimel. The election is supposed to be nonpartisan, but nobody is fooled. The outcome of the race could flip the court’s current liberal majority.
There are strong arguments against judicial elections, but citizens cherish the chance to make this choice. No state with elected justices has gone back in decades. Yet as politics has grown more intense, more polarized, and more expensive, high court election campaigns now resemble the worst of a presidential primary, complete with attack ads, dark money, and presidential endorsements.
It’s already the most expensive judicial race in American history. According to data collected by the Brennan Center and analyzed by my colleagues Ian Vandewalker and Douglas Keith, campaigns and committees have spent $81 million so far, with a week to go.
In 2023, the last time Wisconsin voted for a seat on the court, a liberal justice won by 11 percentage points, reflecting public backlash against the U.S. Supreme Court’s Dobbs decision overturning abortion rights. This year, Republicans want the debate to be driven by support for Donald Trump in a state he won just a few months ago. The president endorsed Schimel last week.
Democrats want to make this year’s race not a referendum on Dobbs but on DOGE. They assail Elon Musk for spending freely in a state where he never lived. Groups connected to Musk have spent more than $17 million on this race. His America PAC has literally started giving away money, offering $100 to any Wisconsin voter who signs a petition against so-called “activist judges.” (Even John D. Rockefeller only gave away shiny dimes.)
Liberals and Democrats — who spent the most in Wisconsin’s high court race two years ago — have spent freely as well. A state group with ties to national dark money groups and Wisconsin philanthropist Lynde Uihlein spent $6.2 million to boost Crawford. Billionaire George Soros spent $2 million.
Much of the money being spent is untraceable. As the latest data shows, Crawford’s campaign spending of $22 million is more than double that of Schimel’s $10.4 million. But independent groups like super PACs and nonprofits spending untraceable dark money favor Schimel by a much larger margin: $13.5 million benefiting Crawford compared with almost $35.5 million boosting Schimel.
Behind it all lurk issues of voting rights and fair representation. The Wisconsin Supreme Court first blessed, then undid, a highly effective partisan gerrymander. With a new majority, it could redraw maps once again.
All this hardly seems the best way to induce public trust in the courts. So, what kinds of reforms could set things right?
At a minimum, state laws could require full disclosure of who is spending and giving in judicial races. States can also tighten ethics rules to ensure that judges don’t hear cases involving their biggest backers. And, as the Brennan Center has urged for years, limiting judges to single terms could reduce the risk of reelection concerns influencing their decisions.
Other campaign finance reforms could do more to ensure that judges serve the broad electorate rather than narrow special interests. Public campaign financing, for example, has proven to be a powerful antidote to the outsize influence of big money in statewide elections.
And then there is the farce of supposedly independent spending that actually enables candidates to raise funds in large denominations. Here is where the courts come in. All this is legal only because the U.S. Supreme Court effectively deregulated campaign finance in Citizens United v. Federal Election Commission 15 years ago. The Court has given hints that it sees judicial races as different from other elections and that it may be willing to allow stronger rules to protect the independence of judges. But states must pass laws to test this approach.
All this matters greatly. State courts and constitutions will play an ever-greater role as federal courts step back from protecting rights and equality. They can be an independent bulwark to protect liberty and democracy. That is the premise of our State Court Report project and the exciting cross-partisan movement to bolster the state courts and highlight their role.
State courts can play a vital part in the revitalization of American democracy — or they can become one more part of a polarized system dominated by dark money.
