Wisconsin's Supreme Court result: More turning of the tide in swing states

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Republicans have a big problem. No, not the guy who got indicted. At least not directly.

The most significant election of 2023 went to the Democrats on Tuesday, as liberal Wisconsin judge Janet Protasiewicz defeated her conservative rival Dan Kelly to flip the 4-3 majority on the state Supreme Court.

The outcome was a big achievement for Democrats, who rallied supporters and raised money across the country for what would normally be a little-noticed (and officially nonpartisan) contest. Protasiewicz made abortion rights a centerpiece of her campaign, and with her victory the court is now expected to overturn Wisconsin's abortion ban rooted in a 19th century statute.

Protasiewicz's win continues a pattern of Democratic successes in the midterms and in other contests that we have seen ever since Donald Trump captured the White House in 2016. The results are especially remarkable given President Joe Biden's unpopularity nationally.

In particular, the Wisconsin contest marked another election fought about abortion in which Republicans came up short. Ever since the Supreme Court overturned Roe v. Wade last year, Democrats have been on the offensive on reproductive rights, deploying resources and driving voter turnout. Republicans don't appear to have an answer, and Democrats will read the Wisconsin results as yet another reason to campaign hard on the issue.

The other big policy outcome from the Wisconsin Supreme Court vote will involve districting. Wisconsin Republicans have established unusually strong partisan gerrymanders for both chambers of the state legislature and for the state's U.S. House districts. As a result, Republicans hold large majorities in both legislative chambers and control 6 of 8 U.S. House seats, even though the state is evenly divided between Republicans and Democrats. The new Democrat-aligned majority on the state Supreme Court could undo the legislative maps drawn by Republicans, a change that might allow Democrats to pick up two U.S. House seats and challenge the GOP's hold on the state legislature.

Tuesday's vote could be consequential in other ways. Since Wisconsin is a key swing state in presidential elections, Judge Protasiewicz's win will close off one of the avenues Trump tried to use to overturn the 2020 election — and would presumably pursue again if he were to be nominated and lose in 2024. To be fair, none of the Republican-majority courts, state legislative bodies or Republican governors that Trump hoped would reject the true vote tally and hand him the election actually came through for him. But enough individual judges and elected officials cooperated with him to make the prospect a real threat to democracy in the future.

We should be cautious about extrapolating from either this election or the midterms to 2024. Still, Democrats have to be pleased that Wisconsin appears to be joining Minnesota, Michigan and Pennsylvania as states trending toward their party. Trump's 2016 victory depended on winning three of those states (and coming very close in the fourth, Minnesota), allowing him to win the Electoral College even while losing the popular vote. The recent results suggest Republicans' ability to outperform the popular vote in the Electoral College might be fading.

Electoral tides can be self-fulfilling prophecies. We are at the moment when political parties are starting to field candidates to run in statewide races in 2024, with recruitment for U.S. House and down-ballot races to follow. High-profile elections such as the one in Wisconsin set expectations for party leaders and activists. Seeing these results, strong Democratic candidates are going to be a little more likely to conclude that 2024 is a good year to run for the first time, to keep going instead of retiring, or to attempt to move up to higher office. Strong Republican candidates — already wary from repeated examples of crackpot candidates defeating more reasonable contenders in GOP primaries — are going to be a little less likely to commit.

Candidates aren't the only ones; volunteers and donors are more likely to give hours and dollars when the party thinks it's a good year, while a pessimistic party finds other, non-political uses for those resources.

But what matters most is that Republicans have pursued policy positions and backed candidates that are alienating some of their own voters while driving Democrats to the polls. November 2024 is still a long way off, and patterns can change. But the evidence is growing that Trump-era Republicans are facing a big challenge with no idea how to solve it.

Jonathan Bernstein is a Bloomberg Opinion columnist covering politics and policy. A former professor of political science at the University of Texas at San Antonio and DePauw University, he wrote A Plain Blog About Politics.