Wisconsin’s big dollar Supreme Court elections could come here

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As if the end of the University of Minnesota men’s basketball season wasn’t difficult enough for Gopher fans, some of the final televised games came with a stream of nasty campaign ads on behalf of two Wisconsin Supreme Court candidates for whom Minnesotans are ineligible to vote.

Blame the Twin Cities media market’s proximity to western Wisconsin for the ads. Blame Wisconsin politics for the record-busting race anticipated to exceed $100 million in spending by the April 1 election. Then thank your lucky North Star that the rivers of cash have yet to flow westward, creating a Wisconsin-esque mess. Those floodgates could soon burst, however.

“Minnesota’s tradition of low-intensity judicial elections could end quickly — in the amount of time it takes for a seven-figure wire transfer to fund a so-called ‘independent expenditure’ in support of or against a judge,” retired Minnesota Supreme Court Justice David Lillehaug said in an interview.

He would know. Lillehaug was appointed to the court in 2013 by Gov. Mark Dayton. The retired justice’s 2014 election was closer than it should have been.

The former U.S. attorney for Minnesota, Lillehaug was well known in DFL circles. But Minnesota judicial elections are nonpartisan, and he ran without an endorsement.

That’s generally how it works on Minnesota’s highest court. The governor appoints a justice who takes the bench without confirmation. In short order, the candidate then goes on the general election ballot to run for a six-year term.

Lillehaug’s challenger was Michelle MacDonald. She had no business in the race. The ill-qualified family lawyer no longer practices law in Minnesota because her license was indefinitely suspended in 2021 after repeated instances of misconduct.

But back in 2014 election, MacDonald got the endorsement of the state Republican Party. The endorsement came without financial support, but it was enough to make her somewhat competitive. Lillehaug won with 53% of the vote to MacDonald’s 46%.

But what if?

What if MacDonald had successfully postured as a credible candidate? The contest could have easily turned into a money-driven contest like those that appear to be becoming the norm in Wisconsin.

On Tuesday, early voting began in the Wisconsin Supreme Court race between Dane County Judge Susan Crawford, who has the support of the Democratic Party, and Waukesha County Judge Brad Schimel, who has Republican support.

The Wisconsin contest is already the most expensive in U.S. history with $59 million spent, according to the Brennan Center for Justice. The Madison-based nonpartisan watchdog Wisconsin Democracy Campaign predicts the race will eventually surpass $100 million, reports the Milwaukee Journal Sentinel.

That’s almost double the record-setting amount spent on a 2023 Wisconsin Supreme Court race, won by the Democratic candidate, that flipped control of the bench from conservative to liberal.

Even though it’s nonpartisan, the Wisconsin race has been billed as a referendum on President Donald Trump as well as a showdown between the world’s richest man, Elon Musk, and a liberal mega-donor, billionaire George Soros.

The Associated Press reports that the race has drawn more than $11 million from groups supported by Musk. Donald Trump Jr. attended a rally with Schimel on Monday night while Illinois Gov. JB Pritzker and Minnesota Gov. Tim Walz are boosting Crawford.

It’s an extraordinary, perhaps ludicrous, amount of money for a single seat. And as George Soule, the former chairman of Minnesota’s Judicial Selection Commission, said, “I can’t imagine they get the best and brighter lawyers on the Supreme Court under this kind of a system.”

In contrast to Wisconsin’s spectacle, three Minnesota Supreme Court justices were on the November 2024 statewide ballot. Justice Anne McKeig was unopposed. Chief Justice Natalie Hudson and Justice Karl Procaccini also ran. They raised and spent less than $370,000 and won without the tsunami of outside cash.

In Minnesota judicial races, individuals are limited to donating $2,500 total over two years. Independent expenditures don’t face the same limits, but to date there’s been little interest in flooding the Minnesota judicial zone with cash.

Currently, there is also no tradition of candidate debates or attack ads. Nominally qualified challengers generally didn’t mount campaigns, perhaps hoping instead to secure seats on the state’s high court through the unpredictability of low turnout elections.

One of the traditional concerns for Minnesota judicial candidates is the ballot drop-off that occurs when voters fill in the boxes for candidates on the top of the ticket and then fail to flip the ballot for judicial contests. With the Wisconsin race in April, there is no bigger contest on the ballot to detract from the Supreme Court race.

In both states, judicial races are billed as nonpartisan, and party affiliation doesn’t appear next to names on ballots. In Minnesota, candidates have generally not embraced partisan support and studiously dodged talking about issues even though the U.S. Supreme Court in 2002 said they could do so.

The Minnesota system has also kept the bench lineup steady. No Supreme Court justice has lost an election since 1946. And although all seven of Minnesota’s current justices were appointed by two DFL governors, the court’s reputation is unencumbered by the ideological divide of Wisconsin’s, where 4-3 rulings are common.

The solid reputation owes a debt to how the District Court judges are selected for the bench in Minnesota. A 1990 statute created the Commission on Judicial Selection, which vets and interviews candidates before submitting finalists to the governor for district court openings. The governor can choose to ignore the commission’s selections but rarely does.

Some governors have followed the same process to select judges and justices for the appellate and Supreme Court.

Soule served as the chair of the commission during Gov. Jesse Ventura’s term. “I think our culture is different,” he said. “We’re good with judges who are not partisan. … I think there’s the kind of a reserve that the judges have exhibited in approaching cases which they haven’t in Wisconsin.”

That doesn’t mean judicial contests can’t — or won’t — change here. There have been attempts to rework Minnesota court election system, but there’s been no catalyzing crisis or a consensus on how it should be done.

But what is normal anymore?

Lillehaug, who has closely watched the ocean of outside cash now coursing through Wisconsin, is concerned. He says he views it as a threat at our border.

Minnesotans can do their part to avoid the partisan chaos of judicial campaigns by focusing on judicial races and the important work performed by the courts. Absent a compelling reason for change, the choice is generally easy: Vote for the incumbents. They’re identified as such on the ballot. They’ve been vetted and continuously scrutinized through time on the bench. They aren’t attempting to fly into office, fitted in a robe bought and paid for by mountains of special-interest cash.