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Brian Lehrer: Brian Lehrer on WNYC. If you've been with us since the beginning of the program I said that the real reason that tomorrow will be an important day for American democracy is not the arraignment of Donald Trump, but what will happen in an election in Wisconsin. Here's that story. Wisconsinites will choose the state's next Supreme Court justice tomorrow, determining the court's ideological balance and maybe the course of democracy in Wisconsin itself and beyond, including whether Congress is fairly made up of a representative sample of Democrats and Republicans as they actually cast their votes. The state has been called a democracy desert.

What does that mean? Well, to give you a sense of the extent of gerrymandering in the badger state, let me read one sentence from a story in The New Yorker by my next guest, journalist and author Dan Kaufman. In 2011 he writes, "After mapping dozens of possible scenarios, Republican legislative leaders settled on the most extreme partisan gerrymandering possible. Since then, they have never won fewer than 60 of the state's 99 assembly seats, even when Democrats have won as much as 53% of the aggregate statewide vote." That's a quote. When so much of this partisan gerrymandering has been litigated in court, the future of the state Supreme Court has a certain significance.

Another reason this race matters, the future of abortion access in the state to replace a retiring conservative justice. Voters will choose between Daniel Kelly, endorsed by the State's anti-abortion groups, and Janet Protasiewicz, who is endorsed by the state's pro-choice groups. Let's talk more about the states in this election, and the state of democracy in Wisconsin, and its implications for the country with Dan Kaufman, journalist and author of The Fall of Wisconsin: The Conservative Conquest of a Progressive Bastion and the Future of American Politics. That book came out in 2018. Dan's article in The New Yorker which is recent, is called A High-Stakes Election in the Midwest’s “Democracy Desert”. Dan, welcome to WNYC. Glad you could join us.

Dan: Thanks, Brian. I'm really glad to be on. Thank you so much for having me.

Brian Lehrer: Can you take some of what I said in the intro and expand on it, especially with respect to the extent of gerrymandering in Wisconsin and why people in the other 49 states should care?

Dan: No problem. As you mentioned, there is an election tomorrow. That has the possibility of shifting the court's ideological balance from a 4:3 conservative majority to a 4:3 liberal or progressive majority. What happened in 2011 is Scott Walker won the governorship and the legislature. Both houses of it were taken over by Republicans. This was part of a project promoted by Karl Rove called Red Map that was detailed in a book by David Daley. What happened out of that is the Republicans consulted with some very sophisticated mapping experts, and in a secret process in a law firm across the street from the state capitol, they devised this gerrymandering, which was so extreme that as you say the Democrats have never won more than 39 seats out of 99 even though they've won majorities of the aggregate vote.

That has really distorted Wisconsin's democracy. You can see it in issues like abortion, in all kinds of issues whether or not there are fair maps, which two-thirds of the state's residents support, two thirds or more of the state's residents support abortion being legal in all or most cases. The state essentially has been living under minority rule. There's nothing that could be done for the Democrats to win a majority. That has really distorted the state's politics. The other reason the election is so important is in both 2016 and 2020, the state was one of three that basically decided the presidential election.

In 2020 it was the only state supreme court to even hold a hearing on one of Donald Trump's lawsuits. Basically, Trump's lawyer wanted to throw out hundreds of thousands of ballots from Dane and Milwaukee counties, the state's two largest and most Democratic. They came within one vote of doing so. They seriously entertained the argument that because they used drop boxes, even though there had been no challenge to drop boxes prior to the election that this was feasible, but one of the Conservatives broke. You can see how in our Electoral College system, one state can really shape the whole fate of American democracy. Had Wisconsin's results been thrown out, I think you might have seen complete chaos.

January 6th might have been even more ominous and taken on a different hue. I think for those reasons that is why this election is so crucial. You can see it. There's been more than $40 million. There probably will be more than $40 million spent on the Wisconsin State Supreme Court election. To give you context, 20 years ago when Pat Roggensack was first elected, there was $27,000 of outside money spent. It's a huge deal, I think not just for Wisconsin, but for the entire country.

Brian Lehrer: Have they also gerrymandered congressional districts as much as state legislative districts?

Dan: Those are gerrymandered, but because it's federal-- Well, that isn't really the source of the main issue for the state Supreme Court coming up. Those maps were accepted. Those aren't really going to be challenged. They are gerrymandered. I think the bigger issue for people is what's happening with the state assembly and the state assembly determines the state senate. The congressional maps are also gerrymandered.

Brian Lehrer: Abortion rights on the docket or on the ballot in a certain respect in this state supreme election tomorrow, right?

Dan Kaufman: Totally. The state currently it's operating under a law that was written in 1849, which is one year after Wisconsin became a state. As a lot of people point out that was 70 years before women had the right to vote. It was before germs were known to cause disease. There's a case being brought by the Attorney General who's a Democrat named Josh Call, who's basically arguing that doctors weren't given due notice due process on this law and the repercussions. More importantly, probably there were a bunch of laws passed in the 80s that regulated abortion after [unintelligible 00:07:29] and he argues that these supersede the 1849 law.

However, the 1849 law is extreme. There's no state operating under something more extreme. It basically criminalizes the procedure. Doctors could face up to six years in prison and be stripped of their medical license. It's really quite remarkable because Wisconsin, for a long time, as I write in my book, had a very progressive history. It's really quite an outlier. I think it's the only state north of the Mason-Dixon line that has any kind of restriction even close to this.

Brian Lehrer: Listeners, anybody in Wisconsin right now, anybody with ties to Wisconsin right now, anybody in the New York area who moved here from Wisconsin listening right now, call and talk about your state, call and talk about what you see as the stakes in the state Supreme Court election tomorrow for the state and for the nation, or talk about how divided your state is. Dan was just talking about the legacy of Wisconsin as a populist progressive state, but now they have Senator Ron Johnson, who's one of the Trumpiest members of the entire United States Senate. On the other hand, they have a Democratic governor right now, Tony Evers. Obviously, Wisconsin is politically very interesting.

Besides being a swing state in presidential elections, tell us about your state and what you see having gone on there and going on there right now if you're in Wisconsin or from Wisconsin. 212-433-WNYC. 212-433-9692 for Dan Kauffman, whose New Yorker article is called A High-Stakes Election in the Midwest’s “Democracy Desert”. Dan, tell me more about the Republican-backed candidate for Judge Dan Kelly. I know they don't technically run along party lines, officially judicial elections. They are nonpartisan elections, but it's clear in this case who's backing who. I see that he was legal counsel to the RNC, the Republican National Committee during its push to overturn the results of the 2020 election and install fake electors, and call the race for Donald Trump. What is his pitch to Wisconsinites? Does it have anything to do with that? What of his opponent, Judge Janet, and you tell me if I'm saying the name right, Protasiewicz?

Dan: I think it's Protasiewicz, Brian.

Brian Lehrer: Okay, sorry.

Dan: I spent about a week practicing before my reporting trip.

Brian Lehrer: Protasiewicz.

Dan: It's tricky. She actually had an ad about pronouncing her name.

Brian Lehrer: That's cute.

Dan: I think that Kelly comes out of a-- I'll start at the beginning with him a little bit. He went to a Christian college in Wisconsin for his undergrad, and then he went to law school at Pat Robertson's Regent University. It became called Regent University Law School outside DC. At the time Kelly enrolled, it was not accredited even but by the time he graduated, it had received provisional accreditation. He wrote in the inaugural issue of the Regent University Law Review how basically God was the basis for human law. I think he has a deeply religious background.

He also was deeply involved with the Federalist Society and that movement of originalism or textualism and or both, which basically asserted that you could look at these documents and glean from them, reading around them what the original intent of these laws was. I always think of a great line by Justice William Brennan, the former Supreme Court Justice, which described originalism as arrogance cloaked as humility. Justice Kelly's pitch is not around his work. He claims that that was all done as a private attorney for his work for the RNC. What he presents himself is as a constitutionalist in the Scalia and Clarence Thomas mold with that rhetoric.

Obviously, there's a huge disconnect between what he says and his background. He was involved since 2011. When Walker took power, he has been deeply involved in a lot of cases that came before the Supreme Court. Then he was on the Supreme Court when Walker appointed him in 2016. He always ruled with the right-wing majority sometimes quite significantly. His first opinion was one that outlawed a ban on the buses in Madison to prohibit loaded firearms. He's very committed to a traditional right-wing jurisprudence. On the other side, Janet Protasiewicz worked in the DA's office in Milwaukee and became a circuit court judge, I think in 2013.

She's also very outspoken about her connections to labor, which has a particular resonance in Wisconsin. I'm sure a lot of your listeners remember the 2011 law that Walker pushed through called Act 10 which basically stripped public employees of collective bargaining rights. It engendered massive protests at the state capitol including an occupation of the Capitol. The democratic legislators in the state Senate fled to Illinois to try to prevent a quorum. Janet Protasiewicz was in a union actually of state prosecutors and participated in some of those protests. I think those issues still course through the state.

Walker famously told a donor that he was going to use divide and conquer to first go after the public employees and then later the private sector ones. In fact, that is what he did. In 2015, he signed a so-called Right to Work law, which attacked private sector workers. I think in some ways the election is a referendum in some ways on the last 12 years, and that is one other reason why the stakes feel so high both to the state's residents and I think to the country as a whole. You can look at Michigan, which recently had complete Democratic control, and they repealed a right-to-work law just last month. I think all of those things really play into the importance of these. These states are really important presidential Battlegrounds. Essentially, I think the Midwest has determined the presidential winners in the past several elections.

Brian Lehrer: Certainly people outside of Wisconsin who have heard of Scott Walker in the past, besides the fact that he was briefly a candidate for the Republican presidential nomination in 2016, but was among the many who were overwhelmed by the popularity of Donald Trump. Scott Walker as governor did lead that assault on public employee union rights first. That really broke out as national news. We talked about it on this New York show, and they talked about it around the country. That's the Scott Walker legacy. In that context, we're going to take a call from Milwaukee now. Sam in Milwaukee, who I think wants to talk about tomorrow's election in a labor rights context. Hi, Sam, you're on WNYC. Hello from New York.

Sam: Oh, Brian, so good to hear your voice. I love talking to a New Yorker out here in the Midwest. Good to hear your voice.

Brian Lehrer: Great. What's you up to?

Sam: Right now I'm actually just getting ready. I'm going to go see the Mets play the Milwaukee Brewers on opening day at Miller Park.

Brian Lehrer: Nice.

Sam: I am, and let's go Mets. Let's go Mets. Off to a great start.

Brian Lehrer: Just be careful. Just be careful out there. Just be careful out there if you're wearing your Mets cap too prominently.

Sam: Brian, no, there's so many Mets fans. My neighbor waves a Mets flag and a Bucks flag. It's a real cross-section out here in the Midwest.

Brian Lehrer: All right, maybe they won't physically harm you. It's not Philadelphia. Ha ha ha, but go ahead now, talk about the election.

Sam: Now, the election. I am voting tomorrow and there's obviously a lot of judge positions, the people are out here. Every time you go on YouTube, every time you're watching an NCAA game, you'll see advertisements. I think the Democrats are going really hard trying to make sure that. These judges, the Republican judges are extremely corrupt in a way that feels almost scripted in the commercials but it's all true in the way that these Republicans are. I'm terrible with names so don't get mad at me if I sound uninformed but I'm just really bad with remembering the names of a lot of these candidates.

They are just like the classic sort of they take backdoor deals, they recuse themselves from cases and then come back on to the case after some decision has been made and then they wrote in favor the person that they recuse themselves from. It's pretty cut-and-dry corruption but Wisconsin is just like-- I'm also an organizer. I'm a organizer for UWM Milwaukee. I teach there and I study there. Right now we're trying to get adjuncts and we're trying to get lecturers and other-- There's been such a wave of organizing going around the country and it's so beautiful to see it in California, so amazing to see it in New Jersey as Rutgers is about to go on strike but for us, with rights to work laws, it's a completely different game. It does not work in the same way that it does out there.

Brian Lehrer: I'm curious what, and not to overstate what's going to happen at Rutgers, we don't know yet if they're going to go on strike, they're still talking, just not to freak anybody out connected to the Rutgers community to think that a strike is definitely happening, but, Sam, it sounds like you're a relatively new Wisconsinite, but are you finding actual barriers to organizing in the public employee context, because the University of Wisconsin at Milwaukee would be a public sector institution obstacles because of the Scott Walker laws from a decade plus ago?

Sam: I'm not saying anything in retaliation or against the school mostly about the union that did represent this which does not seem to be pushing in any way. Right now it seems to be that the barriers are coming from just classic a union in decline that wants to just push electoral organizing, vote for this person, and then perhaps by voting for this Democratic candidate, we will get a chance to repeal Act 10. Then maybe we can collectively bargain. There you go. It's a real dangling a carrot in front of the horse situation in terms of doing active actions. You can organize and take action and be federally protected by law but there's no interest in that because unions have been so weakened and there is the issue of no collective bargaining. That's a huge, huge problem.

Brian Lehrer: Sam, thank you very much. What were you thinking as you listened to that call?

Dan: Just really resonated with what Sam was saying. I wrote a piece for the New York Times about how Scott Walker paved the way for Donald Trump and you see in Wisconsin it lost new 40% of its union members within a decade. That's just unprecedented. 70% of its public employees. Basically, the level of collective bargaining that's permitted is only for cost-of-living wage increases. They basically outlawed it. That has changed the state. Union members, there's a kind of social cohesion that goes along with being a union member. They tend to be more active in civil society. They tend to be less prone to racial resentment.

There's a lot of things, and of course Wisconsin's income inequality has gone way up since then. The decline of union membership in the United States correlates almost perfectly with the rise of income inequality. I think everything Sam was saying was true, or Stan. He also mentioned the corruption. In the Wisconsin State Supreme Court in 2015, there was a case, a criminal investigation launched by the Milwaukee DA that was alleging that there was coordination between these Republican dark money groups and Republican politicians, including most significantly for Walker's recall election, which was in 2012.

Labor unions had organized to try to recall him, and Walker was getting tons of money from these outside groups. In fact, the court retroactively legalized this coordination and went a step further and ordered the prosecutors to throw out the evidence that they had gathered which is unprecedented. Unfortunately, a partial set of it was leaked to the Guardian. You can see these documents which show apparent quid pro quo payments between some of these dark money groups and legislative priorities. It's true what he was saying about the corruption.

Brian: One more Wisconsin call, Claire in Fond du Lac. Am I saying that right? Fond du Lac, Wisconsin?

Claire: Yes, that's right.

Brian: Hi there.

Claire: Hi. Okay, an example of what happens here in Wisconsin is I went to vote at our last-- I was one of those welcomers we welcome people in. Here comes a couple of college students. We have a small college here, and they go up to vote and they come back and they're crying. I said to them, "What's the matter?" "The woman said we couldn't vote." I said, "Wait a minute. How old are you? We going to-- You can vote." I took them back over there to the booth and I said, "What's the problem here?" The person who was doing it was really very pissy with me and kind of like, "Well, okay." I'm like, "What do you mean well, okay?"

I feel like I've seen people getting turned away from the polls for whatever reason they want, which is very much like what it's like to live here. I'm a New Yorker, and this is probably the most-- I don't even know what word to use to call it. What everyone else is saying about that what goes on in the legislature, its crazy. We put up some banners in front of our house. We were afraid to. We put them up anyway, and then we had them taken down and we had people coming around and destroying them. It was like, this is really a scary place to live. I'm like, I got to go back to New York. I can't take it. It's [crosstalk]

Brian: Well, we recently had the chair of the New York State Democratic Party on the show, and he said that the reason that there seemed to be so many more Lee Zeldin signs than Kathy Hochul signs around the state last fall was that the Republicans would go around taking down the Kathy Hochul signs.

Claire: That's exactly right.

Brian: While it wasn't in the Democratic mindset to do that to the Lee Zeldin signs. I don't know if the chairman of the New York State Democratic Party Jay Jacobs was just covering his backside by- because they really didn't get enough Hochul signs out there, [laughs] but there's a connection from what he at least claimed to what you are describing in the context of Wisconsin so thank you very much. Dan, we're going to leave it there except for a last word from you on what to look for on Tuesday night or Wednesday morning after these results come in. Let's say one or the other wins, how does it inform how we view the 2024 presidential election?

Dan: Well, I think if Janet Protasiewicz wins, you'll see some pretty major changes in the state that may resonate quite widely beyond the state's borders. Certainly there'll be a case around the maps soon, the abortion law and the presidential election. I assume the results will stand whatever they are. If Kelly wins, I think you'll see more of the same, more minority rule. When they redrew the maps in 2021, they used the novel standards saying they had to have the least changes to the 2011 maps. They've basically engendered their own dominance in perpetuity unless those maps get re-examined by the court and thrown out.

I think it'll have huge implications and also a sense of momentum for either side. If Protasiewicz wins Wisconsin will seem to be moving more towards a Democratic party affiliation. The Dems have won 14 of the past 17 statewide elections. This election is really key, I think, in order to crack the hold of Republicans on the state legislature, which is really holding onto their power more widely than just that. I think it's going to be incredible election. As they say, $40 million for a state judicial race is unprecedented, and you can see the stakes just from the amount of money that's gone into it.

Brian: Yes, that's pouring in from out of state I imagine, right? That's a lot of that.

Dan: Yes, on both sides.

Brian: Dan Kaufman is the author of the The Fall of Wisconsin: The Conservative Conquest of a Progressive Bastion and the Future of American Politics. His article in The New Yorker is called The High-Stakes Election in the Midwest "Democracy Desert." Dan, thanks a lot for coming on.

Dan: Thanks, Brian. I really enjoyed it. Really loved the show.

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