[music]

Melissa Harris-Perry: It's The Takeaway. I'm Melissa Harris-Perry.

On Tuesday, Wisconsin voters will head to the polls to cast their ballots for the state Supreme Court.

Daniel Kelly: Daniel Kelly here asking for your vote on April 4th.

Judge Janet: I'm Judge Janet Protasiewicz. I'm asking for your vote by April 4th.

Daniel Kelly: I'm running to uphold the rule of law, defend our constitution, reject bias in activism-

Judge Janet: As a prosecutor and a judge, I've worked to make our community safer. I've fought to guard our rights and our freedom.

Daniel Kelly: -and above all else, to always be impartial and never let politics pollute our court.

Judge Janet: That's exactly what I'll do on the Supreme Court.

Melissa Harris-Perry: With more than $30 million in spending so far, this election will determine the fate of abortion rights and of gerrymandered maps in the state, and could have larger repercussions during the upcoming 2024 presidential election. To talk with us about Wisconsin's Supreme Court elections is Maayan Silver, a reporter at WUWM 89.7, Milwaukee's public radio station. Maayan, thanks for being here.

Maayan Silver: Thanks, Melissa.

Melissa Harris-Perry: All right. Who are the two candidates vying for the seat? We just heard a little bit of them with very different musical backgrounds. Tell us a little bit about them.

Maayan Silver: We've got liberal-backed Judge Janet Protasiewicz. She's been a Milwaukee County Circuit Court judge for nearly a decade. She spent more than 25 years as a prosecutor. She's been really, really vocal about staking out her views as pro-abortion rights. She's called out redistricting maps as rigged. On voting rules, she says she can't say how she'd vote on a particular case, but she believes that everybody's vote should count. She's really campaigned about right-wing extremists attacking constitutional rights.

On the other side, we've got conservative-backed former state Supreme Court Justice Daniel Kelly. He was appointed in 2016 to the bench by a conservative former governor and then he lost the race to keep the seat in 2020. He's worked as special counsel to the Wisconsin GOP on contesting Donald Trump's 2020 election laws and on the Trump fake slate of electors. Then he's also represented Republicans in the Wisconsin legislature on lawsuits over the 2010 redistricting, which really heavily favored Republicans. He says that maps are a political question that the court should stay out of. Then on abortion, he said that it's a policy that's deady to children, and he's been endorsed by Wisconsin's anti-abortion groups.

Melissa Harris-Perry: All right. As you were talking, I didn't miss the important nuance of liberal-backed or conservative-backed, talking about perhaps where their resource is and where their support is coming from, but they're not running as a Democrat and Republican. These are nonpartisan elections. Not every state elects members of their state Supreme Court, but Wisconsin is one of the 13 states that does. Even as you're describing them, although they're not carrying a D&R tag, is it clear to voters where they stand, and is this a more partisan feeling court election than what perhaps you've seen in decades prior to this?

Maayan Silver: Yes. You've said it. This is a nonpartisan election in name only. Experts have said to call these elections nonpartisan is simply absurd. They're really very much partisan-driven, very much party-driven. The two sides are promoting candidates that they really think will promote their agendas. Maybe in the past judges have tried to hide behind, "Well, we can't legislate from the bench. We can't say what our judicial philosophies are."

Especially the liberal-backed candidate in this race, Protasiewicz, has really come out of the gate swinging on the issues of abortion and redistricting. I think those have been important issues in this race. Also, there's a lot of advertising on tough-on-crime messaging on both sides, so, honestly, as to whether voters know that this is a partisan race, I think they do but there's other criticisms that people have about the way it's being run.

Melissa Harris-Perry: Okay. Although your point here about the politics of this, it is true that judges can't actively legislate. They can't initiate legislation. Help me understand what is likely to come before this court that is going to allow them to act on these key issues.

Maayan Silver: The court is likely going to decide sometime this spring or summer whether abortion is legal in the state, specifically whether an 1849 ban with no exceptions for rape and incest will be able to remain on the books. It's currently, under that law, it would be a felony to perform an abortion at any stage of pregnancy unless it's done to save a pregnant person's life. They're also, especially if the court tips to the liberal side, likely to take up the state's redistricting maps, which have been heavily gerrymandered to favor Republicans.

The legislature in Wisconsin is controlled by Republicans who have passed their signature laws in the beginning about 10 years ago on things like public unions, really restricting public unions and setting a strict voter ID law. Really, the only thing that's prevented a significant conservative agenda even further in the state is the state's Democratic governor, so there's a balance of power issue that the Wisconsin Supreme Court is going to have to settle policy issues between the state legislature and the Democratic governor.

Melissa Harris-Perry: All right. Let's dig into those. Let's start with gerrymandering. I want to talk about just how gerrymandered the current state is. What does it look like?

Maayan Silver: Essentially, in the most recent election, Wisconsin is decided by various slim margins in presidential races in a lot of state official races. The Democratic governor won re-election by what's considered a Wisconsin landslide of three percentage points in the most recent election, but the legislature came within three seats. The GOP side of the legislature came within three seats of a supermajority, so we're looking at a really entrenched Republican control of the state legislature. Also, the House of Representatives, if the maps are taken up, it could flip potentially two seats for Democrats potentially in the House of Representatives in US Congress.

Melissa Harris-Perry: All right. We're going to take a quick pause right here, but please don't go anywhere. We're going to be right back. We've got more to talk about, about Tuesday's Wisconsin Supreme Court election. It's The Takeaway. Welcome back. It's The Takeaway. I'm Melissa Harris-Perry. Before the break, we were talking with Maayan Silver, reporter at WUWM, about the stakes in the Wisconsin Supreme Court election which will wrap up on Tuesday.

All right. A bit there around redistricting. You gave us a bit around this 1849 reproductive rights law, this law that criminalized abortion. Can you also take us back a bit to 2020 and give us some context as to why the 2024 presidential election might also be affected by these state Supreme Court decisions?

Maayan Silver: Definitely. One of the big things about this Wisconsin Supreme Court race is it's not just about policy in Wisconsin. It's also about who's going to be on that court next fall if there's a legal challenge filed to the 2024 presidential results in Wisconsin. Back in 2020, former President Trump sued to throw out votes in the two most heavily Democratic counties, Dane County and Milwaukee County. That was narrowly rejected by the court, four to three. That is something that could come before the court again, potentially given what's on the plate for 2024.

Also, when it comes to voting in Wisconsin and its importance as a swing state, it's really one of four or five true swing states in the country and it's, like I mentioned before, really decided by razor-thin margins. Biden won in 2020 by just under 21,000 votes, and then Trump won again in very slim margins. How voting happens in the state is also very important and the court is likely going to take up challenges to how voting unfolds leading up to the 2024 elections. Things like absentee ballot drop boxes, lawsuits about deadlines, things like that are going to be potentially coming before this court in 2023 and 2024.

Melissa Harris-Perry: Now, are those the issues on which these candidates have been campaigning? We took a listen to some of the ads and it sounded like they were talking about maybe those things, but also lots of other things. I guess I'm wondering, as Wisconsinites are going to cast their ballots, is it on these big structural issues, or has the campaign revolved around something else?

Maayan Silver: I would say the campaign is really revolving around abortion and also that whole tough-on-crime messaging. Right now, you can't sit in Wisconsin without getting text messages, mailers, ads right and left from both sides. One national progressive group is even conducting political outreach via dating apps, [chuckles] which is pretty funny, but essentially, we're being slammed by messages about these two candidates.

The tough-on-crime message is big for Republicans around the country but it's also big in Wisconsin since a man drove an SUV into a local Christmas parade and he was out on bail. That's an issue that's really being hammered home on both sides. Protasiewicz, the liberal-backed candidate, was a judge. They're trying to get back on the tough-on-crime messaging. That's something that voters are seeing from both sides really. There's been some criticism on that because the Wisconsin-- [crosstalk]

Melissa Harris-Perry: [unintelligible 00:10:30], does the Supreme Court in Wisconsin deal with criminal actions in that way?

Maayan Silver: Right. The Wisconsin Supreme Court deals with policy and interpreting law, they're not sentencing people. Some activists who work with Black voters in particular are saying it's problematic that the candidates are preying on things that support mass incarceration. They've called it preying on Black fear, Black trauma, and pain, and that it's a way to scare people into voting one way or another.

Melissa Harris-Perry: All right. Maayan, as you're talking about being bombarded by text messages, by ads, this has been $30 million and counting. Is the race close?

Maayan Silver: It's actually the most money spent in a US judicial campaign in history. One expert I talked to said that it's almost hitting 45 million and could get up to 50 or 60, which is mind-blowing. A lot of the money is coming from outside groups and very wealthy people. When you're talking about whether the race is close, some people have said all this outside money is just the way races are run these days but that Democrats have had an advertising and money edge on that front over Republicans.

One of the reasons is the Democratic state party chair has a lot of national connections but also he said that Republicans just aren't matching that fundraising and message spreading. He said just recently he started seeing stories that are sympathetic to Kelly and Fox News or The Wall Street Journal but that the liberal side was engaged several months ago. The big question is, can there be a late surge for conservatives, and also even going forward, will they figure out a way to turn it around for themselves in the future and not get outspent by Democrats and big-ticket donors?

Melissa Harris-Perry: Now, as I mentioned, Wisconsin is currently one of only 13 states where justices on the Supreme Court are, in fact, elected. I live in North Carolina, which is another state where we elect members to the Supreme Court. Every time, there's always debate about whether or not at the state level this is appropriate, whether or not this constitutes a violation of what we think of about how the courts should be operating. Given the number of dollars, the amount of outside attention, is that a concern that's also being expressed and discussed in Wisconsin?

Maayan Silver: I would say it is. There's a guy that tracks political spending in the state and he really described it as a race that's turning into how fast the chair of the Wisconsin Democrats can speed-dial multimillionaires on his side versus how fast this significant Wisconsin conservative mega-donor can transfer funds electronically into the packs that he controls. He is one of those people that's saying that the amount of money in the race and where it's coming from hurts self-governance, but there are really other experts that are saying it's just the way races are run these days.

Wisconsin is really of perpetual importance politically, and groups really have to be organized there. They're trying to see if they can figure out how to perfect their machine for not just the Supreme Court race, but also going forward.

Melissa Harris-Perry: That perfected for going forward, I suppose is another part of this notion of national implications. That it's not just about who wins and then the decisions they make on the court, it is in part about what groups learn about how to win or what happens if you lose.

Maayan Silver: Exactly. You can't really use this race as a bellwether for 2024. There's a much different level of turnout that happens in these spring elections versus in a November election or a presidential election, but really people are looking at it to determine how Wisconsin is, how they can mobilize voters just in many different ways, how they can get in touch with voters. I'm sure they're definitely keeping track of who's responding and who's getting out and going to vote.

Melissa Harris-Perry: Oh yes, those lists. Those valuable, valuable list for partisans. Maayan Silver is a reporter at WUWM 89.7, Milwaukee’s public radio station. Maayan, thanks for joining us today.

Maayan Silver: Thanks for having me.

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