On Wisconsin Democrats—Liberal Jill Karofsky Upsets Trump State Supreme Court Justice Daniel Kelly April 21, 2020
Wisconsin, the Badger State, home of famous beer brands and well-known cheeses. Politically, WI has often been seen, in Justice Louis Brandeis’ phrase, as a “laboratory of reform.” WI frequently developed new public policies, strongly debated them, and then observed whether they worked. WI’s actions often served as an example to other states and the national government. For many years, WI had a reputation for innovative liberal policy established during the early 1900’s by the Progressive Movement, founded and led by then Governor Robert La Follette. This WI-style progressivism later influenced FDR’s New Deal. Gov. LaFollette helped develop his state workmen’s compensation system and income tax. After La Follette’s 1925 death, his progressive legacy was carried on by his sons and then liberal Democrats Senators William Proxmire, Gaylord Nelson, as well as Gov. Patrick Lucey. In 1959, WI became the first state to recognize collective bargaining rights for public employees (Cohen & Cook 2020 Almanac).
However, WI also has a strong conservative streak and has been a national laboratory for right-wing ideas as well. Communist witch-hunting Republican Joseph McCarthy from Appleton, WI won election using demagogic themes that he later emphasized in the 1950’s U.S. Senate. His poisonous “Red Scare” tactics gained a following among many Americans before the Senate finally censured him. In 1986, WI GOPer Tommy Thompson defeated a liberal Democrat and was re-elected three times. Thompson cut taxes, sponsored a school choice program, and passed a series of welfare reforms that were the nation’s most sweeping. The 1996 welfare overhaul package, enacted by a GOP Congress and signed by Pres. Clinton, may not have passed without WI’s example. When Thompson became W Bush’s Health and Human Services Secretary, WI moved back to the Democratic camp, although sometimes by narrow margins. In 2010, WI engaged in another GOP laboratory “experiment.” In that Tea Party year, liberal Dem. Senator Russ Feingold was defeated by conservative GOPer Ron Johnson, and Republican Scott Walker, a former Milwaukee County executive, won the governorship. Gov. Walker set off a firestorm by limiting the power of public unions. In 2012, he successfully beat back an effort to recall him. Union membership in WI heavily declined and Walker won re-election in 2014. Right-wing groups, including Koch Industries and their friends, poured money into WI to keep it anti-union and anti-regulation. At that time, two other GOP Wisconsinites became national figures, Congressman Paul Ryan and Reince Priebus. Ryan, known as a fierce budget cutter, became Romney’s 2012 VP nominee and later House Speaker. Priebus headed the RNC (Republican National Committee) and later became Trump’s first chief-of-staff. During this period, WI, viewed by many as part of the Democrats’ “blue wall” of states in the Electoral College, flipped to Donald in 2016 by less than 23,000 votes, about .8 of a percentage, helping him win the White House. In a 2016 rematch, Sen. Johnson beat Feingold. However, in 2018, Priebus had left Donald’s employ in disgrace, Ryan decided not to run for Congress again, and Gov. Walker lost re-election for a third term to Democrat Tony Evers (rhymes with “weavers”) by over 29,000 votes (See Cohen & Cook 2020).
However, Walker and his GOP-gerrymandered state legislature did a lot of damage. One major Walker negative legacy was what he did to the WI Supreme Court. Because of vacancies, Walker was able to appoint two judges to his state high court, Rebecca Bradley in 2015 and Daniel Kelly in 2016. With these two appointments, prior to 4/07/2020, WI had a 5-2 conservative-dominated high court. At that time, only two judges, Ann Walsh Bradley and Rebecca Dallet, were liberals. Brian Hagedorn, Patience Drake Roggensack (now chief justice), and Annette Ziegler joined Kelly and Rebecca Bradley in the conservative camp. Yes, WI high court judges are elected in non-partisan contests for 10-year terms, but the WI judges picked by the governor and those running on their own have strong partisan backgrounds and receive contributions from liberal and conservative groups. Since 2008, conservatives have controlled the WI Supreme Court (Bauer, AP, 2/10/19). In 10/2012, a study by two Stanford University political science professors rated WI the 11th most conservative court (See ballotpedia.org). The current conservatively-dominated WI Supreme Court has been a virtual rubber stamp for Gov. Walker and his extremist GOP-dominated legislature. This court has upheld Walker’s law essentially eliminating collective bargaining for public workers (Bauer, AP, 2/10/19). It has upheld the gerrymandered electoral maps Gov. Walker and his legislature enacted. It has done everything it can to suppress the vote, which hurts Democrats (See Kos, Near, 4/13/20). This “Red-Rubber Stamp” high court has upheld the legislature’s stripping power from Dem. Gov. Evers (huffpost.com, Blumenthal & Golshan, 4/13/20). This WI- GOP high court is also considering purging more than 200,000 people from that state’s voter rolls ahead of what is expected to be a tight presidential race in 11/2020 (nytimes.com, Epstein, 4/13/20).
On 4/07/2020, WI voters, especially Democrats, indicated that they had had enough of this extreme voter suppression and rubber stamp GOP judges. On 4/07/2020, Dane County Circuit Judge Jill Karofsky defeated Gov. Walker-picked Daniel Kelly. And unlike previous WI Supreme Ct. elections, the results weren’t even close. Karofsky clobbered Kelly 55.3%-44.7%, a 10.6% margin. Karofsky received 856,470 votes to Kelly’s 692,976 votes (nytimes.com, 4/14/20). Karofsky’s victory is the first time in 12 years that a WI Supreme Ct. challenger defeated an incumbent and just the second time in more than half a century. Karofsky’s win shifts conservative control of the Badger high court from a strong 5-2 alliance to a narrow 4-3 one (jsonline.com, Marley, 4/13/20). The next race for the WI Supreme Ct. is in 2023, when Chief Justice Roggensack’s term is up. However, if any conservative member of this court leaves earlier, Dem. Gov. Evers will get to replace him/her and flip the Badger high court to the liberal side (seejsonline.com). Justice Karofsky’s 10-year term will begin on 8/01/2020 (nytimes.com, Epstein, 4/13/20).
The differences between Kelly and Karofsky couldn’t be stronger. Karofsky (53) a graduate of University of WI-Madison Law School, was an Assistant Atty. General in the WI Department of Justice and worked as WI’s Violence Against Women resource prosecutor. Her history defending women in domestic abuse suits earned her accolades and endorsements from women’s issues organizations and sexual assault victim service providers (jillforjustice.com, thewheelerreport.com). She was elected to the Dane County court in 2017. Karofsky signed the recall petition against Gov. Walker who put the anti-collective bargaining act in place and later put Kelly on the high court. Karofksy believes there are constitutional ways to put restrictions on guns, supports same sex-marriage, backs collective bargaining, and considers abortion to be a matter between a woman and her doctor. Joe Biden and Bernie Sanders endorsed Karofsky (jsonline.com, Marley, 4/13/20).
Before being appointed to the WI Supreme Ct., Kelly (56) was in private practice and was vice president and general counsel for the Kern Family Foundation. This foundation, located in Waukesha, WI, pushes conservative values that recognize faith and work. It calls the economy as a “moral system” and promotes free enterprise (higheredgrants.info). Kelly headed the Milwaukee chapter of the Federalist Society, a conservative legal group that advised GOPers on federal court nominations and helped GOPers defend legislative districts they drew in 2011 that benefited their party, read, gerrymandering. On the WI high court, Kelly wrote a decision that found Madison could not bar guns on its buses. He argued that the U.S. Supreme Ct. decision legalizing same-sex marriage undermined democracy. He has compared abortion to murder and praised a WI Supreme Ct. decision that upheld Act 10, the 2011 law Gov. Walker signed that scaled back collective bargaining for public workers. Donald Trump repeatedly endorsed Kelly (jsonline.com). In addition to Kelly losing his seat to Karofsky, in that very same 4/07/2020 election, two other Walker conservative-appointed jurists, Milwaukee County Circuit Court Judges Paul Dedinsky and Dan Gabler, were also defeated (Badger State Progressive, dailykos, 4/13/20). Outsider groups spent nearly $5 million on the Karofsky-Kelly race, which was about evenly divided on behalf of these two candidates (usatoday.com, Marley, jslonline.com, 4/13/20).
From the get-go, WI GOPers did everything they could to suppress the vote in order to protect Kelly’s key seat. During a 2018 lame-duck session, GOPers tried to keep this WI Supreme Ct. race off the presidential primary ballot to prevent more Democrats from showing up but backed off after an outcry (Epstein, nytimes.com, 4/13/2020). After the coronavirus hit WI, Democrats wanted to postpone the election as most other states with April, 2020 primaries had done to prevent health hazards. However, WI law forbade Dem. Gov. Evers from changing the election date without the consent of the GOP-controlled state legislature. WI GOPers, despite their initial attempt to change the time of the Karofsky-Kelly race, now wanted the election to proceed on the date of the Democratic primary. The GOPers hoped that the coronavirus epidemic would decrease/suppress Democratic turnout because many “Blue” WI voters would choose their health over showing up in public to vote. GOPers also figured that a race for a state Supreme Ct. justice would not be the glamor contest that would turn out Democrats. They reasoned that the major race, the Dem. presidential primary, looked like a done deal with Joe Biden overwhelmingly leading Bernie Sanders in all pre-primary polls. Biden beat Sanders by a 32.92% margin. Sanders left the race the next day and later endorsed Biden (businessinsider.com, Panetta,nytimes.com, Ember, 4/08/20, cnn.com, 4/13/20, Sullivan & Bradner). In addition, the GOP legislature resisted Gov. Evers’ attempts to relax WI’s strict rules requiring voters to upload a copy of a valid identification card to request and receive a mail ballot. Another GOP voter suppression stunt to go after the non-issue of voter fraud to hurt Democrats. When Gov. Evers invoked emergency powers the day before the election postponing it until June, 2020, a valid police power a state has when health issues are at stake, the WI GOP legislature appealed to its rubber-stamp State Supreme Court which blocked Gov. Evers (See Epstein, nytimes.com, 4/13/20).
Both Dems and GOPers made major efforts to get voters to vote by mail or absentee. More than 1.1 million of 1.55 million votes cast came by mail, the largest absentee turnout in state history (Epstein, nytimes.com, 4/21/20). WI voters, however, reported problems receiving and returning absentee ballots. More than 11,600 voters requested an absentee ballot but never received one (Epstein, nytimes.com). And then WI GOPers invoked their final “ace in the hole,” the Roberts’ GOP-controlled Supreme Ct. of the United States (SCOTUS). A lawyer for the Democrats proposed extending the deadline for mail ballots six days past Election Day to 4/13/2020. Presiding federal judge William M. Conley agreed because of the backlogs and delays involving mail-in absentee ballots. In fact, it took WI till 4/13/2020 to report the 4/07/2020 primary results. Yet hours to go before the 4/07/2020 election, Chief Justice Roberts’ SCOTUS in a 5-4 ideological decision wrongly stated that the Democrats had never asked for such an absentee ballot extension in court and could not get that extension. Only absentee ballots postmarked on 4/07/2020 Election Day or earlier could be counted. At least 27,500 absentee ballots would come in too late and possibly as many as 35,000-40,000. The author of this opinion? None other than Justice Brett Kavanaugh. This was Kavanaugh’s first voting rights decision. It was in line with the GOP SCOTUS majority that like fellow Republicans remains obsessed with non-existent voter fraud. Roberts’ SCOTUS has upheld strict ID voting requirements. Roberts’ SCOTUS, in its 6/2019 reapportionment cases, also upheld political gerrymandering like WI’s and previously gutted voting rights protection for minorities in the South (See nytimes.com., Rutenberg & Corasaniti, 4/14/20, nytimes.com, Epstein,4/13/20). When voter suppression calls, the GOP courts from SCOTUS on down are there to suppress Democratic turnout.
However, in the end, all the tactics by the WI GOP legislature, its GOP-dominated State Supreme Ct., and the W Bush/Trump SCOTUS failed “big time.” Enough absentee and in-person ballots came in for Karofsky to prevail. Enough WI Democratic voters chose to risk their health and voted. In what will surely constitute iconic photos of life during the coronavirus pandemic, masked Milwaukee voters came out in droves and patiently waited in lines to vote at only 5 polling places, out of 180 that had been planned (seenytimes.com, Epstein, 4/13/2020). Mail voting in WI’s two largest liberal counties, Milwaukee and Dane (home of Madison), was higher relative to the rest of the state than it was during the 2019 WI Supreme Ct. election that the liberal judge then lost by just 6,000 votes (nytimes.com, Epstein).
Weeks before the 4/07/2020 election, the WI Democratic Party wisely decided to switch its focus to entirely educating Democrats about how to request and complete a mail ballot. The WI Democratic Party decided at that time to switch 100% of its efforts to voting by mail for the first time in its history and successfully built a vote by mail system from scratch. WI’s “Team Blue successfully mobilized their voters to vote by mail (nytimes.com, Epstein, 4/21/20). A report by the New York times showed that mail voting helped Democratic Karofsky significantly. She performed better in every WI community that was studied, even in conservative ones in Waukesha County, “Team Red’s” heartland. Karofsky performed far better among mail voters than she did on Election Day. Mail voting helped her carry swing communities such as Neenah in the Fox Valley area where she did not win the in-person Election Day vote (nytimes.com, Epstein, 4/21/20).
Karofsky dominated not only in the state’s two liberal strongholds, Milwaukee and Madison, but also in the suburbs and even in some of its rural areas. Charles Franklin, who conducts the respected Marquette University Law School poll, stated the Karofsky results underscored how changing voting patterns have increasingly cut into the GOP margins in the suburban counties around Milwaukee. These Milwaukee area suburbs in the three large WOW counties, Washington, Ozaukee, and Waukesha, the source of the GOP’s greatest strength in WI, often cancel out Milwaukee County’s Democratic margins (Cohen & Cook 2020). However, in the Karofsky-Kelly race, even though the suburban WOW counties went for Kelly, they did so by reduced margins from historic norms. They remain “Red,” according to Franklin, but by smaller and smaller margins. WI, Franklin noted, has been “a little slow to join the suburban anti-Trump/anti-GOP shift that other states have seen earlier or bigger, but we are seeing markers of that (washingtonpost.com, Gardner, Balz, & Simmons, 4/14/20).” Karofsky also won small majorities in three counties in the Fox Valley that long favored the GOP. Franklin noted that she won this majority because of ever stronger Democratic support in the cities of Green Bay, Appleton, and Oshkosh, even though they are surrounded by strong “Red” areas. Additionally, Karofsky swept the counties in WI’s southwest area, several of which had voted for Obama in 2012, but flipped to Trump in 2016 (washingtonpost.com, 4/14/20).
What lessons should Democrats learn from Karofsky’s victory? One that I will continue to repeat again and again. Voting is EVERYTHING. The right to vote is precious. As I was taught in my New England elementary and junior high schools by members of WW II’s “Greatest Generation,” many Americans died to preserve this right and not to vote is to repudiate their ultimate sacrifice. It should not take a world war or a virus pandemic to make us understand that voting is the key to getting the government we deserve. When too many WI, MI, PA, and other Democrats stayed home in 2016, we ended up with the worst chief executive our country has ever had. Every contest counts, whether for mayor, councilmembers, courts, state legislators, governors, Congress, and, of course, for President. Remember this WI race was just a judicial one in a primary. Many more voters will come out on Election Day with the White House, House, and Senate up for grabs. Bet on Trump’s MAGA followers to come out in droves crawling on broken glass to vote for him in the fall, in swing-state WI and everywhere else. There are more of us than them and we must crawl over these numerous shards with ten times more people than they have. Biden is already putting out excellent ads in WI and other states attacking Trump for his poor coronavirus response but the race in WI remains very close. Unlike Hillary, Biden will have to frequently visit this state and other swing ones and work with organizers on the ground in a top GOTV, Get Out the Vote Drive. Democrats will also have to campaign in the WOW and rural areas in WI to get our vote out as well as in Madison and Milwaukee. We need every Democrat and moderate voter to defeat Trump. Our normal base in heavily progressive counties will not be enough to exceed Trump’s swarm of MAGA foot soldiers in most states. Like Karofsky, we have to cut into conservative and rural areas. And finally, we must emphasize voting by mail like we did in WI. The GOPers in WI and elsewhere will now try to catch up with us in the vote by mail race. GOPers will, however, in the long run, try to prevent expanding voting by mail. Trump has already told Fox and Friends that if voting rights spread (by mail), “You’d never have a Republican elected in this country again (whendemocratsturnout.com, 4/19/20).” We must teach voters everywhere, as we did in WI, to successfully navigate the maze of photo identification and how to get enough absentee ballots in early (See nytimes.com, Epstein & Nagourney, 4/14/2020). Remember, when Democrats turn out, we win. Again, congratulations, Jill Karofsky and on Wisconsin Democrats to greater victories in November, 2020!