The Wisconsin Supreme Court spent its 2021–22 term systematically weakening our democracy. We at Law Forward have been struck by the sheer number and scope of cases that had dramatic implications for how our vote counts and how our government works. Today we are releasing a report to share our analysis of the term, and show how, case by case, the Court has been undermining our democracy by embracing or expanding on right-wing arguments that are antithetical to democratic principles. In litigating and following these cases, we noticed several distinct, but related, disturbing trends:
- Direct attacks on democracy. Decisions in this category created barriers to voting, or directly attacked the power of some Wisconsinites’ votes. The will of the voters is the foundation of our democracy, and voters are the ones to decide elections. The cases in this category undermine these bedrock American values.
- Consolidating power at the Legislature. Decisions in this category strengthened Wisconsin’s Legislature at the cost of other bodies of government: the Governor, administrative agencies, and local governments. Wisconsin’s government is built on a separation of powers, with checks and balances. The Court issued at least six decisions that disturb this balance by shifting power to our gerrymandered, democratically unaccountable Legislature.
- Results-oriented judging. Decisions in this category belie the notion that judges, including self-identified “textualist” judges, make decisions in a neutral way. In case after case, the Court’s most conservative Justices cheerfully ignored or rewrote clear statutory language, or longstanding procedural rules, to reach their preferred results. These cases remind us that judges are people, too, and that in Wisconsin, our elected Supreme Court Justices are politicians with constituencies to serve.
Our report unpacks these trends in detail, discussing over a dozen cases at length. Some cases fall into multiple categories—a few even check all three boxes. We looked primarily at cases with implications for how we vote, how our votes are counted, and how important our votes are; how our state government works; and how our local governments work. Occasionally, we examined a different kind of case to underline the themes we found in the explicitly democracy-related cases. There may well be additional cases from last term that could further illuminate the issues we discuss. But in our report, we feature the cases that have done the most to reshape our democracy this past term. Not coincidentally, undermining our democracy is having disproportional negative impact upon people of color, the LGBTQIA community, people with disabilities, and women. Our report tries to highlight these effects and draw explicit connections between what can often seem like abstract legal principles, and our everyday lives.
Wisconsinites have a right to decide who governs them and how. We wrote this report as a warning bell and a call to action: our democracy is in danger, but none of us is powerless. Your vote matters. In November 2022 and April 2023, voters will determine who represents Wisconsin in the Governor’s and Attorney General’s offices, in the US Senate, and on the Wisconsin Supreme Court. Local elections are important, too: mayors, sheriffs, and city councils play crucial roles in administering our election laws, and school boards help educate tomorrow’s voters. While Law Forward does not take positions on candidates, we unabashedly champion each and every voter’s ability to cast a ballot and speak their preferences to how our state is governed.