Middleboro Review 2: POLITICO NIGHTLY: The state election that’s drawing national attention

Wednesday, February 22, 2023

POLITICO NIGHTLY: The state election that’s drawing national attention

With additional reporting from Ari Hawkins

Dane County Judge and Wisconsin state Supreme Court candidate Everett Mitchell participates in a candidate forum in Madison, Wis. | John Hart/Wisconsin State Journal

BALANCE OF POWER — For more than a decade, Wisconsin has been arguably the most fiercely contested partisan battleground in the nation. Bruising statewide contests and bitter gubernatorial and state legislative recall campaigns have been the norm. In 2016, the state voted for Donald Trump by a razor-thin margin of about 23,000 votes. Four years later, it flipped to Joe Biden by an even tighter margin.

Against that polarized backdrop, Wisconsin’s state supreme court election is one of the most important elections taking place in 2023. Voters will go to the polls today in a four-way, nonpartisan primary for an open seat on the seven-member court. The top two finishers will then move on to the April 4 general election for a 10-year term on the court.

Nightly spoke with POLITICO’s Zach Montellaro , who covers state-based elections, voting rights and election administration, to better understand a contest that’s been called ‘the most important election nobody’s ever heard of.’ This interview has been edited.

What makes this state supreme court election — a primary, no less — so important?

At the risk of belittling some of the other states ... first and foremost, the reason why this is so important is the state it is being held in. Wisconsin, as you might have heard, is a politically very important state!

On top of that, this election will decide the balance of the court. Conservative-leaning justices currently have a 4-3 majority, with one sorta-swingy conservative justice. The seat that’s up this year will replace a conservative justice. So should a liberal eventually win, it would flip the balance of the court.

The position is technically a non-partisan one, judges run without a party affiliation. So the election tonight will whittle the field down from four candidates — two generally liberal jurists, two generally conservative ones — down to two. The all-in primary opens up the possibility that one side gets locked out; that either the two conservatives advance or the two liberals advance. We’ve seen that happen a few times in states like California that also host all-party primaries for elected offices, but most people I’ve talked to in Wisconsin don’t think that that is likely tonight. The top two advance to the general election in April.

Tell us a little about the candidates.

The two liberal leaning judges are Milwaukee County Judge Janet Protasiewicz and Dane County Judge Everett Mitchell. Protasiewicz has been the big fundraising leader in the race so far, and has picked up a fair amount of support from labor in the state, along with the Democratic powerhouse EMILY’s List. Mitchell, meanwhile, is a pastor as well as a judge, and leans into his role as a community leader .

The two conservatives are former state Supreme Court Justice Daniel Kelly and Waukesha County Judge Jennifer Dorow. Kelly was appointed to a seat by then-GOP Gov. Scott Walker in 2016 for the state’s highest court, but lost pretty handily when he was on the ballot in 2020. His pitch is that he’s the known quantity for conservatives in the race — which brings us to Dorow. She wasn’t as well known to many plugged in folks in the state as much as Kelly, and rocketed to prominence after she oversaw the trial last year for the man [who plowed his SUV into the Waukesha Christmas parade in 2021, killing six people and injuring dozens more].

Given the current court composition, it seems like the outcome here could have wide-ranging effects. Are there certain issues that loom especially large?

Maybe unsurprisingly given the results of the midterms, but abortion will probably be top of mind for voters for this race. The procedure is illegal in nearly all cases in Wisconsin, and Democrats and liberal orgs will be hammering whatever conservative jurist comes out of the primary over it.

The state’s Democratic attorney general has sued to overturn Wisconsin’s 1840s law on abortion, so this could come in front of the court fairly soon. And groups on both sides of the issue told me and a colleague last month that they plan to spend in the state.

Redistricting groups will also play heavily in the race as well. Democratic and Republican organizations that are focused on the battle over state lines have been among the biggest spenders in state Supreme Court races in recent years, and I don’t expect that to change in Wisconsin, given that the balance of the court is in play.

Lastly, it looks like there will be two GOP-backed measures on the ballot in April that conservatives are hoping will help juice turnout, and will likely tie into the state Supreme Court race. One measure is about an amendment to make it harder for people accused of violent crimes to be released on bail, and another is a purely advisory referendum over whether “able-bodied, childless adults [should] should be required to look for work” to receive welfare benefits. There was a legal fight over it recently but a judge on Monday gave the measures a go-ahead.

Since Wisconsin is a key presidential swing state, are there any 2024 implications in this court election?

You bet. The most immediate political impact is the state legislative and congressional lines would probably be challenged ahead of 2024, should a liberal win in April. Wisconsin is home to ... many, many fights over its political boundaries. The maps right now heavily favor Republicans there — Republicans have a near-ironclad lock on the statehouse despite it being a close 50-50 state — so Democrats would be eager to challenge those.

And I suspect that the Wisconsin state supreme court will be asked to weigh in on state election laws as well ahead of 2024. The court said last year that the use of most drop boxes in the state was verboten last year, for example, and the court overturned an executive order from Democratic Gov. Tony Evers in 2020 that tried to postpone the state’s April elections that year until the summer because of Covid.

Perhaps most existentially, let’s not forget about Trump’s failed attempts to overturn the 2020 election (and the possibility that that could happen again). The state Supreme Court in Wisconsin dismissed Trump’s challenge to the election results in the state in 2020 in a 4-3 decision , with Justice Brian Hagedorn — that swingy justice I mentioned earlier — splitting with the rest of the conservative bloc to join liberal jurists to toss the "unreasonable in the extreme" challenge.

Welcome to POLITICO Nightly. Reach out with news, tips and ideas at nightly@politico.com . Or contact tonight’s author at cmahtesian@politico.com or on Twitter at @PoliticoCharlie .

JOIN POLITICO ON 3/1 TO DISCUSS AMERICAN PRIVACY LAWS: Americans have fewer privacy rights than Europeans, and companies continue to face a minefield of competing state and foreign legislation. There is strong bipartisan support for a federal privacy bill, but it has yet to materialize. Join POLITICO on 3/1 to discuss what it will take to get a federal privacy law on the books, potential designs for how this type of legislation could protect consumers and innovators, and more. REGISTER HERE .

WHAT'D I MISS?

— GOP lawmakers seek investigation of ‘unauthorized’ disclosure of their Air Force records: Two Republican lawmakers say the Air Force alerted them that their military records were improperly released during the midterm campaign . Rep. Don Bacon (R-Neb.) was informed of the “unauthorized release” in a letter from the Air Force obtained by POLITICO. Rep. Zach Nunn (R-Iowa) said in a statement that he was told by the Air Force that his own records were also disclosed without his approval. Bacon said Air Force Secretary Frank Kendall first told him that an internal probe revealed 11 people’s records were disclosed and that the Air Force would send the results of its inquiry to the Justice Department — while offering no further information on whether a formal DOJ investigation would result. The GOP lawmaker called for a probe of the role played by a Democratic-linked firm that the Air Force told him “inappropriately requested” his personnel records. The DOJ declined to comment.

— Rep. David Cicilline to leave Congress: The Rhode Island Democrat will resign from Congress on June 1 to become CEO of the Rhode Island Foundation, his office announced today. The Rhode Island Foundation is the state’s largest and oldest philanthropic organization, backed by $1.3 billion in assets. There will be a special election to fill Cicilline’s seat, which is in a deep blue district; Cicilline won re-election in 2022 by over 28 percentage points.

— Buttigieg pledges new action on hazardous trains: The Department of Transportation plans to issue new rules on train brakes and other items in the wake of the Feb. 3 derailment in East Palestine, Ohio, and is also calling for action from Congress and the firefight rail industry. DOT says it will pursue rulemaking on high-hazard flammable trains and electronically controlled pneumatic brakes. It did not specify what the rule would do, but it will likely hew to a 2015 rule that was withdrawn under the Trump administration that would have required some trains carrying hazardous materials to install this type of brake.

AROUND THE WORLD

President Joe Biden speaks with children after delivering a speech in Warsaw, Poland. | Omar Marques/Getty Images

MESSAGE OF STRENGTH — Eleven months ago, Biden came to Poland to denounce a war he’d hoped to avoid. Today, he returned having fully embraced the mantle of wartime leader,boasting of a U.S.-led Western response that blunted Vladimir Putin’s invasion and slowed the march of global authoritarianism. write Meredith Lee Hill , Alexander Ward and Jonathan Lemire

In his public appearances, Biden attacked Putin directly while reaffirming commitments to NATO allies. Biden personally accused Russian President Vladimir Putin of trying to “starve the world” — the most direct and public indictment from the U.S. for Moscow’s role in weaponizing global hunger amid its war in Ukraine.

But he projected confidence that a strong alliance could thwart Putin’s plans.

“NATO is more united and more unified than ever before,” Biden said. “The democracies of the world have grown stronger, not weaker. The autocrats of the world have grown weaker, not stronger.”

To celebrate the 75th anniversary of the alliance, Biden also announced the United States will host the NATO summit next year.

And during Biden’s surprise trip to Kyiv on Monday, despite the somber reason for his visit — the one-year anniversary of Russian troops, tanks, warplanes and missiles crossing into Ukraine — Biden displayed a joyous bounce as he wandered through the city. He stood alongside Ukrainian President Volodymyr Zelenskyy even as air-raid sirens blared throughout the capital, a reminder that Russia still holds 20 percent of Ukraine and threatens nearly all of it with its weapons, terrorizing civilians daily. It was the first time a modern-day president traveled to a warzone the U.S. military didn’t control.

Meanwhile, Putin today made a high-profile speech of his own, accusing Western countries of igniting and sustaining the war in Ukraine and dismissing any blame for Moscow almost a year after the Kremlin’s unprovoked invasion of its neighbor that has killed tens of thousands of people.

In his long-delayed state-of-the-nation address, Putin cast Russia — and Ukraine — as victims of Western double-dealing and said Russia, not Ukraine, was the one fighting for its very existence.

“We aren’t fighting the Ukrainian people,” Putin said. Ukraine “has become hostage of the Kyiv regime and its Western masters, which have effectively occupied the country.”

DOWNLOAD THE POLITICO MOBILE APP: Stay up to speed with the newly updated POLITICO mobile app, featuring timely political news, insights and analysis from the best journalists in the business. The sleek and navigable design offers a convenient way to access POLITICO's scoops and groundbreaking reporting. Don’t miss out on the app you can rely on for the news you need, reimagined. DOWNLOAD FOR iOS – DOWNLOAD FOR ANDROID .

NIGHTLY NUMBER

37 percent

The percentage that U.S. home sales were down from a year earlier in January, marking the 12th consecutive month of home sales falling . Home sales stood at a seasonally adjusted annual rate of 4 million per month in January, the lowest since October 2010, when the nation was still reeling from the after effects of the 2008 financial collapse. The median U.S. home price went up by 1.3 percent from January last year to $359,000, the slowest annual increase in home prices since February 2012.

RADAR SWEEP

NUMBER ONE BOY — With television’s buzziest media-and-politics-and-family satire set to return to our screens this month, Gabriella Paiella of GQ Magazine followed Succession star Jeremy Strong (Kendall Roy) to a tiny town in England for a profile . Strong, known for losing himself in his characters, opened up about his craft, what it was like to be the subject of an infamous 2021 New Yorker profile and what Succession says about corporate malfeasance, media scions and complex family dynamics as the show moves into its fourth season.

PARTING WORDS

Jose Hernandez and Beatrice Gonzalez, the stepfather and mother of Nohemi Gonzalez, who was killed during a 2015 terrorist attack in Paris, speak with reporters outside the U.S. Supreme Court after justices heard oral arguments in Gonzalez v. Google. | Francis Chung/POLITICO

IS THIS THING ON? — The Supreme Court this afternoon weighed whether Google can be held liable for the death of Nohemi Gonzalez, a California college student killed in a 2015 terrorist attack in Paris blamed on ISIS, Ari Hawkins writes for Nightly.

The major question at issue in Gonzalez v. Google is whether YouTube (owned by Google) is protected under Section 230 of the Communications Decency Act after allegedly recommending ISIS recruitment content to users.

The problem of policing content on the internet is a thorny one; the nine justices seemed eager to pass the buck to Congress with a rare admission that in this case, they have trouble fully comprehending what’s at issue. All over 50, the members of the Court might just not understand the internet.

Justice Elena Kagan, who is 62, was the first to suggest a lack of expertise, when she quipped that “these are not the nine greatest experts on the internet,” referring to herself and the other members of the court.

Moments later, the 72-year-old Justice Samuel Alito said he was “completely confused by whatever argument you’re making at the present time,” referring to the plaintiff’s attorney Eric Schnapper, who was discussing how YouTube presents thumbnail images and links to different videos when providing search results.

Justice Ketanji Brown Jackson, the second youngest on the court at 52, said at one point she was “thoroughly confused” with the relevant scope of the plaintiff’s argument.

But much of Congress might be just as inept at understanding the intricacies of Section 230. Facebook founder and CEO Mark Zuckerberg’s appearance at a 2018 congressional hearing was nominally about social media privacy and the abuse of data, but became a stage for members of Congress to show off their technological ineptitude.

Sen. Roy Blunt (R-Mo.), was widely mocked over a nonsensical question –– “Do you track devices that an individual who uses Facebook has that is connected to the device that they use for their Facebook connection, but not necessarily connected to Facebook?”

And Rep. Steve Cohen, a Democrat from Tennessee, complained: “I use your apparatus often, or your search engine, and I don’t understand all of the different ways that you can turn off the locations. There’s so many different things!”

Section 230, which was created as part of the 1996 Communications Decency Act, was created prior to the recommendation algorithms it now applies to; many members of the tech industry now worry openly about a gerontocracy in Washington that’s holding up reform.

"There is a valid concern that the Court may simply not understand nor appreciate the technical complexities that drive the modern web," Jess Miers, a lawyer for the pro-tech Chamber of Progress wrote earlier this week.

And even if the core of 230 is not affected, Berin Szóka, president of libertarian-leaning think tank TechFreedom, said it’s a possibility that “the court still says problematic things ... that end up weaponizing the legal system against court moderation.”