The United States on Tuesday will face its first major election of the Trump 2.0 era: a race for a single state supreme court seat in Wisconsin that could not only rewrite abortion access in the state, but test whether the issue of abortion rights can still drive voters to the polls.
On Tuesday, Wisconsin residents will decide whether to elect liberal Susan Crawford or conservative Brad Schimel, two county judges, to the state supreme court, which is poised to weigh in on two major abortion cases. Abortion rights advocates are trying to use the threat to the procedure to convince people to head to the polls, but, more than two years after the US supreme court overturned Roe v Wade, it is no longer clear whether abortion can tip an election. Democratic candidates talked about outrage over Roe constantly during the 2024 election – and fell short, losing both the White House and the Senate.
Ben Wikler, leader of the Democratic party of Wisconsin, remains convinced that the issue can be Democrats’ silver bullet.
“Abortion is the single issue that most motivates Democratic voters and persuades independent, moderate voters to cast a ballot for Susan Crawford and against Brad Schimel,” Wikler said. Although the candidates are nominally non-partisan, the Democratic party is backing Crawford, while Donald Trump has endorsed Schimel. If Schimel wins, conservatives will regain control of the state supreme court.
“Democrats are fired up and they’re angry,” Wikler continued. “They want a channel to create change at this moment, and they do not want to go back to an abortion ban.”
After Roe collapsed in June 2022, abortion providers across Wisconsin stopped offering the procedure out of fear that they could be prosecuted under an 1849 law declaring that “any person, other than the mother, who intentionally destroys the life of the unborn child” is guilty of a felony. Under the law – which was first enacted only a year after Wisconsin became a state and before women had the right to vote – abortions are only permitted to save a patient’s life. That kind of exception, doctors across the country have said, is so narrow as to be unworkable.
Wisconsin’s Democratic attorney general, Josh Kaul, filed a lawsuit arguing that the 1849 ban only applies in instances of feticide, or when someone ends a pregnancy against a pregnant person’s will. A court sided with Kaul, suspending the ban, but the state supreme court heard arguments in a case over the ban late last year. A ruling in that case is set to be released before Crawford or Schimel would join the state supreme court bench.
However, the court is also expected to hear arguments in a separate case – filed by Planned Parenthood – over whether the Wisconsin constitution protects abortion rights. If it does, the 1849 ban could be struck down completely.
Schimel, who personally opposes abortion, has previously called the 1849 ban “valid”. “There is not a constitutional right to abortion in our state constitution,” Schimel said on a campaign stop, according to the New York Times. “That will be a sham if they find that.”
Crawford has avoided speaking directly about the 1849 ban. She has, however, released multiple ads slamming Schimel for his stance on abortion.
“Brad Schimel wants to make sure women don’t have the right to make their own healthcare decisions. If he wins, that right is gone,” Crawford said in a recent ad. “I trust women to make their own healthcare decisions.”
The fall of Roe turbocharged the public’s attention on state supreme court elections, once a relatively sleepy corner of US politics, as abortion rights catapulted to the top of many liberal voters’ priorities. Without a federal guarantee of the right to an abortion, lawsuits over the procedure are increasingly waged in state courts, and state supreme courts often have the final word on whether it remains legal.
Spending on such races has skyrocketed. In 2023, when another seat on the Wisconsin state supreme court was up for grabs, campaigns and outside groups spent an eye-popping $51m – at the time, a record amount for a state supreme court election.
Tuesday’s election has smashed that record. As of last week, more than $80m had been poured into the race. Elon Musk, the richest person on the planet, and the groups he funds have spent more than $20m in support of Schimel; the billionaire George Soros has given $1m to the Democratic party of Wisconsin, according to the Brennan Center for Justice.
“It’s just an entirely new world when it comes to judicial elections,” said Douglas Keith, a senior counsel in the Brennan Center for Justice’s Judiciary Program, who tracks supreme court races. “These look so much more like a top-tier US Senate race than they do the judicial elections from even just a few years ago.”
One anti-abortion political action committee, Women Speak Out Pac, has dropped more than $500,000 into the race, campaign finance records show. The Pac, which is partnered with the powerful anti-abortion organization SBA Pro-Life America, has over the last seven years received more than $20m in funding from the Republican megadonor Dick Uihlein and a Pac he uses to fund his pet causes, which include opposition to abortion, unions and taxes.
Parties’ investment in these races has also increased – over the last few weeks, Wikler said, Wisconsin Democrats had reached “hundreds of thousands” of voters, more than doubling their record from 2023.
This single race has cost more than all state supreme court races in 2018 – a development that Keith calls “deeply troubling” for democracy.
“Voters are not receiving reliable information from all this money. They’re receiving a barrage of ads, many of which are misleading and do nothing to actually inform the electorate,” Keith said. The candidates have debated just once.
He added: “It just makes it so hard for the public to view courts as anything different than the other branches, and to have any reason to trust the decisions that come out of the courts.”
