Wisconsin’s Judicial Swing
Wisconsin voters are about to make a 10-year commitment. And the consequences could be far-reaching, for the state and for the nation.
Liberal judges currently have a 4-3 majority on the court, which they won in 2023 and held onto in last year’s election, by far the most expensive state supreme court race in history. That race drew intense ad spending from the right and the left, as Republicans worked to restore a conservative majority to the court. Elon Musk, then a “special government employee” heading up President Donald Trump’s Department of Government Efficiency, wrote $1 million checks to some voters who participated in the election. Democratic donors, including billionaire George Soros, spent millions on the race as well.
This year’s race is a snooze by comparison. Total ad spending by independent political groups hadn’t even cracked $1 million a few weeks prior to election day, according to local reports. In a tough year for Republicans, with household costs still rising and dissatisfaction with Trump’s job performance at an all-time high, Taylor, the Democratic-backed judge, is expected to win, expanding the liberal majority to 5-2. Even if she doesn’t, liberals will still have a majority on the court. But the decisions could be more delicate.
The impact of the court’s right-to-left swing over the last half-decade is still playing out. The 2023 Wisconsin Supreme Court election marked the first time in 15 years that the ideological balance of the court had shifted from one side to the other. The court has ruled recently and is expected to rule on a number of cases involving voting rights and procedures, which could affect the midterm elections and the next presidential election in 2028. The Wisconsin Supreme Court voted to ban ballot drop boxes in 2022 amid a push by conservative groups to clamp down on absentee voting. The court reversed its decision after liberals won the majority. Lawsuits stemming from elections often end up in state supreme courts. The Wisconsin Supreme Court rejected Trump’s effort to discard thousands of ballots amid his election loss in 2020, with one conservative judge joining the three liberals on the court at the time. Elections in Wisconsin are typically close, and the court could be weighing in on a presidential race again before long.
State supreme court elections are becoming more competitive in general, and more overtly political, says Alex Badas, a political scientist at the University of Houston. That has affected how litigation has moved around the country, with some plaintiffs in lawsuits with national implications picking and choosing where they file cases based on the partisan makeup of the courts. And it affects the way everyday people view the courts and the legitimacy of the decisions they make. When people believe that their state supreme court has a majority of justices who are politically aligned with them, they tend to feel that its decisions are more legally grounded, according to research by Badas and two colleagues, Eugenia Artabe and Lucia Lopez.
Conversely, when people think the court is aligned with their political opponents, they tend to see its decisions as less fair and less legitimate. This is a change from decades past, when people tended to judge courts based on how they perceived their procedural fairness, according to Badas. (That’s if people thought about the courts at all; most judicial elections are low turnout and most state judicial offices poorly understood by everyday voters.) Swings in ideological court makeup in recent years have been accompanied by a rash of state efforts to rein in courts’ authority, a practice known as court curbing. When the Wisconsin Supreme Court majority shifted from conservative to liberal, Republicans in the state Legislature initially responded by threatening to impeach the newly elected judge if she didn’t recuse herself from redistricting cases.
The ideological makeup of state supreme courts will take on more significance as partisan lines are drawn ever deeper around the country, and as Trump continues to attack judges who rule against his administration (even while largely following court orders). But the more people associate partisan alignment with legitimacy, the harder it may be for high courts to maintain their claim of having the last word on legal issues.
“Courts don’t have any formal implementation mechanisms,” Badas says, “so they have to rely on the people or other political actors to implement their decisions.”
(Adobe Stock)
AI Ad Disclosures Become the Norm
The goal of a political attack ad has never been to depict the opponent in a maximally accurate way. Sinister-looking photographs and out-of-context quotes are the meat and potatoes of the genre. But the rapid development of artificial intelligence tools has opened new horizons in the world of political misrepresentation.
In one Ohio school board campaign last year, a slate of candidates posted a deepfake video of an incumbent board member, Camille Peterson, saying things she never said. While they labeled the ad as being AI generated, Peterson and other community members condemned it as a misleading use of her image. (Peterson, who won re-election, didn’t respond to interview requests.) Many AI-generated campaign ads are more obvious, like an ad for Ken Paxton, a Republican U.S. Senate candidate in Texas, which depicts incumbent Republican Sen. John Cornyn dancing with a Democratic challenger, U.S. Rep. Jasmine Crockett. Both are wearing cowboy boots.
The trend is concerning enough to state lawmakers that 28 states have now adopted laws regulating the use of AI-generated deepfakes in political messaging. Most require simple disclosures about the use of AI, while a few prohibit deepfake-style videos in the days leading up to an election.
Pennsylvania may be next to join the pack. State Sen. Lindsey Williams, a Democrat, has sponsored legislation that would require disclosure when AI is used in political ads. It’s gotten bipartisan support, including cosponsorship from some Republican state senators. Williams says that as political ad spending continues to rise, and AI technology becomes more sophisticated, it’s becoming more difficult to determine what’s accurate and what’s made up. She says her bill would require a simple disclosure of AI use, the same way modern political ads are required to carry a disclaimer saying who paid for them.
“We’re all kind of used to the photoshop thing, where you can clearly see it’s fake,” Williams says. “What I’m really worried about is the stuff that’s harder to determine whether it’s real or not.”
