Law & the Courts

A Big Win for Conservatives in Wisconsin?

Inside the Wisconsin Supreme Court (Wikimedia)
If their candidate’s lead holds, the state supreme court could have a conservative majority for years to come.

In Tuesday’s Wisconsin supreme-court election, conservatives appear to have scored a shocking upset victory. With only a handful of precincts left to report, conservative-backed Brian Hagedorn leads liberal-backed Lisa Neubauer by nearly 6,000 votes out of 1.2 million cast, according to unofficial results.

The liberal Neubauer called for a recount, which a losing candidate may do — if she pays for it herself — when the margin is less than one percentage point. (Taxpayers pick up the tab at margins less than 0.25 points.) But a lead of 6,000 votes would almost certainly be insurmountable in a recount, assuming there were no unusually large tabulation errors Tuesday night, as there was in a 2011 supreme-court election in the state.

Hagedorn’s likely victory comes as a surprise to many. There wasn’t any public polling, but one Republican GOP operative in Wisconsin tells National Review that private polling in the closing weeks showed Hagedorn trailing by mid-to-high single digits.

Outside liberal groups heavily outspent conservative groups, and Democrats seemed to have all the momentum: They dominated the special elections last year, ousted incumbent governor Scott Walker in November by one percentage point, and reelected Senator Tammy Baldwin by eleven points. Tuesday’s results show that the conservative base is re-energized, and that the state remains a 2020 battleground.

The results also suggest that liberals overplayed their hand attacking religious and social conservatives. Neubauer and her liberal allies vilified Hagedorn as an anti-LGBT bigot because he had founded a Christian school that upholds Christian beliefs regarding sex and marriage, and because he had echoed comments from Justice Antonin Scalia’s dissent in Lawrence v. Texas — saying that, purely as a constitutional matter, laws against sodomy are no different from laws against bestiality — on a blog as a law student in 2005. His involvement with the Christian school caused one business group to withdraw its support.

The attacks on Hagedorn’s religious views “just lit an incredible grassroots fire,” says Brian Reisinger, a Republican strategist in Wisconsin who has worked for Scott Walker and Senator Ron Johnson. “They were calling this guy a bigot. They were saying that he was speaking to hate groups” because he had spoken to Alliance Defending Freedom, a conservative legal group that backs religious freedom.

As a law student, Hagedorn also wrote on a blog that “Planned Parenthood is a wicked organization more committed to killing babies than to helping women.” The narrator in one TV ad claimed that Hagedorn would outlaw abortion “even when a woman’s health is in danger.”

Hagedorn, who served as former governor Scott Walker’s chief counsel before becoming a judge, responded to the attacks by saying: “My job as a judge is to say what the law is and not what I think the law should be.” If you’re “a Catholic or a Christian of various stripes, you’re going to get attacked,” he added.

The attacks and disparity in ad spending left many Republicans in Wisconsin demoralized. “Until this week, Democratic-leaning groups backing Neubauer had dominated outside spending by as much as 14-to-1,” the Wisconsin Democracy Campaign reported on March 29. Hagedorn’s campaign didn’t have the resources to conduct its own internal polling.

“I didn’t pay for a single internal poll,” Stephan Thompson, general consultant for the Hagedorn campaign, tells National Review. “That’s a week of television in Wausau.”

“Anybody who says they’re not shocked is not being honest,” Brian Reisinger, the GOP strategist, says of the results.

If Hagedorn’s lead holds, he will replace retiring liberal justice Shirley Abrahamson, increasing the Wisconsin supreme court’s conservative majority from 4–3 to 5–2. In Wisconsin, justices are elected to ten-year terms, so a Hagedorn victory could solidify that majority for years to come.

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