What happened in Wisconsin

This week, Janet Protasiewicz, a liberal circuit judge in Milwaukee, won a seat on Wisconsin’s Supreme Court bench against her right-wing challenger Dan Kelly. Protasiewicz’s win gives Wisconsin’s highest court a liberal majority for the first time in 15 years. The result will have a profound impact in Wisconsin on abortion rights, voting access, and a host of other issues. 

Protasiewicz beat Kelly by nearly 11 percentage points, an impressive margin that was made possible by a record-breaking turnout. “More than 1.7 million people cast ballots in the race this year, besting the 1.6 million that cast ballots in the 2020 race when there was also a presidential primary,” CBS News writes. 

Kelly, a former State Supreme Court justice, has a long track record of associating with election deniers and promoting extremist views. He consulted on a GOP plan to reverse the 2020 election. In March, Kelly campaigned with Scott Presler, a right-wing influencer who planned several “Stop the Steal” rallies and raided the Capitol on January 6. During his previous term on the court, Kelly “opposed abortion rights, gay rights, and workers’ rights.” 

The election, which was closely watched nationwide, was the “most expensive state Supreme Court race ever,” with more than $45 million spent. 

Leading up to the election, Kelly and his backers financed an onslaught of ads that painted Protasiewicz as soft on crime. In one ad, three Wisconsin sheriffs accuse Protasiewicz of refusing “to hold dangerous criminals accountable” and express their support for Kelly, saying “he enforces the rule of law.” 

Another pair of ads, released by Wisconsin Manufacturers and Commerce (WMC) and the conservative group Fair Courts America, target Protasiewicz for giving out a lenient sentence in a sexual assault case. The narrator in the ads says Protasiewicz “let a rapist off easy” and “ignored” the victim’s pleas. Kelly is “​​the only candidate we can trust to keep violent felons off our street,” the narrator concludes. (According to the victim of the case, she was “satisfied” with the sentencing and said the ads were “inaccurate.” The ads were subsequently removed by the WMC, despite the group insisting the ads were “factually accurate.”)

In another ad, run by Kelly’s campaign, the narrator claims Protasiewicz “has a long history of letting dangerous criminals off easy.” The ad mirrors the style of the 1988 Willie Horton ad, a textbook example of dog-whistle racism. 

But Kelly’s attempts to damage Protasiewicz with attacks on her criminal justice record were unsuccessful. The election results in Wisconsin add to the body of evidence that Republicans attacking Democrats as "soft on crime" is not a winning message. In the 2022 midterms, "many of the high-profile races where the Republican sought to make crime a major issue, the Democrat ended up winning by a larger margin than expected." As a result, the "red wave" never materialized and Democrats performed better than most analysts expected. 

Abortion rights remains potent

Protasiewicz’s campaign also focused on abortion rights because the fate of Wisconsin’s abortion ban hung in the balance. In an ad, Protasiewicz stated, “I believe in a woman's freedom to make her own decision on abortion.” According to Politico, “roughly a third of television ads coming from Protasiewicz’s campaign and other allied groups” mentioned abortion. Abortion was only mentioned in one percent of ads from the opposing side. 

The state’s abortion ban, which was originally enacted in 1849 and went back into effect after the U.S. Supreme Court overturned Roe v. Wade, bans nearly all abortions, including cases of incest or rape. The law is currently being challenged in a lawsuit by Wisconsin Attorney General Josh Kaul (D), and the Wisconsin Supreme Court is expected to issue a ruling on the law later this year. With Protasiewicz’s win giving the court a liberal 4-3 majority, it is likely that this ban will now be overturned. 

Protasiewicz ran ads against Kelly saying that he would uphold the state’s abortion ban. On Twitter, Protasiewicz stated that Kelly would “make decisions based on right-wing political beliefs, including keeping Wisconsin’s 1849 abortion ban in place.” Kelly, who has “expressed opposition to abortion in the past,” was “endorsed by the state’s three largest anti-abortion groups,” while Protasiewicz gained support from pro-reproductive rights groups like EMILY’s List and Planned Parenthood. 

Protasiewicz’s win shows that abortion rights continue to be potent among voters, following the pattern of the 2022 midterm elections, where ballot initiatives across both red and blue states passed in favor of abortion rights. 

In Kansas, a proposed constitutional amendment to remove protections for abortion rights was struck down by voters in August 2022. During the midterm elections, voters in Kentucky rejected a similar initiative. Voters in Montana rejected an initiative to “criminalize health care providers if they did not take ‘reasonable actions’ to save an infant born alive, including after an attempted abortion.” Citizens in Michigan, California, and Vermont voted for measures to enshrine abortion rights into their state constitutions. 

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The strength of Bragg's case against Trump

A number of analysts, including several that lean left politically, have cast doubt on the strength of Manhattan District Attorney Alvin Bragg's indictment against former President Donald Trump. Much of the skepticism is related to the fact that, under New York law, falsifying business records is only a felony if the records were falsified to commit, aid, or conceal another crime. 

These analysts focus on the text of the indictment and the accompanying statement of facts. In the Washington Post, Ruth Marcus called the indictment "disturbingly unilluminating" about the specifics of the legal argument. In Vox, Ian Millhiser stressed the fact that the only other crime mentioned in the documents Bragg released yesterday was a "federal campaign finance violation" and "it is far from clear that a New York state prosecutor may charge Trump with a felony because he tried to cover up a federal, as opposed to a state, crime." In Slate, Richard Hansen detailed the potential legal difficulties in connecting the falsified business records to a state or federal campaign finance violation. 

The fundamental flaw of these pieces is that they misrepresent the purpose of an indictment and statement of facts. Neither of these documents is supposed to contain Bragg's legal arguments. Rather, these documents state the charges against Trump and the facts of the case. 

Trump's lawyers are likely to file a motion to dismiss the case or, in the alternative, to reduce the 34 charges to misdemeanors. In arguing that the charges should be downgraded to a misdemeanor, Trump's lawyers will claim no other crime was being committed, aided, or concealed. In response, Bragg will be required to detail the related crimes and the evidence he has to support the existence of those crimes. But Bragg is not required to do so now.

But it would make no sense for Bragg to provide Trump's lawyers with his legal arguments and the evidence he has supporting those arguments prior to Trump challenging the felony charges. This would allow Trump's legal team to anticipate these arguments in their filing. Bragg's decision not to reveal all his cards is a basic litigation strategy. 

In his Tuesday press conference, however, Bragg did provide some additional information about the other crimes used to justify the felony charges. Yes, he said that Trump was falsifying business records to cover up violations of federal and state election law. Bragg specifically quotes N.Y. Elec. Law § 17-152, which makes it a crime for "any two or more persons who conspire to promote or prevent the election of any person to a public office by unlawful means."

Critically, Bragg also suggested that Trump falsified business records to deceive state tax officials. This means it may be possible for Bragg to prove his case without relying on federal or state election law. "The participants also took steps that mischaracterized, for tax purposes, the true nature of the payments made in furtherance of the scheme," Bragg wrote in the statement of facts. In his press conference, Bragg emphasized that Trump paid his former attorney, Michael Cohen, more than Cohen had paid Stormy Daniels. The purpose of these larger payments was to cover Cohen's income tax liability since Trump was falsely characterizing the reimbursement as income. 

Speaking on ABC News, former federal prosecutor Renato Mariotti said that the alleged tax crimes "could be potentially more compelling for the jury" and are "a safer bet than the campaign finance crimes."