Wisconsin: Layers of Undemocratic Leverage Permit Republican Court to End Coronavirus Shutdown

The Wisconsin Supreme Court ended the COVID-19 shut down in a 4-3 vote [PDF]. Justice Daniel Kelly cast the deciding vote, forcing the opening of the state prematurely which will help the virus spread.

The slim 4-3 victory for proponents of the reopening rests on a series of situations that give Republicans undemocratic leverage. The deciding justice is a lame duck who just lost an election bid by more than ten points. The lawsuit itself came from the Wisconsin legislature which is dominated by Republicans despite more people voting for Democrats, thanks to ‘extreme partisan gerrymandering’ which was made legal in a 5-4 purely partisan ruling [PDF] by the national Supreme Court last year. Actual people in the state support the shutdown with 69 percent approval.


In Wisconsin, supreme court justices are elected unless a Republican judge decides to step down strategically and the governor gets to appoint a replacement between elections. This is a huge loophole in Wisconsin law, and it allows unelected judges to sneak in there and gain the incumbency advantage for the next election.

Prior Wisconsin Justice David Prosser, Jr., was also appointed between elections. Prosser stepped down in 2016 after allegations of choking by another justice on the court, Ann Walsh Bradley. Prosser was replaced with Daniel Kelly by Republican Governor Scott Walker. In 2018, Scott Walker lost his re-election bid to current Democratic Governor Tony Evers who ordered the coronavirus shut down.

See also: Wisconsin Judge David Prosser Interview: “Understanding” Will Repair the State Supreme Court.

On April 7, 2020, Daniel Kelly was up for his first actual election to hold onto the seat. Kelly lost that election by more than ten points. He is now a lame duck and will be replaced by the people’s choice on August 1, 2020. But on his way out, Kelly cast the 4-3 deciding vote to end the shutdown.


The case got to the Wisconsin Supreme Court because the Republican-controlled legislature sued the Governor. This graphic from Wikipedia shows the extent of gerrymandering in the 2018 election. More people voted for Democrats but Republicans held a significant majority in both houses.