Category Archives: judicial elections

Justice Riggs (and Others) Go to Fourth Circuit in an Emergency Effort to Stay the Federal District Court Ruling Allowing Steps Toward What is Likely an Unconstitutional Attempt to Redo State Judicial Election

Riggs’ case is assigned number 25-1397 in the Fourth Circuit. There are three other requests for stays from other parties that will likely be consolidated.

I wrote at Slate about the disaster of the district court’s order:

In a preliminary order issued over the weekend likely designed to split the baby, a federal district court in North Carolina has told North Carolina election officials that they should follow a state court’s ruling to figure out which of thousands of military and overseas ballots cast by North Carolina voters should be thrown out in a dispute over the winner of a November state Supreme Court election. But the federal court also told election officials not to certify the winner of that election until it can decide if the state court–ordered remedy is unconstitutional.

This is a recipe for disaster. The federal court should have heeded the advice of Justice Antonin Scalia in the 2000 Bush v. Gore case about not allowing a questionable redo of vote totals to be announced before there’s been a ruling on the legality of the redo. The judge’s order in North Carolina could well lead people to believe the state Supreme Court election was stolen no matter what happens.

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Federal Court Temporarily Blocks Certification of North Carolina Supreme Court Race as It Allows State-Court-Ordered Review of Overseas Ballots to Continue

Here’s the order issued Saturday:

This matter comes before the court on Intervenor-Defendant Allison Riggs’ emergency motion for injunction and motion for status conference [DE 37]. Pursuant to the court’s authority under the All Writs Act, the motion is GRANTED IN PART. Defendant North Carolina State Board of Elections is ORDERED to proceed in accordance with the North Carolina Court of Appeals opinion, Griffin v. N.C. State Bd. of Elections, No. COA25-181, 2025 WL 1021724 (N.C. Ct. App. Apr. 4, 2025), as modified by the North Carolina Supreme Court in its April 11 Order, but SHALL NOT certify the results of the election, pending further order of this court. Further, the court adopts the following briefing schedule to facilitate prompt resolution of this matter: each party may file an opening brief addressing the remaining federal issues no later than April 21, 2025. Response briefs shall be due no later than April 25, 2025. Replies shall be due April 28, 2025. Unless the court finds that oral argument will aid the decisional process, it intends to rule on the papers as soon as practicable

The court also ordered the North Carolina State Board of Elections to provide “notice to the court of the scope of its remedial efforts, including the number of potentially affected voters and the counties in which those voters cast ballots.”

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In a 4-2 Opinion that Will Disenfranchise Military and Other Voters and Likely Overturn the Results of a Valid Election in Violation of Due Process, North Carolina Supreme Court Allows Griffin Election Contest to Go Forward, in Part

WRAL:

Republican Judge Jefferson Griffin has won, in part, his effort to throw out thousands of voters’ ballots from the 2024 elections. On Friday the North Carolina Supreme Court rejected some of Griffin’s challenges but kept others alive, paving the way for him to potentially be declared the winner of last year’s race for a seat on the Supreme Court.

The ruling in Griffin’s favor was mostly along party lines: The 4-2 decision saw one of the court’s Republican justices break party ranks, while the rest joined in the majority ruling for Griffin.

Democracy Docket:

North Carolina’s highest court issued a mixed ruling Friday in the ongoing legal saga over the 2024 election between state Supreme Court Justice Allison Riggs (D) and her Republican challenger, appeals court judge Jefferson Griffin. 

Per today’s ruling, around 60,000 ballots with incomplete registrations cast in the 2024 state Supreme Court election will be counted. The Court also issued a 30-day cure period for the roughly 5,000 overseas military voters who did not provide proper photo ID when they registered to vote. But the Court greenlit the decision of a lower court to reject around 200 ballots cast by overseas voters who are registered to vote in North Carolina but never resided in the state. Those ballots will not be counted. 

Riggs said in a statement that she will immediately ask the federal courts to intervene in the case.

This is disenfranchising of voters and raises the risk of election subversion. It’s unprecedented, as Republican lawyer Ben Ginsberg explained about the earlier Court of Appeals ruling, and it violates due process rights of voters (and potentially other federally protected rights) by changing the rules after the fact, as Rick Pildes and Justin Levitt explained.

I hope that the federal courts will now correct this due process violation. As Judge Earls wrote in her dissent:

I have no doubt that this special order, upending years of precedent, violating due process, resulting in the discarding of thousands of legitimate votes, and issued with unseemly haste as though quickly ripping the bandage off the deep wound to our democracy will hurt less, marks one of the lowest points of illegitimacy in this I look forward to the day when our Court will return to the rule of law and act to resolve the critical issues implicated in matters such as this with clarity, transparency, and even treatment for all voters and candidates.

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Breaking: North Carolina Appeals Court, Over Strong Dissent, Sides with Judge Griffin in Election Contest, Gives Some Voters Chance to Cure Failure to Provide Certain Information to Election Officials (That Officials Did Not Demand)

You can find the 2-1 opinion and dissent at this link. I’m at a meeting so no chance to read this closely right now, but it appears that the majority held that many of the ballots cast by challenged voters failed to comply with North Carolina law (such as by not including information on registration forms like the last four of a social security number or drivers’ license number), but would give 15 days for a cure. This kind of remedy, in an election decided by fewer than 1,000 votes could well lead to both a scramble and an outcome determinative change.

The dissent is lengthy but says early the key point: “Changing the rules by which these lawful voters took part in our electoral process after the election to discard their otherwise valid votes in an attempt to alter the outcome of only one race among many on the ballot is directly counter to law, equity, and the Constitution.” Voters voted under rules set by the election administrators, and to disenfranchise them after the fact violates those voters’ due process rights.

There are a few things that may happen now. There may be an appeal to the state Supreme Court, where with Justice Riggs (who is one of the candidates) recusing herself, this case could lead to a 3-3 split with the appeals court ruling standing.

There also may be a revival of the Fourth Circuit federal case—to me this has remedies of Roe v. Alabama, where a state court appeared to violate due process in changing the rules for a state election after the fact. The state courts may be violating federal law by disenfranchising voters in this way.

If this process does go forward, I don’t have a good sense as to what it would mean for a 15-day scramble to try to un-disenfranchise these voters.

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My New One at Slate: “What Elon Musk Won in Wisconsin”

I have written this piece for Slate. It begins:

Democrats and progressives rightly celebrated the victory of liberal Susan Crawford over Trump-endorsed Brad Schimel for a seat on the Wisconsin Supreme Court. But the left is prematurely gloating over how Elon Musk’s deep support of Schimel appears to have backfired. There’s every reason to believe that the same pathologies in U.S. elections and election law on exhibition in Wisconsin will continue. So too will the outsize involvement of Musk and other billionaires in American elections, although the Wisconsin race is more likely to push Musk and his compatriots into the shadows.

One could teach an entire course in election law by studying just this one race. …

And not to be missed are the stakes themselves. Aside from a high-profile abortion rights case, the most important issue likely to come before the Wisconsin justices soon involves the question of whether partisan gerrymandering violates the state Constitution. Wisconsin has some of the most gerrymandered congressional districts in the country, and when conservatives controlled the court, they rejected arguments to require the drawing of fair districts under the state Constitution. The court could now reverse such a holding with Crawford’s victory. (The opposite happened in North Carolina, where the left-leaning state Supreme Court first recognized partisan gerrymandering claims only to see that reversed when the right took control of the court.)

Redistricting, more than anything else, probably explains why Elon Musk poured more than $20 million into this race and made numerous statements and even a personal appearance to boost Schimel. He said on the Sunday before the election: “If the [Wisconsin] Supreme Court is able to redraw the districts, they will gerrymander the district and deprive Wisconsin of two seats on the Republican side. … Then they will try to stop all the government reforms we are getting done for you, the American people.” Indeed, he also said: “What’s happening on Tuesday is a vote for which party controls the U.S. House of Representatives—that is why it is so significant. … And whichever party controls the House to a significant degree controls the country, which then steers the course of Western civilization. I feel like this is one of those things that may not seem that it’s going to affect the entire destiny of humanity, but I think it will.”…

And then in the middle of the night the weekend before the election, he announced on X—the platform he owns and uses to promote his political causes—that he would give away $1 million to some people who voted in the Wisconsin race. That announcement likely violated Wisconsin election law, as I explained soon after it was made. He quickly reworked his plan so that it no longer required proof of voting, in order to give it a sheen of legality, but the message was out there. Indeed in another message that Musk’s people posted and then took down, one of the $1 million winners of Musk’s giveaway (which apparently also wasn’t a random lottery) said she got the money in part for voting.

After Musk lost, he downplayed the importance of the race, but his political people signaled he is going to stay involved in supporting Republicans in 2026 and beyond. The lesson he’s likely to learn is the lesson other billionaires already have learned. If you’ve got it, don’t flaunt it. People are turned off by the display of money being converted to raw political power….

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“Liberal Wins Wisconsin Court Race, Despite Musk’s Millions”

NYT:

A liberal candidate for a pivotal seat on the Wisconsin Supreme Court overcame $25 million in spending from Elon Musk and defeated her conservative opponent on Tuesday, The Associated Press reported, in a contest that became a kind of referendum on Mr. Musk and his slashing of the federal government.

With turnout extraordinarily high for a spring election in an off year, Judge Susan Crawford handily beat Judge Brad Schimel, who ran on his loyalty to President Trump and was aided by Mr. Musk, the president’s billionaire policy aide.

Mr. Musk not only poured money into the race but also campaigned personally in the state, even donning a cheesehead. But his starring role seemed to inflame Democratic anger against him even more than it helped Judge Schimel.

The barrage of spending in the race may nearly double the previous record for a single judicial election. With about 95 percent of the vote counted on Tuesday evening, Judge Crawford held a lead of roughly 9 points….

The race could also have implications for control of Congress, where Republicans’ razor-thin edge was fortified on Tuesday when the party held on to two Florida seats in special elections. Democrats have quietly argued for months that a Crawford victory would pave the way for a liberal-tilting Wisconsin Supreme Court to order new congressional maps, which could help Democrats defeat one or two of the state’s Republican Congress members.

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Ben Ginsberg: “Echoes of Gore’s Florida recount in Griffin’s attempt to toss ballots”

Ben Ginsberg in the Carolina Journal:

Jefferson Griffin’s attempts to invalidate 60,000 North Carolina voters bear haunting parallels to what Al Gore supporters tried to do late in the 2000 Florida recount to take away George W. Bush’s victory. I was the Bush-Cheney campaign’s national counsel, and as Republicans, we were outraged by the unprincipled attempts to disenfranchise voters to steal a win.

Imitating the Gore playbook, Griffin is trying to overturn a historically close election by changing the election’s rules after it was conducted and disenfranchising thousands of otherwise legal voters, not because they did anything wrong, but because of election officials’ instructions.

Griffin’s efforts should fail for the same reasons Al Gore’s did. In 2000, the US Supreme Court recognized that changing the rules fundamentally violates the rule of law. And not even the highly partisan Florida Supreme Court could swallow disqualifying otherwise legal voters to swing an election. 

As a Republican election lawyer for 40 years, I’m for Republicans winning judicial elections. But not like this. Not when Griffin has not identified any fraudulent voters or ballots not cast in compliance with official election guidance. And not when Griffin has to ask his fellow judges to abandon principle to achieve his own electoral success. He lost a heartbreakingly close race. It happens. But it is wrong to disqualify voters who may have voted against you because of administrators’ perceived errors. 

As in Florida 2000, it is fair game to adjudicate State Board of Elections’ procedures or overseas voters’ eligibility before the election. But Griffin did not succeed in his preelection attempts. So his lack of electoral success makes his post-election challenges nothing more than distasteful sour grapes aimed at disenfranchising voters in areas won by his opponent…,

It should be embarrassing for Judge Jefferson Griffin to make — and ask his fellow judges to buy — his arguments to disenfranchise legal voters, especially members of our military. Ambitious candidates may not always stick to principles, but judges must. As in Florida 2000, such an attack on the rule of law must be rejected.

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“Elon Musk Revealed Why He’s Spending Millions to Flip the Wisconsin Supreme Court; It’s all about preserving gerrymandered districts that lock in Republican power.”

Ari Berman in Mother Jones:

On March 22, Elon Musk hosted conservative Wisconsin Supreme Court candidate Brad Schimel and US Senator Ron Johnson (R-Wisc.) for a discussion on X about the importance of the Wisconsin Supreme Court election on April 1. It began 36 minutes late and was beset with technical difficulties, as Musk repeatedly talked over Schimel.

But once things got straightened out, Musk made it clear why he is offering voters $100 a pop to sign a petition opposing “activist judges” and spending $18 million through various political groups—a record for any donor in a Wisconsin judicial contest—to elect Schimel and flip the ideological majority of the court.

“This is a very important race for many reasons,” Musk said. “The most consequential is that [it] will decide how congressional districts are drawn in Wisconsin, which if the other candidate wins, instead of Justice Schimel, then the Democrats will attempt to redraw the districts and cause Wisconsin to lose two Republican seats. In my opinion that’s the most important thing, which is a big deal given that the congressional majority is so razor-thin. It could cause the House to switch to Democrat if that redrawing takes place.”

Musk’s fear is that the court, if it retains a progressive majority, will strike down the congressional lines that give Republicans a 6-2 advantage in the US House delegation. (Democrats have made similar claims.) The Princeton Gerrymandering Project gave that map an F for partisan fairness, saying it had a “significant Republican advantage.” The court has yet to take up a lawsuit challenging the congressional map, but if they were to eventually strike it down, that could help Democrats retake the House, which would allow Democrats to scrutinize the unprecedented role Musk is playing in shredding the federal government, accessing sensitive personal information on millions of Americans, and the $38 billion in federal funding his businesses receive….

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“Musk and Trump ratchet up involvement in Wisconsin Supreme Court race”

WaPo:

President Donald Trump and billionaire adviser Elon Musk are going all-in on flipping control of Wisconsin’s top court, with Trump endorsing the conservative in the race and Musk’s PAC hunting for votes by offering state residents cash for their contact details.

The burst of support comes as Trump faces his first test with swing-state voters in the April 1 election since winning a second term in November. The court is expected to decide the future of abortion in the state and could redraw a congressional map that has given Republicans six of the state’s eight seats.

Trump on Friday said on his Truth Social platform that he was backing Brad Schimel, a Waukesha County judge and former Republican state attorney general who is seeking a seat on Wisconsin’s high court. He excoriated the liberal in the race, Dane County Judge Susan Crawford, writing “if she wins, the Movement to restore our Nation will bypass Wisconsin.”

Groups affiliated with Musk have poured more than $13 million into Wisconsin in recent weeks in what is already the most expensive court race in U.S. history. Musk, ranked by Forbes as the world’s richest person, has put a spotlight on the race as he assists Trump with firing government workers and shuttering federal agencies through his U.S. DOGE Service.

Musk dialed up his focus on Wisconsin on Thursday when his America PAC offered registered voters in the state $100 if they provided contact information and signed a petition opposing activist judges. The PAC also offered them $100 for each registered Wisconsin voter they referred to sign the petition — but the fine print of the offer said the PAC would determine whom to pay and noted payments may not be made for months. The payment-for-data arrangement will give Musk’s team an easy way to reach a pool of voters it can bombard with messages urging them to support Schimel in the election. Turnout in Wisconsin court elections is much lower than in presidential elections, and liberals have had a large turnout advantage in recent court races. Political observers for both sides say Schimel’s best chance of success is to get voters who backed Trump in November to the polls.

On Saturday, Musk hosted Schimel on an audio live stream on X, the social media site owned by Musk. “If you look at the early voting data so far, Democrats are winning, which is not good,” Musk said…..

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“A still-unresolved North Carolina court election is back before judges next week”

AP:

A panel from North Carolina’s intermediate-level appeals court will hear arguments next week about a still-unsettled November election for a seat on the state’s Supreme Court.

The March 21 hearing by three judges on the Court of Appeals was announced Friday, the same day the court rejected a request by incumbent Supreme Court Associate Justice Allison Riggs to have the entire Court of Appeals consider the matter now instead.

After recounts and election protests, the registered Democrat Riggs leads Republican challenger Jefferson Griffin by 734 votes out of more than 5.5 million ballots cast in their race for an eight-year term on the highest court in the ninth-largest state.

While The Associated Press declared over 4,400 winners in the 2024 general election, the North Carolina Supreme Court election is the only race nationally that is still undecided.

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“Who Is Elon Musk Helping Now? A Judicial Candidate Who’s a Big Trump Fan.”

NYT:

In October 2016, the day after the release of the “Access Hollywood” recording in which Donald J. Trump bragged about sexually assaulting women, Wisconsin Republicans held a rally in the small town of Elkhorn.

As the state’s top Republicans spoke at the event, they distanced themselves from Mr. Trump. Paul D. Ryan, then the House speaker, said he was “sickened.” Gov. Scott Walker declared that Mr. Trump’s remarks were “inexcusable.” Senator Ron Johnson called them “indefensible.”

Just one Republican took the stage, framed by haystacks and pumpkins, and came to Mr. Trump’s defense: Brad Schimel, then the state’s attorney general and now a Waukesha County judge who is running in a high-profile, expensive race for control of the Wisconsin Supreme Court.

“I know that Donald Trump has said some things that are bad,” Judge Schimel said as a voice in the crowd cried out, “Get over it!” He added: “I’m the father of two daughters. My daughters look up to me, and I don’t like hearing anyone talk that way about women. But Donald Trump will appoint judges who will defend our Constitution and respect our Constitution.”

Now, as Judge Schimel aims to return a conservative majority to the court after Wisconsin liberals flipped it in 2023, he is hoping to sustain the pro-Trump energy that helped the president carry the battleground state last fall.

Following a path blazed by Wisconsin Democrats, who successfully injected national politics into the State Supreme Court election two years ago, Judge Schimel is campaigning for the ostensibly nonpartisan post in an openly partisan way — as an outspoken supporter of Mr. Trump.

Judge Schimel has echoed Mr. Trump’s lies about elections, attended his campaign rallies and walked door to door to encourage voters to back him in the April 1 election. Last fall, Judge Schimel wore a Trump-as-garbage-man costume while shaking what appeared to be a pair of maracas and playing bass guitar at a Halloween party, an episode captured on a video obtained by The New York Times. And this month, he told supporters that he wanted to help build “a support network” around Mr. Trump.

“They’re so desperate for him to not get a win that they won’t let America have a win,” Judge Schimel said at an event hosted by the conservative group Turning Point Action, referring to Democrats and other Trump opponents. “That’s what they’re doing. The only way we’re going to stop that is if the courts stop it.”…

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“In Wisconsin’s Supreme Court race, both sides take aim at the other’s billionaire backers”

NBC News:

The Wisconsin Supreme Court contest is shaping up to be a battle of billionaires, with each side in the race casting the other’s most prominent donors as boogeymen.

Liberal megadonors like George Soros and outside groups with ties to Elon Musk have spent millions in the first major race in a battleground state since the 2024 election that both parties will look to as a barometer of the political environment in the opening weeks of President Donald Trump’s administration.

The technically nonpartisan April 1 election will determine the state Supreme Court’s ideological balance for the second time in two years. Brad Schimel, the conservative candidate and a state judge in Waukesha County who previously served as the state’s Republican attorney general, is facing off against Susan Crawford, the liberal candidate and a state judge in Madison.

Thanks in large part to the involvement of megadonors like Musk and Soros, the race is on track to surpass the state’s 2023 contest as the most expensive state Supreme Court campaign in U.S. history. And like that race, the future of several hot-button issues with both state and national significance — including abortion rights, unions and congressional maps — will again be at stake.

Democrats in particular have trained their sights on Musk, the tech billionaire who’s running the controversial Department of Government Efficiency.

This week, the Wisconsin Democratic Party launched what it’s calling a seven-figure investment to link Schimel to Musk. The spending will be geared toward ads, town hall events and canvassing efforts that specifically take aim at Musk.

One digital spot that started running this week lists off a series of actions DOGE has taken or recommended, before slamming Musk as “out of control” and accusing him of “unloading millions to buy the Wisconsin Supreme Court.”

“He knows MAGA politician Brad Schimel is for sale,” the ad’s narrator says….

On the other side, the Wisconsin Republican Party and aligned groups have drawn attention to the cadre of liberal billionaires who have thrown money into the race, including Soros and LinkedIn co-founder Reid Hoffman.

“Susan Crawford is a vehicle for Democrats, like George Soros and Reid Hoffman, to implement a dangerously unpopular agenda,” Wisconsin GOP spokesperson Anika Rickard said.

House Freedom Action, the political arm of the conservative U.S. House Freedom Caucus, has begun running ads that specifically take aim at Crawford for receiving support from Soros, Hoffman and Illinois Gov. JB Pritzker….

Several other ultrawealthy Americans have also gotten involved in the race, particularly on the conservative side.

For example, Elizabeth Uihlein gave $650,000 to the Wisconsin GOP in January, while Joe Ricketts, the founder of TD Ameritrade, chipped in $500,000. Diane Hendricks, the billionaire businesswoman and film producer who owns ABC Supply, also gave the Wisconsin Republican Party $975,000 that month.

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“The November Election That Still Hasn’t Been Certified; North Carolinians voted in a state-supreme-court election four months ago. What’s going on?”

David Graham for The Atlantic:

Yesterday marked four months since Election Day, but North Carolinians somehow still don’t know who will fill a key seat on the state supreme court.

The problem is not that no one knows who won. Justice Allison Riggs, an incumbent Democrat, won by a tiny margin—just 734 votes out of 5,723,987. That tally has been confirmed by two recounts. But certification is paused while Republican challenger Jefferson Griffin, a judge on the state court of appeals, asks courts to throw out roughly 60,000 votes and put him on the state’s highest court.

The votes that Griffin has challenged fall into three groups. Most are from North Carolina residents whose voter registrations don’t include driver’s license or Social Security numbers. Although this is now required by law, these voters registered using old forms that did not require either; the state never asked these voters to reregister. The second set belongs to overseas residents who have never lived in the state, such as the adult children of North Carolinians who live abroad; state law entitles them to vote in-state. A third consists of overseas voters, including some members of the military, who didn’t submit photo identification with their ballot, again because it was not required.

Griffin doesn’t allege that these voters did anything wrong; in fact, as ProPublica’s Doug Bock Clark reported, Griffin himself twice voted under the overseas-voting law while deployed in the National Guard. But now he argues that their votes should be junked for administrative and clerical discrepancies that were not their fault, and he did not express any concerns about these votes until after he appeared to have lost the race.

“What Judge Griffin is asking is for the courts to change the rules of the election after the election has already happened, and for the courts to allow him to hand-select the votes that shouldn’t count, so that he can be declared the winner,” Eliza Sweren-Becker, a senior counsel who works on voting rights at the Brennan Center for Justice, told me. “That is absolutely unprecedented.”…

The decision is now essentially up to Republican jurists. The appeals court has a 12–3 GOP majority, though Griffin is recused from the case. Riggs has also asked that Judge Tom Murry be recused, because Murry contributed $5,000 to Griffin’s legal fund in this case, but Griffin has indicated that he’ll oppose the request. Once the appeals court rules, the case may go to the supreme court, where the GOP has a 5–2 majority (and a recent history of intense partisan acrimony); Riggs, too, is recused from this case. Griffin appears to be asking his own party members to hand him a seat—an impression not helped if Murry stays on the case. (Griffin has declined to comment while the case is in court.)

All of this may be an affront to North Carolinians, but voting experts told me that the outcome matters for America as a whole as well. Rick Hasen, a law professor at UCLA who has contributed to The Atlantic, told me it could end up at the U.S. Supreme Court. “Many of us were worried about subverted election outcomes at the presidential level starting in 2020,” he wrote in an email. “But this is the first serious risk at a lower level. Raising these kinds of issues after the election to disenfranchise voters and flip election outcomes risks actual stolen elections potentially blessed by a state supreme court.”…

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“Despite Musk, progressives are winning the ad war in Wisconsin”

The Downballot:

Despite Elon Musk’s multi-million dollar spending spree, progressives retain an advantage on the airwaves in Wisconsin’s Supreme Court race—and now they’re making an issue of Musk’s involvement, too. At the same time, a rare poll shows liberal Judge Susan Crawford leading her opponent, former Republican Attorney General Brad Schimel, ahead of their April 1 showdown.

On the advertising front, new data from AdImpact shows that Crawford and her allies have spent $17 million to date versus $12 million for Schimel’s side. Conservatives hold a small edge in future reservations, $6.3 million to $5.8 million, but that gap is a fraction of the $7 million advantage Schimel and his supporters enjoyed just two weeks ago…

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