April 03
By Susan Milligan
The weightiest of issues are on the ballot Tuesday: the future of abortion rights, control of the state legislature for the foreseeable future and whether voters’ choice for president will be upheld.
And it’s all coming down to a single race for a state Supreme Court opening in Wisconsin between two candidates in a nominally non-partisan contest that could have sweeping implications not just for the Badger State, but the nation.
Voters in Wisconsin will choose between Janet Protasiewicz, a Milwaukee County circuit court judge backed by liberals, and conservative former state Supreme Court Justice Daniel Kelly, who is seeking to recapture the seat he was appointed to fill in 2016 but then lost in an election in 2020.
The race typically would be a small-bore contest between two people unknown outside out a devoted political and legal class in Wisconsin. But with so much on the line, the contest has drawn national attention and become the most expensive state Supreme Court race in U.S. history.
“To understand why the April 4 election is so important, you just have to think about election night in 2020,” says Ben Wikler, chairman of the Democratic Party of Wisconsin. Amid challenges to the midnight arrival of absentee votes and an effort to submit an “alternate” slate of electors for Donald Trump – even though President Joe Biden won the state – the election was “closer than Donald Trump got in any other state to overturning the election,” Wikler says.
Ultimately, efforts to reverse Wisconsin’s 2020 election results failed – in part because Kelly had been defeated for the state Supreme Court post earlier that year, losing to liberal Justice Jill Karofsky.
Protasiewicz has cast Kelly as central to the effort to overturn the election.
“The real cherry on the top is that fake electors scheme,” she said during the two candidates’ only debate last month. Her accusation stems from a deposition before the House Jan. 6 committee by former Wisconsin GOP Chairman Andrew Hitt, who said he had “pretty extensive conversations” with Kelly about the plan. The Milwaukee Journal Sentinel also reported that the party had paid Kelly $120,000 to provide advice on “election integrity.”
Kelly has downplayed his role, saying he was one of many lawyers consulted, and he accused Protasiewicz of “lying.” His campaign against Protasiewicz has centered on crime and claims that she was easy on criminals.
If Kelly, a Trump ally who is connected to the failed effort to replace Biden electors with Trump electors, had won that 2020 race, it’s likely he would have been the pivotal vote in December 2020 to invalidate Biden’s win in Wisconsin, experts say. Instead, the state’s highest court upheld Biden’s win, 4-3.
If Protasiewicz wins Tuesday, the state Supreme Court will have a 4-3 liberal majority for the first time in 15 years, and her vote will be definitive for a slew of issues from abortion to labor-union organizing rights to voting rights. If Kelly prevails, Republicans will have amplified power well beyond the winning candidate’s term, analysts say.
“Every race in Wisconsin is nationally important because Wisconsin is the swingiest of swing states, and every race for the Wisconsin Supreme Court is important because the high court, like all state high courts, decides important issues of state constitutional law,” says Daniel Suhr, managing attorney of the Liberty Justice Center, a conservative legal group in Wisconsin.
“Judge Protasiewicz has consistently communicated a willingness to revisit settled precedent on major topics” – and the implications are huge for Wisconsinites.
Top among them is a 19th-century law banning abortion. The Wisconsin statute was not enforced when Roe v. Wade was the law of the land, but since last year’s Supreme Court ruling undoing the guaranteed right to abortion, the ban is back in the Badger State.
Opponents are challenging the 1849 law, and the state Supreme Court will likely make the final decision, motivating voters not only in Wisconsin, but nationally, ahead of the 2024 elections, says political science professor Barry Burden, director of the Elections Research Center at the University of Wisconsin-Madison.
“There are a whole string of things that suggest abortion is really animating Democratic voters, and probably female voters, more energetically,” Burden says – and a key Wisconsin state Supreme Court ruling on the state law will only amplify it.
Redistricting is also likely to be determined by the new court, as Democrats seek to undo a previous state Supreme Court decision. Republicans who control the state legislature now drew maps that give a huge advantage to the GOP. According to an analysis by the Milwaukee Journal Sentinel, Republicans in the new map are favored in 63 of the 99 assembly seats and 23 of the 33 state Senate seats – meaning Republicans would have a supermajority for the foreseeable future.
Protasiewicz has called the map “rigged” against voters in Democratic Milwaukee and Dane counties. Should she win Tuesday, court challenges to the current map would get a more sympathetic hearing.
Voting rules are also in play. Conservatives already prevailed in a state Supreme Court ruling banning drop boxes for absentee votes. Republicans are eyeing more voting restrictions, and the state Supreme Court would decide whether those are constitutionally acceptable.
There is also a potential for the state Supreme Court to weigh in on a number of other important issues, from marijuana policy to environmental rules and union organizing restrictions imposed during the governorship of Republican Scott Walker, says Mike Browne, deputy director of A Better Wisconsin Together, a progressive group.
“In the last decade or so, the right wing has definitely taken more notice of the court and threatened to use them to advance things [there] instead of through the legislative process,” Browne says. A Protasiewicz victory would thwart that.
There are no public polls in the race. Internal polls show an advantage for Protasiewicz, who also has raised a great deal more money than Kelly, according to the Center for Responsive Politics.
But voter turnout for judicial seats is unpredictable, especially since there is not another, more high-profile contest to boost turnout, experts say.
Milwaukee, for example, is reliably Democratic, but “turnout vacillates a lot” from a presidential election to an election like Tuesday’s court race, Burden says. Meanwhile, the more Republican suburbs “tend to turn out more in elections like this,” he adds.
No elected state Supreme Court judge has lost a race in 70 years, Burden notes, but Kelly – appointed by Walker – has never been given the job by voters. Tuesday’s race will shape the future of the states for years to come.