Wisconsin Supreme Court race could have big implications for abortion, election laws

Why Wisconsin’s Supreme Court race is the most expensive election of its kind ever

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Wisconsin voters head to the polls Tuesday to elect their next state Supreme Court justice in what could be the most consequential race of 2023. The race has already garnered national attention, with potential implications for an array of issues, including abortion and voting rights, as well as the 2024 presidential election. And the high-stakes race is the most expensive state Supreme Court race ever.

While the Wisconsin Supreme Court is technically nonpartisan, the results of the election will determine whether the court, which could weigh in on politically charged issues in the battleground state, will have a conservative- or liberal-leaning 4-3 majority.

“We’re living in a national environment in which state supreme courts are being given the opportunity by the U.S. Supreme Court to rule on these extraordinarily important and consequential issues,” said Howard Schweber, political science and law professor at the University of Wisconsin.

File: Former Wisconsin state Supreme Court Justice Daniel Kelly 

Dan Kelly’s Facebook campaign account

Conservative candidate and former Justice Daniel Kelly is running against liberal Judge Janet Protasiewicz to fill the seat being vacated by conservative Patience Roggensack, who is not seeking reelection. Her retirement opens an opportunity for the balance of the state’s highest court to shift after conservatives held the majority for 15 years. The election will decide the makeup of the court for at least the next two years. Wisconsin state Supreme Court justices are elected for 10-year terms.

Live Taping Of Pod Save America, Hosted By WisDems At The Barrymore Theater In Madison, Wisconsin
File: Judge Janet Protasiewicz onstage during the live taping of “Pod Save America,” hosted by WisDems at the Barrymore Theater on March 18, 2023 in Madison, Wisconsin.

Photo by Jeff Schear/Getty Images for WisDems

“To call these elections nonpartisan is simply absurd,” said Schweber. “They are very much partisan driven, they are very much party driven, and it’s very much that these two sides will try to promote candidates that they think will promote their agendas.”

More than $27 million has been spent on ads in the general election alone since the Feb. 21 primary. Protasiewicz and groups supporting her have spent over $15 million, while Kelly and groups supporting him have poured over $12 million into the race. Protasiewicz and her supporters were outspending Kelly and his backers on ads for weeks, but that trend reversed in the last week of March.

In total, spending on the Wisconsin Supreme Court race is close to $45 million, according to a review by WisPolitics.com, which drew from financial records that included the primary election. The sum shattered the previous record for a single supreme court race, $15.2 million in Illinois in 2004, according to data from the Brennan Center for Justice. 

Ben Wikler, chair of the Democratic Party of Wisconsin, noted this election could “shape the rules that will affect the 2024 presidential race, the fight for the House majority, and the fight for the Senate majority.” 

The state Democratic party is both running a major “get out the vote” operation across the state as well as raising millions for Protasiewicz. The Wisconsin GOP has also been holding events across the state and actively promoting his candidacy.  

“What I tell people is all the reforms we’ve had in the last 25 years going back to [Republican] Gov. Tommy Thompson I think are under threat if the liberals take over the court,” said Wisconsin Republican Party Chairman Brian Schimming. 

Protasiewicz currently serves as a Milwaukee County Circuit Court judge. Before she was first elected in 2014, she served as a Milwaukee assistant district attorney for more than 25 years.

Kelly previously served on the Wisconsin Supreme Court from 2016 to 2020 having been appointed by former Republican Gov. Scott Walker. He lost the 2020 Supreme Court election to now-Justice Jill Korofsky. Since then he has returned to private practice, a stint that included serving as legal counsel to the Wisconsin Republican party.

Both candidates have been going head-to-head over abortion rights, an issue  could end up before the court in Wisconsin. Protasiewicz has been running ads against Kelly, claiming he would uphold the state’s pro-Roe 1849 abortion ban which went into effect after the Supreme Court overturned Roe v. Wade. It does not include exemptions for rape or incest. 

Kelly, who is endorsed by multiple anti-abortion groups including Wisconsin Right to Life, has pushed back saying he will decide the issue based on the law. He’s criticized Protasiewicz for openly saying she believes women should have access to abortion. Kelly accused Protasiewicz of having already made up her mind on how she would rule if a case came before the court.

Redistricting has also emerged as a top issue in the race. Last year, the Wisconsin Supreme Court approved the Republican-drawn maps similar to the 2011 plan, when Republicans held a state-government trifecta during the redistricting process. The maps essentially lock in Republican control of the Assembly and Senate, but that could immediately change with a shift in the makeup of the state Supreme Court. Protasiewicz has called the maps unfair and rigged. 

And the court is likely to have a say in voting rights cases ahead of the 2024 election where the state is a critical battleground in the presidential race. Wisconsin Sen. Tammy Baldwin, a Democrat, is also up for reelection. 

Republicans, who control both chambers of the state legislature, have moved to pass a series of different voter laws over the years ranging from voter ID requirements to absentee voting restrictions. The Wisconsin Supreme Court ruled last year that absentee ballot drop boxes are illegal in the state. 

“There are just numerous opportunities for the courts to either uphold rules designed to suppress voter turnout or to create them on their own accord,” Schweber said. 

Democrats have hit Kelly hard on voting laws. The conservative former justice is an ally of former President Trump, who previously backed him in his failed 2020 bid. He served as “special counsel” for the state Republican party regarding a plan for fake Republican electors in the 2020 election, according to testimony by the former party chair before the Jan. 6 House select committee. Kelly has downplayed his role, but he has been backed by a conservative activist, Scott Presler, who has organized “stop the steal” events, and was on Capitol grounds on January 6, 2021. Presler has been traveling the state campaigning for Kelly who posted a video of them together earlier this month. 

At the same time, Republicans and outside groups have attacked Protasiewicz as soft on crime and say she has allowed criminals to walk, running a series of ads highlighting cases over which she’s presided. She says  the examples were  cherry-picked out of thousands of cases and lack context. 

It’s an issue that often is used to mobilize voters – an important factor for either candidate to win. 

Both party and political experts said it’s hard to determine what turnout in the election could look like. But turnout in off-year elections, even in those when it is higher than usual, is still considerably lower than in general elections. The previous record for a spring election in the state was about 34%, whereas the turnout for the 2020 general election was over 72%. But operatives on both sides believe issues like redistricting, abortion, school choice and crime could help turn out voters in an off year. 

In-person early absentee voting has already been underway since March 21. Polls will be open from 7 a.m. to 8p.m. on Election Day, Tuesday. 

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