Wisconsin voters head to the polls Tuesday in one of the most consequential races of 2023 to choose their next state Supreme Court justice. The race has already drawn national attention, with potential implications for issues including abortion and voting rights. As well as the 2024 presidential election. And the high-stakes race is the costliest state Supreme Court race ever.
Although the Wisconsin Supreme Court is technically nonpartisan, the election results will determine whether the court, which can weigh in on politically charged issues in the battleground state, will have a conservative- or liberal 4-3 majority.
“We live in a national environment where the state’s highest courts are being given the opportunity by the U.S. Supreme Court to rule on these extraordinarily important and consequential issues,” said Howard Schweber, a professor of political science and law at the University of Wisconsin.
Dan Kelly’s Facebook campaign account
Conservative candidate and former Justice Daniel Kelly is running against liberal Justice Janet Protasiewicz, who is not seeking re-election, to fill the seat being vacated by conservative Patience Rogensack. His retirement opens an opportunity to change the balance of the state’s highest court after 15 years of conservatives holding the majority. This election will determine the makeup of the court for at least the next two years. Wisconsin state supreme court justices are elected to 10-year terms.
Photo by Jeff Scheer/Getty Images for WisDems
“To call these elections nonpartisan is simply absurd,” Schweber said. “They’re too partisan driven, they’re too party driven, and it’s too much that these two parties will try to promote candidates that they think will promote their agenda.”
More than $27 million has been spent on advertising since the Feb. 21 primary in the general election alone. Protasiewicz and the groups supporting him spent more than $15 million, while Kelly and the groups supporting him spent more than $12 million on the competition. Protasiewicz and his supporters had been outselling Kelly and his supporters in advertising for weeks, but that trend reversed in the last week of March.
Total spending in the Wisconsin Supreme Court race is close to $45 million, according to a review by WisPolitics.com, obtained from financial records included in the primary election. The sum broke the previous record for a single Supreme Court race in Illinois of $15.2 million set in 2004, according to data from the Brennan Center for Justice.
Wisconsin Democratic Party Chairman Ben Wickler noted that this election “could shape the rules that will affect the 2024 presidential race, the House majority race and the Senate majority race.”
Both the state Democratic Party is running a major “get out the vote” operation across the state as well as raising millions for Protasiewich. The Wisconsin GOP is holding events across the state and actively promoting his candidacy.
“What I tell people is that all of our reforms over the last 25 years go back to (Republican) Gov. Tommy Thompson,” said Brian Schimming, chairman of the Wisconsin Republican Party.
Protasiewicz currently serves as a Milwaukee County Circuit Court judge. Before he was first elected in 2014, he served as a Milwaukee assistant district attorney for more than 25 years.
Kelly was previously appointed to the Wisconsin Supreme Court from 2016 to 2020 by former Republican Gov. Scott Walker. She lost the 2020 Supreme Court election to now-Justice Jill Korofsky. He has since returned to private practice, a period that included serving as legislative counsel to the Republican Party of Wisconsin.
Both candidates are butting heads over abortion rights, an issue that could end up before a court in Wisconsin. Protasiewicz ran ads against Kelly, claiming he would support the state’s pro-Roe 1849 abortion ban that later went into effect. The Supreme Court overruled Roe v. Wade. It does not include exemptions for rape or molestation.
Kelly, who is backed by several anti-abortion groups, including Wisconsin Right to Life, has pushed back that he will decide the issue based on the law. She criticized Protasiewicz for openly saying she believes women should have access to abortion. Kelly accused Protasiewicz of already making up her mind about how she would rule when the case comes to court.
Redistricting also emerged as a top issue in the race. Last year, the Wisconsin Supreme Court approved a Republican-drawn map similar to the 2011 plan, when Republicans seized a state-government trifecta during the redistricting process. The maps essentially lock in Republican control of the Assembly and Senate, but that could change as the makeup of the state Supreme Court changes. Protasiewicz called the map unfair and rigged.
And the court could have a say in the voting rights case before the 2024 election, where the state is a critical battleground in the presidential race. Wisconsin Sen. Tammy Baldwin, a Democrat, is up for re-election.
Republicans, who control both chambers of the state legislature, have moved to pass various voter laws over the years, from voter ID requirements to restrictions on absentee voting. The Wisconsin Supreme Court ruled last year that absentee ballot drop boxes are illegal in the state.
“There are many opportunities for courts to uphold rules designed to suppress voter turnout or to create them on their own accord,” Schweber said.
Democrats hit Kelly hard on voting laws. The conservative former justice is an ally of former President Trump, who supported him in his failed 2020 bid. He served as a “special consultant” to the state Republican Party on a plan to rig Republican electors in the 2020 election, according to the former party chairman’s testimony before the House Select Committee on Jan. 6. Kelly has played down her role, but has been backed by Scott Pressler, a conservative activist who has organized “Stop Theft” events and was on Capitol grounds on January 6, 2021. Pressler posted a video of them together earlier this month traveling the state to campaign for Kelly.
At the same time, Republicans and outside groups have attacked Protasiewicz as soft on crime and said he has let criminals walk, running a series of ads highlighting cases he has presided over. He says the examples are cherry-picked from thousands of cases and lack context.
It’s an issue that’s often used to mobilize voters—an important issue for any candidate to win.
Both parties and political experts say it’s difficult to gauge how the electorate will fare in the election. But voter turnout in off-year elections, even when higher than usual, is considerably lower than in general elections. The previous record for spring elections in the state was around 34%, while voter turnout for the 2020 general election was over 72%. But operatives from both parties believe issues like redistricting, abortion, school choice and crime can help turn voters in an off year.
In-person primary absentee voting has already been underway since March 21. Polling will be open from 7 am to 8 pm. Election Day, Tuesday.
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Sarah Ewal-Wise