What’s typically an under-the-radar judicial election in Wisconsin has turned into a high-stakes and expensive fight for control of the state’s Supreme Court – with the future of abortion, voting rights and redistricting in this battleground state hanging in the balance.
Millions of dollars in advertising have been reserved ahead of Tuesday’s primary election – the first of two rounds that will determine who replaces a retiring conservative justice, potentially shifting the balance on Wisconsin’s seven-judge high court. While the election is nonpartisan, each of the four contenders is squarely in the liberal or conservative camps.
“This seat is crucial to the balance of the court, and the court is crucial to the balance of the state,” said Barry Burden, a political scientist at the University of Wisconsin-Madison and director of its Elections Research Center.
In a state where Democrats control the governor’s office and Republicans hold sway in the legislature, the Wisconsin Supreme Court could become the final arbiter on an array of consequential issues, including the fate of the state’s prohibition on abortion in nearly all cases – enacted in 1849. The US Supreme Court’s decision last summer ending federal legal protections for the procedure has super-charged the rhetoric – and spending – around abortion in the Wisconsin race.
The state Supreme Court could also play a crucial role in the 2024 election. Wisconsin was a key location of former President Donald Trump’s attempts to overturn his 2020 loss, and the refusal of a conservative justice on the state Supreme Court to go along with an effort that year to toss out ballots in two heavily Democratic counties looms large in the rivalry between the two right-leaning candidates in this year’s race.
“The Wisconsin Supreme Court race is the most important election in the country this year to set the stage for 2024,” Ben Wikler, the chairman of the Democratic Party of Wisconsin, told CNN.
The executive director of the Wisconsin GOP, Mark Jefferson, described the contest as one with “every significant issue of the last generation on the ballot.”
Early voting in the primary is already underway, with the final day of balloting Tuesday. The top two finishers will advance to the general election on April 4.
Conservative majority on the line
Wisconsin is one of 38 states that use some form of elections to select their Supreme Court judges, according to the Brennan Center for Justice at New York University’s law school. In many cases, those are retention elections in which previously appointed justices run unopposed.
Currently, conservatives hold a 4-3 majority on the Wisconsin Supreme Court and have voted in recent years to prohibit ballot drop boxes and have selected maps that cemented Republicans’ solid majority in the state legislature. This year, the departure of a conservative justice, Patience Roggensack, gives liberals an opportunity to seize the majority. The side that prevails in the election this spring is expected to control the court through the 2024 presidential election.
The candidates hoping to advance to the April general election are liberals Janet Protasiewicz, a Milwaukee County circuit court judge, and Everett Mitchell, a circuit judge in Dane County; and conservatives Daniel Kelly, a former state Supreme Court justice, and Jennifer Dorow, a judge perhaps best known for presiding over the trial of a man convicted of killing six and injuring scores more in a 2021 attack on a Christmas parade in Waukesha, Wisconsin.
Outside money has flooded the race, surpassing candidate spending. As of Thursday afternoon, orders for TV and radio ads focused on the race had hit $7 million, according to advertising tracked by Kantar Media/CMAG for the Brennan Center. Experts say the spending on the race could smash the previous record – $15.2 million spent on a 2004 Illinois Supreme Court race, according to the Brennan Center – for the most expensive campaign for a single state Supreme Court seat.
If a liberal and conservative emerge as the top two vote-getters Tuesday, this “will unquestionably be the most expensive (Supreme Court) race in Wisconsin history and quite possibly the most expensive race in the nation,” said Doug Keith, a Brennan Center counsel who works on judiciary issues.
Abortion at the forefront
Protasiewicz has led the field in fundraising and ad spending, according to the latest data. In a sign of the potency of the abortion issue in the contest, she has run television spots that put her support for abortion rights front and center.
Outside groups on both sides of the issue are participating in this race in ways that go beyond their prior involvement in similar elections.
“We just know that the outcome of this race has serious implications for abortion rights in the years to come,” Tiffany Wynn, a spokesperson for Planned Parenthood Advocates of Wisconsin, told CNN. Justices on Wisconsin’s high court serve ten-year terms.
The US Supreme Court in its Dobbs v. Jackson Women’s Health Organization decision last June overturned the Roe v. Wade precedent that said that the US Constitution protected abortion rights. Since then, state courts have become ground zero in the legal fights over abortions access.
“These races are more important, for obvious reasons, than ever after Dobbs,” said Kelsey Pritchard, a spokesperson for the state affairs team at Susan B. Anthony Pro-Life America, which supports anti-abortion candidates. She pointed to a recent ruling by the South Carolina Supreme Court striking down a six-week abortion ban on state constitutional grounds and said that the anti-abortion movement is at risk of “mini-Roe decisions all across the country.”
Abortion rights advocates feel bolstered by last year’s midterm elections – particularly how they played out in Wisconsin, with Democratic incumbents, Gov. Tony Evers and Attorney General Josh Kaul, winning reelection after campaigns highlighting their commitment to abortion rights. Anti-abortion advocates, meanwhile, recognize that their messaging fell short in the fall, and they’re adjusting their strategy for driving like-minded voters to the polls.
“We have a great base, but this far, in the majority of conversations we have had with them, many are not even aware that abortion is going to be the fundamental issue for this race,” Gracie Skogman, political action committee director for the anti-abortion group Wisconsin Right to Life, told CNN. “They’re not aware that the fate of our current law rests in the hands of the court, depending on this election. And so that’s the case we’re doing the best to make.”
While Protasiewicz has pushed an unabashed abortion rights message in her campaign, the other candidates have found other ways to explicitly or implicitly signal how they’d approach the issue.
Like Protasiewicz, Everett has been openly critical of the Dobbs ruling. He told CNN that “you can criticize that and still say, ‘I am going to be a judge who looks at the facts, looks at the law, and we go from there.’”
The two conservative candidates have vowed to honor the US Supreme Court’s Dobbs decision and have stressed that they would not legislate from the bench – rhetoric that has been interpreted to mean that they would let the state’s law, enacted before women in the country gained the right to vote, stand.
In a statement to CNN, the Kelly campaign singled out Protasiewicz, saying that she sees legal disputes “not as matters to be resolved according to the law, but as opportunities to enact her personal values.”
Protasiewicz defended her upfront approach to abortion, which made her a target of a complaint alleging that she violated a judicial code of conduct that bars judges from committing to how they will vote on issues that may come before them. Her team has cast the complaint as politically motivated.
“I really think the electorate deserves to know the values of the people that are running for office,” Protasiewicz told CNN. “We have this kind of fake, little smokescreen, where certain people think justices should just say that ‘I’m going to follow the law,’ and that doesn’t tell you very much about the person at all.”
Kelly, who is seeking a comeback after losing his high court seat in 2020, has been endorsed by the largest anti-abortion organizations in the state, and he recently picked up the support of the national Susan B. Anthony group. With that endorsement comes a six-figure mail, phone and text message campaign on his behalf.
A looming presidential race
This spring’s Supreme Court race is expected to set the stage for the 2024 election, as the Wisconsin high court is likely to be asked to weigh in on the ground rules for next year’s contest.
“Even a tiny shift in voting rules can affect the outcome of a presidential election,” said Wikler, the state Democratic Party chair. “So, what happens in Wisconsin on April 4 will have a direct impact on who gets sworn into the next term as president of the United States.”
Last year, the court’s conservative majority barred the use of most ballot drop boxes and prohibited local election officials from filling in missing information on absentee ballot return envelopes. Republicans see the state’s voter ID law as on the line in the race, with the state GOP’s Jefferson accusing Democrats of trying to use the courts to “strike down any ballot security measure they can.”
It is also not lost on those involved in this election that the Wisconsin Supreme Court played a pivotal role in 2020, by rebuffing Trump’s efforts to throw out ballots in Democratic-leaning counties.
“Because Wisconsin sits at the apex of a lot of national conversations – whether it’s the Senate race or presidential – I think Wisconsin, at this moment, may end up deciding bigger things like the presidential election, like it did 2020,” Everett, one of the two liberal candidates, told CNN. “I think the implications of that decision that was made in 2020 is the reason why people are paying attention at such a greater detail.”
Brian Hagedorn, the right-leaning justice who sided with the liberals in the Trump case – and who also ruled with the liberals to uphold Covid-19 restrictions – has been invoked by Kelly as a cudgel against his conservative rival Dorow. Kelly has pointed to his 2020 endorsement of Hagedorn to explain why he won’t commit to endorsing Dorow should she prevail over him Tuesday, implying that she can’t be depended on to rule conservatively from the bench.
“I think it’s just terribly presumptuous to say that I have to endorse her blind,” Kelly said of Dorow during a recent appearance on conservative Milwaukee broadcaster Mark Belling’s radio show. “And, especially after Brian Hagedorn, I’m just not doing blind endorsements.”
Dorow’s campaign did not make her available for an interview for this story.
Kelly’s role in advising the state Republican officials in the 2020 election, including as it relates to an alternate elector scheme, has recently come under scrutiny. But he has also expressed skepticism of the legal case Trump brought, and a campaign spokesman told CNN that “the views of clients are not attributable to their attorneys.”
Prominent groups that are backing Kelly tout him as the candidate with a proven record that can be trusted on the right. Among them is a group called Fair Courts America, linked to Republican megadonor and packaging magnate Richard Uihlein. State records show Uihlein donated $1.5 million to the group last month. A recent TV ad lauds Kelly’s 2020 vote on the court to rein in government health orders during the pandemic.
In a statement, Fair Courts America spokesman Dan Curry said the group is seeking to make the case that Kelly “is the clear choice … for those who want a restrained and Constitution-based Supreme Court.”
Revisiting redistricting
With the Wisconsin Supreme Court election, progressives finally see an opportunity to break up the state’s heavily gerrymandered map, which has allowed Republicans to win some 65% of state legislative seats even in years when Democrats have narrowly won statewide contests.
The conservative majority on the state’s high court approved the current legislative lines, drawn by state Republican lawmakers, after the US Supreme Court tossed out another map that would have required the addition of a new majority-Black state Assembly district.
A 2019 US Supreme Court case, known as Rucho v. Common Cause, said that the federal judiciary has no role to play in policing partisan gerrymanders – meaning that state courts are one of the few tools that redistricting reformers have to combat aggressively partisan maps.
If a liberal flips the court’s open seat, progressive groups will attempt to relitigate the issue and urge the new majority to strike down the current map, Jay Heck, the executive director of Common Cause in Wisconsin, told CNN.
Heck and other voter advocates objected to the court’s conservative majority deciding to use maps drawn by Republicans in 2011 as the foundation for the maps it considered following the 2020 census.
Protasiewicz, who has called the state’s legislative maps “rigged,” has also criticized the conservative justices’ “least change” approach from the 2011 maps, saying it has “no basis” in state law or the state constitution.
“They made it up to get to a preordained result,” she said.
This story has been updated to clarify Wynn’s affiliation.