Wisconsin voters will winnow a field of four state Supreme Court candidates to two on Tuesday in a critical race to determine which party will hold the majority on the state’s highest court.
The state has had a Republican-leaning majority on the state Supreme Court for 14 years, but the retirement of conservative Justice Patience Roggensack has opened up an opportunity for liberals to take the majority.
A shift in power could have major implications for abortion access in the state, the drawing of congressional district lines, and any election-related legal fights leading up to the 2024 presidential election.
Tuesday’s primary ballot features two conservative candidates (former state Supreme Court Justice Dan Kelly, Waukesha County Circuit Judge Jennifer Dorow) and two liberal candidates (Milwaukee County Circuit Judge Janet Protasiewicz and Dane County Circuit Judge Everett Mitchell). The primary itself is nonpartisan, with the top two vote getters moving on to the April 4 general election.
Political operatives in the state are expecting Protasiewicz, who has raised more in campaign donations than any of her competitors, to make it to the next round. A Republican — either Kelly or Dorow — is expected to join her in the general election in April, though University of Wisconsin-La Crosse political science professor Anthony Chergosky says the race between the two is a “toss-up.”
Kelly served on the high court for one term after being appointed by former Republican Wisconsin Gov. Scott Walker. He lost his reelection campaign in April 2020.
At the core of this race is the issue of abortion. A 1849 abortion ban in Wisconsin that makes no exceptions for rape or incest is currently being challenged by Democratic leaders in the state and is expected to appear on the docket for the state court in the coming years.
Protasiewicz has said “judicial independence is crucial and critical” but made her stance on abortion clear in a candidate forum earlier this month. “It’s no secret to where my values stand on Roe v. Wade – women should be able to make that decision for themselves,” she said at the forum.
When asked what the worst judicial case ruling that comes to mind, both she and Mitchell pointed to the Dobbs decision that overturned Roe v. Wade.
Dorow and Kelly have broadly criticized their liberal opponents for taking public positions on certain issues and have sought to convey independence from politics in the pursuit of the judicial seat, despite the millions flowing in from outside groups.
“My integrity cannot be bought by anyone,” Dorow said in the forum. “Politics have absolutely no place in the courtroom, and we should not be legislators in robes.”
The impact of the race on abortion access is recognized by national groups on both sides of the topic. EMILY’s List, a large Democratic group supporting women candidates, endorsed Protasiewicz earlier this month. The flagship National Women’s March this year was held at the Wisconsin Capitol in Madison.
The Women Speak Out PAC, a partner of the Susan B. Anthony Pro-Life America group, endorsed Kelly last week and said it would commit “six figures to increase awareness of the election and elect a justice with a proven record of respecting life, the Constitution and the rule of law.”
Chergosky expects spending in this race to set a national record for spending in a judicial race. Wisconsin’s neighbor, Illinois, currently holds the record, with over $15 million spent in a 2004 Illinois state Supreme Court race.
At least $9.3 million has been spent on the Wisconsin state Supreme Court race already, with groups from both sides of the aisle spending similar amounts, according to AdImpact.
“Fair Courts America,” a super PAC fueled by GOP mega donor Richard Uihlein, has spent $2.8 million to support Kelly. In one ad by the group, a narrator says, “Madison liberals are trying to take over the Wisconsin Supreme Court,” and it praises Kelly’s vote as a judge to end COVID lockdowns. Uihlein’s cousin, Lynde Uihlein, donated the maximum-allowed $20,000 to Protasiewicz.
Protasiewicz’s campaign has spent about $2.3 million on advertisements. “A Better Wisconsin Together” has spent $2.2 million to support the two liberal candidates and air negative ads portraying Dorow as soft on crime.
Concerns about gerrymandering and the way Wisconsin’s congressional and state legislative lines are drawn are also likely to be a factor in the race. The state Supreme Court, under a 4-3 conservative majority, last year approved the map of “least change” and accepted a very Republican-friendly map for the federal and state lanes, despite legal challenges from Democratic Gov. Tony Evers.
Republicans currently hold a majority in both chambers of Wisconsin’s legislature, in part due to the way that lines have historically been drawn to their favor in the state. Chergosky said the only hope for state Democrats to win the majority anytime soon is to “either radically reshape its coalition, or, more realistically, to get a liberal majority on the state Supreme Court and use that to force a legal redraw.”
In the February forum, Protasiewicz said the GOP-favored maps were not fair and that she sees “no basis” for the court’s prior ruling for a map of “least change.”
The impact of the race will also likely be felt in the 2024 presidential election. Former President Donald Trump fought to overturn President Biden’s win in the state in 2020, and the state court only ruled against that effort after one conservative justice joined the liberals to get a 4-3 majority.
Chergosky said the state’s highest court frequently gets involved in voting access cases before a big election, and he’s expecting that to be the case going into 2024.
“We do know for sure — that the Wisconsin state Supreme Court will not hesitate to get involved in how people need to fill out their ballots, in how people need to submit their ballots, and in how the conduct of the election administration is to be carried out,” he said. “And it’s completely possible that the Wisconsin state Supreme Court could be asked to hear a challenge to the election results in 2024.”
