In one of the nation’s most important political battlegrounds, the future of election laws, abortion rights and more could hinge on the outcome of an April race for a seat that will determine control of the state Supreme Court.
Power in Wisconsin – the state that was the tipping point in the 2016 and 2020 presidential elections – is divided between a Democratic governor, Tony Evers, and a Republican-controlled legislature.
That split has placed the state Supreme Court, where conservatives currently hold a 4-3 majority, at the center of pitched, partisan battles over several key issues, including abortion rights, election challenges, and legislative and congressional district lines.
And because Wisconsin is one of 14 states to directly elect Supreme Court justices, the race between Janet Protasiewicz, the liberal Milwaukee County judge, and Daniel Kelly, the conservative former state Supreme Court justice, has shattered spending records on statewide judicial races, with more than $30 million in television advertising already flooding the state’s airwaves ahead of the April 4 election.
The two are battling to replace Justice Patience Roggensack, a conservative. A Protasiewicz victory would tip the balance of power on the seven-member court.
Ben Wikler, chairman Wisconsin Democratic Party, said the implications of the Supreme Court race could not be overstated for the state and the nation.
“This election is the most important election in the country in 2023 because Wisconsin is the tipping point state for presidential elections,” Wikler said in an interview Tuesday. “Whoever wins the Supreme Court race will cast the deciding vote on questions like voting rights decisions, our abortion ban and even potentially whether to overturn the results of the 2024 presidential election.”
The court played a pivotal role in the outcome of Wisconsin’s 2020 election: Justices voted 4-3, with conservative Brian Hagedorn joining the court’s three liberals, to reject former President Donald Trump’s efforts to throw out ballots in Democratic-leaning counties.
The court has also shaped Wisconsin’s election laws. It has voted in recent years to prohibit ballot drop boxes and have selected maps that cemented Republicans’ solid majority in the state legislature.
The April 4 election will set the stage for the 2024 presidential race, with the court likely to be asked to weigh in again on election rules, including the state’s voter identification law, and potentially sort through another round of legal challenges afterward.
Those high stakes have turned the state Supreme Court race into one of the nation’s most closely watched contests of 2023.
“It’s going to be close,” former President Barack Obama said Tuesday in a tweet urging Wisconsin voters to cast their ballots early.
Abortion law’s future at stake
The race’s focal point, though, has been abortion, after the state’s 1849 law banning abortion in nearly all cases took effect in the wake of the US Supreme Court’s decision last year to overturn Roe v. Wade and leave abortion laws up to the states.
A lawsuit challenging that 1849 law could reach the state Supreme Court as soon as this fall. And while the two candidates are refusing to say how they’d rule, they’re leaving little doubt about their leanings.
In their lone debate Tuesday, Protasiewicz said she is “making no promises” on how she would rule. But she also noted her personal support for abortion rights, as well as endorsements from pro-abortion rights groups. And she pointed to Kelly’s endorsement by Wisconsin Right to Life, which opposes abortion rights.
“If my opponent is elected, I can tell you with 100% certainty, that 1849 abortion ban will stay on the books. I can tell you that,” Protasiewicz said.
Kelly shot back that Protasiewicz’s comments are “absolutely not true.”
“You don’t know what I’m thinking about that abortion ban,” he said. “You have no idea. These things you do not know.”
Still, pro-abortion rights and anti-abortion forces have poured money and volunteer hours into the race.
Gracie Skogman, the legislative director for Wisconsin Right to Life, said hundreds of volunteers across the state were mobilizing around the Supreme Court contest because of their deep opposition to abortion. She conceded it was a challenge making people aware of the April 4 election, but said voters would be motivated to suppport Kelly.
“We have a massive base – thousands of people all across the state – but we need to get them to turn out,” Skogman said in an interview. “From a pro-life perspective, there is more at stake in this election than ever before in our state.”
Even though Kelly has not explicitly said he would oppose an expansion of abortion rights, Skogman said his history on the issue made her group comfortable that he would.
“Our endorsement is based on his judicial philosophy,” Skogman said. “Judge Kelly is very clear that he does not believe in legislating from the bench and he seeks to uphold our state constitution. And that is what makes us confident in his endorsement.”
‘A very stark choice’
Protasiewicz has been on the ballot before, during her bids for Milwaukee County judge, but has never faced a statewide election. For months, her campaign aired television ads trying to teach Wisconsin voters how to say her name, literally spelling out the pronunciation on screen: “Pro-tuh-say-witz!”
In an interview at the state Capitol on Tuesday, following her debate with Kelly, she said the high stakes of the election have not been overstated – from abortion policy, gerrymandering and voting laws.
“The results of the 2024 presidential election are likely to come in front of the Supreme Court as well,” Protasiewicz told CNN. “The 10 electoral votes that we have here are very, very highly sought after.”
She has dramatically outspent her opponent, largely due to a multi-million dollar infusion from the Wisconsin Democratic Party. If she wins, she has pledged to recuse herself from cases directly involving the party.
But she said she would not step aside on cases involving the next presidential election.
“I wouldn’t think the Democratic Party would be one of the plaintiffs or respondents in that case,” she said. “Last time, I believe it was Trump v. Biden, so I don’t think the party itself would be a party to the matter.”
Asked whether that was drawing a distinction without a difference, she said: “I don’t think so.”
“I could probably still even be fair on cases involving the party, but I just think the optics are really poor,” she said. “You want the citizens to absolutely believe that their Supreme Court is fair, impartial and acting with integrity and independence.”
She has declined to say how she would rule in specific cases, including the state’s 1849 law effectively banning abortion across Wisconsin, but said her decisions would “uphold her values.” She has made clear she supports abortion rights and believes the state law in the wake of the Supreme Court decision overturning Roe v. Wade is wrong.
She has painted her rival as an extremist, airing ads about his involvement with the state Republican Party’s scheme to create a fake slate of electors for Trump.
“He is a total threat to our democracy,” Protasiewicz said, reprising a central mantra of her campaign.
In an interview on Wednesday, Kelly dismissed the suggestion as “scaremongering” and accuses his rival of placing politics above the law.
“We have a very stark choice ahead of us,” Kelly said. “Will we continue with the rule of law or will we instead trade it in for the rule of Janet?”
He brushed aside criticism of his previous employment with the Wisconsin Republican Party and the Republican National Committee. He described them merely as his legal clients.
He said the 2024 presidential campaign – and Wisconsin’s 10 electoral votes – should not be part of the discussion in the Supreme Court race.
“I have no idea what this might do for the 2024 presidential elections, nor is it relevant to this race,” Kelly told CNN. “Our only job is to resolve the legal questions the people of Wisconsin bring to us and we do it according to the existing law, without reference to its political implications.”
While he has been endorsed by three of the state’s largest anti-abortion groups, Kelly said he made no promises to them and has not indicated how he would rule on any cases before the court.
“The conversations that I’ve had with them are the same conversations I’ve had with literally everyone else in the state of Wisconsin: What kind of jurist would you be they asked me?” Kelly said. “I told them I’m the kind of jurist who applies the law as it currently exists to the extent it’s consistent with the Constitution. And I do it without regard to my personal views or personal politics.”
He said the millions of dollars that have come into the state from outside liberal groups were misguided and could backfire, saying: “We can take care of our own business here in Wisconsin just fine.”
“Let’s just say if Janet wins, she will be forever known as the jurist who is bought and paid for by the Democratic Party in Wisconsin,” Kelly said. “I want no part of that.”
