Wisconsin voters go to the polls on Tuesday to elect a next state Supreme Court justice in what could be the most important race of 2023. The race has already garnered national attention, with potential ramifications on a host of issues, including abortion and voting rights, As well as the 2024 presidential election. And the perilous race is the state Supreme Court’s most expensive race ever.
While the Wisconsin Supreme Court is technically nonpartisan, the election results will determine whether the court, which can weigh politically charged cases in the battleground state, will enjoy a 4-3 majority with conservative or liberal leanings.
“We live in a national environment in which state supreme courts are given the opportunity by the US Supreme Court to rule on these very important cases and their consequences,” said Howard Schweber, professor of political science and law at the University of Wisconsin.
Conservative candidate and former judge Daniel Kelly is running against liberal Justice Janet Protasevich to fill the seat vacated by conservative Patience Roginsak, who is not seeking re-election. Her retirement opens up an opportunity to shift the balance of the state’s highest court after conservatives held the majority for 15 years. Elections will decide the composition of the court for at least the next two years. Wisconsin Supreme Court justices are elected to terms of 10 years.
“To call this election nonpartisan is simply absurd,” Schweber said. “They’re very party-driven, and they’re very party-driven, and those two sides will certainly try to promote candidates that they think will further their agenda.”
More than $27 million has been spent on ads in the general election alone since the Feb. 21 primary. Protasiewicz and the groups that support him have spent more than $15 million, while Kelly and the groups that support him have poured more than $12 million into the race. Protasevich and her supporters had been spending more than 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. The amount broke the previous record for a single Supreme Court run, $15.2 million in Illinois in 2004, according to data from the Brennan Center for Justice.
Ben Weckler, chairman of the Wisconsin Democratic Party, noted that 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 runs a major “get-out-the-vote” operation across the state as well as raising millions for Protasevic. The Wisconsin Republican Party has also been holding events across the state and actively promoting its candidacy.
“What I tell people is that all the reforms we have made in the past 25 years are in the past [Republican] Wisconsin Republican Party Chairman Brian Chemming said, “I think Governor Tommy Thompson is under threat if liberals take the court.”
Protasiewicz currently serves as a Milwaukee County Circuit Court Judge. Prior to her first election in 2014, she served as an assistant attorney general in Milwaukee for over 25 years.
Kelly previously served on the Wisconsin Supreme Court from 2016 to 2020 after being appointed by former Republican Governor Scott Walker. He lost the 2020 Supreme Court election to Alan Justice Jill Kurowski. He has since returned to private practice, a period that has included serving as legal counsel for the Wisconsin Republican Party.
The two candidates have been going head-to-head over abortion rights, and their case could end up in court in Wisconsin. Protasiewicz was running ads against Kelly, claiming he would support the pro-Roe abortion ban of 1849 that took effect after The Supreme Court overturned Roe v. Wade. Exclusions do not include rape or incest.
Kelly, who has been endorsed by several anti-abortion groups including the Wisconsin Right to Life, declined, saying he would decide the case based on the law. He criticized Protasevich for saying publicly that she believed women should have access to abortion. Kelly Protasevich charged that she had already made up her mind about how she would rule if the case went to court.
Redistricting also emerged as a major issue in the race. Last year, the Wisconsin Supreme Court approved maps drawn by Republicans similar to the 2011 plan, when Republicans held a trifecta between state and government during the redistricting process. Maps is essentially locking in Republican control of the Assembly and the Senate, but that could change immediately with a shift in the make-up of the state Supreme Court. Protasevich described the maps as unfair and fraudulent.
The court is likely to have a say in voting rights issues before the 2024 election, when the state is a crucial battleground in the presidential race. Wisconsin Sen. Tammy Baldwin, a Democrat, is also up for re-election.
Republicans, who control both houses 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 ballots are illegal in the state.
“There are many opportunities for the courts to either uphold rules designed to suppress voter turnout or create them on their own,” Schweber said.
Democrats hit Kelly hard on voting laws. The former conservative judge is an ally of former President Trump, who previously backed him in his failed 2020 bid. He served as a “special counsel” to the state GOP regarding a plan for fraudulent Republican voters in the 2020 election, according to the former party chair’s testimony before the House Select Committee Jan. 6. Kelly downplayed his role, but received support from conservative activist Scott Pressler, who has organized Stop the Steal events, and was at the Capitol on Jan. 6, 2021. He posted a video of the two together earlier this month.
At the same time, Republicans and outside groups attacked Protasewitz as soft on crime, said she let criminals walk, and ran a series of ads highlighting the cases she presided over. She says the examples were handpicked from thousands of cases and lack context.
It is an issue often used to rally voters – an important factor in winning either candidate.
Both party and political experts said it was difficult to say what the turnout could look like. But turnout in elections outside of the year, even in those where it is higher than usual, is still much lower than in general elections. The state’s previous spring election record was around 34%, while turnout for the 2020 general election topped 72%. But activists on both sides believe issues such as redistricting, abortion, school choice and crime can help voter turnout in the non-public.
In-person absentee voting has already started as early as March 21. Polling will be open from 7 am to 8 pm. Election Day, Tuesday.