Wisconsin Supreme Court poses high-stakes test for Democrats

The Wisconsin Supreme Court election on Tuesday will be Democrats’ first major test going into 2024 of whether the party can continue to galvanize voters over abortion rights and the fall of Roe v. Wade.

The race has been one of the most expensive and consequential this year, as the justices could weigh in on issues like abortion, redistricting and possible legal battles over contested election results. With conservative Justice Patience Roggensack’s retirement, Democrats also have the chance to secure a partisan majority in a key swing state.

Though technically nonpartisan, the election features two candidates seen as the liberal and conservative choices — respectively, Milwaukee County Judge Janet Protasiewicz and former state Supreme Court Justice Daniel Kelly.

“For Wisconsin, it’s a monstrous race. It’s going to set the direction of policy in the state for at least the next two years,” said Barry Burden, a political science professor and director of the Elections Research Center at the University of Wisconsin-Madison. 

“The governor and the legislature have been at loggerheads since [Gov.] Tony Evers was elected in 2018. Republicans have maintained their majorities in the state legislature, but together they’ve done almost no legislating,” Burden continued, explaining that the impasse in legislating “has made the court just a more prominent part of the policymaking process.” 

The vacant seat puts the Wisconsin Supreme Court’s 4-3 conservative majority in the air, and tens of millions of dollars have poured into the race as both parties seek to determine the partisan lean of the state’s high court. 

Several key issues are riding on the election results of Tuesday’s race, including a contested 1849 abortion ban offering very limited exceptions. The law was put back on the books after the U.S. Supreme Court overturned the constitutional right to an abortion last June, effectively bringing access to the medical procedure to a halt in the state.

Wisconsin Attorney General Josh Kaul (D) filed a lawsuit last year to repeal the 1849 law, arguing modern abortion statues enacted since Roe v. Wade in 1973 supersede the 174-year-old ban. That lawsuit is expected to wind its way to the state Supreme Court.

The high court could also hear legal challenges to the state’s election maps or even challenges to the 2024 presidential results — coming just four years after the Wisconsin Supreme Court narrowly held up President Biden’s win in 2020 following a legal battle over the election results in the state.

A review by WisPolitics last week alone suggests that more than $45 million has been spent on the race — and politicos say the Wisconsin Supreme Court race is being intensely watched.

“If nothing else, with all the other noise happening right now, what’s happening in Wisconsin tomorrow might offer a broader illumination as to the mood of the electorate writ large,” Republican strategist Colin Reed said.

Nearly one year after the leak of the U.S. Supreme Court’s decision to overturn Roe v. Wade, this week’s election is the latest to be driven by abortion rights. Strategists say the issue of abortion still weighs heavily on the minds of Wisconsin voters even months after the November midterms, in no small part due to the centuries-old law back on the table.

“For Wisconsin, it sure feels like the whole ballgame,” Wisconsin-based Democratic strategist Joe Zepecki said. “Put another way, you really can’t overstate what’s at stake in terms of Wisconsin’s 1849 abortion law and its future. We just [saw] today that the arguments and the case that’s currently in the courts are going to start next month in May to decide the fate of access to reproductive health care for women in this state. So it’s all on the line.”

Protasiewicz has notably leaned into the issue of abortion in the race, airing one ad expressing her support for abortion rights. Her remarks on the issue have stirred criticism from her opponent who has suggested Protasiewicz is projecting how she would rule.

Neither Kelly nor Protasiewicz have stated how they would rule on the issue, though several prominent anti-abortion rights groups have endorsed Kelly, including Wisconsin Right to Life, for which he’s done work.

Protasiewicz’s backers include Planned Parenthood Advocates of Wisconsin. 

Republicans have used the issue of crime to counter-message, with Kelly and outside groups targeting the Milwaukee County circuit court judge over her criminal sentences and suggesting she’s offering too lenient sentences to offenders.

“Sheriffs like us from around the state are supporting Daniel Kelly for Wisconsin Supreme Court. Justice Kelly’s opponent, Janet Protasiewicz, is a Milwaukee County judge with a long history of letting dangerous criminals back into our streets, directly undermining the work of our officers and putting your family at risk,” say several law enforcement officials in an ad launched by Kelly’s campaign.

Sam Roecker, a spokesman for Protasiewicz’s campaign, suggested Kelly’s campaign was “cherry-picking” from her time as a circuit court judge. He also criticized an outside group that aired ads scrutinizing the Milwaukee County judge’s sentencing record. That group was later forced to take down some of the ads after a rape victim, whose case was referenced during the group’s ads, said she was traumatized by it and argued it mischaracterized what happened. 

Kelly’s campaign was not involved in the outside group’s ad. 

The Hill reached out to Kelly’s campaign for comment.

Wisconsin-based strategist Brandon Scholz suggested that many of the same issues that Democrats and Republicans campaigned on during the November midterms, such as abortion and crime, are just being carried over into this judicial election — largely from outside groups.

“We need to be clear, it’s not a judicial campaign; it’s an issues campaign,” he said, adding later, “I don’t think you could design this race any differently” given the partisan nature of the race.

Burden, the political science professor, suggested that crime may be getting less traction given that “abortion has just been so dominating as an issue.”

Still, both candidates have sought to project that their opponent is out of touch on the issue set facing Wisconsinites, with Kelly using the hashtag “#NoJailJanet” to argue Protasiewicz is soft on crime and Protasiewicz calling Kelly an “extremist” over the issue of abortion. Protasiewicz also targeted him over his involvement in discussions over a 2020 fake elector scheme in Wisconsin.

His campaign has said on its website that “Justice Kelly was hired by the [Republican Party of Wisconsin] and RNC as a special counsel in August of 2020-before the November election. He was hired to advise on the ins and outs of all Wisconsin election law when needed and not just on so-called ‘election integrity’ law issues.”

“Justice Kelly was not only not at the center of any alternate elector plan, he had no knowledge of such a plan outside of one requested thirty-minute phone call on the subject. As congressional testimony has established, he was ‘not in the loop’ on any such plan,” the campaign further asserts.

Experts say with what’s at stake in this race — unfolding in a perennial purple state — the outcome could carry huge national significance.

“Wisconsin has become one of the, let’s say, four ultimate swing states. And I think that has been true over the last several off-year, on-year, midterm, presidential year — every election Wisconsin has been over the past several cycles, incredibly close,” Democratic strategist Jon Reinish said.

“Where Wisconsin goes in 2024 is likely where the country goes.”