What was once a low-key judicial race in Wisconsin has morphed into a high-stakes and costly war for control of the state’s Supreme Court, with the future of abortion, voting rights, and redistricting in this battleground state on the line.
Millions of dollars have been set aside for advertising in advance of Tuesday’s primary election, the first of two rounds that will determine who replaces a retiring conservative justice, potentially altering the balance on Wisconsin’s seven-judge high court. While the race is nonpartisan, each of the four candidates is either liberal or conservative.
“This seat is critical to the balance of the court, and the court is critical to the balance of the state,” said Barry Burden, director of the Elections Research Center at the University of Wisconsin-Madison.
In a state where Democrats control the governor’s office and Republicans control the legislature, the Wisconsin Supreme Court could become the last arbitrator on a slew of important issues, including the fate of the state’s 1849 abortion ban in nearly all cases. The decision by the United States Supreme Court last summer to abolish federal legal safeguards for the practise has heightened the debate – and money – surrounding abortion in the Wisconsin campaign.
The state Supreme Court may possibly be important in the 2024 election. The refusal of a conservative justice on the state Supreme Court to go through with an effort that year to toss out ballots in two predominantly Democratic counties weighs large in the contest between the two right-leaning contenders in this year’s election.
“The Wisconsin Supreme Court race is the most crucial election in the country this year to set the stage for 2024,” Wisconsin Democratic Party Chairman Ben Wikler told HEADLINESFOREVER.
Mark Jefferson, executive director of the Wisconsin Republican Party, described the election as having “every significant topic of the last generation on the ballot.”
Early voting in the primary has already begun, with the final day of voting scheduled for Tuesday. The top two finishers will advance to the April 4 general election.
The Conservative Party’s majority is on the line.
According to the Brennan Center for Justice at New York University’s law school, Wisconsin is one of 38 states that employ some sort of election to pick Supreme Court justices. They are frequently retention elections in which already appointed justices run unopposed.
Conservatives currently control a 4-3 majority on the Wisconsin Supreme Court, and in recent years, they have decided to outlaw ballot drop boxes and have chosen maps that have entrenched Republicans’ substantial majority in the state assembly. The resignation of a conservative justice, Patience Roggensack, this year provides liberals with an opportunity to seize the majority. The side that wins the election this spring is projected to rule the court until the presidential election in 2024.
Liberals Janet Protasiewicz, a Milwaukee County circuit court judge, and Everett Mitchell, a Dane County circuit court judge, are hoping to advance to the April general election, as are 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 funding has surpassed candidate spending in the election. According to Kantar Media/CMAG advertising tracking for the Brennan Center, orders for race-related TV and radio ads had reached $7 million as of Thursday afternoon. According to experts, the expenditure on the race could break the previous record of $15.2 million spent on a single state Supreme Court seat in a 2004 Illinois Supreme Court contest, according to the Brennan Center.
If a liberal and a conservative get the most votes on Tuesday, this “will undoubtedly be the most costly (Supreme Court) election in Wisconsin history, and quite probably the most expensive contest in the country,” according to Doug Keith, a Brennan Center lawyer who works on judicial issues.
Abortion is at the forefront of the debate.
According to the most recent figures, Protasiewicz has topped the field in fundraising and ad spending. In a sign of the importance of the abortion issue in the election, she has ran television commercials emphasising her support for abortion rights.
Outside groups on both sides of the issue are getting involved in this campaign in ways that exceed their previous involvement in similar elections.
“We just know that the outcome of this campaign will have severe repercussions for abortion rights in the years to come,” Tiffany Wynn, a Planned Parenthood of Wisconsin spokesman, told HEADLINESFOREVER. Wisconsin’s Supreme Court justices serve ten-year terms.
Last June, the US Supreme Court overturned the Roe v. Wade precedent, ruling that the US Constitution protected abortion rights in Dobbs v. Jackson Women’s Health Organization. State courts have since become battlegrounds in the legal battles over abortion access.
“These contests are more crucial than ever after Dobbs,” said Kelsey Pritchard, a representative for Susan B. Anthony Pro-Life America’s state affairs team, which promotes anti-abortion candidates. She cited a recent South Carolina Supreme Court decision that overturned a six-week abortion restriction on state constitutional grounds, claiming that the anti-abortion movement is at risk of “mini-Roe rulings all around the country.”
Abortion rights proponents are encouraged by the results of last year’s midterm elections, notably in Wisconsin, where Democratic incumbents Gov. Tony Evers and Attorney General Josh Kaul were re-elected following campaigns emphasising their support for abortion rights. Meanwhile, anti-abortion activists acknowledge that their rhetoric fell short in the fall and are revising their plan for bringing like-minded individuals to the polls.
“We have a great base,” Gracie Skogman, political action committee director for the anti-abortion group Wisconsin Right to Life, told HEADLINESFOREVER. “They’re not aware that the destiny of our current law rests in the hands of the judiciary, depending on this election. So that’s the case we’re working hard to make.”
While Protasiewicz has been outspoken about her support for abortion rights, the other candidates have sought various methods to express themselves, either overtly or tacitly.
Everett, like Protasiewicz, has publicly criticised the Dobbs decision. “You may condemn that and yet say, ‘I am going to be a judge who looks at the facts, looks at the law, and we go from there,'” he told HEADLINESFOREVER.
The two conservative candidates have pledged to uphold the US Supreme Court’s Dobbs decision and have stated that they will not legislate from the bench, which has been understood to suggest that they will uphold the state’s statute, which was enacted before women earned the ability to vote in the country.
The Kelly campaign singled out Protasiewicz in a statement to HEADLINESFOREVER, saying she saw court conflicts “not as things to be addressed according to the law, but as opportunity to impose her personal values.”
Protasiewicz defended her forthright approach to abortion, which led to a complaint that she violated a judicial rule of conduct that prohibits judges from committing to how they will vote on issues that may come before them. Her team has framed the case as political in nature.
“I truly believe that the electorate needs to know the ideals of those running for office,” Protasiewicz told HEADLINESFOREVER. “We have this kind of phoney, little smokescreen where some people think justices should just declare, ‘I’m going to obey the law,’ which doesn’t tell you much about the individual at all.”
Kelly, who is making a return after losing his high court seat in 2020, has received backing from the state’s main anti-abortion organisations, as well as the national Susan B. Anthony group. This endorsement comes with a six-figure mail, phone, and text messaging campaign in his favour.