Wisconsin Supreme Court poses high-stakes test for Democrats
S E E D E D C O N T E N T
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."
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Without a doubt this is the most important election of 2023.
You can bet that democrats have been working non-stop behind the scenes. No doubt where most of the oustside money will go.
Will they do it again?
Hilarious. Your comment not so subtlety implies that the Democrats will rig the election. Find a different angle for your complaints Vic.
It implies that they will continue do anything they can.
How much money have they spent on this local election?
And that is different from republicans how? Though republicans have shown that they are willing to go to greater and less legal lengths to get what they want, which is not necessarily what the people want.
As different as anything can be. The RNC is still depending on election day voting.
Are you going to spend the rest of your life complaining every time the Democrats win an election? No wonder you like Trump.
When a political party embraces evil, it comes with the territory.
No wonder you like Trump.
I like him because he was a good President....unlike the POS that got 80 million votes without even campaigning.
The tone is changing this year. Places that expanded early voting show no edge to either party.
That would also mean that early voting ballots have already been counted, which would be another improvement.
Can you show me these results?
WI is not one of the states that has expanded early voting. Also expanding access to early voting does NOT mean early counting.
Then how do you know that:
"Places that expanded early voting show no edge to either party."
Again: How do you know that?
See @ 1.2.6
That is not evidence.
Here is what evidence looks like:
You see, what that all means is that democrats used to have an enthusiasm problem. Early voting, which heavily favors democrats solved all that. In 2020 Marc Elias managed to get around state legislatures in battleground states and made early voting the norm.
Oh the absolute unadulterated irony and hypocrisy of your statement!
Tell that to the Kentucky, Vermont and Nevada election commissions.
Yeah... that would explain last year's Red Wave. Oh.. wait. That didn't happen?
Are you saying that Republicans are too stupid, or too lazy to take advantage of early voting? I'm pretty sure they aren't either of those things - Here's a link to the WI GOP website talking up early voting.
Even Trump was talking up early voting this year:
That's my point.
Are you saying that Republicans are too stupid, or too lazy to take advantage of early voting?
That's really convoluted thinking. The person who makes the effort to go out and vote is lazy, while the person who probably wouldn't vote at all gets a ballot in the mail and says to himself, oh ya, I'm a fucking democrat, let me fill it out and toss it in the mailbox on the way to the tattoo parlor.
Even Trump was talking up early voting this year:
Ya, thanks for making all my points. The RNC really has to catch up on it.
So what? The only thing that matters in an election is that only registered voters vote and they vote only once. None of your other whining complaints mean a thing.
Show us your proof that unregistered people vote or that people vote more than once. Unless you can do that shut up for god's sake.
Well John, democracy dies in darkness!
The only thing that matters in an election is that only registered voters vote and they vote only once.
You are from the Chicago area, right? How many times did Chicago vote in 1960?
Show us your proof that unregistered people vote or that people vote more than once.
I never made that claim, but there are states like California who have made it easy for fraud to happen:
California still won't let anyone see their voter rolls.
Have you ever heard of the dangers of ballot harvesting?
As to what I have said: they will continue do anything they can: Democrats have influenced elections. The federal government (via the FBI) worked with social media to ban a news story detrimental to Joe Biden during the 2020 election. Marc Elias got around border state legislatures to institute mail-in-ballotting. Mark Zuckerberg used local election committees to get out the democrat vote and of course the media did all the campaigning for the man who stayed in his basement. There were many other players as well, and btw they bragged about it:
BTW, what ever happened to Herschel Walker's accusers?
Or their ability to convince their core that the results were fraudulent.
Is that today's strawman argument?
Why not just admit that early voting benefitted democrats? It solved their enthusiasm problem.
Vic when you are called out on your bullshit you say things like "Chicago in 1960" which means that you have nothing pertaining to your constant accusations that Democrats cheat across the span of this country , and all the time in elections.
Put up or shut up. You sound ridiculous with your constant aspersions on the elections with nothing to back it up.
You have a point?
Yep everyone that qualifies under current states law gets a voice. Whether they be lazy liberal or MAGA QAnon nuts and everybody in between, doesn't really matter.
Glad you finally got your talking points straight.
FUCK OFF
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And who makes state voting laws?
This is basic civics, Vic. The State Legislature passes laws. In WI our legislature is Republican dominated. Republican Dan Knodl won the State Senate District 8 Special Election yesterday which gives them a Supermajority there.
People voted against Trump, not exactly for Biden, therefore Biden didn't have to campaign much.
Hyperbole.
The majority of voters disagreed.
So Biden won without campaigning and Trump still lost even though he campaigned? It seems like Trump is not so good after all if he cannot even win an election against someone who did nothing.
Your most recent conspiracy theory is that Biden had Trump arrested by the state of New York??
Show me where I said that.
Welcome back to the open forum.
It seems like Trump is not so good after all if he cannot even win an election against someone who did nothing.
Then why do democrats fear another Trump campaign?
They needed 80 million votes to win and they came up with them. They needed to win two Senate seats in GA to take the Senate and they got them. Just the other day they won a mayoral election in the city of Chicago with a lunatic. It seems the democrats can win whenever they have to so why are they afraid of Donald Trump?
Your meme @1.1.24 shows Biden as one of the leaders who had his political opponents arrested.
Why do you think the Ds fear a Trump campaign?
Do you think the Ds expect Trump to win in a general election?
We have one here who posts a multitude of meaningless taunting memes on every seed he finds and suddenly you are reading into my response meme?
My position is that all these prosecutions were planned to coincide with the 2024 election. They will benefit Biden as everything else the media & government does, but in no way did the moronic proxy do the planning.
I think they just can't forget 2016.
Do you think the Ds expect Trump to win in a general election?
No.
Now why won't you ever answer my questions?
I dont think fear is the right word, but loathing might be. But the truth is if Trump is the Republican nominee he will have a fighting chance at becoming president. Not because he has a lot of support, but because the future is unknown. What if something happens to Biden in 2024 and Harris is suddenly the Democratic candidate? It wouldnt bother me but I know a lot of people are dead set against her.
Vic, Trumps presidential campaign was launched in November of 2022, a full two years before the election, which is almost unprecedented. His campaign was planned to coincide with the results of investigations of him.
It was well known well prior to him announcing his candidacy that there was a good chance he would be indicted for some or all of his bad behavior. It was well known. A decent human being would have said "I'm not running under this cloud". But not this asshole. He is trying to use his political campaign as a shield against accountability.
Oh, he must be a true genius!
Why were they disregarded in PA during the 2020 election?
Deflection.
Your meme suggests that Biden had Trump arrested.
That does not explain why you would think Ds fear Trump as the GOP nominee in 2024.
Stop with the bullshit, Vic; you pretend as though I never answer your questions when as a rule I am inclined to answer any relevant question put to me (some are too stupid and are ignored).
So what question do you want me to answer? Are you referring to questions you posed to Gordy?
Makes no sense for Ds to fear Trump as the GOP nominee. I would expect they would relish that. It is the GOP who should fear Trump as their nominee but they seem to be oblivious to the fact that, almost certainly, he will lose in the general.
There is always the chance that the Ds put forth a crappy option in the general. But my point is that Trump is a profoundly terrible option for the GOP. If the Ds put forth a crap candidate, they certainly would still want to go against a loser like Trump.
Seems to me, with Trump as the GOP nominee, the Ds can ensure they win the presidency by simply putting forth an acceptable candidate. But, as you note, there is indeed the chance that the Ds will screw this up.
I am not aware of anyone who's afraid.
Judging by the amount of texts and phone calls I've been getting this would be true of both Dems and Reps. It's antidotal, but until all out of state money is stopped (and it most likely never will be) I don't really care.
WI Dems set voting records in the Primary so maybe, but the weather is supposed to get really bad so maybe not. We'll know soon enough.
You mean voters will have to get off their asses and go out and vote? There was no early voting?
Yes voters will have to get off their asses and brave the elements and go vote.
Yes, early voting started March 21st. One could cast their vote at their County Clerks Office or by mail. Drop boxes outside the clerks office were banned by the state courts. One of many recent decisions they have come up with I don't agree with.
So, the answer to my question about getting off their asses should have been 'no they don't."
That means that even the less interested or uninformed voters may determine the election.
HAHAHAHAHA! I was going to say something flippant here, in response to your partisan bullshit, but I decided just to remind you that more people vote for American Idol or Dancing with the Stars than vote in elections. From time immoral all sides have highly partisan bullshit campaigns focusing on attacking opponents and passing barely veiled lies. While that's politics, I'll continue to press for removing these obscene amounts of money and anti-gerrymandering solutions that will go some small way forward making this a little more fair.
That's fine. You just give me a link to those early votes that show no edge either way and I'll be happy.
That was the midterm vote.
Please note:
Statistics are not yet available for the general election.
Nevada did see some polarization by voting type. Democrats were more likely to vote by mail while Republicans tended to cast their ballots on Election Day.
I never voted in a primary in my entire life. That's very interesting, don't you think?
My wife and I will be voting after work today in an ice storm.
As regards early and mail in voting, the system here in Colorado works very efficiently.
Other states would do well to study it and act accordingly.
Agreed. As an election judge in CO, the process is deliberately bi-partisan, with numerous checks and balances, and led by people committed to maintaining the integrity of the election system.
With certain exceptions.
Oh dear, with 33% in, that 'commie pinko' Janet Protasiewicz is ahead by 19 points. [deleted]