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In a supreme court race like no other, Wisconsin's political future is up for grabs

A woman standing at a lectern and talking into a microphone during a debate points at a man in a suit out of focus in the foreground.
Angela Major
Judge Janet Protasiewicz points at former Justice Dan Kelly during a debate March 21 at the State Bar Center in Madison, Wis.

MADISON, Wis. – An election on Tuesday could change the political trajectory of Wisconsin, a perennial swing state, by flipping the ideological balance of the state Supreme Court for the first time in 15 years.

The race comes at a critical time for Wisconsin, with a challenge to the state's pre-Civil War abortion ban already working its way to the court and legal fights ahead of the next presidential election right around the corner.

The stakes of the race go beyond a single issue. Should liberals win control of the court for the first time since 2008, they're almost certain to hear a challenge to Wisconsin's Republican-drawn redistricting maps, which have helped cement conservative priorities for more than a decade.

Republicans are framing the race in terms of what they could lose, which they contend includes key pillars of former Republican Gov. Scott Walker's legacy.

Abortion rights and gerrymandering

On a recent Saturday night in Madison, people lined up down the street outside the Barrymore Theater for a live recording of the show "Pod Save America." The hosts — speechwriters who worked for former President Barack Obama — hold celebrity status in Madison, a Democratic stronghold that's proven critical to recent statewide victories in Wisconsin.

This show is aimed at turning out the Democratic vote for Milwaukee County Judge Janet Protasiewicz in her race against former state Supreme Court Justice Dan Kelly, the Republican favorite. (Races for Supreme Court in Wisconsin are officially nonpartisan, but that's not how it works in practice.)

At the front of the line before the doors opened, Ariel Hendrickson, a Madison resident, said the election boiled down to two issues: "Abortion rights and making sure that gerrymandering does not get any worse in our state."

Two women wearing winter clothing stand in a crowd holding signs supporting a candidate for the Wisconsin Supreme Court.
Angela Major / WPR
Melissa Johnson holds a sign in support of Wisconsin state supreme court candidate Judge Janet Protasiewicz during a rally March 11 in Appleton, Wis.

Abortion has been a major issue in Wisconsin since the U.S. Supreme Court struck down Roe v. Wade last summer, a ruling that reinstated a long-dormant abortion ban first written in 1849. Democrats have featured it prominently in their ads for statewide office over the past year, and it's been the bedrock of Protasiewicz's campaign.

National spending records broken

"I know people keep saying this, but this is probably one of the most important elections for Wisconsin," said Sheila Hosseini of Madison, "especially because reproductive rights are on the line."

In a state like Wisconsin, where close elections are a way of life, voters are accustomed to hearing every couple of years — or, in this case, every few months — that the latest campaign is the most important one yet. But there's actually so much riding on Wisconsin's court race this year that it might fit that billing, says University of Wisconsin-Madison political science and law professor Howard Schweber.

"I have to agree; I think this election really does live up to its hype," Schweber said, "in the sense that the stakes are extraordinarily high across an extraordinarily broad range of issues."

Supporters of former Justice Dan Kelly attend a St. Patrick's Day party with Republican speakers Thursday, March 16, 2023, at Clifford's Supper Club in Hales Corners, Wis.
Angela Major / WPR
Supporters of former Justice Dan Kelly attend a St. Patrick's Day party with Republican speakers Thursday, March 16, 2023, at Clifford's Supper Club in Hales Corners, Wis.

Money has poured into the race, doubling and by one estimate even tripling the old national record for spending in a state Supreme Court campaign.

According to the Brennan Center for Justice, the old record of $15.2 million was set in a 2004 race for the Illinois Supreme Court. According to the center's tracking, nearly $29 million had been spent on political ads in Wisconsin's race. Another running tally by the Wisconsin political news site WisPolitics found total spending on the race had hit $45 million.

"It shows that Wisconsin just tends to be the center of the political universe," said Anthony Chergosky, a professor of political science at the University of Wisconsin-La Crosse. "And it also shows that money is flowing into this high stakes battle over abortion in the post-Roe v. Wade political landscape."

For some Republicans, GOP accomplishments are on the ballot

For Republican activists, the supreme court election is less about what they could gain and more about what they could lose.

At a Republican get-out-the-vote party in the Milwaukee suburb of Hales Corners, organizers warned that a long list of GOP wins could get struck down if liberals win the court, including election laws like voter ID and laws that strengthen gun-owner rights.

Former Justice Dan Kelly attends a Republican event for St. Patrick's Day on Thurs., March 16, 2023, at Clifford's Supper Club in Hales Corners, Wis.
Angela Major / WPR
Former Justice Dan Kelly attends a Republican event for St. Patrick's Day on Thurs., March 16, 2023, at Clifford's Supper Club in Hales Corners, Wis.

Former Gov. Walker's signature law curbing union rights could also be in danger if the court flips, according to Orville Seymer, a longtime Republican activist. Judge Janet Protasiewicz was among the tens of thousands who marched against the law in 2011. She also signed a recall petition against Walker.

"All those things, they don't appear on the ballot, but they really are on the ballot," Seymer said at the GOP event. "People are voting on those issues. And the people here in this room — conservative people — they want to maintain that."

While seemingly everyone else is framing the court race in terms of issues, Kelly has notably avoided them. "If I were to start talking about my political views, that would be no more relevant to this race than who I think the Packers' next quarterback ought to be," he said at a Milwaukee Press Club forum in March.

As a private lawyer, Kelly once defended Republicans' legislative maps in federal court, and his recent clients included state and national Republican parties. Kelly offered legal counsel to the state party after the 2020 presidential election when Republicans used fake electors in an effort to contest former President Donald Trump's narrow loss in Wisconsin.

It's not that Kelly has never shared his views. About a decade ago, Kelly wrote in a blog that abortion took the life of a human being, and he wrote a passage in a book comparing affirmative action to slavery.

As a judicial candidate, he says it's inappropriate for him to share his political views, since a judge's job is applying the law. "I am running to be the most boring Supreme Court justice in the history of the country," Kelly said. "Because the role of the court is not to be original. It's not to be innovative."

Protasiewicz says voters want to hear where candidates stand

Protasiewicz, who spent decades as a prosecutor and judge in Milwaukee County, has no such hesitation when it comes to sharing her personal beliefs, particularly on abortion. During a brief interview at the Pod Save America event, Protasiewicz was asked what kind of a difference she could make if she's elected to the court.

Judge Janet Protasiewicz, center, waves to the audience during a <em>Pod Save America</em> live podcast event Saturday, March 18, 2023, at the Barrymore Theatre in Madison, Wis.
Angela Major / WPR
Judge Janet Protasiewicz, center, waves to the audience during a Pod Save America live podcast event Saturday, March 18, 2023, at the Barrymore Theatre in Madison, Wis.

"I have been very, very forthright that my personal value is that women have a right to choose," Protasiewicz said. "Reproductive choices belong to the person."

Asked about Wisconsin's Republican-drawn legislative districts, which the court's conservative majority endorsed last year, Protasiewicz was similarly outspoken. "Our maps are rigged in this state," she said. "I would certainly welcome the opportunity to have a fresh look at our maps."

For Democrats in this moment, the Supreme Court race means everything. With a liberal majority on the court and new maps, their hope is that they could finally push the state's politics to the left like neighboring Minnesota and Michigan.

That prospect has helped Protasiewicz smash candidate fundraising records, drawing from a network of Democratic donors around the country and a handful of wealthy donors, like George Soros and Illinois Gov. JB Pritzker, who've made million-dollar donations to the state Democratic Party.

Conservatives were badly outspent in the early stages of the race but have closed the funding gap recently. The state's largest business lobby, Wisconsin Manufacturers and Commerce, and a group funded by GOP megadonor Richard Uihlein have spent more than $10 million on ads attacking Protasiewicz as soft on crime.

Both parties have also described this race in presidential terms because whichever side wins will have a majority on the court ahead of the 2024 presidential race. That means they'll get to hear election lawsuits in Wisconsin, the swing state where each campaign feels a little more important than the last.

Copyright 2023 Wisconsin Public Radio. To see more, visit Wisconsin Public Radio.

Shawn Johnson
Shawn Johnson covers the State Capitol for Wisconsin Public Radio. Shawn joined the network in 2004. Prior to that he worked for WUIS-FM, a public radio station in Springfield, Illinois. There, Shawn reported on the Illinois legislature. He also managed the station's western Illinois bureau, where he produced features on issues facing rural residents. He previously worked as an Assistant Producer for WBBM-AM radio in Chicago.