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Today's election could weaken conservatives' long-held advantage in Wisconsin

Protesters holding signs in the rotunda of a capitol building.
Morry Gash
Protesters in the Wisconsin Capitol on Jan. 22 during a march supporting overturning Wisconsin's near-total ban on abortion. The outcome of Tuesday's supreme court race could change abortion rights in the state.

MILWAUKEE, Wis. — For about a dozen years, Republican lawmakers have set Wisconsin's policies on everything from voting laws, to gun rights, to union restrictions; for the last decade, conservatives on the state Supreme Court have protected those Republican priorities.

That could all change as voters Tuesday decide one seat on Wisconsin's high court in the most expensive state supreme court race in United States history.

Campaigning is expected to continue into Election Day, with spending tripling an old national record. It now tops an estimated $45 million, mostly from out-of-state sources. The amount spent is just one indicator of how much is riding on this single-seat election for both parties.

"I will tell you this. This is the most important election in this country in 2023," former U.S. Attorney General Eric Holder said Saturday to get-out-the-vote volunteers in the Milwaukee suburb of Waukesha.

The candidates and the issues

The race is technically nonpartisan, but party support is clear. Milwaukee County Judge Janet Protasiewicz and former state Supreme Court Justice Daniel Kelly are vying for the one seat. A conservative justice is retiring this summer, and if Protasiewicz wins she would tilt the court's majority in liberals' favor.

A woman walks across a stage smiling and holding a microphone.
Jeff Schear / Getty Images for WisDems
Getty Images for WisDems
Judge Janet Protasiewicz onstage during the live taping of "Pod Save America" at the Barrymore Theater in Madison on March 18.

After his remarks, Holder told a reporter at the Waukesha event that he doesn't know how Protasiewicz would rule from the bench on certain issues. "I do know that she's a fair, competent, impartial judge," he said, "and I can tell you how her opponent would vote on a particular case, especially when it comes to questions of voting and gerrymandering."

If Protasiewicz wins, a legal challenge is expected to the state's current legislative and congressional district maps. State legislative maps have been drawn to benefit Republicans since 2011.

Kelly, a private bar lawyer, defended Republican-drawn electoral maps in a 2012 case. He was later appointed to the Wisconsin Supreme Court by then-Gov. Scott Walker, a Republican, but lost a 2020 race to liberal candidate Jill Karofsky.

A man wearing a suit talks to a group of people in an office setting.
Chuck Quirmbach / WUWM
Wisconsin Supreme Court candidate Daniel Kelly makes a point to supporters at a GOP headquarters in West Allis on April 2.

Some advocates for Protasiewicz say they also worry about conservative control of the court when it comes to setting voting rules for the 2024 presidential election in Wisconsin and if Republicans would challenge the 2024 results. Conservatives unsuccessfully fought the results of the 2020 race in the state, and there may be more lawsuits involving the 2024 race.

Democrats also see an opening to overturn an 1849 state law that took effect last summer after the Dobbs v. Jackson Women's Health Organization ruling by the U.S. Supreme Court. A lawsuit filed by Democrats last year challenging the old law will be argued at the circuit court level in May and could go to the state court within months.

What voters say

"As a woman, I think the 1849 abortion ban is absolutely ridiculous," said Alicia Halvensleben at the Waukesha event with Holder for Protasiewicz. "I'm really concerned about what's going to happen if this comes before our court and we have Dan Kelly on the court."

Protasiewicz has been sick and off the campaign trail for the past few days, according to her aides. Kelly's campaign says he's made more than 20 stops over the last four days, including Sunday afternoon at Milwaukee County Republican headquarters in West Allis.

"You're the bosses, and we're the servants,'' Kelly began, "the first thing I learned a long, long time ago, is that servants don't tell the bosses what to do." Kelly maintained he would be impartial on cases and only wants to serve taxpayers.

Local Lutheran pastor Dennis Hipenbecker was in the audience. He said he sees Kelly as "very moral, from what I know, though we don't know everything about a person." Hipenbecker said he believes Kelly would rule against expanding abortion rights in the state, something he said is vital.

One reason for all the late campaigning is that hundreds of thousands of people who vote in presidential elections in Wisconsin don't bother with supreme court races. State Republican Party Chair Brian Schimming told the West Allis crowd to reach out to 10 people they know and convince them to vote.

"If you hunt with them, if you're in church with them, if they're relatives — whoever those people are, we've got to get to those people," he said.

Elected Wisconsin Supreme Court justices serve a 10-year term.

Copyright 2023 WUWM 89.7 FM - Milwaukee's NPR. To see more, visit WUWM 89.7 FM - Milwaukee's NPR.

Chuck Quirmbach
Chuck Quirmbach joined WUWM in August, 2018, as Innovation Reporter, covering developments in science, health and business.