Why Wisconsin’s Supreme Court race is the most expensive election of its kind yet
Wisconsin voters head to the polls on Tuesday to elect their next state Supreme Court justice in what could be the most important race of 2023. The race has already captured national attention, with potential implications for a range of issues, including abortion and voting rights, as well as the 2024 presidential election. And the high-stakes race is the most expensive race ever held by the state Supreme Court.
Although the Wisconsin Supreme Court is technically nonpartisan, the election results will determine whether the court, which could weigh in on politically charged issues in the battleground state, has a conservative-leaning 4-3 majority. or liberal.
“We live in a national environment in which state supreme courts have the opportunity, from the Supreme Court of the United States, to rule on these extraordinarily important and consequential issues,” said science professor Howard Schweber. politics and law at the University of Wisconsin.
Conservative candidate and former Justice Daniel Kelly is running against Liberal Justice Janet Protasiewicz to fill the seat vacated by Conservative Patience Roggensack, who is not seeking re-election. His retirement opens an opportunity for the balance of the state’s highest court to shift after conservatives held a majority for 15 years. The election will decide the composition of the tribunal for at least the next two years. Justices of the Wisconsin State Supreme Court are elected for 10-year terms.
“To say that these elections are non-partisan is just nonsense,” Schweber said. “They’re very partisan, they’re very partisan, and it’s really that both of these parties will try to promote candidates who they think will promote their agendas.”
More than $27 million has been spent on ads in the general election alone since the Feb. 21 primary. Protasiewicz and the groups supporting her have spent more than $15 million, while Kelly and the groups supporting him have contributed more than $12 million to the race. Protasiewicz and his followers outspent Kelly and his followers on ads for weeks, but that trend reversed in the last week of March.
In total, expenses for the Wisconsin Supreme Court race total nearly $45 million, according to a review by WisPolitics.com, which drew on financial records that included the primary election. The sum shattered the previous record for a single Supreme Court race, $15.2 million in Illinois in 2004, according to data from the Brennan Center for Justice.
Ben Wikler, chairman of the Wisconsin Democratic Party, noted that this election could “shape the rules that will affect the 2024 presidential race, the fight for the majority in the House and the fight for the majority in the Senate.”
The state’s Democratic party is both staging a major statewide “get out of the vote” operation and raising millions for Protasiewicz. The Wisconsin GOP has also held statewide events and is actively promoting his candidacy.
“What I tell people is all the reforms we’ve had in the last 25 years since [Republican] I think Governor Tommy Thompson is under threat if the liberals take over the court,” Wisconsin Republican Party Chairman Brian Schimming said.
Protasiewicz is currently a Milwaukee County Circuit Court Judge. Before being first elected in 2014, she served as an assistant district attorney for Milwaukee for more than 25 years.
Kelly previously served on the Wisconsin Supreme Court from 2016 to 2020 after being nominated by former Republican Gov. Scott Walker. He lost the 2020 Supreme Court election to current Justice Jill Korofsky. He has since returned to private practice, a stint that included serving as counsel for the Republican Party of Wisconsin.
The two candidates clashed on the right to abortion, an issue could end up in court in Wisconsin. Protasiewicz ran ads against Kelly, saying he would uphold the 1849 pro-Roe abortion ban that went into effect after the The Supreme Court overturned Roe v. Wade. It does not include exemptions for rape or incest.
Kelly, who is backed by several anti-abortion groups including Wisconsin Right to Life, pushed back saying he will decide the matter based on the law. He criticized Protasiewicz for openly stating that she believed women should have access to abortion. Kelly accused Protasiewicz of having already made up her mind about how she would decide if a case came to court.
Redistricting has also become a major issue in the race. Last year, the Wisconsin Supreme Court approved Republican-drawn maps similar to the 2011 plan, when Republicans held a state-government trio during the redistricting process. The cards essentially lock in Republican control of the House and Senate, but that could change immediately with a change in the makeup of the state Supreme Court. Protasiewicz called the cards unfair and rigged.
And the court will likely have a say in suffrage cases ahead of the 2024 election where the state is a critical battleground in the presidential race. Wisconsin Senator Tammy Baldwin, a Democrat, is also a candidate for re-election.
Republicans, who control both houses of the state legislature, have passed a series of different election laws over the years, ranging from voter ID requirements to mail-in voting restrictions. The Wisconsin Supreme Court ruled last year that mail-in ballot boxes were illegal in the state.
“There are only so many opportunities for the courts to either enforce rules designed to suppress voter turnout or create them on their own,” Schweber said.
Democrats hit Kelly hard on voting laws. The conservative former judge is an ally of former President Trump, who previously backed him in his failed 2020 candidacy. He served as a ‘special adviser’ to the state’s Republican Party regarding a plan for fakes Republican voters in the 2020 election, according to the former party chairman’s testimony before the House Select Committee on Jan. 6. Kelly played down his role, but he was backed by a conservative activist, Scott Presler, who organized “stop the steal” events, and was on the grounds of the Capitol on January 6, 2021. Presler traveled the state to do campaign for Kelly who posted a video of them together earlier this month.
At the same time, Republicans and outside groups have attacked Protasiewicz as soft on crime and say she has allowed criminals to walk, running a series of ads highlighting the cases over which she presided. She says the examples were chosen from thousands of cases and lack context.
It’s a question that’s often used to mobilize voters — an important factor in either candidate winning.
Political and party experts said it was difficult to determine what voter turnout might look like. But turnout in off-year elections, even in those where it is higher than usual, is still significantly lower than in legislative elections. The previous high for a spring election in the state was around 34%, while voter turnout for the 2020 general election was over 72%. But officials on both sides believe issues such as redistricting, abortion, school choice and crime could help lure voters in a lean year.
Early in-person postal voting has already been underway since March 21. Polling stations will be open from 7 a.m. to 8 p.m. election day, Tuesday.