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Liberals gain control of the Wisconsin Supreme Court for the first time in 15 years

Janet Protasiewicz’s over conservative Dan Kelly will allow the court's new liberal majority to determine the future of key issues like abortion rights.
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Janet Protasiewicz, a judge on the Milwaukee County Circuit Court, has won a seat on the Wisconsin Supreme Court, NBC News projects, giving liberals their first majority on the state’s highest court in 15 years.

Protasiewicz defeated conservative Dan Kelly, a former state Supreme Court justice, on Tuesday in what became the most expensive state Supreme Court race in U.S. history and one of the most closely watched elections of 2023.

Protasiewicz’s victory will allow the court’s new liberal majority to determine the future of several pivotal issues the bench is likely to decide in the coming years, including abortion rights, the state’s gerrymandered legislative maps and election administration — including, possibly, the outcome of the 2024 presidential race in the battleground state.

With 85% of the expected vote counted, Protasiewicz had the support of 55% percent of voters, while Kelly had 45% percent.

Conservative-leaning justices hold a 4-3 majority on the court. Protasiewicz will fill the seat being vacated by retiring conservative Justice Patience Roggensack, giving liberals the majority for the first time since 2008. Protasiewicz was elected to a 10-year term.

Throughout her campaign, Protasiewicz made it clear that her positions on many issues — most prominently abortions rights — aligned with those of the Democratic Party. She was endorsed by the Democratic abortion rights group Emily’s List, Hillary Clinton, former Attorney General Eric Holder and several other prominent Democrats.

Democrats in the state, and nationally, described the race as the most important one in the country this year, and they focused their messaging on emphasizing abortion rights and fair elections — extending a strategy the national party used last year to fend off a red wave in the House and keep the Senate. The win by Protasiewicz suggests that the strategy continues to pay off for the party — a data point national Democrats will be all but certain to rely on heading into next year’s presidential election.

State Democrats and abortion rights groups lauded her win in the moments after NBC News called the race for her. Ben Wikler, the chair of the state Democratic Party, tweeted that the race was "a release valve for twelve years of Democratic rage in Wisconsin about Republicans rigging our state and smashing our democracy." Laphonza Butler, the president of Emily's List, a group that works to elect Democratic women who support abortion rights, said in a statement to NBC News that Protasiewicz’s win "will change the lives of Wisconsinites for years to come and give the state the opportunity to become a beacon of reproductive health care access."

Another significant factor was that the Protasiewicz campaign, as well as groups supporting it, widely outspent Kelly’s campaign and groups supporting it.

In her victory speech from Milwaukee, Protasiewicz praised voters for having “chosen to reject partisan extremism in this state” and said, “Our democracy will always prevail.”

“Too many have tried to overturn the will of the people,” she added in a veiled reference to attacks she made against Kelly during the campaign for his ties to a plot to overturn the 2020 election results in the state. 

“Today’s results show that Wisconsinites believe in democracy and the democratic process,” she said.

Kelly, who lost his seat on the state Supreme Court in 2020 to liberal Jill Karofsky, faced relentless attacks from Protasiewicz and allied groups for having advised Republicans on legal efforts to overturn the 2020 race through the use of “fake electors.”

Kelly, in a blistering speech to supporters in the small town of Green Lake, acknowledged his loss but slammed Protasiewicz for having run what he called "the mostly deeply deceitful, dishonorable, despicable campaign I’ve ever seen run for the courts."

“The people of Wisconsin have chosen the rule of Janet. I respect that decision because it is theirs to make," Kelly said.

“I wish I would be able to concede to a worthy opponent," he added, "but I do not have a worthy opponent to which I can concede."

He ended his remarks with another jab, saying he wished Wisconsin luck, "because I think it's going to need it."

In a deposition to the House committee investigating the Jan. 6, 2021, attack on the U.S. Capitol, former Wisconsin GOP chairman Andrew Hitt said he and Kelly had “pretty extensive conversations” about the plan, and the Milwaukee Journal Sentinel reported last month that the Republican Party at the state and national levels had paid Kelly $120,000 to advise them on “election integrity” issues.

Kelly repeatedly hit back against the accusations and denied any involvement in the matter. 

At the center of the race, however, was abortion rights.

The state Supreme Court is widely expected to decide the fate of the state’s restrictive 1849 abortion law in the near term.

Several of Protasiewicz’s television advertisements emphasized her support for abortion rights and slammed “extremists” on the other side. Kelly, who refrained from saying how he would rule in such a case, was endorsed by three groups that oppose abortion rights, and he provided counsel to another Wisconsin group that opposes abortion rights.

The state Supreme Court is also likely to hear various challenges to existing election laws, as well as cases that might relate to recounts, absentee ballots and other facets of election administration that could have material impacts on the outcomes of close elections in the perpetual battleground state — including the 2024 presidential election.

For example, in a 4-3 decision last year, the state Supreme Court deemed all ballot drop boxes outside of election clerks’ offices illegal — a setback for Democrats, who had advocated to preserve one of the more lenient rules about the boxes that arose during the coronavirus pandemic. Two years earlier, the court, in another 4-3 vote, narrowly upheld the 2020 election results in the state. Court watchers predict similar cases in the future.

Other issues that could make it before the court in the coming years are challenges to Act 10, a law enacted by then-Gov. Scott Walker, a Republican, that eliminated collective bargaining for most public workers. It could also hear cases about redrawn legislative maps (the current map, which experts have said is one of the most gerrymandered in the country, was approved by the current state Supreme Court last year). As is the case in many states, in Wisconsin, if the governor and the Legislature cannot agree on legislative maps, the issue falls to the state Supreme Court.

Protasiewicz made her stance clear, saying at a debate: “I think the map issue is really kind of easy, actually. I don’t think anybody thinks both maps are fair.”

Meanwhile, Wisconsin voters Tuesday also approved a constitutional amendment that could make it more difficult for suspects in violent crimes to be released from jail on bail. Protasiewicz and Kelly had supported the proposed amendment.