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Democrats see a prime chance to take control of the Wisconsin Supreme Court

Democrats, who haven't had a majority in 15 years, see concerns over abortion access and voting rights as key opportunities to take back control.
Waukesha County Circuit Court Judge Jennifer Dorow presides during the Darrell Brooks trial in a Waukesha County Circuit Court in Waukesha, Wis., on Oct. 10, 2022.
Waukesha County Circuit Judge Jennifer Dorow presides over the Darrell Brooks trial in Waukesha, Wis., on Oct. 10.Mike De Sisti / Milwaukee Journal-Sentinel via AP, Pool file

Voters in Wisconsin have already begun casting ballots in a race that is all but certain to shape abortion rights in the state and could help decide who wins the crucial battleground in the 2024 presidential election.

Up for grabs Tuesday is control of the state Supreme Court — and the future of many pivotal issues the bench is likely to decide in the coming years.

Wisconsin's government essentially is deadlocked over many key issues, with Democratic Gov. Tony Evers often at loggerheads with the near supermajority held by Republicans in the Legislature. As a result, the bench has emerged as the decision-maker on matters with national ramifications, including elections and absentee voting.

Though the court is technically nonpartisan, conservatives on the bench hold a 4-3 majority. But with conservative Justice Patience Roggensack retiring, that majority now hangs in the balance.

The contest is on pace to be the most expensive state Supreme Court race in Wisconsin history. Candidates and outside groups have already spent more than $6 million, an amount that, once the general election is through, will likely exceed the record $10 million spent in 2020.

Democrats in the state have described the race as the most important one anywhere in the nation this year and have focused their messaging on emphasizing abortion rights and elections — extending a strategy the national party employed last year to keep the Senate and fend off a red wave in the House.

“The Wisconsin state Supreme Court race will determine the future of democracy in Wisconsin, the freedom to access safe and legal abortions and knowing that your vote won’t be thrown out,” Wisconsin Democratic Party Chair Ben Wikler said in an interview. 

Running in Tuesday’s primary are conservative candidates Jennifer Dorow and Daniel Kelly, and liberal candidates Janet Protasiewicz and Everett Mitchell.

Dorow, a Waukesha County Circuit Court judge, presided last year over the criminal trial of Darrell Brooks, who was convicted of killing six people at a Waukesha Christmas parade in 2021 when he crashed his SUV into the crowd. The case received significant media attention, and Dorow announced her candidacy just days after his sentencing concluded. Kelly is a former state Supreme Court justice who lost his seat in a 2020 election to liberal Jill Karofsky.

Protasiewicz is a Milwaukee County Circuit Court judge who has received the endorsement of the Democratic abortion rights group Emily's List. Mitchell is a Dane County Circuit Court judge.

The changes in voting laws and rules in Wisconsin can determine who goes to the White House.

Wisconsin Democratic Party Chair Ben Wikler

Tuesday’s election will narrow the current field of four to the two top vote-getters, who will advance to an April 4 general election. (That technically means two similarly aligned candidates could face off against each other in the general election, though Wisconsin politicos feel that outcome is unlikely.) The winner of that race is elected to a 10-year term.

Candidates — like the court itself — are nonpartisan, but by taking liberal or conservative positions on various issues and receiving backing by the state’s major political parties, they’re able to flick at their political allegiances.

This year, however, some Republicans in the state have expressed frustration with how overtly the liberal candidates have broadcast how they’d side on hot-button issues — as well as on cases that will, or that are likely to, come before the court. Those Republicans say judges telegraphing in this way effectively betrays their ability to hear cases fairly.

“You’re hearing candidates say outright, ‘I think we should overturn this law,’ which is very different from what we’ve seen in judicial races in Wisconsin,” said Brandon Scholz, a Wisconsin-based Republican strategist who is not working with any of the candidates in the race. “If many of these judges have already made up their mind on various issues and cases, why even bother hearing the case then.”

Abortion has taken center stage in the race. Following the U.S. Supreme Court’s ruling overturning Roe v. Wade last year, a state law from 1849 banning abortion in almost all cases snapped back into effect. The law makes performing an abortion a felony, with doctors who perform the procedure facing up to six years in prison and thousands of dollars in fines. It makes an exception only to save the life of the mother — but not for her health or for a pregnancy resulting from rape or incest.

Evers, as well as Attorney General Josh Kaul, a Democrat, have said they will not enforce the law, and the latter has filed a lawsuit alleging that the law is unenforceable. That suit is expected to eventually make its way before the state Supreme Court, likely giving the bench the power to decide on abortion rights in Wisconsin.

Protasiewicz’s television advertisements have focused on her support for abortion rights. One features her talking directly to the camera, saying “I believe in a woman’s freedom to make her own decision on abortion,” while a second features several women touting that support and slamming “extremists” on the other side of the argument. Mitchell has also vowed to protect a woman’s right to an abortion.

In interviews with local media, Kelly and Dorow have criticized Protasiewicz for openly suggesting how she’d rule on such a case, while refraining from saying how they’d rule. Dorow, however, has said that the U.S. Supreme Court “got it wrong” on Roe v. Wade and that she agreed with the decision to overturn it. Both candidates have been endorsed by groups opposing abortion rights.

Dorow has also been on the receiving end of criticism from Kelly. While Dorow has said she would endorse Kelly in the general election if he advances and she doesn’t, Kelly has repeatedly said he would not do the same for Dorow, expressing doubts about her conservative credentials. The Kelly and Dorow campaigns didn’t respond to questions.

Dorow has described herself in ads as “law enforcement’s choice” and has spoken frequently about her oversight of the Brooks trial.

Meanwhile, Kelly, who was endorsed by then-President Donald Trump in his unsuccessful 2020 Supreme Court campaign, has connections to a plan that had been hatched by allies of the former president to reverse the 2020 election results through the use of “fake electors."

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

The state Supreme Court is exceedingly 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 a material impact on the outcome of a close election in the perpetual battleground — including in the 2024 presidential election.

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

“The changes in voting laws and rules in Wisconsin can determine who goes to the White House,” Wikler said, adding that “ending” rulings by the conservative majority could “widen the path for President Biden’s re-election in 2024.”

Other issues that could make it before the state Supreme Court in the coming years include challenges to Act 10, a law enacted by then-Republican Gov. Scott Walker that eliminated collective bargaining for most public workers. It could also hear cases on 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.

At a candidate forum last month, Protasiewicz slammed the maps as “rigged.” Dorow refused to discuss the maps, citing the likelihood that the issue would come before the court again, while Kelly said at the forum that he’d rely only on “legal” arguments in determining future maps.

Brian Schimming, chairman of the Wisconsin Republican Party, has said that while Protasiewicz had been “remarkably and offensively public about indicating how she would rule on the bench,” in cases like that, he predicted that such comments would help turn out Republican voters.

“What comes out of that is a lot of energy on our side,” he said in an interview, adding that those comments helped make clear that “it’s 25 years of conservative reform on the ballot” in April.

It’s a contrast he and others predicted would turn out voters in an off-year, down-ballot, springtime election.

“The majority could change,” said Scholz, the GOP strategist, noting that Democrats haven’t held the majority on the bench for 15 years. “This is for all the marbles."