Abortion. Union rights. Gerrymandering. Fair elections.
Democrats and Republicans don’t agree on much in Wisconsin, the nation’s most important and arguably its most polarized swing state. But they agree that their state’s ongoing Supreme Court election is the most important in a generation.
“The Supreme Court race is for all the marbles,” Wisconsin Democratic Party Chairman Ben Wikler told VICE News.
Conservatives concur. They’re even using the same description.
“This is for all the marbles,” Brandon Scholz, a veteran Wisconsin Republican strategist and lobbyist who has managed previous supreme court races, told VICE News.
The April 4 election will determine whether liberals or conservatives have a majority on the state Supreme Court.
That balance of power couldn’t be more important. The court will soon decide whether abortion is legal for the state’s 6 million people. It will likely reconsider whether the aggressively gerrymandered maps that have kept Republicans mostly in control of the swing state for more than a decade will remain in place through 2030. And it will play a crucial arbiter of how the state’s elections are run in 2024, when Wisconsin could once again decide who wins the presidency.
Early voting has already begun for the February 21 nonpartisan primary, and the top two vote-winners will advance to an April 4 runoff election.
“This is for all the marbles.”
The race has centered heavily around abortion. When the U.S. Supreme Court struck down the constitutional right to an abortion last year, an 1849 law banning abortion in Wisconsin went back into effect (it was written just one year after Wisconsin became a state, and more than a half-century before women gained the right to vote). Wisconsin Democratic Attorney General Josh Kaul is challenging the law, and whoever wins this race will likely be deciding vote on how that case goes.
Milwaukee County Circuit Judge Judge Janet Protasiewicz, a liberal who is expected to advance to the general election, has campaigned hard on abortion rights and told VICE News that “a woman should have a right to choose.” Her two conservative opponents, former Wisconsin Supreme Court Justice Dan Kelly and Waukesha County Circuit Judge Jennifer Dorow, have been slightly less explicit about the issue—but both have endorsements from Wisconsin Right to Life, the state’s largest anti-abortion rights group.
But abortion isn’t the only crucial issue at stake in this race.
Wisconsin was the tipping-point state in both the 2016 and 2020 presidential elections, has been ground zero for fights over gerrymandering and fair elections in recent years. Its makeup will be crucial in future democracy fights.
“The Wisconsin Supreme Court race will shape the future of American democracy,” said Wikler.
Conservatives have had a majority on Wisconsin’s highest court for more than a decade, and during that time have largely sided with Republicans on a bevy of hot-button issues.
Before the 2022 election the court banned absentee ballot drop boxes; in 2014 it upheld a Republican-crafted voter identification law that studies indicate has suppressed the Black vote; and in 2011 it allowed Republicans’ deeply controversial law that gutted public-sector unions.
The justices narrowly ruled 4-3 against considering a Trump lawsuit that aimed to overturn his 2020 election loss in Wisconsin—but in most other cases the court has sided with the GOP. That includes a decision that ended Wisconsin Democratic Gov. Tony Evers’ COVID-19 emergency order early in the pandemic, as well as decisions that stripped him of other powers.
And voting rights will continue to come up. A conservative group is suing to ban mobile and alternate voting facilities in order to limit access to voting; the Democratic National Committee intervened in the lawsuit this Monday in a case that will likely wind up decided by the Wisconsin Supreme Court, and will likely hinge on who wins this race.
But conservative Justice Patience Roggensack’s decision to retire has given liberals their best chance in a generation to win back control.
“Everything is at stake, and I mean everything: Women’s reproductive rights, the maps, drop boxes, safe communities, clean water,” Protasiewicz told VICE News. “Everything is on the line.”
“Everything is at stake, and I mean everything: Women’s reproductive rights, the maps, drop boxes, safe communities, clean water. Everything is on the line.”
Arguably the most important decision the court made in recent years—and one that it will almost certainly revisit if liberals win a majority—is their 4-3 decision in 2022 to use GOP gerrymanders that give Republicans unchallenged control of the legislature even though Wisconsin is the swingiest of swing states.
The maps are so gerrymandered that Republicans hold six of Wisconsin’s eight House seats and nearly two-thirds of legislative seats in the state—even though Democrats won most statewide races last year. Republicans fell just short of a supermajority that would have allowed them to override any vetoes and govern the state as they saw fit, even though Wisconsin voters reelected a Democrat to the governorship.
Protasiewicz has called the maps “rigged,” and suggested to VICE News that she thought they should be struck down.
“We should have fair maps, and we should have a representative democracy that really represents all of the people,” she told VICE News. “You look at the way the maps [are drawn], and you just know something's just not right.”
She also told VICE News that she thought the Court’s decision upholding Act 10, the law that ended collective bargaining rights for most public-sector employees in Wisconsin, was wrongly decided. That act has greatly weakened organized labor in the state, and essentially broke the back of public-sector unions. The year the law passed, 334,000 Wisconsinites were union members; in 2022 that was down to 187,000, according to recent data from the Bureau of Labor Statistics.
Protasiewicz has raised $2 million already for the race, more than double the amount the other three candidates have brought in combined, and is expected by everyone involved to be one of the two candidates who qualify for the final round of voting. Dorow and Kelly are fighting for the second slot. Dane County Circuit Judge Everett Mitchell, another liberal, is also running, but has badly trailed in fundraising and is expected to finish fourth.
The race is ostensibly nonpartisan—the judges don’t run as Democrats or Republicans. But for decades, judicial candidates have clearly run as liberals and conservatives. In recent years it’s become even less subtle, with the same national groups, megadonors, and strategists who fund and run regular political races taking control of these contests. Protasiewicz has been even more explicit about her views, which has drawn criticism from the right, but there’s little doubt where she or the other candidates will land on major hot-button issues.
Protasiewicz’s spokesman is a longtime Democratic strategist who most recently was an Evers adviser. Dorow’s campaign is being run by the same woman who ran the 2022 Republican campaign for attorney general; Kelly’s first campaign manager was Alex Walker, a veteran GOP operative and the son of Republican former Gov. Scott Walker. (He has since left for a job in the statehouse).
Kelly was appointed to the Wisconsin Supreme Court by Walker in August 2016, and served through 2020, when he lost his reelection by a double-digit margin in spite of an endorsement from then-President Donald Trump.
Kelly is a hardline conservative who almost never broke with Republicans on rulings. He wrote the majority opinion that struck down a law in the city of Madison prohibiting guns on public buses, and spent most of his career while not on the bench working for rightwing legal groups. During that period he defended Republicans’ 2011 gerrymander in court, described President Obama’s 2012 reelection a win for “socialism,” and said the U.S. Supreme Court was wrong to declare same-sex marriage a constitutional right. In 2022, he headlined “election integrity” events sponsored by the Republican National Committee that seemingly played on conservatives’ conspiracy theories about the 2020 election.
Dorow has a shorter political track record, but it’s clear where she’s coming from. She was appointed to her current role by Walker, describes herself as a “judicial conservative,” praised the U.S. Supreme Court’s decision to overturn Roe v. Wade, and called the Supreme Court decision that struck down homophobic anti-sodomy laws “judicial activism at its worst.”
Her husband, Brian Dorow, twice ran unsuccessfully for state senate as a Republican, worked security for Trump campaign events, and was a political appointee at the Department of Homeland Security during the Trump administration.
Protasiewicz has support from numerous unions including the American Federation of Teachers, AFSCME, and the United Auto Workers. And she was recently endorsed by EMILY’s List, which backs pro-abortion rights Democratic women. This is the first time they’ve ever gotten involved in a judicial election.
“The rights and freedoms of millions of Wisconsinites hinge on a Wisconsin Supreme Court committed to reproductive freedom, democracy, and voting rights for all. Protasiewicz has been a champion for Wisconsinites for over 35 years, and we have full confidence in her dedication to fairly interpreting the law and standing up to extremism,” EMILY’s List President Laphonza Butler said in a statement announcing the endorsement.
They’re not the only deep-pocketed group that’s gotten involved.
Kelly is backed by a super PAC funded by billionaire rightwing mega donor Dick Uilhein, which has spent nearly $2 million in ads that tout Kelly’s deciding vote to end Evers’ stay-at-home order.
“Dan Kelly has a proven record of protecting our freedoms and cast the deciding vote to end the COVID lockdowns of our schools and businesses,” their ad says.
And an affiliate of the Susan B. Anthony List, the nation’s largest anti-abortion rights group, announced a six-figure spending campaign to boost Kelly on Tuesday.
“Lives will be saved or lost depending on the outcome of this election,”SBA Pro-Life America’s Director of State Public Affairs Kelsey Pritchard said in a statement announcing the effort, before warning that the court “is in danger of becoming a tool of the radical abortion lobby” if a liberal wins the race.
Regardless of which conservative comes through the all-candidate primary, the general election is expected to become the most expensive judicial election in Wisconsin history.
The contest for second place has grown tense in recent weeks. Kelly and his allies have accused Dorow of being an unreliable conservative with a thin track record, and he’s refused to say if he’ll endorse her if she finishes ahead of him in this race.
Kelly has a longer judicial track record and is getting more outside support, but Dorow has higher name recognition. She recently presided over the high-profile trial and subsequent life sentencing of a man who killed six and injured dozens of others when he drove into a Christmas parade in Waukesha in late 2021, a trial that drew national headlines and led the nightly local news for weeks.
That’s given her a platform to run as the tough-on-crime candidate—a potent issue, especially on the right. The Waukesha Christmas parade tragedy is just the latest high-profile, racially fraught case of violence in southeastern Wisconsin in recent years. When police shot and paralyzed Jacob Blake, a Black man, in nearby Kenosha during the summer of 2020, unrest and riots followed. Kyle Rittenhouse, a white right-wing teenager, killed two and wounded a third person during that unrest, but was found not guilty on all charges in late 2021.
Conservative outside groups have sought to make crime and safety the top issue of the race, and are on the air attacking Protasiewicz as soft on crime. She’s sought to neutralize the issue: Her latest ad claims Dorow “got rich defending predators for child sex crimes and pornography” while Kelly “defended child molestors posing as youth ministers.”
Conservatives are split over who would make the better general-election candidate, though many think Dorow would have a better shot at victory. Kelly is more explicitly conservative, lost his 2020 race by a double-digit margin, and struggled on the campaign trail in that race. Some, however, are concerned that Dorow’s past as a defense attorney and allegations that her son may be a drug dealer could hurt her campaign. Dorow’s and Kelly’s campaigns did not respond to requests for comment for this story.
Democrats seem to be more worried about facing Dorow: A liberal outside group is spending nearly $1 million on ads attacking her for her work as a defense lawyer.
Regardless of which conservative comes through the all-candidate primary, the general election is expected to become the most expensive judicial election in Wisconsin history. More than $5 million has already been spent or reserved by the candidates and outside groups. Strategists in both parties expect that total spending could well double the previous all-time spending record of $10 million that was set during Kelly’s losing 2020 race.
Both sides know what’s at stake.
“Our democracy is on the line,” Protasiewicz told VICE News.
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