Abortion, gerrymandering, and maybe even Electoral College results in the next presidential election are on the line as voters decide which names will be on the ballot to fill a tie-breaker seat on the Wisconsin Supreme Court.
The person chosen following Tuesday’s nonpartisan primary and the April 4 general election will be on the bench for 10 years and play a pivotal role in determining whether the Republican-dominated state Legislature or newly re-elected governor, a Democrat, will have the upper hand on state policy. The top two vote-getters on Tuesday will appear on the general election ballot.
“Everything is at stake. Everything the voters care about,” said one of the candidates, Milwaukee County Circuit Judge Janet Protasiewicz.
Wisconsin’s highest court handed down 4-3 decisions in half of last year’s cases, according to data compiled by Bloomberg.
All but one of the court’s cases governing politics and election law last year came down to a 4-3 decision. Roughly half of the court’s decisions impacting businesses—including product liability and consumer protection disputes—also came out 4-3.
Among recent narrowly divided rulings:
- A 4-3 court required a congressional map with minimal changes, leading to a US House delegation of six Republicans and two Democrats despite the state’s less-lopsided partisan leanings (Gov. Tony Evers (D) won by roughly 90,000 votes out of 2.65 million in 2022);
- A 4-3 court refused to block a Madison public school policy letting students decide without parental permission what names and pronouns they want to use.
- A 4-3 court allowed a business to refuse employment to a man convicted on domestic violence charges.
“Anyone that wants anything done on a controversial topic goes to the court,” Marquette University History Professor Alan Ball said in an interview.
“It reflects the paralysis of the government,” said Ball, who has studied about seven decades of court opinions. The 2021-22 session and 2020-21 session had more 4-3 split decisions—54% and 37%—than any of the other sessions the professor examined.
In part because of an abortion case working its way through the state courts, early spending by partisans on both sides has been robust; the $8 million in ad spendng tracked so far by the firm AdImpact exceeds the totals from all but three of the 2022 state supreme court elections.
“This is a whole new era of the importance of state courts and state supreme courts,” former Sen. Russ Feingold (D-Wis.), president of the liberal American Constitution Society, said in an interview.
“The political process has so infected the court races that it’s crushed independence and cooperation that used to be a hallmark of the Wisconsin Supreme Court,” Feingold said.
National Profile
Though candidates’ names appear on the ballot without party affiliations, Protasiewicz has become the contest’s partisan lightning rod.
She has more than 1,000 endorsements from liberal politicians and organizations, including the abortion rights group Emily’s list. Her campaign has booked $1.7 million in air time, according to AdImpact, and raised roughly $1.9 million—more than all of her opponents combined.
Wisconsin’s chamber of commerce is running ads criticizing her for giving probation to a rape defendant who was later re-arrested. Republicans also point to her out-of-state fundraising haul and claim she’s part of a “radical” liberal movement that would “impose their views” on the court.
In an interview, she described the election to fill the court vacancy as a decision about “whether there will be a nonpartisan Supreme Court, whether an 1849 abortion ban will stand, whether there’s a court that will consider revisiting the maps, whether there’s a court that will consider revisiting the constitutionality of Act. 10,” a 2011 law that limited the power of public sector unions.
She called the state’s GOP-favoring political district lines “rigged” and said her personal values conflict with the US Supreme Court Dobbs decision eliminating a federal right to abortion. Wisconsin Attorney General Josh Kaul’s (D) challenge to the state’s abortion ban is still before the Dane County Circuit Court in Madison.
Similar comments led to a pending GOP ethics complaint alleging that she’s “announcing how she would rule on issues” likely to go before the Wisconsin justices.
Protasiewicz contends that the opposite is true—that she considers cases based on the law and facts while some of those now on the Supreme Court have closed the door on certain issues. “If you want the status-quo, then you’ll vote for one of those conservative justices,” she said.
Federalist Society Leader
Fair Courts America, a conservative group funded by Wisconsin packaging billionaire Richard Uihlein, has put more than $500,000 behind a TV campaign highlighting Daniel Kelly’s vote to end Evers’ Covid-19 lockdown order.
The group said it intends to spend “millions of dollars” on the race.
Kelly, a former leader of Milwaukee’s chapter of the Federalist Society, was appointed to the high court in 2016 then lost the seat with an 11-point defeat in the 2020 election.
In an interview, Kelly joked he’s doing “something brilliant” this time by running in a race that doesn’t coincide with a Democratic presidential primary. “As it turns out, Joe Biden and Bernie Sanders combined can turn out more votes than me,” he said.
The author of a 169-page manual on the law and implications of legislative oversight, he describes himself as a “constitutional conservative.”
The people of Wisconsin “tell us they’ve given you one thing to do. Please do it well. And concentrate on that exclusively,” he said. “They’re not interested on your thoughts on whether it’s a good law.”
Attack Ad Target
A Better Wisconsin Together, a Democratic Party-aligned political committee, put more than $350,000 behind an ad saying Waukesha County Circuit Court Judge Jennifer Dorow “let criminals off the hook” in some decisions, according to AdImpact data.
Other attacks focus on the application she filled out for a judicial appointment. In that, she criticized a US Supreme Court decision undoing state laws that criminalize homosexual sex, and praised a state court ruling upholding limits to public sector union bargaining.
In an interview, Dorow said she rules based on the case in front of her, not on her own agenda.
“When you have judges and justices who talk about their political agenda and how they would rule on controversial topics they’re actually saying, ‘The rule of law doesn’t matter,’” she said. “I understand the proper role of the court and what a judge should and should not do, and I want to ensure Wisconsin remains a safe and secure place to work and play.”
Her handling of one of Wisconsin’s most high-profile tragedies raised Dorow’s profile and helped earn her bipartisan support from roughly 50 sheriffs across the state—something her campaign is highlighting in her TV ads.
In that multi-week murder trial, Dorow, first appointed to the bench by former Gov. Scott Walker (R) in 2011, controlled the televised prosecution of a man who drove his truck through a Christmas parade, killing five members of an elderly dance troupe and an eight-year-old boy.
Dorow, who was both a prosecutor and criminal defense lawyer before rising to the bench, shed a tear in open court and then sentenced Darrell Brooks Jr. to more than 700 years in prison.
Low-Key Campaign
Dane County Circuit Judge Everett Mitchell hasn’t yet bought commercial time for his campaign, according to AdImpact data, and also hasn’t attracted attack ads.
Mitchell, who teaches at the University of Wisconsin Law School and earned two masters degrees from Princeton Theological Seminary, would be the second Black Wisconsin Supreme Court justice. He describes his judicial approach as taking an originalist view of the law as written then expanding it to apply to today’s evolving problems.
“As lawyers and judges you have the capacity to disagree with cases that have been decided,” he said. “Nobody would say you’re projecting if you believe that Plessy v. Ferguson was improperly decided,” referring to the U.S. Supreme Court’s 1896 decision upholding discriminatory “separate but equal” accommodations for Black and White citizens.
Mitchell’s campaign has highlighted his work in the Dane County High Risk Drug Court program.
“There are two races being run in Wisconsin: one race that looks at reproductive choice, fair maps and election law; and then there’s a whole segment of the community concerned about access to the courts and justice, so that our communities remain safe,” he said. “I’m the only candidate running in both races at the same time.”
Tuesday’s election will determine which contenders will have a chance to influence how the high court splits on those and other public policies.
“Conservatives, Republicans, however you want to define it, really need to make sure we’re dialed in and do everything we can to make sure we get someone to adhere to the letter of the law,” said Ben Voelkel, former aide to Sen. Ron Johnson (R) and 2022 GOP lieutenant governor candidate.
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