MILWAUKEE — Liberals claimed control of Wisconsin’s high court in an election Tuesday, giving them a one-vote majority on a body that in the coming years will likely consider the state’s abortion ban, its gerrymandered legislative districts and its voting rules for the 2024 presidential election.
Milwaukee County Judge Janet Protasiewicz’s victory over former state Supreme Court justice Daniel Kelly will end 15 years of conservative control of the Wisconsin Supreme Court. She could face ethical questions when the court takes up politically charged cases because she campaigned heavily on abortion rights and repeatedly called the state’s election maps “rigged.”
The candidates, political parties and independent groups spent more than $40 million on the race, making it the most expensive judicial contest in U.S. history. It more than quadrupled the amount spent in Wisconsin’s 2020 state Supreme Court race.
Judicial candidates in Wisconsin do not run with party labels, but the race was steeped in partisanship. The state Democratic Party gave nearly $9 million to Protasiewicz, while arms of the Republican Party gave more than $500,000 to Kelly and GOP megadonor Richard Uihlein spent nearly $6 million to help him, according to campaign finance records.
At Protasiewicz’s victory party in downtown Milwaukee, the three liberals who sit on the court marched into the hotel ballroom arm in arm to Lizzo’s “About Damn Time.” They later joined Protasiewicz onstage, and the four of them — the court’s incoming majority — held their hands aloft as the crowd chanted “Janet!”
“Today’s results show that Wisconsinites believe in democracy and the democratic process,” Protasiewicz said. “Today I’m proud to stand by the promise I made to every Wisconsinite that I will always deliver justice and bring common sense to our Supreme Court.”
On Tuesday night, Kelly accused Protasiewicz of spreading “rancid slanders” and said he did not have a “worthy opponent to which I can concede.” He said he respected the voters’ decision but feared for the future of the court.
“I wish Wisconsin the best of luck because I think it’s going to need it,” he said, speaking from a rural, lakeside hotel 70 miles north of Madison.
Relatively large numbers of voters were expected to go to the polls in an off-cycle election that typically sees a turnout of less than 30 percent of eligible voters. Before the polls opened Tuesday, about 435,000 voters had cast early ballots. That is the equivalent of more than a third of the 1.2 million votes cast in the 2019 state Supreme Court race, the last time such a position led a ballot. Nearly 1 million voters cast ballots in the February primary, almost twice as many who voted in the February 2018 primary for a seat on the state Supreme Court.
Protasiewicz will start her 10-year term in August. She will replace Justice Patience Roggensack, a conservative who decided not to seek a third term after 20 years on the court. The next race for a seat on the court is in 2025, when liberal Justice Ann Walsh Bradley’s term ends.
As Wisconsin voters cast their ballots, former president Donald Trump appeared in a Manhattan courtroom and pleaded not guilty to 34 felony counts related to payments intended to silence an adult-film actress during his 2016 presidential campaign. Trump endorsed Kelly in 2020 but stayed out of this year’s race.
Protasiewicz and her allies had a fundraising edge and structured their campaign spending to run about three times as many ads as conservatives in the final weeks of the campaign, according to the media-tracking firm AdImpact. That’s because Democrats took advantage of a campaign finance law written by Republican lawmakers in 2015 that let them funnel huge sums to Protasiewicz, who qualified for the cheapest ad rates because she was a candidate for office. Conservatives ran most of their ads through independent groups that pay far more for ads.
Conservatives won a majority on the court in 2008 and over the next decade and a half issued rulings that upheld limits on unions, approved a voter ID law, ended a campaign finance investigation of Republicans, outlawed absentee-ballot drop boxes and adopted election maps that assured Republicans have commanding majorities in the state legislature.
Kelly joined the court in 2016, when the Republican governor at the time, Scott Walker, appointed him to fill a vacancy. He lost the seat by 10 points in 2020 but hoped to rejoin it this year.
Protasiewicz, 60, was raised in Milwaukee’s working-class south side, graduated from the University of Wisconsin at Milwaukee and got her law degree from Marquette University in Milwaukee. She served as a prosecutor for more than 25 years before becoming a judge nearly 10 years ago. On the campaign trail, she often noted that the only client she ever had as a lawyer was the state.
Protasiewicz had the advantage in the race from the start. She got in early, raised $14 million over the next year and a half, and got Democrats to coalesce around her even though another liberal was also running. She came in first in the February primary with 47 percent. Kelly was second with 24 percent, edging out conservative Waukesha County Circuit Court Judge Jennifer Dorow by two points. (The other liberal in the race, Dane County Circuit Court Judge Everett Mitchell, received about 8 percent.)
Some conservatives feared all along that Kelly would have a tough time this year, citing his loss in 2020 and a string of writings that expressed opposition to abortion and called affirmative action and slavery morally the same.
Protasiewicz made abortion rights the centerpiece of her campaign. Democrats have found the issue resonates with voters since the U.S. Supreme Court in June overturned Roe v. Wade, the 1973 ruling that guaranteed access to abortion across the nation.
When the ruling came down, abortion providers in Wisconsin stopped offering the procedure because of an 1849 law that bans abortion unless one is required to save the life of the mother. A trial judge is slated to hear a challenge to the law next month, and the case is expected to eventually reach the state Supreme Court.
“I can tell you with certainty that if I’m elected on April 4th, I’m sure that we will be looking — I am sure we will be looking — at that 1849 law,” Protasiewicz said at a campaign stop in March in eastern Wisconsin.
She added: “I believe in a woman’s right to choose.”
Over the next two years, the state high court could be called on to decide a host of voting rules for the 2024 presidential election. And the justices could be dragged into challenges over the results of that election, as they were in 2020. Last time, conservative Justice Brian Hagedorn joined the court’s liberals to issue a string of 4-3 rulings that rejected challenges from Trump and his allies over Joe Biden’s win in the state.
Liberal groups are now preparing to file a lawsuit challenging the legislative and congressional districts that conservatives on the Wisconsin Supreme Court approved last year. Those maps so heavily favor Republicans that they have been able to gain nearly two-thirds of the seats in the state legislature even though Wisconsin is nearly evenly split between Democratic and Republican voters.
Even if the court acts quickly, it may not be able to draw new maps in time for the 2024 election. New maps would need to be set by next spring, just six months after Protasiewicz is sworn in. Ordinarily, redistricting challenges take years.
Protasiewicz will face tough questions when the court addresses the abortion and redistricting challenges. Critics have argued she cannot ethically participate in those cases after so clearly spelling out her views.
During the campaign, Republicans filed a complaint against her with the state’s judicial ethics commission. The commission moves slowly and has not said whether it believes she has broken any rules. Republicans have made clear they’re ready to file more complaints.
The commission’s powers are limited, however, and only the state Supreme Court can impose discipline on a justice for violating the judicial ethics code. The conservatives on the court would need to get at least one vote from the liberals to discipline Protasiewicz.
Protasiewicz has said she would not participate in cases brought by the state Democratic Party since it donated so much money directly to her campaign. But she has said she is inclined to remain on the abortion case and would likely participate in a redistricting case if someone other than the state Democratic Party brought it.
Protasiewicz was able to speak so freely about her views on abortion and redistricting during the campaign because of a 2002 U.S. Supreme Court decision. Acting on a lawsuit brought by the Republican Party of Minnesota, the conservative majority in a 5-4 ruling determined judicial candidates have a First Amendment right to express their views on political issues so long as they don’t promise to rule in a particular way.
But having now spelled out her views, Protasiewicz could face challenges over whether she can be impartial, said Charles Geyh, an Indiana University law professor who has written extensively on judicial ethics.
“If she is then called upon to resolve the redistricting matter, where she is on record saying it’s rigged, I have a hard time saying that she shouldn’t disqualify herself from that,” he said.
In Wisconsin, justices decide on their own whether they can participate in cases. That’s in part because conservatives on the court in 2009 ruled the justices could not force one of their colleagues off a case.
Eric H. Holder Jr., who served as attorney general under President Barack Obama, spent Saturday campaigning for Protasiewicz as the head of the National Democratic Redistricting Committee. In an interview, he contended Protasiewicz could remain fair on a redistricting challenge despite her comments in recent months.
“She has said the maps are not necessarily good, but she hasn’t said she would vote in a particular way with regard to a case that was brought before her,” he said. “And you have to look at what the case is, what’s the basis for the complaint that might be filed, and I’m confident that she can do so in an impartial way.”
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