Buckle up for the April 4 Wisconsin Supreme Court election

Liberal Protasiewicz, conservative Kelly advance in nation’s ‘most important’ 2023 race, which could also be the most costly

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On Tuesday, voters in the deeply divided state of Wisconsin narrowed the field from four to two candidates in the primary for state Supreme Court, setting the stage for an election that will shape the political contours of Wisconsin for years to come.

Liberal Janet Protasiewicz, a circuit court judge in Milwaukee County, will square off against conservative Dan Kelly, a former state Supreme Court justice, in the April 4 general election, which the New York Times has called “arguably the most important election in America in 2023.” It could also break records for being the most expensive.

Protasiewicz, who dominated the pack in campaign fundraising, garnered about 46 percent of the total votes cast, compared to 24 percent for Kelly and 22 percent for the other conservative in the race, Waukesha County Circuit Court Judge Jennifer Dorow. Liberal Everett Mitchell, a Dane County Circuit Court judge, came in last with about 7.5 percent.

Together, the two liberals snared 54 percent of the roughly 960,000 primary votes cast, a huge turnout for a state Supreme Court primary, compared to 46 percent for the two conservatives. Traditionally, candidates supported by Republicans tend to do better than those backed by Democrats in primary elections. 

“It was a strong showing by liberal candidates,” says Barry Burden, a professor of political science at the UW-Madison. “The conservatives actually had a more competitive race between the two of them. There was more animosity between them, more back and forth. It was more competitive throughout. I don’t think anyone had a clear advantage over the last few weeks. And, despite that, not as many conservative voters turned up, so Dan Kelly will have to do something to generate more interest among the conservative base and to be competitive with Protasiewicz in April.” 

In Dane County, Protasiewicz (pronounced“Pro-tuh-SAY-witz”) received 68.5 percent of the vote, compared to about 14 percent for Mitchell, 9 percent for Dorow and about 8.5 percent for Kelly.

The April election will determine whether liberals or conservatives hold a 4-3 majority during a critical period in the court’s history. The next state Supreme Court will likely decide the future of abortion rights in Wisconsin, which is among the 13 states that have effectively ended all access to the procedure since the U.S. Supreme Court overturned Roe v. Wade last year. The Wisconsin court may also weigh in on the extreme gerrymandering that has allowed Republicans to dominate the Legislature in a state that is otherwise evenly divided between Democrats and Republicans, and on the inevitable attempts by partisans to manipulate the electoral process and quibble with the results of the country’s next general election in 2024.

Protasiewicz, who worked as a prosecutor for 25 years before being elected to the bench in 2014, has said she supports the right of women to make their own decisions regarding whether to continue or terminate a pregnancy. She’s also called the maps used for legislative redistricting “rigged,” and described the court’s current crop of conservatives as “four radical right-wing extremists.” 

Mitchell, a Black man and Baptist pastor who heads the Dane County Court’s juvenile division, shared some of the same positions but was widely seen as more vulnerable to the race-based negative messaging that was used against Wisconsin Lt. Gov. Mandela Barnes in the fall election for the U.S. Senate.

Kelly, who was appointed to the court by Republican Gov. Scott Waller in 2016 but defeated by liberal Jill Karofsky when he ran for election in 2020, billed himself as the true conservative in the race, saying Dorow had not proven her bona fides in this regard. He said during the campaign that he was not even sure he would be able to support her if she survived the primary and he did not. Kelly’s messaging, says Burden, “seems to have spooked at least enough conservative voters to give him the edge.”

At a campaign appearance in Madison on Feb. 7 before the Dane County Republican Party, Kelly blasted Dorow for saying in her campaign literature that she respects the rights that “our state to federal constitutions endow upon every citizen.” In fact, Kelly asserted, Dorow got it all wrong: Our rights come from God, not government, he clarified, citing the Declaration of Independence, which says “all men … are endowed by their Creator with certain unalienable rights.”

Kelly has, in writings before his appointment to the court, likened affirmative action to slavery, warned that allowing same-sex couples to wed “will eventually rob the institution of marriage of any discernible meaning,” and decried abortion as “a policy that has as its primary purpose harming children.” 

As an attorney in private practice, Kelly was hired by Republican lawmakers to defend the redistricting plan that they had hashed out to maximize their political advantage. The Milwaukee Journal Sentinel recently reported that Kelly was paid $120,000 last year by the Republican Party for services that included advising the fake electors who conspired to declare that Donald Trump and not Joe Biden won in Wisconsin.

“He has some baggage,” Burden says of Kelly. “He has clear connections to the Trump campaign, to the Republican Party. He has some extreme positions. But I don’t know if they are more difficult for him than Dorow’s would be if she had made it to the general election.”

But one thing Kelly does have going for him is the support of extremely wealthy people like Illinois residents Dick and Elizabeth Uihlein. He has even argued that his ability to attract cash from outside interests made him a stronger candidate than Dorow, saying “If Jennifer’s the one who comes out, she’s going to be horribly underfunded, in a race that will break all kinds of records in the history of the country in this race.”

As it now appears clear, neither of the two remaining candidates are going to be horribly underfunded. The race is certain to smash the record for spending on a Wisconsin Supreme Court race, set at $10 million in 2020, when Karofsky beat Kelly. It will likely also be the most expensive single state Supreme Court race in U.S. history, topping the $15 million spent in Illinois in 2004. Burden says he’s heard speculation that the Wisconsin race could end up costing between $30 million and $40 million.

An analysis of campaign finance reports from the Wisconsin Ethics Commission shows that, through Feb. 1, Dorow had raised a total of $761,430 for the race, compared to $544,727 for Kelly. The divide between the two liberals was much starker: Protasiewicz raised a total of $2,347,965, including a half-million dollars in contributions of $1,000 or more in just the last week, compared to just $251,735 raised by Mitchell.

These sums, which total $3.9 million, do not include the millions of dollars spent by outside interest groups — $4.6 million as of Feb. 10, according to the Milwaukee Journal Sentinel.

In a statement released Tuesday night, Protasiewicz said she was honored to have pulled through the primary with more votes than any other candidate. “But,” she cautioned, “as much as we should celebrate tonight, this is just the beginning and our work is far from over. I’m counting on all of you to continue the momentum we’ve built all the way through April 4th — because there’s too much at stake in this election for us to take anything for granted.” 

Kelly, meanwhile, issued a dark statement that gave some sense as to how he intends to generate interest in the race among the conservative base.

“Never before has a judicial candidate openly campaigned on the specific intent to set herself above the law, to place her thumb on the scales of justice to ensure the results satisfy her personal interests,” he warned. “If we do not resist this assault on our Constitution and our liberties, we will lose the Rule of Law, and will find ourselves saddled with the Rule of Janet. We must not allow this to come to pass.”

Buckle up. The next few weeks will be intense.