Supreme Court candidates for 2023
From left: Dan Kelly and Jennifer Dorow will likely draw conservative voters, while Janet Protasiewicz and Everett Mitchell will likely attract liberal support.
The Wisconsin State Journal recently wrote that a vote to replace retiring state Sen. Alberta Darling is set for April 4, the same election “that will determine whether conservatives or liberals hold a crucial majority on the state’s high court.” The state Democratic Party just sent out a fundraising email in which it said “the hugely consequential Wisconsin Supreme Court election is coming up in April.” And the nonprofit news outlet Wisconsin Watch has reported that “Democrats are eyeing the April 4 Wisconsin Supreme Court election as an opportunity to win a majority.”
What if they’re wrong? What if they’re all wrong?
Not about the race being hugely consequential — the upcoming Supreme Court election will likely determine the future of reproductive rights in Wisconsin, now largely inaccessible or threatened, as well as hot-button issues regarding political gerrymandering and the rules that will govern the next presidential election. What they could be wrong about is their assertion that the central issue in this race will be decided in April.
It is entirely possible that the pivotal question of the court’s future ideological balance could be settled, once and for all, in the Feb. 21 primary election, likely a low-turnout affair. For this to happen, the total number of votes cast for the two conservatives seeking election to the open seat, Dan Kelly and Jennifer Dorow, would have to be close to each other, as would the number of votes cast for the two liberals, Everett Mitchell and Janet Protasiewicz.
Kelly is a former appointed justice who was defeated in his bid for election in 2020; Dorow is a Waukesha County circuit court judge who recently gained national notice for presiding over the trial and conviction of a man who drove his vehicle into a Christmas parade last year, killing six people and wounding many others. Mitchell and Protasiewicz are circuit court judges in Dane and Milwaukee counties, respectively.
An ideologically determinant outcome, though still a longshot, would be most likely if all four announced contenders — the deadline for filing is Jan. 3, 2023 — were to garner vote totals within the same narrow range, say between 20 and 30 percent. The two candidates on each “side” would have to roughly split the votes between them. With four serious contenders, this is a serious possibility.
Here’s one possible outcome: Dorow, 28 percent; Kelly, 26 percent; Mitchell, 24 percent; Protasiewicz, 22 percent. Here’s another: Kelly, 30 percent; Dorow, 24 percent; Protasiewicz, 23.5 percent; Mitchell 22.5 percent.
These tallies would lead to a runoff election on April 4 between Kelly and Dorow, meaning that the court’s conservative hegemony would be settled at least until 2026, the next opportunity for liberals to regain a seat, short of a resignation or death.
Conversely, if Mitchell and Protasiewicz were the two top vote-getters on Feb. 21, the court’s liberal disposition could be secured at least through 2025, when the third 10-year term of liberal Ann Walsh Bradley, the court’s longest serving member, expires. (Bradley, 72, has not said whether she will run again.)
“It is conceivable that you could have two conservatives prevail in the primary or you could have two progressives prevail,” says Ed Fallone, a Marquette law professor who has run for the court twice, in 2013 and 2020. He thinks the former scenario is more likely; Republicans tend to show up for primaries in greater numbers than Democrats.
In the 2020 Supreme Court primary, held on Feb. 18 of that year, Fallone and Jill Karofsky together received 49.9 percent of the vote, with Dan Kelly, an appointee of Gov. Scott Walker, getting 50.1 percent. Karofsky got far more votes than Fallone, receiving 37.2 percent to his 12.7 percent, and went on to beat Kelly in the April 7 general election, 55.2 to 45.7. More than twice as many votes were cast for Supreme Court that year in the general election (1.5 million votes) than were cast in the February primary (700,000).
There has been only one other four-candidate primary for state Supreme Court in more than 20 years. That was in February 2011, when conservative incumbent Justice David Prosser got about 231,000 votes, and his three challengers — JoAnne Kloppenburg, Marla Stevens and Joel Winnig — split about 188,000 votes between them. Kloppenburg had the lion’s share of these, and went on to face Prosser in the general election, losing by a razor-thin margin that went to a recount.
Nearly 1.5 million Wisconsinites cast a vote for Supreme Court in the April 2011 general election, compared to about 419,000 who turned out for the primary.
Fallone, reflecting on the possibility that the critical question of ideological balance in the upcoming Supreme Court election could be decided in the primary, says it is “incumbent on progressives to unite and avoid a split decision.”
But who should they unite behind, Protasiewicz or Mitchell? That is something the Feb. 21 primary will decide. Oh, wait ...
