MADISON, Wis. — State supreme court primary races don’t usually draw national attention — but with little else on the political calendar and hot-button issues in a critical swing state at stake, national media and political operatives have their eyes on Wisconsin’s Tuesday election. Meanwhile, out-of-state money has poured in, likely making it the most expensive judicial race ever.
Voters will go to the polls to fill an open seat on the state Supreme Court left with the retirement of conservative Patience Roggensack, who gave conservatives a 4-3 majority that produced reliable right-wing victories on everything from abortion restrictions to gerrymandering to public employee unions. While the primary is nominally nonpartisan, no one is confused about which party backs which candidates. Progressive judges Janet Protasiewicz and Everett Mitchell and conservatives Daniel Kelly and Jennifer Dorow are vying for the top two spots to face off in the general election on April 4.
If a progressive wins the seat, the court will likely defend abortion rights in a state where a significant majority of voters are pro-choice, and reconsider the radical GOP redistricting plan that secured six of eight U.S. House seats for Republicans. Abortion and voting are the top issues, giving Democrats confidence they can turn out voters even in February. Mitchell tells me that the recent midterms were the first under the new districts, which carved up towns and even neighborhoods. “People feel like their vote doesn’t matter,” Mitchell says. “People feel they have lost their vote.” On abortion, he decries the “chaos” created by Dobbs v. Jackson Women’s Health Organization.
Protasiewicz is the leading progressive candidate, gaining endorsements from popular former Democratic senator Herb Kohl, Emily’s List and several major unions. Protasiewicz’s ebullient personality is well-suited to the campaign trail. By the time I met her Friday morning at a coffee shop steps from the state Capitol, she had already finished an event in Eau Claire and done a talk radio show. She’s had to turn away people from over-packed events. About campaigning, she says brightly, “I wish I didn’t like it as much as I do.” She continues, “I love talking to people. … I love hearing how much they care.” She emphasizes her efforts to make the courts accessible to people from all backgrounds.
Protasiewicz avoids making specific promises about how she will decide specific cases, but she insists the public has a right to know a judge’s values. She’s candid about hers. She finds GOP boasting of voting suppression “appalling” and strongly criticizes the GOP’s extreme gerrymandering. Her first TV ads stressed her support for abortion rights.
She has been outraising her opponents in direct contributions with nearly $2 million since the race began. However, an outside right-wing group, Fair Courts America, has spent heavily for Kelly. Right-wing Illinois donor Richard Uihlein (the Schlitz heir) alone spent $1.5 million through Fair Courts America. Meanwhile, a Better Wisconsin Together PAC has raised more than $1 million for Democrats and spent more than $800,000 through Feb. 6. By one estimate, more than $6 million has been spent in TV ads alone.
Protasiewicz blames Citizens United v. Federal Election Commission for the gusher of dark money. When it comes to judges ruling on cases involving big donors or groups they’ve represented, she thinks there needs to be some clear recusal rules. Mitchell, by contrast, tells me that since judges have to raise money to campaign, strict recusal rules would take them off too many cases; instead, he thinks, judges need “to monitor” their own biases.
The system bothers Mitchell. He tells me, “I didn’t get all that money, so I’m out doing the hard work of meeting people.” The big money, he says, “makes a judicial race a political race where judges are running [for] the base.” The public loses confidence in the system when “‘progressive’ is synonymous with ‘Democrat’ and ‘conservative’ is synonymous with ‘Republican,’” he argues.
The issue is more than theoretical. Kelly “has been paid nearly $120,000 by the state Republican Party and the Republican National Committee over the past two years for his work on election issues,” the Milwaukee Journal Sentinel reports. (Former GOP state party chairman Andrew Hitt told the House Jan. 6 committee that Kelly had “pretty extensive conversations” about phony electors, the Associated Press reports.) Without firm recusal rules, he could, if elected, hear a case on GOP-friendly redistricting.
Democratic officials have treated this like a midterm election with robust get-out-the-vote, coalition-building, data and voter-protection efforts. They tell me that early and absentee voting from Democratic-leaning Dane and Milwaukee counties has been robust. The party’s website urges turnout on Tuesday to “Help Flip Wisconsin’s Supreme Court.” By contrast, the GOP homepage has nothing specific about the court race. (The anemic GOP effort reflects the party’s practice of letting candidates and outside groups run the show. It only recently hired a full-time chairman.)
Republican state party chair Brian Schimming has had to play defense after a recording in which GOP officials bragged about suppressing the Black vote came to light. His prediction that the two conservatives wouldn’t attack each other turned out to be laughably wrong.
As former Wisconsin radio talk show host Charlie Sykes wrote, “Republicans have launched a bitter, high-stakes, and often quite personal, civil war” likely to hurt Dorow, the stronger conservative. Both staunch conservatives, Kelly has condemned same-sex marriage and Dorow has blasted Lawrence v. Texas (striking down an anti-sodomy law). But that hasn’t kept them from tearing each other apart.
Dorow entered the race late with strong name ID from her presiding in the case of the Waukesha, Wis., Christmas parade killings. Kelly previously lost a statewide race and seemed to think it was “his turn.” He has insulted Dorow’s lack of scholarship. (Both went to the same low-ranked Christian law school.) Kelly’s team was accused of planting stories about Dorow’s son. And Kelly pointedly refused to endorse Dorow if he loses in the primary.
Democrats, meanwhile, have enjoyed a primary virtually devoid of rancor. They hope that bodes well for capturing the fourth seat on the court.
