The biggest election of 2023 reaches final sprint

Millions of dollars are flowing into the Wisconsin Supreme Court race, as the state rockets toward an election that could decide the future of abortion rights, redistricting and more in the key battleground state.

The court has a 4-3 conservative majority, with one swing conservative justice who has broken with the rest of the ideological bloc on some major cases. The April 4 election could flip that dynamic to a liberal-leaning majority.

The contest is poised to be the most expensive state Supreme Court race ever, with major outside groups — particularly those focused on abortion — rushing in funds. The previous record was over $15 million for a 2004 Illinois contest, according to the Brennan Center for Justice. In Wisconsin, $10.4 million was spent on advertising alone in the runup to the primary, according to data from the ad tracking firm AdImpact.

“This election is off the charts,” said Ben Wikler, chair of the state Democratic Party. “It's off the charts in terms of the stakes, it's off the charts in terms of how much money is likely to be invested on both sides, it’s off the charts in terms of the number of people who are voting.”

The election, he added, “is the hinge on which Wisconsin’s political future will swing. And Wisconsin is the hinge on which national politics swings.”

The race is a full-on sprint between Janet Protasiewicz, a liberal judge from Milwaukee County, and conservative former state Supreme Court Justice Daniel Kelly. The two were, respectively, the first- and second-place finishers in a four-way primary on Tuesday. Protasiewicz and another liberal-leaning judge in the race combined for nearly 54 percent of the vote, while Kelly and another conservative-leaning judge were at 46 percent.

The contest has significant implications for the future of abortion access in Wisconsin. State Attorney General Josh Kaul, a Democrat, has sued to overturn the state’s 1849 abortion law, which prohibits the procedure in almost all circumstances. Providers have stopped performing abortions as the legal challenge winds its way through the court system, where it is expected to eventually come before the Wisconsin Supreme Court.

And the state Supreme Court could also wade into the battle over political boundaries — and ultimately political control — in the state. Republicans have a basically unbreakable control over the Statehouse despite statewide races being close to 50-50.

Turnout was also high for this year’s primary — 960,000, crushing the previous record from the 2020 February primary — and those in the state expect April’s election to follow suit, despite it being an off year.

“I think we are going to see high turnout from both sides, and why wouldn’t we?” said Mark Jefferson, executive director of the state Republican Party. “Everything is on the line.”

Jefferson dismissed reading too much into the numbers from Tuesday, arguing that Republican strongholds that didn’t turn out as much as the rest of the state in the primary will do so in the general. Wikler, for his part, said he didn’t think the vote share total was particularly predictive, but was encouraged by the high turnout in Democratic-leaning areas in an off-year primary.

Protasiewicz and her supporters have signaled they would target Kelly on the issue of abortion and his past as a defense attorney. Her first two general election TV ads, which were released on Wednesday, call him an “extremist” on abortion and say he “won’t keep our communities safe” for defending “child sex predators who posed as ministers.” And a Better Wisconsin Together, a liberal group that spent millions in the primary attacking Jennifer Dorow — the conservative judge eliminated in the primary who some Democrats saw as a tougher opponent over Kelly — has already booked TV time for the general election.

And in an interview, Protasiewicz raised Kelly advising the state Republican Party on a “fake electors” scheme in 2020. The Milwaukee Journal Sentinel reported earlier this month that the former state GOP chair told the Jan. 6 U.S. House select committee that he and Kelly had “pretty extensive conversations” about the fake electors. Kelly has also served as a paid consultant to both the Republican National Committee and the state party.

“Look at what happened in the 2020 presidential election, and how the results of the Wisconsin election landed in the Supreme Court chamber,” she said. “I think it's more likely than not that the results of the 2024 presidential election could also end up in the Supreme Court chamber.”

Kelly’s campaign did not make him available for an interview. But in a recent, pre-primary interview with The New York Times, Kelly declined to say how he would have ruled on a Dec. 2020 state court case in which Donald Trump tried to overturn the state’s election results.

He did, however, tell the Times he had “no reason to believe” the state’s 2020 election wasn’t decided properly, and a spokesperson previously told the Journal Sentinel that Kelly believed “Joe Biden is the duly elected president of the United States.”

Ben Voelkel, a senior adviser to Kelly’s campaign, said he thought it was “incredibly shortsighted” that Democrats were trying to turn the race into a “single-issue” contest on abortion. He said conservatives would rally against Protasiewicz because of the threat she posed on issues like charter schools and gun rights, and signaled they would lean into hitting her judicial record. Conservative-leaning groups had attacked her during the primary as soft on crime, highlighting a case in which she gave “probation for a child rapist.”

“She had very, very lenient sentences for some people who committed very heinous crimes,” he said. “There’s going to be more that comes out about what exactly her judicial track record is.”

Kelly’s campaign has yet to unveil any general election TV ads. But Fair Courts America, a conservative group backed by GOP megadonor Richard Uihlein, spent millions on TV boosting Kelly in the primary, and those in the state are anticipating it will continue its spending barrage.

And those on both sides of the abortion rights debate are already gearing up for an intense general election fight. On the pro-abortion rights side, Planned Parenthood is planning to spend seven-figures on the race in conjunction with its local affiliate, which has already hired staff in several cities to support its get-out-the-vote effort.

Steven Webb, executive director for Planned Parenthood Advocates of Wisconsin, said that in addition to fieldwork, it is spending on digital advertising, radio and direct mail campaigns as well — its largest investment in any judicial race.

Students for Life is also planning to engage in the race with digital media and outreach to activists on the ground in Wisconsin, while Susan B. Anthony Pro-Life America, which made a six-figure investment into the primary election, is planning to make another six-figure investment into the general election focusing on mail, texts, live calls and potentially digital.

“This is Wisconsin’s Roe moment. This is the most impactful election from a pro-life perspective that we have had since pre-1973,” said Gracie Skogman, legislative and PAC director of Wisconsin Right to Life, a third anti-abortion group. “That’s our case to voters: If they are pro-life, lives are on the line, we have a law saving lives, but that law’s effectiveness will be determined by this court.”