WASHINGTON — The fight to control Wisconsin’s highest court has thrust the Midwestern battleground into the national spotlight as Election Day closes in on a pivotal race that could dictate future abortion and redistricting measures — and have implications for 2024.
At its core, the election Tuesday will determine the ideological split of the state Supreme Court. Liberals are within striking distance of securing a majority on the seven-member bench, which conservatives have dominated since 2008.
The officially nonpartisan race for the open slot pits liberal Milwaukee County Circuit Court Judge Janet Protasiewicz against conservative Daniel Kelly, a former state Supreme Court justice who lost his seat in an election three years ago.
In a state that boasts both a Democratic governor and strong Republican legislative majorities, the court’s role is especially notable. Wisconsin justices have previously issued decisive rulings on district lines, laws that limited the power of the executive branch and a host of other issues.
The results are sure to have an impact on abortion access in Wisconsin. The procedure is subject to a near-total ban under a law that’s been on the books for nearly 175 years. But the outcome will also decide the bench’s makeup heading into the 2024 election cycle, where justices could once again be asked to rule on the results of the presidential contest.
Beyond that, the heads of the state’s Democratic and Republican parties see downstream impacts that could touch everything from the issues at play in 2024, when Wisconsin will host a key U.S. Senate election, to the partisan split of the state legislature and — potentially — the U.S. House of Representatives.
“It’s one of these races that has ripple effects that go in all directions,” Ben Wikler, the chair of the Wisconsin Democratic Party, said in an interview this week. “And these go for a very, very long way because it’s a 10-year term. Whoever wins will be in office during the next three presidential races and not only fights over the current maps, but also the 2031 redistricting.”
With just days to go before voters head to the polls, the contest is already the most expensive state judicial race in history. WisPolitics.com, a Madison, Wisconsin-based news outlet, logged more than $40 million in spending, well beyond the $15.2 million Illinois state Supreme Court race in 2004 that previously held the national record, even after adjusting for inflation.
“You need to come prepared for battle if you’re running a campaign in Wisconsin,” said Mark Jefferson, the executive director of the state Republican Party.
Shaping the ‘24 landscape
The cases that come before the court once the newly elected justice is seated in August may dictate some of the defining issues of the 2024 campaign in this crucial swing state.
And if a challenge to the state’s congressional lines makes it way to the court, Tuesday’s election could help determine which party controls the House, where Republicans currently hold a slim majority nationally but a 6-2 edge in the state delegation.
The two seats occupied by Democrats include the bright-blue strongholds of Madison and Milwaukee.
But two others are seen as potential targets for those who may seek to redraw the map. They include the state’s 3rd District, covering southwestern Wisconsin, which had long been held by Democratic Rep. Ron Kind until his retirement earlier this year. He was succeeded by Republican Derrick Van Orden, who won in November by about 4 percentage points. Inside Elections with Nathan L. Gonzales listed the seat as one of 66 in play next year, with a rating of Likely Republican.
The other is the southeastern 1st District, represented by Republican Bryan Steil, who won the 2018 election to replace retiring Speaker Paul D. Ryan following the Janesville Republican’s two decades in office.
“If we had fair maps, Democrats could be shooting to flip at least two House seats, and that’s 40 percent of the national margin,” Wikler said, referencing the net five seats Democrats would have to flip next year to take a majority. “I don’t think there’s any other election in America in 2023 that will have a bigger impact on the House majority.”
Wisconsin arrived at its current House maps after the state Supreme Court selected lines proposed by Gov. Tony Evers, though the Democratic executive was limited in his ability to make significant changes to the previously defined districts under an earlier Supreme Court order.
Democrats’ efforts to raise the stakes for the Supreme Court race have also focused on abortion access, which was severely restricted in the state following the overturning of Roe v. Wade last year and subsequent reinstatement of a long-dormant 1849 state law that made performing the procedure a felony in most cases.
Wisconsin Attorney General Josh Kaul, a Democrat, has sued to overturn the abortion ban, and the case is likely to make it to the state Supreme Court.
If the court ultimately strikes down the law, Wikler, the Democratic state party chair, argued that “the threat to reproductive freedom” then moves from the state to the federal level, where he said access could be endangered by a potential national abortion ban. That “actually raises the stakes for the presidential race and the Senate race,” he said.
“These questions around the freedom to access safe and legal abortion and democracy itself that were so central in 2022 and are so central 2023 with the Supreme Court race are likely to be on the front burner again in 2024,” he said.
Jefferson, the state Republican Party’s executive director, agreed that abortion could remain on the ballot in 2024 even if liberals win a majority on the bench, though he cautioned that it “depends how they handle” setting restrictions around the procedure.
“If they go as far left as they appear to be headed, that could also fire up conservative voters,” he said. “So the issue may well not come off the table.”
Senators take sides
One of just a handful of states with a U.S. Senate delegation that’s divided between the two parties, Wisconsin’s Supreme Court race could be seen as a proxy battle of sorts between Democratic Sen. Tammy Baldwin and Republican Sen. Ron Johnson.
Baldwin, who is up for reelection in 2024, swiftly moved to endorse Protasiewicz following her primary election victory in February. Baldwin has also hit the campaign trail, joining two former Obama administration aides and hosts of the political podcast “Pod Save America” earlier this month in canvassing for Protasiewicz.
Meanwhile, Johnson has traveled the state backing Kelly. He’s also invoked his reelection four months ago — a race he won by nearly 27,000 votes, or 1 percentage point — as part of his message to rally supporters. Johnsons said he knows “we have more than enough potential conservative votes to win the upcoming election,” since more than 1.3 million cast ballots for him in November.
Turnout in Wisconsin’s spring elections is typically a fraction of that for November races. However, those figures are boosted when presidential primaries coincide with the court races, which was the case in 2020, when Kelly lost his seat. That year, the contest shared a ballot with the Democratic presidential primary, which was largely uncompetitive by the time Wisconsin weighed in.
That spring, turnout topped 35 percent. For comparison, nearly 73 percent of the state’s voting-age population cast ballots in November 2020, according to data from the Wisconsin Elections Commission.
Other members of the state’s congressional delegation have also waded into the race. Democratic Reps. Mark Pocan and Gwen Moore both endorsed Protasiewicz, while Johnson joined the state’s six House Republicans in penning a letter showcasing their support for Kelly.
Rep. Tom Tiffany, who has been mentioned as a possible challenger to Baldwin next year, is among the House Republicans active on the campaign trail.
Among national Democratic figures, former Speaker Nancy Pelosi, D-Calif., headlined an online fundraising event the state Democratic Party held in recent days with cast members from “Grease,” and former President Barack Obama called on his Wisconsin Twitter followers to cast their ballots during the early voting window.
Money pours in
The election has shattered spending records, with money continuing to flood into Wisconsin as each of the candidates’ campaigns rack up million-dollar-plus tabs.
In all, WisPolitics.com estimated this week that spending on the race has eclipsed $40 million since its start, with both sides now nearing parity after Protasiewicz, bolstered by a strong fundraising advantage, was able to initially blanket the airwaves before Kelly and his backers could launch a counter-offensive.
Protasiewicz’s upper hand in spending was evident in the latest fundraising reports, filed in recent days with the state Ethics Commission, showing she raised almost $12.4 million between Feb. 7 and March 20, compared with Kelly’s $2.2 million over the same period.
Protasiewicz’s totals were boosted by $8.8 million in support from Wisconsin’s Democratic Party, and her report listed more than two dozen donors who maxed out their individual contribution limit of $20,000, most of whom came from out of state. That includes Illinois Gov. J.B. Pritzker, a Democrat.
Kelly’s topline contributions were boosted by $500,000 from the state GOP, and most of the donors giving him the maximum were from Wisconsin, though Federalist Society Co-chair Leonard Leo was among the trio of top out-of-state donors during the period.
Outside groups are also heavily involved. The state’s biggest business lobby, Wisconsin Manufacturers & Commerce, is running issue ads, including a recent spot attacking Protasiewicz on crime. The conservative advocacy group is the top backer of the Kelly effort, spending $5.8 million in the lead up to the election, according to WisPolitics.com.
Scott Manley, the group’s executive vice president of government relations, declined to confirm the exact level, but said in an interview the tally “is far, far more money than we’ve ever spent to educate the public on a Supreme Court race because there is so much at stake and we do care so much about having the rule of law preserved.”
The race has also captured the attention of groups like the Progressive Change Campaign Committee, which works to elect more liberal candidates. The committee co-hosted an online event this week featuring former Obama administration Attorney General Eric Holder in support of Protasiewicz.
Asked about whether the race could set a precedent for future state contests, Jefferson, the Republican Party’s executive director, predicted there won’t be “many sleepy Supreme Court races moving forward” and that the stakes of judicial elections will only grow — particularly if the bench is used to “circumvent the Legislature” and its GOP majorities.
Still, both he and Wikler cautioned against using the race and its results next week as a bellwether for 2024 elections, which are more than 19 months away. Recent Wisconsin history shows the danger of doing so; in 2008, the same year conservatives secured their enduring majority on the state Supreme Court by narrowly upsetting a liberal incumbent justice, Obama carried the state by 14 points over Republican nominee John McCain.
“No matter what happens, Wisconsin remains bright purple,” Wikler said.
