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Big money, partisan priorities invested in Wisconsin Supreme Court race

The so-called nonpartisan contest could have profound policy ramifications in the Badger State for years to come. Donors and political operatives have taken notice.

MILWAUKEE (CN) — Judging by some recent headlines, you’d think Wisconsin’s state supreme court controlled the entire country.

While that isn't true, the Midwest battleground’s upcoming election for a crucial seat on its highest court could have major impacts on issues like abortion access, voting maps and election laws, and the very balance of power between the state’s branches of government.

This much is certain: the ideological tilt of the court – controlled for years by conservative justices, who currently hold a narrow 4-3 majority – is on the menu for the April 4 general election, the primary for which is in two weeks. Conservative Justice Patience Roggensack is retiring, and the winner will take her place for a 10-year term.

Between Milwaukee County Circuit Court Judge Janet Protasiewicz and Dane County Circuit Court Judge Everett Mitchell – both left-leaning progressives – and Waukesha County Circuit Court Judge Jennifer Dorow and former Wisconsin Supreme Court Justice Daniel Kelly – both right-leaning conservatives – one of them will either cement or flip that sacred alignment.

Given the high stakes and politically charged tenor of the campaigning, one could confuse the ostensibly nonpartisan race for a partisan one. But party insiders, the donor class, and political wonks who discourse over traditionally down-ballot races have long been hip to the nonpartisan fantasy.

“What’s happened in the last 20 years is the nonpartisanship has become a fiction, a thin paper cover over the reality that these are de facto partisan elections,” said Mordecai Lee, an emeritus professor at the University of Wisconsin-Milwaukee and a former Democratic state legislator.

Part of the reason the court has become so political, experts say, is because it has had to solve so many controversial political problems, a role highlighted since 2018 as the administration of Democratic Governor Tony Evers – who won reelection in November – and the Republican-controlled Wisconsin Legislature have found consensus over basically nothing.

This leaves the courts to referee their fights. And as the end of the line for the state’s court system, the supreme court is sometimes tasked with mediating disputes with the most to be gained or lost politically in a sharply divided swing state.

Wisconsin’s split high court is likely to reflect its polarized populace, and eventually the court is bound to be one vote from settling an important issue, said Sara Benesh, an associate professor and chair of the political science department at the University of Wisconsin-Milwaukee.

“You better believe people are going to care who that fourth seat goes to,” Benesh added.

The Wisconsin Supreme Court room at the state Capitol building in Madison. (Royalbroil/Wikipedia Commons via Courthouse News)

Lately many of these issues have fallen in conservatives’ favor. Just in the last couple of years, the court’s majority has upheld lame-duck laws limiting the governor’s executive powers; adopted voting maps drawn by Republicans many say blatantly favor their party; banned absentee ballot drop boxes; blocked Evers’ Covid-19 protocols and tossed his budget vetoes; and allowed a GOP-appointed official to remain in his seat despite his term having expired.

Abortion access is likely to be one of the next wedge issues the justices handle. Days after the U.S. Supreme Court overturned Roe v. Wade last summer, Democratic Attorney General Josh Kaul asked a circuit court to invalidate an 1849 state statute largely banning abortions when it became the law of the land post-Dobbs v. Jackson Women's Health. That lawsuit is almost definitely destined for the state supreme court.

Protasiewicz and Mitchell have said, including at a candidate forum in January, they think Dobbs was wrong, if not the worst-ever U.S. Supreme Court decision. (Responding to the same question about worst rulings, Kelly reiterated that a 2005 decision about government taking of private property was the worst; Dorow evaded answering directly but in a jurist questionnaire previously pointed to a 2003 decision invalidating anti-sodomy laws and making same-sex sexual activity legal nationwide.)


Protasiewicz has stressed that a woman’s freedom to choose is something she values, while qualifying that she won’t pre-judge any case as a justice. A recent campaign TV ad clearly expresses this viewpoint, and state Democratic Party figures have emphasized that abortion is on the ballot. She has also bluntly called Wisconsin’s current electoral maps “rigged” in favor of Republicans.

Some in the state’s conservative ecosystem, including Republican officials, pundits and Kelly himself, say Protasiewicz’s value-signaling is a backdoor way of telegraphing her intentions to voters, and it should disqualify her from contention. The state GOP filed a complaint with the Wisconsin Judicial Commission in late January asking the commission to investigate Protasiewicz’s campaign and comments.

Mitchell – a Madison children’s court judge whose tenure has in part focused on the humane treatment and education of kids in the criminal justice system – has not been in conservatives’ crosshairs in the same way, perhaps because, at least in terms of fundraising, he is well behind Protasiewicz. He is also an ordained Baptist minister and would be the first Black justice elected to Wisconsin’s highest court. (Former Justice Louis Butler, who is Black, was appointed to the court in 2004 before losing election in 2008.)

To be sure, Protasiewicz has a considerable fundraising advantage over her rivals, some of it from deep pockets. She had about $734,000 cash on hand as of the latest Wisconsin Ethics Commission filings from January and an updated round-up of campaign spending by the nonpartisan Wisconsin Democracy Campaign, more than double the candidate most closely trailing her cash-wise.

The Milwaukee family court judge has endorsements from multiple labor unions and sitting liberal Justice Rebecca Dallet. According to the Wisconsin Democracy Campaign, $20,000 contributions—the maximum allowed to judicial candidates under state guidelines—have come from a Minnesota-based heir to the Rockefeller family fortune and prominent Milwaukee-based philanthropist Sheldon Lubar.

Kelly has gotten $20,000 contributions from Richard and Elizabeth Uihlein, perennial conservative megadonors and founders of Pleasant Prairie-based shipping supplies giant Uline Co. He is endorsed by three abortion-opposing interest groups, including Wisconsin Family Action, whose website says its mission is to “advance Judeo-Christian principles and values.”

Kelly – who was appointed to the supreme court by former Republican Governor Scott Walker in 2016 before losing an election to Justice Jill Karofsky in 2020 – is also endorsed by sitting conservative Justice Rebecca Grassl-Bradley, author of a recent op-ed in the Waukesha Freeman defending Kelly and taking a shot at Justice Brian Hagedorn, her conservative colleague who has frustrated Republicans since he was elected in 2019 for his willingness to cross the aisle on some key rulings, including one in which the court narrowly decided not to entertain Donald Trump’s fraudulent attempts to overturn the 2020 election.

Barry Burden, a political science professor at the University of Wisconsin, sees the contest between the two conservative candidates as being closer than that between the two liberals.

Dorow enjoys fresh name recognition from her star turn handling the volatile defendant in the high-profile murder trial over the 2021 Waukesha Christmas parade tragedy, and her first TV spot focuses on the case. She’s raised about as much money as Kelly despite launching her campaign months after him in November and has the most law enforcement endorsements of any candidate. The Waukesha judge – who, with her husband who worked in the Trump administration, wants to open a gun range in Delafield that serves alcohol and hosts weddings and Easter egg hunts, as first reported by Jezebel – is also endorsed by Roggensack.

Despite being opponents in the election – Kelly maintains Dorow lacks his track record as a proven conservative jurist – the two right-leaning candidates seem to share much of the same traditional conservative positions and originalist tendencies as judges. They also share an alma mater: both candidates attended law school at Regent University, a Virginia Beach-based institution founded in 1977 as Christian Broadcasting Network University by broadcasting mogul and Christian evangelist Pat Robertson.

No matter what happens, experts agree this will easily become the most expensive supreme court race in the state’s history, with Burden saying “it will probably be the most expensive supreme court election in any state ever.”

Accounting for advertising and PAC contributions and other outside spending, the total should be north of the previous record of $9.8 million, Burden said. Estimates in the tens of millions are common, with Lee guessing the tab could be as much as $50 million.

For context, Wisconsin’s 2022 midterm contest for governor saw nearly $165 million in campaign and outside spending, whereas that midterm’s election for U.S. Senate saw more than $125 million.

Since it’s a four-way open primary, the election on Feb. 21 could theoretically result in the two liberals or two conservatives winning out and facing off in April, instead of one apiece. This result is considered unlikely.

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