Wednesday, September 27, 2023
Courthouse News Service
Wednesday, September 27, 2023 | Back issues
Courthouse News Service Courthouse News Service

Liberal candidate wins Wisconsin Supreme Court election

Wisconsin was again in the national electoral spotlight as a liberal candidate flipped the state high court’s ideological balance ahead of potential decisions with wide-ranging policy effects.

MILWAUKEE (CN) — A liberal circuit court judge bested a conservative former justice in an election for a seat on the Wisconsin Supreme Court on Tuesday, ending the court’s conservative majority for the first time in more than a decade with a landslide victory.

Decision Desk HQ showed Milwaukee County Circuit Court Judge Janet Protasiewicz winning the race with just over 55% of votes against former Wisconsin Supreme Court Justice Daniel Kelly’s 44%, with about 1,729,000 votes cast as of around 11:00 p.m. Central Time.

The ostensibly nonpartisan contest between Protasiewicz and Kelly for a 10-year term on the Badger State’s highest court dominated local airwaves and broadly mobilized partisan outreach and fundraising. Donors, insiders and news outlets nationwide recognized the race as a defining democratic moment for the Upper Midwest battleground and, potentially, the country at large.

The candidates ran to replace retiring Justice Patience Roggensack, a conservative currently part of the 4-3 right-wing majority that has controlled the court for 15 years. In that time, the high court often ruled in favor of Republicans who seized the reins of the governorship and the statehouse in 2010 and still firmly control the latter.

The win for Protasiewicz — a liberal progressive who has voiced her belief in a woman’s right to abortions and condemned Wisconsin’s controversial voting maps as “rigged” — has rearranged the power dynamics of Wisconsin’s highest court and is likely to cause major ripple effects on policy and politics in the state. It’s also a huge win for state and national Democrats who bet big on the Milwaukee judge for a shot at generational change in the judiciary.

"Too many have tried to overturn the will of the people," Protasiewicz said in her victory speech. "Today's results show that Wisconsinites believe in democracy and the democratic process," she said, adding that she will bring common sense, fairness and impartiality to the court before shouting out and embracing with justices Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky, now her liberal colleagues.

Kelly's concession speech struck an embittered tone.

"I wish that in a circumstance like this I would be able to concede to a worthy opponent, but I do not have a worthy opponent to which I can concede," Kelly said. "This was the most deeply deceitful, dishonorable, despicable campaign I have ever seen run for the courts. It was truly beneath contempt," he continued, calling his opponent "a serial liar."

"I wish Wisconsin the best of luck, because I think it's going to need it," Kelly concluded.

Though the race was nonpartisan on paper, both political parties heavily invested in the election, including by writing checks. GOP committees helped raise more than $500,000 for Kelly, and Protasiewicz received more than $8 million in contributions from the state Democratic Party, according to the nonprofit Wisconsin Democracy Campaign.

In recent years, the court’s majority has upheld lame-duck laws limiting the governor’s executive powers, banned absentee ballot drop boxes and allowed a GOP-appointed official to remain in his seat despite his term being expired, among other rulings on issues either spearheaded by or favorable to Republicans.

In December 2020, the conservative-majority court also came one vote away from fulfilling Donald Trump’s bid to overturn that year’s presidential election based on false claims of widespread voter fraud.

Protasiewicz will likely preside over Democratic Attorney General Josh Kaul’s lawsuit to repeal the state’s 1849 statute largely banning abortions, which became the law of land when Roe v. Wade was overturned and made abortion a centerpiece issue in the election. She will also likely help determine the next round of redistricting, which comes on the heels of the court adopting voting maps drawn by Republicans many say blatantly favor their party, much as the 2011 maps did.


Wisconsin voters on Tuesday also voted around 67% in favor of two ballot referenda asking if what judges can consider when setting cash bail should be expanded, and the state constitution will be amended to reflect those results.

The damp, chilly weather on Tuesday morning didn’t slow the steady trickle of voters filing into their polling place at South Shore Pavilion in Milwaukee’s Bay View neighborhood.

Elisabeth Gasparka said she was influenced to vote this time around specifically by “trying to tip [the supreme court] toward Democrats and progressives.”

Gasparka, who voted for Protasiewicz, explained that abortion access was an important issue for her, saying she finds the fact that “we’re working with a law from the 1800s” to be “pitiful and disturbing.” She said she is also concerned about gerrymandering and hoped for a change to get more balanced electoral maps.

Sandy Reitman also said matters of women’s health care motivated her in terms of “getting Wisconsin up to speed with the rest of the progressive world” on abortion law, qualifying that it’s not so much herself she’s concerned about but younger generations she believes should have the option.

Joe Patrick — who also voted for Protasiewicz and discussed women’s rights as being an important motivator — said he found the ballot questions on bail and welfare to be “confusing,” matching experts' criticisms of the questions pre-election. Patrick also said he had not heard about either question in detail until he came in to vote.

Spending on the high court election, considering all direct campaign contributions and less-than-transparent PAC and dark money operations, has shattered all the relevant records, which experts saw coming since before the primary.

Wisconsin Democracy Campaign said Monday that candidates and special interest groups had spent more than $42 million on the race. WisPolitics had previously reported that, according to its review, spending had already exceeded $45 million. The last Wisconsin Supreme Court election in 2020 — in which Kelly lost to Karofsky — cost around $10 million, which seemed pricey at the time.

Wisconsin Ethics Commission campaign finance filings from late March show the Protasiewicz campaign spent a bit over $11 million in the 2023 calendar year, and the Kelly campaign spent just over $2 million in the same time period.

Wisconsin Watch’s recent reporting noted that much of the money has come from special interest groups and a relatively small number of wealthy donors who gave either campaign the $20,000 maximum contribution allowed under Wisconsin Ethics Commission rules.

The tenor of the race between the liberal and conservative jurists had gotten ugly since the February primary, much of it due to a slew of TV, radio and online attack ads, many painting either candidate as dangerous, out-of-touch radical extremists.

The Brennan Center for Justice, factoring in spending from before the primary, recently tallied total ad spending for the election at more than $28 million. The lion’s share of that came from outside groups.

This includes nearly $11 million combined from WMC Issues Mobilization Council — an arm of Wisconsin Manufacturers & Commerce, the state’s largest business lobby — and Fair Courts America, both of which have supported Kelly. The WMC arm recently pulled a TV ad it funded blasting one of Protasiewicz’s sentencing decisions in a rape case days after the victim in the case told the Milwaukee Journal Sentinel the ad was inaccurate and had re-traumatized her.

Official turnout breakdowns are not immediately available from the Wisconsin Elections Commission, but WEC administrator Meagan Wolfe said earlier in the day that around 434,000 absentee ballots had been returned as of 7:30 a.m. in Wisconsin’s 1,850 voting municipalities, including those cast in person.

Wisconsin liberals won’t have long to rest on their laurels: Walsh Bradley is up for reelection in 2025, giving conservatives a chance to flip the court back again.

Follow @@cnsjkelly
Categories / Courts, Government, Law, Politics, Regional

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.