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Wisconsin Supreme Court race narrowed to one liberal, one conservative

The results tee up a politically charged showdown between two jurists with starkly different priorities for the high court in an ostensibly nonpartisan race expected to shatter spending records.

MILWAUKEE (CN)  — The race is officially on for control of the Wisconsin Supreme Court after an avowed progressive and a staunch conservative emerged as winners of the primary election on Tuesday night, setting the table for an April contest that will determine the partisan tilt of the state’s highest court.

Liberal-leaning Milwaukee County Circuit Court Judge Janet Protasiewicz and former Wisconsin Supreme Court Justice Daniel Kelly came out on top in the four-way primary election that also featured Waukesha County Circuit Court Judge Jennifer Dorow and Dane County Circuit Court Judge Everett Mitchell.

Protasiewicz – who has made abortion rights a cornerstone of her campaign and has called Wisconsin’s controversial voting maps “rigged” in favor of Republicans – was the top vote-getter with just over 46% of votes tallied as of 10 a.m. Wednesday morning, totaling 445,196 votes, according to Decision Desk HQ.

Kelly – an originalist judicial conservative with longtime connections to the Badger State’s Republican establishment and who, according to reporting by the Milwaukee Journal Sentinel, provided legal counsel to the state GOP over casting fake electors for Donald Trump after the 2020 election – came in second with just over 24% of the vote at a grand total of 232,316 ballots.

Protasiewicz and Kelly will now compete in the general election on April 4. They are running to take the place of retiring conservative Justice Patience Roggensack for a 10-year term. A win for Protasiewicz will flip the conservative majority that has controlled the high court for at least a decade, currently sitting at a narrow 4-3 balance; a win for Kelly will entrench that majority, possibly for a generation.

Trailing not too far behind Kelly was Dorow, another conservative, who took in almost 22% of votes, around 23,000 less than Kelly. Mitchell, also a liberal candidate, came in a distant fourth with about 7.5% of ballots cast, amounting to roughly 71,000 votes.

With 958,836 total votes cast out of what the Wisconsin Elections Commission last year estimated to be a voting age population of about 4.6 million, early turnout numbers for the primary showed a little over 20% participation, surpassing the higher end of turnout experts estimated, especially considering that it was the only race on the ballot for many municipalities.

Mordecai Lee, an emeritus professor at the University of Wisconsin-Milwaukee and a former Democratic state legislator, called the primary turnout “surprisingly high” and said the fact that nearly 1 million voters came out to vote just for a state supreme court race in an odd-year primary means both sides of the aisle are “very mobilized.”

Wisconsin Supreme Court candidate Daniel Kelly speaks at a primary election night watch party in Okauchee, Wis., on Tuesday, Feb. 21, 2023. (Mark Hoffman/Milwaukee Journal-Sentinel via AP)

Crunching the Decision Desk numbers a bit, it appears purple Wisconsin is still fairly evenly split, as just under 54% of voters picked a left-leaning candidate, whereas about 46% picked a right-leaning one.

Dorow – who came to prominence by and largely ran on her presiding over the Waukesha Christmas parade tragedy trial last fall – performed well in areas of southeastern Wisconsin around Milwaukee, particularly in the neighboring suburban counties of Waukesha and Washington, but Kelly raked in more votes in the rural regions of the central and northern parts of the state.

Protasiewicz was within the top two vote-getters in virtually every part of the state, and in a handful of counties got more votes than the other three candidates combined.

The night-and-day political contrast between the two prevailing candidates leaves voters with clear choices ahead of the general election. Brutal attack ads and bulldozers of cash, much of it outside spending, are likely to be deployed to bludgeon voters with this point, highlighting issues like abortion and public safety and seeking to paint the other candidate as more compromised by partisan influence.

The latest figures from the Wisconsin Ethics Commission and nonpartisan Wisconsin Democracy Campaign show Protasiewicz’s reported fundraising and campaign spending continues to well exceed her rivals. The Wisconsin Democracy Campaign showed she’d spent more than $1.3 million as of Feb. 13, compared to around $275,000 for Kelly. They were left with $276,625 and $201,966 cash on hand, respectively, according to those reports.

Considering PAC contributions and spending on ads, total spending on the state supreme court race is anticipated to comfortably surpass the previous record of $9.8 million, experts say.

Conservatives have made hay out of Protasiewicz expressing her values as a candidate in the ostensibly nonpartisan race, spurring the state GOP to file a complaint with the Wisconsin Judicial Commission asking it to investigate her campaign and comments. Kelly’s campaign explicitly echoed this outrage in his victory statement on Tuesday night, warning that Protasiewicz’s comments on her values are a way to broadcast her intention to remake the court according to her vision.

“Never before has a judicial candidate openly campaigned on the specific intent to set herself above the law, to place her thumb on the scales of justice to ensure the results satisfy her personal interests,” the statement said. “If we do not resist this assault on our Constitution and our liberties, we will lose the Rule of Law, and will find ourselves saddled with the Rule of Janet.”

The Milwaukee judge certainly has made clear she thinks the high court has been hijacked by radical right-wing justices, and she called Dobbs v. Jackson Women’s Health – the 2022 U.S. Supreme Court decision revoking the federal right to abortion – the worst decision that court has ever produced. She has also consistently said her values are not pre-judgments and that she will rule on any case brought before her based solely on the law and the facts and arguments presented.

Abortion access is likely to land before the justices before too long. Last summer, days after the Dobbs decision, Democratic Attorney General Josh Kaul asked a circuit court to invalidate Wisconsin’s 1849 statute banning abortions after it became active once Roe v. Wade was overturned. That case, whose docket has been quiet in recent months, is all but destined to be decided by the state supreme court.

Protasiewicz has plainly said she views Wisconsin’s voting maps to be intentionally gerrymandered in favor of Republicans, a not uncommon opinion since at least the 2011 redistricting. The state supreme court, along partisan lines, adopted maps the Republican-controlled legislature itself drew in the most recent round of redistricting last year, which continued the perceived advantages for Republicans baked into the last maps. The high court could very well decide the redistricting issue again after the 2030 census.

Protasiewicz’s campaign could not be immediately reached Wednesday morning, but she tweeted on Tuesday night that “this is just the beginning & our work is far from over.” The judge added that “there’s too much at stake in this election for us to take anything for granted.”

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

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