Polls open in high stakes Wisconsin Supreme Court race

From nearly the moment ballots were counted in last fall’s midterm elections, Wisconsin’s political apparatus began to turn toward the race for a soon-to-be vacant seat on the state Supreme Court. The resulting campaign has been the most expensive judicial race in U.S. history as liberal Milwaukee County Judge Janet Protasiewicz and conservative former Supreme Court Justice Daniel Kelly face off to determine the ideological swing of the court. 

The stakes of the race are high, with the winner representing the deciding vote in some of the state’s most consequential issues, most notably abortion access and the state’s political maps. But the court also plays an important role as the arbiter between the divided branches of government in the Legislature and governor’s office and could have a say in potential challenges to the results of the 2024 presidential election. 

Just weeks after the midterm elections, Democratic Party of Wisconsin Chair Ben Wikler told the Wisconsin Examiner the Supreme Court race “is electoral ground zero in 2023.”

The importance of the race to the future of Wisconsin and the country’s political future has drawn millions of dollars in donations and outside spending, shattering the previous record for the cost of a judicial race. 

Protasiewicz has outpaced Kelly in donations throughout the entire race, bringing in $5.6 million in donations to her campaign. The state Democratic Party has also provided $9 million to her campaign. 

Protasiewicz has been hugely successful in attracting out-of-state money, with $2.9 million coming from donors outside of Wisconsin, including celebrities such as the director Steven Spielberg. 

Kelly meanwhile has raised $2.3 million and not received any monetary support from the state Republican Party. Yet during the primary, Kelly pitched that he should be the conservative candidate in the general election because he’d be able to attract outside spending from political action committees and other outside groups.

That promise paid off as the campaign arm of Wisconsin Manufacturers and Commerce, the state’s largest business lobby, and an out-of-state group called Fair Courts America, funded by the Illinois billionaire and regular contributor to Wisconsin conservatives Richard Uihlein, have spent millions of dollars supporting Kelly and airing anti-Protasiewicz ads. 

While the race is officially nonpartisan, each of the candidates is supported by one of the major political parties. 

Protasiewicz has received millions of dollars in support from the Democratic party and throughout the campaign has explicitly stated her “values” around some of the major issues in the race. She’s consistently said she believes women should have access to abortion care and that the state’s legislative maps are “rigged.” 

“I’d say that in addition to independence, you bring your values to the court everyday,” she told the Wisconsin Examiner in December. “You bring your values, values like your belief in democracy, which kind of leads me in the way that I philosophically think about gerrymandering and the maps. Philosophically, values leading me to believe that a woman’s right to make decisions over her own body should be just that, not made by the government but made by the person who’s ultimately being affected by them. I think on some of those hot button issues, I can certainly tell you what my values are.”

Kelly and Republicans have regularly complained that this is Protasiewicz telling voters exactly how she’d decide in future cases. Kelly has often said if she is elected, Wisconsin will get the “rule of Janet” rather than the “rule of law.” 

“Well there you have it, I think she’s just told you how she’d resolve the case,” Kelly said during the campaign’s sole debate late last month. “She’s already told each and every one of us how she will approach this and although she says the formulaic words that she will follow the law, she’s never said one thing in this campaign that would lead to any reasonable belief that that’s what she would do.”

Yet Kelly has extensive ties to the state Republican party and has signaled support for the conservative side of issues that are likely to appear before the court. 

In the last year, he was paid more than $100,000 doing work for the state and national Republican parties, partially on election-related issues. He was paid $40,000 by the Republican National Committee in December, after he’d announced he would be running for the open seat. 

Kelly has also campaigned with a man who was present at the U.S. Capitol during the Jan. 6 riots. In a radio interview with David Clarke, the right-wing former sheriff of Milwaukee County, Kelly said conservatives didn’t have to worry that he’d side against them in major cases. 

“I don’t think you have to worry about that with me, mostly, because I’ve already served for several years as one of your Supreme Court justices,” he said. 

Additionally, he’s been endorsed by several major anti-abortion groups, including Wisconsin Right to Life, which states on its website that it endorses candidates “who have pledged to champion pro-life values and stand with Wisconsin Right to Life’s legislative strategy. In judicial elections, the Wisconsin Right to Life Political Action Committee endorses candidates whose judicial philosophies and values fit with those of Wisconsin Right to Life.” 

Archives of the Wisconsin Right to Life endorsement webpage show that the line about judicial philosophies was added after the primary election. 

But throughout the race, Kelly has insisted he’s the only candidate who can soberly look at the issues in a given case and reach a ruling without letting personal politics weigh on the decision. 

“Politics is poison to the work of the court,” Kelly said at a forum for the four primary candidates in January. “Everybody who comes to the court, regardless of what they want to tell you, has political beliefs. The question is whether they can set them aside to do the work of the court. In order to do that you need to have a methodology developed and ready at hand that you can apply every single day.” 

While Protasiewicz and Democrats have worked to make the election about abortion access — which a majority of Wisconsinites have regularly said in polls should be legal — Kelly and Republicans have worked to make the case about crime. The Kelly campaign and outside groups supporting him have run a number of ads highlighting the sentencing decisions Protasiewicz made while serving on the Milwaukee County court. 

One of those ads was a shot-for-shot remake of the Willie Horton ad that ran during the 1988 presidential race that is widely derided as the most racist political ad in American political history. In another ad, an outside group highlighted the sentence Protasiewicz gave in a sexual assault case, yet the victim has since said the ad was inaccurate and lawyers for the Protasiewicz campaign successfully got the ad removed from the air. 

Polls open on Tuesday at 7 a.m. and close at 8 p.m. Absentee ballots can be returned to polling places or municipal clerks’ offices until polls close.