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Voters now have a chance to tip that balance toward the left, with implications for abortion rights and perhaps the outcome of the 2024 presidential election in one of the nation’s most closely divided political battlegrounds.
Tuesday’s primary will feature two conservatives and two liberals running for the seat of a retiring conservative justice. The top two finishers advancing to the April 4 general election.
The eventual winner will determine whether conservatives maintain the majority on the officially nonpartisan court or it flips to 4-3 liberal control for at least the next two years. The court came within one vote of overturning President Joe Biden’s win in the state in 2020, and both major parties are preparing for another close margin in the 2024 contest.
“For a lot of Americans, this is the moment that they can catch their breath after all the intensity of 2022,” said Ben Wikler, chairman of the Wisconsin Democratic Party. “But in Wisconsin, this race is at least as important as all the battles of the last two years.”
The Supreme Court election campaign could break national spending records if a conservative and a liberal make it through the primary, with issues such as abortion, the fate of legislative maps, union rights and challenges to election results at stake.
Four of the past six presidential races in Wisconsin have been decided by less than a percentage point, including Donald Trump’s victory in 2016 and Biden’s win in 2020. In 2024, Democrats will try to reelect Sen. Tammy Baldwin and chip into Republican’s hold on six of the state’s eight congressional seats.
“The alarm has been sounded,” Wikler said. “National Democrats, elected officials and civic engagement groups can all see plainly that this race is the key to the future of not just democracy in Wisconsin, but American democracy writ large.”
In addition to the court ruling on any challenges to the 2024 election results, Republicans said laws they enacted when they had full control of state government are in jeopardy. That includes a 2011 law signed by then-Gov. Scott Walker that effectively ended collective bargaining for most public employees, as well as GOP-drawn legislative districts, a voter ID law, a ban on absentee ballot drop boxes and a host of other measures.
“Rarely is there a race like this that has so much potential to overturn so many key issues and decisions in the past,” said Brandon Scholz, who ran two campaigns for the conservative justice whose retirement set up the race and is a former Wisconsin Republican Party executive director.
The court is likely to determine whether the state’s law that bans nearly all abortions — enacted in 1849, a year after statehood — remains in effect and whether Democrats get a chance to undo political maps drawn by Republicans, who have increased the number of state legislative seats they hold to a near supermajority. A voting rights attorney already has pledged to file a lawsuit the day after the new justice takes office if a liberal wins.
Unlike in many other states, including neighboring Michigan, voters in Wisconsin don’t have the ability to place initiatives on the ballot to overturn laws or make their own. Their only options are making changes through the Legislature, which has been under Republican control since 2011, or the courts.
Recent state Supreme Court elections in other states show the impact that a flip in majority control can have.
In North Carolina, the new Republican majority earlier this month agreed to rehear redistricting and voter identification cases less than two months after the court’s previous edition, led by Democrats, issued major opinions against the GOP-controlled Legislature.
The conservatives running in Wisconsin for the seat of retiring Justice Patience Roggensack are former Supreme Court Justice Dan Kelly and Waukesha County Circuit Judge Jennifer Dorow. The liberals are Milwaukee County Circuit Judge Janet Protasiewicz and Dane County Circuit Judge Everett Mitchell.
While the race is nonpartisan and Wisconsin voters don’t register by party, each of the candidates has staked out clear conservative or liberal-leaning positions on some of the top issues.
Protasiewicz has called the GOP-drawn legislative maps “rigged” and has made her support for abortion rights the focus of her television ads, the first to air in the race. The Wisconsin Republican Party has filed an ethics complaint against her, arguing that Protasiewicz has prejudged cases that could come before her. Her backers dismiss the action as a campaign stunt.
Mitchell, who would be the first Black justice elected to the Wisconsin Supreme Court, also has said the current legislative maps are not fair and expressed his belief that women have the right to an abortion.
Both conservative candidates are supported by anti-abortion groups in the state.
Wisconsin’s 19th century law banning abortion went into effect after the U.S. Supreme Court overturned Roe v. Wade last summer. The state’s Democratic attorney general, with support from Democratic Gov. Tony Evers, is suing to overturn it. The case is expected to reach the Wisconsin Supreme Court.
Dorow became nationally known after presiding over the trial of Darrell Brooks Jr., who was convicted by a jury of killing six people when he drove his SUV through a Christmas parade in 2021.
Her first TV ad showed footage from the Waukesha parade killings as she made her case as a tough-on-crime candidate. Kelly was appointed to the court in 2016 but lost in 2020 when Democratic turnout was high for the presidential primary.
Dorow has been active in local Republican Party politics. Kelly was endorsed by Trump during his unsuccessful run two years ago and did work for both the state and national Republican parties the past two years, including advising on the scheme in Wisconsin to have fake electors cast ballots for Trump. Both Dorow and Kelly have been speaking to GOP groups across the state during the primary campaign.
Spending on the race is expected to soar after Tuesday’s primary and eventually could exceed the most ever spent on a Supreme Court race in Wisconsin — $10 million in 2020, according to the Brennan Center for Justice The most ever spent on a state Supreme Court election is $15.2 million in Illinois in 2004, according to the center.
A week before Tuesday’s primary, about $3.5 million had been spent on ads supporting the left-leaning candidates while $3.4 million had been spent backing the conservatives, according to AdImpact Politics, which tracks advertising. Protasiewicz has raised nearly $1.9 million since she got into the race last year, which is about $500,000 more than the campaigns of the other three candidates combined.
That level of spending creates “all sorts of problems” for the perception of the court, said Matt Rothschild, director of the Wisconsin Democracy Campaign, which tracks spending in state elections.
“It totally defies our ideal of having independent, nonbiased judiciary,” he said.