Wisconsin Supreme Court control, abortion access at stake

Control of the Wisconsin Supreme Court, and likely the future of abortion access, Republican-drawn legislative maps and years of GOP policies in the key swing state rests with the outcome an election Tuesday that has seen record campaign spending.

The winner of the high-stakes contest between Republican-backed Dan Kelly and Democratic-supported Janet Protasiewicz will determine majority control of the court headed into the 2024 presidential election. The court came within one vote of overturning President Joe Biden’s narrow win in 2020, and both sides expect another close race in 2024.

It's the latest election where abortion rights has been the central issue since the Supreme Court overturned Roe v. Wade last June. It's also an example of how officially nonpartisan court races have grown into political battles as major legal fights play out at the state level.

All of it has fueled spending that will double, and likely triple or more, the previous high of $15.4 million spent on a state court race in Illinois in 2004. Democrats have spent heavily for Protasiewicz and Republicans for Kelly.

Democrats are trying to flip control of the court, which has had a majority of conservative justices the past 15 years. That has allowed the court to uphold an array of Republican priorities, including banning absentee ballot drop boxes last year and affirming the 2011 law all-but ending collective bargaining for most public workers.

“The policy direction of Wisconsin is going to be determined in large part by this Supreme Court race,” said University of Wisconsin-Madison political science professor Barry Burden. “Everything from abortion to disputes over the 2024 presidential election are going to land in the lap of this court. And the winner will be the deciding justice on these issues.”

Protasiewicz, 60, has tried to make the race a referendum on abortion, running on a Democratic-backed agenda that includes her loudly voicing her “personal values" in support of abortion rights.

The court is expected to rule on a lawsuit challenging the state's 174-year-old law banning nearly all abortions.

That law, enacted a year after statehood, went back into effect after the Supreme Court's ruling overturning Roe v. Wade, leading to an end to abortions being provided in Wisconsin. Democrats, including Gov. Tony Evers who won reelection in November, have seized on the issue.

“Abortion was a real motivator for Democrats and independents," Burden said. “It's been amped up in this election because the court has a real role in determining the policy.”

Protasiewicz won the backing of Planned Parenthood and other similar groups as she focused on abortion without saying how she would rule on the pending case challenging the ban. But she's promised that Kelly would vote to uphold it.

Kelly hasn’t said whether he thinks the ban is legal. But he has expressed opposition to abortion in the past, including in a 2012 blog post in which he said the Democratic Party and the National Organization for Women were committed to normalizing the taking of human life.

Kelly also has done legal work for Wisconsin Right to Life, one of three anti-abortion groups that has endorsed him.

Abortion isn't the only hot political issue Protasiewicz has embraced. She also called the Republican-drawn legislative maps upheld by the current court “rigged” and said she would welcome revisiting them.

The state Supreme Court upheld Republican-drawn maps in 2022. Those maps, widely regarded as among the most gerrymandered in the country, have helped Republicans increase their hold on the state Legislature to near supermajority levels, even as Democrats have won statewide elections, including Evers as governor in both 2018 and 2022 and Biden in 2020.

When asked in an interview on Wisconsin Public Radio whether he thought the GOP-drawn maps were fair, Kelly punted.

“I think that’s a political judgment,” he said, adding that his view was “entirely irrelevant.”

Kelly was appointed to the state Supreme Court by then-Gov. Scott Walker, a Republican, in 2016. He served four years before being defeated in 2020 on the same ballot as the Democratic presidential primary. Kelly was endorsed by then-President Donald Trump that year.

Protasiewicz has tried to paint Kelly as an “extreme partisan” and a “true threat to democracy” given his ties to Republicans, including advising them on the plan to have fake GOP electors cast their ballots for Trump following the 2020 election even though he had lost.

Four of the past six presidential races in Wisconsin have been decided by less than a percentage point, including Trump’s victory in 2016 and Biden’s win in 2020.

Kelly, 58, has tried to distance himself from his previous Republican clients and his political beliefs.

“I don’t talk about my politics because I understand they are not relevant to the work of the court,” he told the Dane County Bar Association in March. “We’re there to decide questions of the law and that’s it.”

Protasiewicz is a former prosecutor who was first elected as a Milwaukee County judge in 2014.

Kelly has accused Protasiewicz of being “bought and paid for” by Democrats and crossing the line by all-but declaring how she would rule on cases expected to come before the court. Kelly also tried to paint Protasiewicz as soft on crime, citing cases she handled as a judge, while also accusing her of “straight up lying” throughout the campaign on various issues.

The winner will serve a 10-year term starting in August replacing retiring conservative Justice Pat Roggensack.

In a sign of how divisive the race is, Roggensack endorsed Kelly, while her daughter, Milwaukee County Circuit Judge Ellen Brostrom, backed Protasiewicz. Brostrom said Kelly was “unfit” to serve because of his involvement in the fake GOP electors scheme.