With abortion in the balance, Wisconsin voters to choose new high court judge

by Jacob Fuller

Wisconsin voters on Tuesday will select a new state Supreme Court justice in an election that will determine the future of abortion rights statewide and could have a significant impact on the 2024 election.

The contest between liberal Janet Protasiewicz and conservative Daniel Kelly is the most expensive judicial election in U.S. history, according to New York University’s Brennan Center for Justice. Nearly $45 million had been spent as of last week, according to a WisPolitics.com review, far outstripping the previous record of $15.2 million.

The winner will determine whether the court maintains its current 4-3 conservative majority or flips to liberal control. Abortion has dominated the campaign, with the court expected in the coming months to decide whether to uphold the state’s 1849 abortion ban.

That law took effect after the U.S. Supreme Court’s decision last year to eliminate a nationwide right to abortion. The state’s Democratic attorney general, Josh Kaul, has challenged the statute’s validity in a lawsuit backed by Democratic Governor Tony Evers.

The election’s outcome also holds major implications for the political future of the battleground state. Just as it did in 2020, the court could issue crucial voting decisions before and after the 2024 presidential election, when Wisconsin is again poised to be a vital swing state.

In addition, the court may revisit the state’s congressional and legislative maps, which Republicans have drawn to maximize their political advantage.

While the election is technically nonpartisan, neither Protasiewicz nor Kelly has made much of an effort to hide their ideological bent. The state Democratic and Republican parties have poured resources into their favored campaigns, and outside organizations have likewise spent millions of dollars supporting their preferred candidate, including anti- and pro-abortion rights groups.

Protasiewicz has put abortion at the center of her campaign, saying in one advertisement that she supports “a woman’s freedom to make her own decision on abortion.” She has said she is simply informing voters about her values, not previewing how she will decide any particular case.

Kelly says he would not let his personal views affect his decision-making. But he has also touted his record as a staunch conservative and worked for the state Republican Party on election issues after the 2020 presidential race.

Democrats have asserted a Kelly victory could endanger democracy itself in Wisconsin, noting that a lawsuit from Republican Donald Trump challenging his presidential election loss to Democrat Joe Biden in 2020 came within one vote of succeeding at the court.

“Compared to what it would cost to undo the damage he could create on the Supreme Court, this is actually an inexpensive race,” Ben Wikler, the state Democratic chair, said.

Republicans have portrayed Protasiewicz as soft on crime and say she would use the court to advance a liberal agenda, regardless of the law.

“Judges are supposed to wear a black robe, but she’s made clear she’ll be wearing a blue robe,” said Mark Jefferson, the state Republican chair.

The contest underscores how judicial races are increasingly indistinguishable from more overtly political campaigns, said Douglas Keith, an attorney at the Brennan Center who studies judicial elections. The U.S. Supreme Court’s abortion ruling has only intensified the stakes for state courts.

“What we are seeing in this race is an indication that this is a new era for state Supreme Court elections,” he said. “We have crossed the Rubicon.”

Copyright 2023 Thomson/Reuters