The choice in the Wisconsin Supreme Court contest that was broadly defined as “the most important election of 2023” could not have been starker. The stakes could not have been higher. And the results on Tuesday night could not have been clearer.
Progressive Milwaukee County Circuit Court Judge Janet Protasiewicz easily defeated conservative former justice Dan Kelly in the most expensive and high-profile judicial election in American history—a nominally nonpartisan race that became a major focus for Democrats and Republicans from far beyond Wisconsin. Protasiewicz’s win flipped control of one of the most influential state courts in the country from a 4-3 conservative majority to a 4-3 liberal majority.
With almost 90 percent of the votes counted late on Tuesday evening, Protasiewicz was winning more than 55 percent of the vote, to less than 45 percent for Kelly. The liberal was leading not just in progressive strongholds such as Madison and Milwaukee but also in many of the state’s smaller cities and rural counties. Media outlets began calling the race less than an hour after the polls closed. Unprecedented turnouts in student districts around the state contributed to Protasiewicz’s win, as young voters turned out for a pro-choice candidate in a state where legal challenges to an 1849 ban on abortion could reach the high court on which anti-choice conservatives held the majority before Tuesday’s vote.
Protasiewicz’s victory will matter for Wisconsin, where progressives will now have an opportunity to reassert the rule of law on issues ranging from reproductive rights to labor rights. It matters, as well, for every American who wants to defend democracy and the right to free and fair elections.
Wisconsin Republicans have engineered perhaps the most extreme gerrymander in the country, handing themselves commanding and wildly disproportionate majorities in both houses of the state legislature and the state’s congressional delegation. With Protasiewicz on the court, the new majority could force a redraw of the legislative maps, giving Democrats a chance to take the state Assembly and Senate. The justices could also order new congressional district maps, giving Democrats dramatically better chances in the 2024 elections for Wisconsin seats in the US House and perhaps shifting control of two seats in a chamber where Republicans hold only the narrowest majority. The four liberals will also serve as a bulwark against right-wing efforts to meddle with the results of a 2024 presidential election in which 2020 election-denier Donald Trump is again likely to be the Republican nominee.
“Tonight, Janet Protasiewicz won the most pivotal State Supreme Court election in Wisconsin history!” said Robert Kraig, the executive director of the progressive group Citizen Action of Wisconsin. “But the real winner is democracy in Wisconsin.”
Citizen Action backed Protasiewicz, as did labor and environmental groups, LGBTQ+ organizations, and leaders of the state’s resurgent Democratic Party, including US Senator Tammy Baldwin and US Representatives Mark Pocan and Gwen Moore.
Tuesday’s result confirmed the wisdom of Protasiewicz’s bold strategy as a first-time statewide candidate. From the start, she focused her campaign on the fundamental concerns of voters. Rejecting the cautious language usually employed by judicial candidates, Protasiewicz declared that, “on an almost-daily basis, our most closely-held constitutional rights are under attack by radical right-wing extremists.” Unapologetic in her defenses of historic legal precedents on abortion rights, LGBTQ+ rights, labor rights, civil rights, and voting rights, she told voters,
For almost my entire life, the constitutional right to privacy has been settled law. We know it’s not up to the government to decide who we can or can’t love. We know the 2020 election resulted in Joe Biden’s election. We must restore confidence that judges aren’t just trying to reach their favored outcomes, but actually applying the law and the constitution.
This commonsense argument was cynically twisted by her conservative rival and his billionaire supporters in a race that saw total spending exceed $45 million. Kelly’s campaign tried to suggest that Protasiewicz’s willingness to talk about her values meant that she planned to legislate from the bench.
In fact, it was Kelly who, during his brief tenure as a high-court appointee of right-wing former Governor Scott Walker, served as a rigid partisan and extreme ideologue. Voters recognized that fact in 2020 when they rejected Kelly’s bid for a full term on the court by a 55-45 margin. When he left the bench, Kelly confirmed his partisanship by going to work as a lawyer for the Republican Party of Wisconsin and national Republican groups. During that time, he counseled key Republicans and conservative operatives when they were trying to overturn the results of the 2020 presidential election. His record as a right-wing judicial activist and lawyer for conservative causes and Republican agendas on everything from gerrymandering to upending election results won Kelly the ardent support of corporate special-interest groups, out-of-state billionaire campaign donors, and the Republican legislators who gerrymandered maps to guarantee their ongoing control of state government.
But it made Kelly’s attempts to portray himself as an unbiased “constitutionalist” not just laughable to those who knew his record but also vulnerable to a media blitz that focused on the more unsavory aspects of that record.
Protasiewicz’s advertising highlighted Kelly’s extremism on abortion rights and his engagement with Trump’s efforts to thwart the will of the people after he lost to Joe Biden. Heading into an election that would take place on the day that would see Trump arraigned on 34 felony charges of falsifying business records, Protasiewicz’s team made the final weeks of the campaign into a referendum on Trump and Trumpism.
Ads for Protasiewicz highlighted revelations about Kelly advising Trump operatives and GOP insiders as they were plotting a scheme to replace Wisconsin’s legitimate electors with a group of Trump-aligned fake electors. One Protasiewicz ad concluded with a deep-voiced narrator warning, “On April 4th, vote like democracy depends on it. Because it does.”
That message resonated with voters, who on Tuesday gave Protasiewicz and her progressive “justice for all” vision an overwhelming mandate.