“This Is Our Referendum on Abortion”: Wisconsin’s Critical Race

“This Is Our Referendum on Abortion”: Wisconsin’s Critical Race

“This Is Our Referendum on Abortion”: Wisconsin’s Critical Race

The race for Wisconsin’s next Supreme Court justice has quickly become the most important election of the year.


Wisconsin Supreme Court Justice Rebecca Dallet, whose 2018 election to what may be the most contentious state court bench in the country was a breakthrough win for the state’s progressives, minced no words in explaining why she showed up to celebrate the February 21 primary election victory of another liberal, Judge Janet Protasiewicz. Speaking to a cheering crowd of abortion rights, labor rights, and voting rights activists, Dallet declared, “I’m here because, instead of dissents, I want to be writing majorities.”

That will happen if Protasiewicz beats former state Supreme Court justice Dan Kelly, a controversial conservative who worked as “special counsel” for the Republican Party during the 2020 fight over certifying the presidential election results, and who is supported by the state’s most ardent foes of abortion rights in Wisconsin’s April 4 spring election. A Protasiewicz win would tip the balance of control on a court that currently has a 4-3 conservative majority. The conservative judicial activists who have dominated the court for more than a decade have established a record of siding with the right-wing Republicans who control the Legislature to upend labor rights, sustain GOP power grabs in the state Capitol, reject safety protections during the Covid-19 pandemic, undermine standards for fair elections, and gerrymander district lines so radically that even when Democrats win a majority of the vote statewide, Republicans retain overwhelming control of the legislative chambers. A liberal majority could potentially revisit all of those issues. It could also overturn an 1849 law that effectively bans abortion in the state, even though polling indicates that an overwhelming majority of Wisconsin voters want to protect reproductive rights.

There are plenty of debates about whether states should elect jurists. But in the vast majority of American states, justices on high court benches are chosen either through direct election or through increasingly contentious—and expensive—judicial retention elections. In Wisconsin, a closely divided state with a Democratic governor and a Republican-controlled Legislature, GOP strategist Mark Graul notes that “over the last decade, I can’t think of a major public policy decision that didn’t end up at the Supreme Court.”

This has made the state’s judicial contests fierce battles that are awash in special-interest money—much of it coming from out-of-state right-wing donors who in the 2000s and 2010s supercharged efforts by Republicans, such as former governor Scott Walker, to secure a court that would prop up their conservative agenda. In recent years, especially since Dallet’s 2018 win, liberals have closed the fundraising gap and developed winning strategies for contests that, although they are officially nonpartisan, have come to resemble races for the governorship or US Senate seats. With the stakes higher than ever, Wisconsin Attorney General Josh Kaul, a Democrat, says, “The race for Wisconsin Supreme Court is the most important election in the country this year.” That’s a view now commonly held not just in Wisconsin but nationally. “It’s impossible to overstate the importance of the April 4 vote in Wisconsin,” says Transformative Justice Coalition president Barbara Arnwine. Norman Ornstein, a senior fellow emeritus at the American Enterprise Institute, who has been sounding the alarm for years on threats to fair elections in the states that decide presidential elections, agrees: “This race is absolutely critical for the future of democracy.”

Ornstein is right. Wisconsin is a classic battleground state, where four of the last six presidential contests have been decided by less than 25,000 votes, and where former president Donald Trump pressured the Legislature and the courts to overturn the results of the 2020 election, in which he narrowly lost the state. It’s also a state where fair and competitive maps could create an opening for Democrats to pick up two US House seats. The political consequences would be profound. A high court that defends fair elections and that releases the state from the iron grip of gerrymandering could dramatically shift the trajectory of fights for control of the White House and Congress in 2024. “If we don’t flip this seat, the Wisconsin Supreme Court will keep seizing every available opportunity to act as an extension of the GOP-run state Legislature—including, potentially, interfering with the 2024 presidential election,” says Ben Wikler, the high-profile chair of the Democratic Party of Wisconsin, which on primary night endorsed Protasiewicz. The veteran prosecutor and Milwaukee County judge won 46 percent of the vote in that initial contest. Another liberal, Dane County Judge Everett Mitchell, who promoted a thoughtful criminal justice reform agenda, won almost 8 percent, meaning that liberals won 54 percent of the overall vote in a primary that saw almost 1 million ballots cast—far more than in the 2020 spring primary election, which featured a free-spending Supreme Court contest. The loser of that 2020 race was Dan Kelly, who in January’s primary election made a comeback, narrowly prevailing over another conservative. The Kelly win delighted progressives, who quickly noted that the last time the Republican-aligned jurist faced Wisconsin voters, he fell short by more than 150,000 ballots. The winner of the 2020 race, liberal Justice Jill Karofsky, immediately endorsed Protasiewicz after the primary, saying, “Wisconsinites need a Supreme Court justice who will always uphold the Constitution, rather than promote a right-wing political agenda.” Her dig at Kelly highlighted his long record as a doctrinaire ideologue. Kelly was born in California and graduated from Virginia’s Regent Law School, a conservative institution founded by the televangelist Pat Robertson that has ties to a number of high-profile legal advisers to former president Trump. In Wisconsin, Kelly made a name for himself representing prominent conservative clients as a private lawyer. He also represented legislative Republicans in lawsuits over their gerrymandering schemes in the early 2010s.

Appointed to the Wisconsin Supreme Court by Walker in 2016, Kelly joined conservatives in supporting controversial Republican efforts to take powers away from Tony Evers, the Democrat who beat Walker in 2018. In 2017, Kelly wrote a majority decision that blocked efforts by the city of Madison to bar passengers from carrying guns on city buses. Swept from office in the 2020 election, Kelly went back to work that year for right-wing interests, including the Republican Party of Wisconsin and the Republican National Committee. Paid nearly $120,000 by the party organizations, Kelly was hired to “advise on election law” at a time when Wisconsin Republicans were conspiring to get fake presidential electors—who pledged to support Trump—certified, even though Joe Biden had won the state. According to former Wisconsin GOP chair Andrew Hitt’s testimony to the US House committee investigating the January 6 attack on the US Capitol, Kelly had “pretty extensive conversations” about the scheme.

That might be disqualifying in some judicial contests. But in Wisconsin, a battleground state that once sent red-baiting Republican Joe McCarthy to the US Senate and that just last year reelected scandal-plagued Republican Senator Ron Johnson for a third term, no one is assuming that the April election will be easy for Protasiewicz. The candidate, who worked her way through Milwaukee’s Marquette Law School before joining the Milwaukee County district attorney’s office and eventually winning election to the circuit court in the state’s most populous county, has been open throughout the race about fundamental issues. “I value a woman’s freedom to make her own reproductive health care decisions,” she explained on the night of the primary. “Your vote matters. Everybody’s vote matters. And the Constitution, our Constitution, guarantees the right to vote and to have a representative democracy in this country. I’ll be running against someone who doesn’t share my value[s].” At another point during her victory celebration, she added, “I’ll be running against someone who doesn’t think women in Wisconsin should be able to make their own health care decisions, someone who could threaten our democracy, and someone who won’t hesitate to put extreme, partisan beliefs ahead of the laws of our state.”

The judge’s bluntness about where she is coming from—not stating how she would rule in specific cases, but leveling with voters about her values—has made her the target of cynical attacks by Kelly. And there will be plenty of money to amplify those attacks in what is widely expected to be the most expensive judicial contest in the nation’s history. More than $9 million was spent on television, radio, and digital advertising before the primary. And even Kelly is predicting that out-of-state spending in the race will top $20 million, with much of it expected to come from right-wing funders such as Illinois’s Richard and Elizabeth Uihlein, Republican mega-donors who have spent close to $230 million supporting conservative candidates nationwide in the past decade. Anti-abortion groups have also signaled that they will make the race a top priority. But so, too, have abortion rights groups, which see an opportunity to mobilize young voters in particular with messages that highlight the stark differences between Protasiewicz and Kelly. That’s a smart bet in a state where close to 60 percent of voters believe abortion should be legal in all or most cases—and where young voters played a critical role in reelecting the pro-choice Tony Evers as governor in 2022.

“This is our referendum on abortion,” says Margaret Keuler, a University of Wisconsin–Madison junior who is the chair of College Democrats of Wisconsin. “Others states, like Michigan, have had actual referendums. This Supreme Court race is our referendum.”

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