Consequences and choices: Conservatives lose control of WI Supreme Court

John Hart

Unlike most elections in Wisconsin, this one wasn’t close at all — and that could be a message for Republicans nationwide, even if it’s too late for Wisconsin. Progressive county judge Janet Protasiewicz easily beat former state supreme court justice Dan Kelly in yesterday’s statewide election, cruising to a double-digit win. Protasiewicz’ win gives progressives a 4-3 advantage on a supreme court that will now likely take action on abortion and election questions:

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Wisconsin voters on Tuesday gave control of the state’s highest court to liberals for the first time in 15 years, instantly reshaping politics in the Badger State by putting the state laws most celebrated by conservatives at risk of being overturned — including a 19th Century-era ban on abortions.

Milwaukee County Judge Janet Protasiewicz defeated former Supreme Court Justice Dan Kelly in a race that served as a referendum on the U.S. Supreme Court’s decision to overturn Roe v. Wade, shattering national spending records and attracting a level of political warfare unseen before in a state judicial race. …

Protasiewicz, 60, defeated Kelly after spending millions on a campaign largely focused on telling voters she supports abortion access, a partisan appeal to voters that was unprecedented in a judicial race before and forecasted how she might vote on a lawsuit seeking to repeal the state’s abortion ban that is expected to land before the high court.

The Wall Street Journal reports that this contest became the most expensive judicial election in US history. That’s clearly in nominal- rather than real-dollar terms, but it still points out just how much both parties focus on Wisconsin as ideological and judicial battlegrounds. Usually that results in very close races, sometimes down to tenths of a percentage point. Not this time:

Wisconsin voters elected Judge Janet Protasiewicz, who was backed by the Democratic Party, as the newest state Supreme Court justice after a contentious election for the critical swing seat, setting the stage for challenges to the state’s 1849 law banning most abortions and a potential redrawing of the state’s current electoral maps.

The race was the most expensive such judicial contest in U.S. history, demonstrating how state courts have become the focus of increasingly partisan politics. Judge Protasiewicz currently serves on a lower court. Her opponent, Daniel Kelly, was appointed to fill a vacancy on the Wisconsin Supreme Court in 2016 but lost an election in 2020 to retain his seat and has worked as a lawyer for the Republican Party in the time since he left the bench. With 87% of the vote in at 10:30 p.m. local time, Judge Protasiewicz had 55% of the vote to Mr. Kelly’s 45%.

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Why was this a blowout? We’re getting to that. For his part, Kelly was anything but gracious about his loss. The campaign itself lacked plenty of grace from both candidates. Pay attention to one particular attack line from Protasiewicz, as noted by the Wisconsin State Journal:

Addressing supporters after he lost, Kelly said Wisconsinites chose the “rule of Janet” over the rule of law.

Bitter and clearly emotional, he said, “I wish Wisconsin the best of luck because I think it’s going to need it.” He did not call Protasiewicz to concede, he said, because “I do not have a worthy opponent to which I can concede.”

With the stakes so high, the race was decidedly bitter. In their only debate of the election, Protasiewicz called Kelly a threat to democracy while the former justice said the Milwaukee County Circuit judge would “steal the legislative authority and use that in the courts.”

Why was Kelly a “threat to democracy”? Kelly had worked with the Trump campaign after the 2020 election on the “stop the steal” legal efforts. NBC reported at the time of the primary election that Kelly was tied to the “fake electors” scheme. When asked about it, Kelly and his team didn’t have much to say, other than to distance himself from his clients (via Bonchie):

Kelly is a former state Supreme Court justice who lost his seat in a 2020 election to liberal Jill Karofsky. He was appointed to the seat in 2016 by former Gov. Scott Walker, a Republican. He has remained tied to Trump allies through a plan that was intended to reverse the results of the 2020 presidential election in the state with the use of “fake electors.”

In a deposition to the House committee investigating the Jan. 6, 2021, attack on the Capitol, former Wisconsin GOP chairman Andrew Hitt said he and Kelly had “pretty extensive conversations” about the plan, and the Milwaukee Journal Sentinel reported last week that the Republican Party at the state and national levels had paid Kelly $120,000 to advise it on “election integrity” issues.

A spokesperson for Kelly’s campaign did not respond to questions about his involvement in those efforts. Kelly spokesperson Jim Dick told the Journal Sentinel that Kelly “believes Joe Biden is the duly elected president of the United States.” Dick also suggested to the newspaper that Kelly’s beliefs about the election were not necessarily aligned with what his clients believed, saying, “It is a maxim in the legal profession that the views of clients are not attributable to their attorneys.”

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While that is a correct position to take with attorneys — everyone should get representation in the American justice system — it doesn’t entirely inure attorneys who become political candidates from their choices. Joining the “stop the steal” campaign and especially participating in the planning of the “fake electors” scheme goes beyond the normal clientele decisions for lawyers, too. That case should never have been brought, and the fake-elector scheme was borderline fraudulent, which attorneys are supposed to warn their clients against.

It seems pretty clear that Wisconsin voters held it against Kelly. Republicans don’t lose statewide races by ten points in Wisconsin, not with the kind of funding Kelly got, not unless they’re particularly unpalatable. Kelly wasn’t even competitive against Protasiewicz, a very bad development in a battleground state for Republicans if it’s not about Kelly specifically.

At least in this battleground state, the conclusion should be that voters have tired of “stop the steal” activists and the relentless focus on Trump. Kelly didn’t even get a rally effect from Trump’s indictment in the end, one should notice. If this was a one-off, it could be ignored, but it’s not. “Stop the steal” candidates lost across the board in the midterms last year, costing Republicans a handful of winnable Senate seats in other battleground states and leaving progressives in charge there as well.

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Nate Silver notes the pattern today, too:

There are lessons to be learned from this and November 2022 for the 2024 cycle. Will Republican voters learn them in time?

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