Expensive Court Race Will Decide Future of Abortion in Wisconsin

The Washington Post / Patrick Marley

12:44 JST, April 4, 2023

ELKHART LAKE, Wis. – Tuesday’s election for a seat on the Wisconsin Supreme Court – the most expensive judicial race in U.S. history – has turned into a caustic, ideological brawl that will determine whether liberals or conservatives control the branch of government that will soon decide the fate of the state’s abortion ban.

The candidates, political parties and ideological groups have spent more than $30 million on the race, obliterating the record for a judicial election that was established two decades ago in Illinois. Officially nonpartisan, races for the Wisconsin Supreme Court lost their apolitical sheen long ago and the candidates this year are campaigning more like members of Congress than jurists. That’s particularly true for the liberal candidate, Milwaukee County Judge Janet Protasiewicz, who has touted her support for access to abortion and decried the state’s election maps, which the court could take up, as “rigged.”

Her conservative opponent, former state Supreme Court justice Daniel Kelly, has characterized Protasiewicz (pronounced pro-tuh-SAY-witz) as a politician and questioned her ability to remain impartial on hot-button cases. He has nonetheless made his own political views clear over the years in blog posts critical of abortion, same-sex marriage and Social Security.

The campaign has been nasty. At their only debate, Kelly repeatedly labeled Protasiewicz a liar and Protasiewicz called Kelly a “true threat to our democracy” because he advised the state Republican Party chairman on a plan in 2020 to have GOP officials sign paperwork claiming to be the state’s presidential electors even though Donald Trump lost the state.

Conservatives have controlled the court for a decade and a half and in recent years have had the final say on important issues in a state that has a Democratic governor and a Republican-dominated legislature. If liberals gain a one-vote majority on the court, they are expected to redraw the state’s legislative districts, watering down Republicans’ strength in the statehouse.

The race exemplifies how judicial elections have become infused with politics and suggests that trend could intensify as state courts deal with more volatile issues. Four years ago, the U.S. Supreme Court issued a decision that left partisan gerrymandering cases to state courts. Then, last summer, in Dobbs v. Jackson Women’s Health Organization, it overturned the Roe v. Wade ruling that had ensured access to abortion across the country for nearly half a century.

“I think you’re sitting on the first explosion in a series of explosions that we’re likely to see across the country as the public reacts to the Dobbs decision,” said Charles Geyh, an Indiana University law professor.

Twenty-one states directly elect justices to their high courts and another 17 require them to stand for retention elections after they are initially appointed. More than two dozen states held elections for their top courts last year in the months after the U.S. Supreme Court issued its ruling in Dobbs. The results were mixed, with Republicans taking over the North Carolina Supreme Court and an incumbent justice who was appointed by a Democratic governor fending off a Republican challenger in Kentucky.

The dynamic in Wisconsin’s race is different than last year’s elections. The Wisconsin Supreme Court race is at the top of the ballot, unlike in November, when court contests around the country were overshadowed by races for governor and U.S. Senate. A raft of other states will hold court elections next year and abortion could prove to be a dominant issue during a contentious presidential race.

Eric Holder, who served as attorney general under president Barack Obama and now leads the National Democratic Redistricting Committee, spent Saturday campaigning for Protasiewicz. He said in an interview after a stop in Waukesha on Saturday that Wisconsin’s race showed that political parties now recognize how important court races are.

“I’d like to go back to a place where they don’t need to get as much attention and the decisions are made more on traditional bases, but I suspect that’s not going to happen for a while,” he said.

Although there is no public polling on the Wisconsin race, Democrats for weeks have sensed momentum, saying record turnout in the February primary bodes well for them. They have attributed interest in the race to abortion, redistricting and the possibility that the state Supreme Court could be called on to resolve disputes over the next presidential election.

“Even though the headlines have died down about the overturning of Roe v. Wade, for people in their own lives the fury and the fear has really not changed at all,” said Ben Wikler, the chairman of the state Democratic Party. “Once a voter hears about the stakes and the immediacy of its impacts on abortion in Wisconsin, voters commit to voting on the spot and start thinking about who else they can convince to cast a ballot.”

Whether the recent indictment of Trump will play a factor in the race is unclear. Trump endorsed Kelly in 2020 but has stayed out of this year’s race. At a stop near Madison on Saturday, Kelly didn’t mention the former president to several dozen supporters but expressed concerns about whether enough conservatives would vote in an election that often sees a turnout of less than 30 percent.

“I’m a little bit worried about what might happen,” he told the crowd. “Will we continue to care about our constitution and the liberties it protects enough to get our friends to come out and vote – our colleagues, our neighbors – or will we sleepwalk through April 4th?”

Conservatives hold a 4-3 majority on the court, but one of their members, Justice Patience Roggensack, is not seeking reelection. That opens the possibility that they could lose control of the court for the first time since 2008.

Abortion providers in Wisconsin shut down their clinics after the Dobbs decision was issued because an 1849 law bans abortions unless one is needed to save the life of the pregnant person. The Democratic governor and attorney general have sued over the ban, and a judge in Madison is now considering the challenge. The case is expected to make its way to the state Supreme Court in the next year or two.

Where the candidates stand is in little doubt.

“I can tell you with certainty that if I’m elected on April 4th, I’m sure that we will be looking – I am sure we will be looking – at that 1849 law,” Protasiewicz said at a campaign stop in March at a resort in Elkhart Lake in eastern Wisconsin.

To erase any doubt about her views, she added: “I believe in a woman’s right to choose.”

Protasiewicz defended such comments in an interview, saying voters deserve to know how candidates view the world. She said she hadn’t prejudged the abortion case and would rule based on the law.

“One of my personal values is that people should have a right to make a decision in regard to their reproductive health-care decisions and choices,” Protasiewicz said. “What I tell people is that’s my value. That’s my personal opinion.”

Kelly has said his opinions would not guide how he rules on cases, but his stances are easy for voters to discern. He has been endorsed by antiabortion groups, done legal work for Wisconsin Right to Life and argued in a 2012 blog post that abortions take away lives but are supported by Democrats because they want to “preserve sexual libertinism.”

Appearing alongside Protasiewicz in Elkhart Lake, Kelly criticized his opponent for telegraphing how she would rule on abortion if she had the chance. He insisted judicial candidates should refrain from broadcasting their opinions to maintain an air of impartiality, saying he stopped talking about politics once he was appointed to fill a vacancy on the state Supreme Court in 2016 by Gov. Scott Walker (R).

“This is why we don’t talk about politics,” he said. “This is why we don’t talk about personal values. There has to be a commitment to the actual work of the courts. And if you can’t confine yourself to that, maybe you’re running for the wrong office.”

Polling reveals another reason he might not want to dwell on his views. A November survey by Marquette University Law School found that 55 percent of Wisconsin voters opposed the Dobbs decision and that 84 percent believed there should be exceptions for rape and incest.

The Wisconsin case on abortion comes as courts in other states wrestle with the issue.

In March, the North Dakota Supreme Court determined that the state constitution guarantees the right to abortion to preserve the pregnant person’s life or health, and the Oklahoma Supreme Court ruled that abortions are allowed if they have a reasonable chance of saving the pregnant person’s life. The decisions came two months after the South Carolina Supreme Court ruled that the state constitution provides a right to abortion, and the Idaho Supreme Court upheld a ban on the procedure.

The media-tracking firm AdImpact has identified more than $37 million in ad spending in the Wisconsin race – $20 million on the liberal side and $17 million on the conservative side. The Wisconsin Democracy Campaign, a group that lobbies for limits on political spending, has identified millions of dollars in additional spending in the race.

Among those helping Protasiewicz are labor unions and a political arm of Planned Parenthood, the nation’s largest abortion provider. Kelly has benefited from spending by the state’s business lobby, antiabortion groups and Fair Courts America, a group bankrolled by Republican megadonor Richard Uihlein, a billionaire who runs a shipping supplies company.

The overall figures understate the advantage for Protasiewicz and her backers. The spending appears to be close, but the liberals in recent weeks have run three times as many ads as Kelly’s side, according to data from AdImpact.

That’s because the liberals took advantage of a campaign finance loophole written by Republican lawmakers eight years ago that ensured there are no limits on how much donors can give political parties. The political parties can then pass the funds to candidates, who can buy ads at lower rates than independent groups.

Republican lawmakers believed the 2015 measure would benefit them. Democrats in the state Assembly were so opposed to it that they refused to vote on it, calling it a conflict of interest to change campaign finance laws just before the political season heated up. But their party has proved much better than Republicans at using it in recent races.

Protasiewicz raised more than $12 million over six weeks in February and March – about $9 million of which came from the state Democratic Party, according to campaign finance records. During the same period, Kelly raised about $2 million, with a little over $500,000 of that coming from Republican Party political committees.

Mark Jefferson, the executive director of the state Republican Party, said he has urged conservatives to adopt a similar ad-buying strategy so that they could run as many spots as the Democrats. He said his efforts failed in part because some donors prefer to give to independent groups instead of the Republican Party so that they can maintain their anonymity.

“We’ve tried to make that case to donors that the party can get rates significantly cheaper,” he said. “I think when this is over, regardless of the outcome, that is an issue that’s going to have to be addressed on our side of the aisle.”

In recent years in Wisconsin, the left and right have spent relatively equal amounts in court races, according to the Brennan Center for Justice at New York University. That’s not true elsewhere, with Republican interests spending more heavily. In 2019 and 2020, the right spent $18.9 million on court races nationally and the left spent $14.9 million, according to an analysis by the center.

Spending on state court races is rising in part because the U.S. Supreme Court is issuing rulings that create a pathway for more litigation at the state level on high-stakes issues, Douglas Keith of the Brennan Center said.

“What is driving this is there’s a recognition that these courts are key players in major policy fights and they are going to continue to be,” Keith said. “And then the U.S. Supreme Court’s recent decisions in which it is saying clearly that it is not going to protect particular rights and not going to protect democratic institutions, it is only increasing the extent to which state courts are going to be the final deciders on really high-profile issues.”