Wisconsin’s High-Stakes Supreme Court Race: What to Watch

WAUKESHA, Wis. — American political candidates routinely drum up support by warning voters that this election, really, is the most important of their lifetimes.

It’s almost always an exaggeration, but the description might just fit for Wisconsin’s deeply polarized voters, who on Tuesday will choose a justice to fill a swing seat on the state’s Supreme Court.

The winner — either Janet Protasiewicz, a liberal Milwaukee County judge, or Daniel Kelly, a conservative former State Supreme Court justice — will have the deciding vote on a host of major issues, including abortion rights, gerrymandered political maps, and voting and election cases surrounding the 2024 presidential contest.

Officials on both sides have described the stakes of the officially nonpartisan race in existential terms — either they win and democracy survives, or they lose and it perishes.

Wisconsin Democrats, who have been lost in the political wilderness for a dozen years, cast Judge Protasiewicz as their path to a promised land of abortion rights and fair maps. The state’s Republicans say Justice Kelly is their last hope to ward off liberal tyranny by fiat.

Here are four themes animating Tuesday’s election:

Wisconsin could turn sharply back to the left — or not.

Wisconsin Republicans tend to talk about the election as if Judge Protasiewicz would roll onto the Supreme Court with a giant eraser to wipe out all of the legislative policies and structural advantages the G.O.P. has built for itself since Scott Walker became governor in 2011.

They’re not entirely wrong.

“A lot of the duly passed laws by the elected representatives of the state of Wisconsin would be deemed invalid,” Duey Stroebel, a Republican state senator from Cedarburg, said last week. “It wouldn’t be the people electing their representatives that would be making decisions, it would be her, based on her personal beliefs.”

Indeed, Judge Protasiewicz has been clear about her views. She has signaled her opposition to Wisconsin’s 1849 law banning abortion in nearly all cases, which went back into effect when the Supreme Court overturned Roe v. Wade last summer, and she has called the legislative maps Republicans drew to give themselves a durable near-supermajority in the State Legislature “rigged” and “unfair.”

But the state’s Democrats sound similarly apocalyptic about the prospect of Justice Kelly, who lost a 2020 bid to retain his seat on the court, returning to deliver conservatives a majority. He is aligned with the state’s anti-abortion groups and has said there is no legal problem with the maps.

He also worked as a legal adviser for the Republican National Committee and the Republican Party of Wisconsin when they sought to overturn the results of the state’s 2020 presidential election. That Republican effort to undo Joseph R. Biden Jr.’s victory in Wisconsin was only narrowly rejected by the State Supreme Court, which voted 4 to 3 to uphold the results.

“Dan Kelly advised fake electors in 2020,” said Greta Neubauer, the Democratic leader in the Wisconsin State Assembly, referring to a brazen plan by former President Donald J. Trump and his allies to overturn results in several states. “I absolutely fear what he would do in 2024 if a challenge to the popular vote and the election results came in front of him.”

Abortion and crime are the two main issues.

From the beginning of her campaign, Judge Protasiewicz (pronounced pro-tuh-SAY-witz) has sought to make the race a referendum on abortion rights in Wisconsin. Her campaign has spent $12 million on television ads in the last six weeks reminding voters that she supports them and Justice Kelly does not.

“Judge Janet Protasiewicz believes in women’s freedom to make their own decisions when it comes to abortion,” her closing television ad states.

It is a bet on the power of the most potent issue for Democrats since last summer, when the U.S. Supreme Court left the issue to the states.

Even Republicans acknowledge privately that if the election is about abortion, Judge Protasiewicz has the advantage. Justice Kelly has not been as explicit, but he has implied that because legislators enacted the state’s abortion ban 174 years ago, they would need to rescind the law — something the current Republican majorities are unlikely to do.

Hundreds of abortion rights supporters marched to the State Capitol in Madison, Wis., in January. Nearly all abortions became illegal in Wisconsin when the U.S. Supreme Court overturned Roe v. Wade.Credit…Jamie Kelter Davis for The New York Times

“He’s running a bit of a traditional campaign talking about larger issues of judicial restraint and things of that nature,” said Mr. Walker, the former governor who appointed Justice Kelly to the State Supreme Court in 2016. “She just spelled it out, and that very well may be the case for the left and the right in the future, just people saying, ‘Here’s how I’m going to vote.’”

Republicans, as usually happens in Wisconsin, have tried to make the election about crime. Outside groups backing Justice Kelly have bombarded Judge Protasiewicz with ads attacking her as soft on violent criminals.

Last week, Wisconsin Manufacturers and Commerce, the state’s business lobby, removed from the television airwaves an ad claiming that Judge Protasiewicz had issued a soft sentence to a convicted rapist. The victim in that case had told The Milwaukee Journal Sentinel that the ad had caused her new trauma and that she had no problem with the length of the sentence.

In another episode, the Republican Party of Wisconsin, while southern Wisconsin was under a tornado watch last week, texted to voters a replica of an emergency weather alert warning that Judge Protasiewicz was “a soft-on-crime politician with a long history of letting dangerous criminals go free.”

The cash-filled contest is all over Wisconsin TV screens.

All indications are that more people will vote in this Supreme Court election than any other in Wisconsin history.

More people voted in the Feb. 21 primary contest than participated in the state’s primaries in August, when there were races for governor and Senate. According to data from the Wisconsin Elections Commission, the early-vote total as of Monday amounted to about a third of the total turnout of the 2019 State Supreme Court race, the last one that did not fall on the same day as a presidential primary.

The record-smashing spending in the race — $39 million on television alone, according to AdImpact, a media-tracking firm — has ensured that just about every Wisconsinite is at least aware of the race, a key hurdle in typically low-turnout spring elections.

The ultimate cost is expected to triple the previous high-water mark for spending on an American judicial election, which was $15 million for a 2004 Illinois Supreme Court race.

Weeks ago, Wisconsin Democrats switched their strategy. Instead of sending door-to-door canvassers to visit voters who typically cast ballots in spring elections, they focused on reaching out to a broader group of people who tend to vote in November general elections.

“When I was out knocking on doors a month or two months ago, people were aware that this election was coming, because they were seeing YouTube ads with their kids,” Ms. Neubauer said. “They were being bombarded with information about this election.”

A key State Senate race is also unfolding.

Wisconsin is also holding a special election on Tuesday for a vacant State Senate seat that covers parts of four counties in the suburbs north of Milwaukee.

The district has long been held by Republicans but is trending away from the party. Mr. Trump carried it by 12 percentage points in 2016 but by only 5 in 2020. The Democratic candidate, Jodi Habush Sinykin, is contesting it with a heavy emphasis on abortion rights.

Jodi Habush Sinykin, a Democrat, is running for a State Senate seat in suburbs north of Milwaukee. Credit…Morry Gash/Associated Press

If the Republican candidate, State Representative Dan Knodl, wins, his party will have a two-thirds supermajority in the State Senate, which would allow the G.O.P. to impeach and remove judges, statewide elected officials and appointees of Gov. Tony Evers, a Democrat.

Mr. Knodl, in an interview with PBS Wisconsin, said the impeachment powers granted to State Senate Republicans with his election “certainly would be tested.”

Mr. Stroebel, the Republican state senator from Cedarburg, called impeaching Judge Protasiewicz over expected rulings on abortion and gerrymandering unlikely “but certainly not impossible.”

If Dan Knodl wins his race for State Senate, Republicans will have a two-thirds supermajority, which would allow them to impeach and remove judges, statewide elected officials and appointees of Gov. Tony Evers, a Democrat.Credit…Mark Hoffman/Milwaukee Journal Sentinel, via Associated Press

“If she truly acts in terms of ignoring our laws and applying her own personal beliefs, then maybe that’s something people will talk about,” he said. “If the rulings are contrary to what our state laws and Constitution say, I think there could be an issue.”

Even if Republicans do not seek to impeach Democratic officials, the mere possibility could limit Democrats’ ambitions.

“Just the threat of it obviously changes the way that public officials will act,” said Kelda Roys, a Democratic state senator from Madison. “It will make agency heads and civil servants be extremely timid and feel like they can’t carry out their job responsibilities.”

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