Here's why the Wisconsin Supreme Court race matters

One of the court’s four Republican-backed justices, Patience Roggensack, will not seek another term next year, leaving the seven-member court’s majority up for grabs. The court is expected to have the final say on a wide range of issues, from abortion to redistricting, in the next few years.

“This is an extremely high-stakes state Supreme Court race,” UW-Madison Law School associate professor Robert Yablon said, adding that some of the cases the justices are likely to take up could generate interest in the race across the country.

The stakes could hardly be higher for partisans on both sides of the aisle.

“Democrats in Wisconsin are fired up and energized and already gearing up for the most important election in the country, other than the Georgia Senate runoff, that will take place between now and November 2024,” said Ben Wikler, chair of the Democratic Party of Wisconsin.

“In many ways, it’s the most important statewide, state-focused race that Wisconsinites and conservatives will face in many years,” Republican strategist Mark Graul said. “Obviously, we’re going to see largely a stalemate in Madison (between) the Legislature and governor, but this has got ramifications that go well beyond even those four years.”

For the past two years, disputes over election administration and the state’s contentious decennial redistricting process have been settled more in the state courts than anywhere else. Abortion litigation is currently moving through the court system. Longstanding arguments over the power of the executive branch in administering laws have divided the justices.

“Over the last decade, I can’t think of a major public policy decision that didn’t end up at the Supreme Court,” Graul said.

Abortion

With the Republican-controlled Legislature and Democratic Gov. Tony Evers unlikely to find a compromise on abortion, groups on both sides are eyeing the state high court race as the likeliest venue for getting their way.

“We did some significant work on this past election and we plan on doing as much or more going into the Supreme Court race as well,” said Julaine Appling, the president of anti-abortion rights group Wisconsin Family Action, who called the upcoming race “phenomenally important.”

Beyond likely deciding the outcome in the current case challenging the state’s near-complete abortion ban, Planned Parenthood Advocates of Wisconsin director of legal advocacy and services Michelle Velasquez said, “Who voters choose to sit on the Court could decide whether women and other people who can become pregnant will be able to access abortion care in Wisconsin for the foreseeable future.”

Speaking at a WisPolitics.com event Tuesday, Assembly Speaker Robin Vos, R-Rochester, said he’s hopeful Evers and the Legislature can find some level of agreement before the April election so the entire race doesn’t become defined by abortion.

The court is also likely to decide consequential election cases, which have been surging nationwide.

In state courts across the country, there were 143 election-related lawsuits in 2018, 203 in 2020 and 272 in 2022, according to the preliminary findings of UW-Madison law professor and State Democracy Research Initiative co-director Miriam Seifter along with staff attorney Adam Sopko.

Turnout rising

Spring elections don’t see the level of turnout that occurs in midterm or presidential elections, although participation is rising. Nearly 1 million votes were cast in the 2018 Supreme Court election, about 1.2 million in 2019 and more than 1.5 million in 2020.

“Turnout in the spring of 2023 will not look like a midterm or a presidential race, but it could very well set a spring election record in the state of Wisconsin,” Wikler said. “We know that the turnout tends to be the highest when people think the stakes are the highest.”

In the 2020 Supreme Court race, liberal candidate Jill Karofsky and former former Wisconsin Supreme Court Justice Dan Kelly raised a combined $4.9 million leading up to Karofsky’s victory that year. Outside groups spent more than $5 million on the race, according to the Wisconsin Democracy Campaign, which tracks campaign spending.

In 2019, Justice Brian Hagedorn, a conservative judge who has sometimes sided with liberal-backed justices, and liberal candidate Lisa Neubauer raised a combined $3.7 million leading up to Hagedorn’s victory that April. Roughly $4.5 million was spent by outside groups in that race.

More than $2.3 million was raised by candidates in the 2018 race between liberal Justice Rebecca Frank Dallet and conservative candidate Michael Screnock. Outside groups spent about $2.8 million on the race.

The race so far

While state Supreme Court races are nominally nonpartisan, they are run in an intensely partisan fashion, with political parties and outside groups spending large sums to back their preferred candidates.

The sole conservative candidate at this point is Kelly, who was appointed to the court by former GOP Gov. Scott Walker in 2016 but lost his election bid in April 2020 to Karofsky.

Two liberal candidates, Dane County Circuit Judge Everett Mitchell and Milwaukee County Circuit Judge Janet Protasiewicz, are also running for the seat.

Mitchell presides over Dane County’s High Risk Drug Court program, which provides support to adults with drug addictions facing criminal charges through connections to treatment and mental health services.

Protasiewicz has served as a circuit court judge since 2014 and currently presides over Milwaukee County’s family court. She previously worked for 26 years as an assistant Milwaukee County district attorney.

Waukesha County District Judge Jennifer Dorow, who drew fan mail and praise for her handling of the trial for Darrell Brooks, who was convicted of killing six people and injuring scores of others by driving his SUV through a Christmas parade last year, has also emerged as another potential candidate among Republicans looking to hold onto the party’s narrow majority on the Supreme Court.

Candidates can start circulating nomination papers on Dec. 1. The deadline to file for the race is Jan. 4.

A primary to determine which two candidates move onto the spring general election will be held on Feb. 21. The winner of the April 4 election winner will replace Roggensack for a 10-year term.