Issues, Not Money, Decided Wisconsin’s $50 Million Supreme Court Race
How expensive was the race for an open seat on Wisconsin’s Supreme Court?
There was so much money that the two contenders—Janet Protasiewicz, who emerged as the decisive winner in Tuesday’s election, and Daniel Kelly, the decidedly sore loser—shattered not only state but national records.
The final total is expected to top $50 million. That’s five times the previous record for a Wisconsin Supreme Court race and more than three times the record for a judicial race anywhere in the United States. So much money flowed into this election that a significant share of Wisconsin residents even learned how to pronounce Protasiewicz (“pro-tuh-SAY-witz”).
There was so much money in this race that it was arguably not the deciding factor in the outcome.
Every single person in the state of Wisconsin who watches TV or goes online was subjected to a barrage of ads for this election, which also drew considerable state and national media attention. There were so many ads that sometimes the same ad would be run twice during the same commercial break.
Virtually all of the more than 1.8 million people who voted heard countless times that Protasiewicz, a Milwaukee County circuit court judge, likes to give shockingly light sentences to violent sexual predators. This point was hammered home again and again, often by outside groups who care more about laws affecting businesses than they do about crime.
Similarly, everyone in the state had heard, time and again, that Kelly, a former Wisconsin Supreme Court justice who lost his first bid for election in 2020 and his second on Tuesday night, was aligned with and backed by groups who want to keep in place the state’s 1849 law that ended legal abortion in Wisconsin. And they heard him described, over and over, as an extremist, someone who was involved in the plot to steal the 2020 election in Wisconsin for Donald Trump. Oh, and he was the guy who once dissed people who get Social Security and Medicare as people who “have chosen to retire without sufficient assets to support themselves.”
Protasiewicz won by a convincing 11-point margin—55.5 percent to 44.5—not because she raised the most money or had the most money poured into the race by outside groups. And Kelly did not lose because he was outspent. A review last week by WisPolitics suggests that between the primary and the general election, the two candidates each benefited from comparable amounts of spending: $24.2 million for Protasiewicz and her supporters compared to almost $20 million for Kelly and his.
She won because she made direct and clear statements on two major issues that matter deeply to voters across the state: reproductive rights in Wisconsin, and the “rigged” redistricting maps that have given state Republicans a lock on the state legislature. Oh, and because Kelly really did come across as an extremist, any chance he got. He berated a fellow conservative in the February primary for suggesting that rights come from government, when they in fact come from God. He was consistently and overtly contemptuous of Protasiewicz, whom he referred to as Janet, even while standing across from her during their only debate. He was haughty and sanctimonious.
But none of that could have prepared anyone for Kelly’s election night un-concession speech.
Addressing a gathering of his supporters not long after the polls closed on Tuesday night, when it was clear that he had lost badly, Kelly unleashed a torrent of pure grievance, angrily explaining why he did not offer Protasiewicz the courtesy of a concession call.
“I wish, in a circumstance like this, I would be able to concede to a worthy opponent, but I do not have a worthy opponent to which I can concede,” he said. “This was the most deeply deceitful, dishonorable, despicable campaign I have ever seen run for the courts. It was truly beneath contempt.”
He went on: “My opponent is a serial liar. She has disregarded judicial ethics. She has demeaned the judiciary with her behavior. And this is the future that we have to look forward to in Wisconsin.” Kelly said the election laid out a choice between “the rule of law” and “the rule of Janet,” adding ruefully, “the people of Wisconsin have chosen the rule of Janet.”
Kelly’s campaign also released a prepared statement that repeated some of these themes:
Judicial campaigns are supposed to be about constitutional principles and legal scholarship, which has been the focus of my conversations with the people of Wisconsin. Unfortunately, my opponent made her campaign about cynical appeals to political passions, serial lies, and a blatant disregard for judicial ethics and the integrity of the court. But the judgment of the people of Wisconsin is paramount, and this is what they have chosen.
He concluded: “I wish Wisconsin the best of luck. I think it will need it.”
It was, in fact, an ugly race, one in which both candidates could have behaved better. Protasiewicz’s first ad out of the post-primary gate attacked Kelly for having taken part in the defense of two people who were later convicted of molesting children. As the ad’s narrator put it, “Dan Kelly defended those monsters.” It was a low blow, one that demeaned the vital and constitutionally mandated role of criminal defense attorneys.
Protasiewicz said the ad was meant to point out the “hypocrisy” of those she knew would attack her by alleging she is soft on crime—which, one recent review showed, is actually untrue. And sure enough, Kelly and the groups backing him aired ad after ad that portrayed Protasiewicz as someone who just loves releasing violent criminals so they can harm even more people.
Two of these ads, aired in the final week of the campaign, blew up in their faces. The state’s business lobby Wisconsin Manufacturers & Commerce and a political action committee called Fair Courts America each ran an ad ripping Protasiewicz for giving a convicted rapist a sentence of two-and-a-half years in prison, followed by two-and-a-half-years of supervision, which was half the allowable maximum. The WMC ad quoted from the victim’s impact statement in the case, with the narrator asserting that Protasiewicz “ignored her pleas.”
In fact, as the Milwaukee Journal Sentinel reported, the victim, who agreed to be identified by her first name, Emily, felt the sentence was appropriate and that Protasiewicz had taken her perspective into account. She felt traumatized and revictimized by the ads, and had not wanted them to run. WMC and Fair Courts America, each of which poured more than $5 million into the race, defended the ads. WMC ended up pulling its ad but, according to the Capital Times, “It appears that Fair Courts America kept its ad running into the final days of the campaign.”
Kelly’s selective outrage did not extend to any expressed discomfort with these ads or with his effort to spread unproven accusations that Protasiewicz physically abused her former husband and used the N-word in conversations decades ago. And last week, when southern Wisconsin was under a tornado watch, the Kelly campaign texted to voters a mock “voter alert,” modeled after an emergency weather alert, warning that Protasiewicz was “a soft-on-crime politician with a long history of letting dangerous criminals go free.”
To Kelly, this was all fair game. None of it troubled his tender sensibilities.
Tuesday’s election result means that liberals will control the Wisconsin Supreme Court for the first time in at least four decades. That’s actually contrary to media accounts, including one in the lead sentence of the Wisconsin State Journal’s day-after coverage The paper said that when Protasiewicz begins her ten-year term in August, liberals will have “a court majority for the first time in 15 years.”
From 2004 to 2008, the court consisted of three liberals, three conservatives, and one swing vote, Justice Patrick Crooks. But Crooks was elected as conservative, and was seen as one until his death in 2015. “In fact,” wrote Bruce Murphy of Milwaukee magazine in 2011, “he’s a centrist who tends to lean right.”
But what the libs have got going now is a true majority. At her victory speech on election night, Protasiewicz was joined on stage by the court’s three liberals: Ann Walsh Bradley, Rebecca Dallet, and Jill Karofsky. They were hailed by audience members as the “Fab Four.”
Protasiewicz’s win opens the door to the possibility that the state’s heavily gerrymandered maps will face fresh legal challenges. As University of Wisconsin-Madison political science professor Barry Burden told me on election night, the court’s new composition will “encourage groups to bring some new cases to the Supreme Court that they were probably reluctant to put forward. There’s likely to be at least a case, if not multiple, that’s related to the districts.” But it does not mean that the maps will certainly be redrawn, and even if they are, Republicans will likely still have an advantage because Democrats cluster in cities; Republicans are more spread out.
On abortion, Burden said Protasiewicz’s presence on the court “will make it much more likely that the 1849 law is struck down or modified in some way.” But, he adds, “It’s not a guarantee.”
Protasiewicz, while making it clear that she supports the right of women to reproductive choice, has pledged that she will “only be making decisions based on what the law is, and based on what the Constitution is.” It’s probable that she and other members of the new liberal majority will find some way to bring constitutional protection to abortion, as was the norm for fifty years, just as it was all but certain that Kelly would have found some constitutional justification for keeping the state’s ban in place.
Also on Tuesday, voters in a Republican-leaning state senate district north of Milwaukee narrowly elected Dan Knodl—a Republican member of the state assembly and co-signatory on a letter dated January 5, 2021, urging Mike Pence to delay certifying the 2020 presidential election results—over Democrat Jodi Habush Sinykin, an attorney with a degree from Harvard Law School. That will give Republicans a two-thirds supermajority in the state senate, which will allow them to impeach elected officials, including judges.
Knodl has already embraced the possibility that this power could be used to remove Protasiewicz from office, for being soft on crime. According to a report on Wisconsin Public Radio, these proceedings could begin before she is even sworn in.
So we have that to look forward to.