Wisconsin Supreme Court Race a Test for Democracy
There’s a small chance that a low-turnout election in Wisconsin in a couple weeks will shape if not determine the future of American democracy. It probably won’t happen, but here’s how it could:
Along with 37 other states, Wisconsin has its voters elect justices to its high court; as in 13 other states, its contests for the seats are nonpartisan. The February 21 primary election for the Wisconsin Supreme Court will decide which two of four candidates will advance to the April 4 general election. There are two conservatives, Daniel Kelly and Jennifer Dorow, and two liberals, Janet Protasiewicz and Everett Mitchell, on the ballot. All are serious contenders: It’s possible the vote will split evenly enough that either the two conservatives or the two liberals are the top two vote-getters.
That means the all-important question of the Wisconsin court’s ideological balance could be settled in the primary, when turnout can be as low as a third of the general election vote. This sliver of the electorate could decide whether liberals or conservatives have a majority as the court heads into a critical moment in its history.
The next court will likely hear a lawsuit brought by the recently re-elected governor and attorney general against the state’s 1849 law banning abortion, meaning it will decide whether Wisconsin will remain among the 13 states that have effectively ended all abortions. It will also decide important questions regarding the extreme gerrymandering that has allowed Republicans to dominate the legislature in a state that is otherwise evenly divided between Democrats and Republicans—and on the inevitable attempts by partisans to manipulate the electoral process and quibble with the results of the country’s next general election in 2024.
A win by Protasiewicz or Mitchell would put liberals in the majority for the first time in decades. A win by Kelly or Dorow means Wisconsin’s peculiar collection of court conservatives will remain in charge until at least 2026, barring a mid-term resignation or death.
After Donald Trump narrowly lost Wisconsin in 2020, the state’s Supreme Court came perilously close to becoming the only court in the nation to side with Trump’s legal challenge of the results. The vote was 4-3, with one conservative, Brian Hagedorn, joining the court’s three liberals. He wrote for the majority that the Trump campaign had “waited until after the election to raise selective challenges that could have been raised long before the election.” It was a by-the-book call for which he drew outrage.
“You are an absolute disgrace and we the people of Wisconsin are completely embarrassed to have you on the court,” said one caller to his office line. “I will actively campaign against you and your next election, hoping to make you a one-term justice,” said another. Wisconsin Supreme Court justices serve ten-year terms. Hagedorn is not up for re-election until 2029.
Last July, Hagedorn was back on board, joining his fellow conservatives in disallowing the use of absentee ballot boxes and barring anyone from helping deliver another person’s absentee ballot—both fixes to nonexistent problems flagged by Republicans.
Will Hagedorn buck his fellow conservatives again next time, or will he join the majority in winking at GOP efforts to manipulate the election apparatus and subvert the election results? And what if Wisconsin were the state, or one of them, on which the race for president turned? That’s where “the future of American democracy” concern comes from. But even if all it does is decide the future of reproductive rights and democratic ideals in Wisconsin, this Supreme Court race is of huge significance. Ben Wikler, chair of the Democratic Party of Wisconsin, calls it “the most important race in the country before the 2024 presidential race.”
Currently, the Wisconsin Supreme Court has four conservatives and three liberals. Conservative Patience Roggensack, a former chief justice, is stepping down, creating the current opening. That leaves fellow conservatives Hagedorn, Annette Ziegler, and Rebecca Bradley. The three liberals are Jill Karofsky, Rebecca Dallet, and Ann Walsh Bradley, the court’s longest-serving sitting member.
A bit of background on the two conservatives in the race, Daniel Kelly and Jennifer Dorow: Kelly served on the court before; he sat for four years after being appointed by former Gov. Scott Walker to fill a vacancy caused by a mid-term retirement. Kelly was defeated by Karofsky in 2020, the most recent state Supreme Court election, meaning that Kelly has never won election to the post. Dorow, meanwhile, is a circuit court judge in Waukesha County. She was appointed by Walker in 2011 and won elections to six-year terms in 2012 and 2018, both times without opposition.
On the other side of the ideological spectrum among the state’s supreme court contenders are Janet Protasiewicz and Everett Mitchell. Both are circuit court judges who were elected and re-elected to the bench, also always without opposition. Both are unwavering in their support for reproductive rights and in their opposition to interventions in the electoral apparatus meant to give an advantage to Republicans. (More on Protasiewicz and Mitchell in a moment.)
Kelly, 58, and Dorow, 52, are both religious conservatives. Both are backed by groups that oppose abortion. Both, by coincidence, graduated from Virginia’s Regent University Law School, which is affiliated with the university founded by televangelist Pat Robertson. Kelly is a past president of the Milwaukee Lawyer’s Chapter of the Federalist Society. Dorow gained national attention last year for her capable handling of the high-profile trial of a man who drove his car into a Waukesha Christmas parade in 2021, killing six people and wounding dozens. She’s made the trial a centerpiece of her campaign.
Even given that all Wisconsin Supreme Court races, while officially nonpartisan, pit candidates backed by Republicans against those backed by Democrats, Kelly and Dorow have unusually deep ties to the GOP.
In 2012, before Walker appointed him to the court, Kelly was hired by Republican lawmakers to defend the redistricting plan that they had hashed out to maximize their political advantage. At a candidate forum in Madison last month, he gave his stamp of approval to the manipulation of political boundaries for political ends, saying: “A redistricting map is an entirely political act. It involves political calculation. It involves communities of interest. It involves give and take. It involves compromise. It involves the political process. It is political, from start to end.”
In writings submitted to Walker in seeking appointment to the court, Kelly likened affirmative action to slavery, saying they “both spring from the same taproot,” and said allowing same-sex couples to wed, which the U.S. Supreme Court had not yet done, “will eventually rob the institution of marriage of any discernible meaning.” In blog posts he wrote between 2012 and 2015, Kelly described abortion as “a policy that has as its primary purpose harming children.” And he decried the 2012 re-election of President Barack Obama as a victory for “socialism[,] same-sex marriage, recreational marijuana, and tax increases.”
Dorow, on the other hand, is a longtime member of the Republican Party of Waukesha County and has worked on a number of GOP candidate campaigns. In her 2011 application to Walker for a circuit judge appointment, she identified the U.S. Supreme Court’s 2013 ruling in Lawrence v. Texas as “one of the worst United States or Wisconsin Supreme Court opinions in the last 30 years.” She called it “a prime example of judicial activisim [sic] at its worst,” saying it “went well beyond the four corners of the U.S. Constitution to declare a new constitutional right.” The ruling, she added ruefully, was later “used by the Massachusetts Supreme Court as legal justification in mandating the issuance of same sex marriage licenses.”
Here’s what the case was about: In 1998, Houston police responding to a bogus report of a weapon entered an unlocked apartment and found John Lawrence and another adult male engaging in consensual sexual activity. The two men were arrested, charged, and convicted of “deviate sexual intercourse.” Dorow is apparently fine with this.
Dorow and her husband hope to open an indoor firing range that serves alcohol and can be used for weddings. Their application to the city of Deerfield says “Members/guests will receive an inked handstamp prior to purchasing or consuming alcohol and anyone with a handstamp will not be permitted to use the ranges, [and] preliminary breath testers will be available to test suspicious individuals.” Sounds fun.
Perhaps the best-known person associated with the Wisconsin Supreme Court is conservative Michael Gableman, who stepped down in 2018 after a single term. He went on to head an utterly incompetent probe into the state’s 2020 election, which has cost taxpayers more than $2 million and found no evidence of significant fraud, apart from the probe itself.
But even without Gableman, the court remains extraordinary in its extremism, even by modern standards. Kelly or Dorow, if elected, would fit right in.
Hagedorn, formerly Walker’s chief legal counsel, has deemed the NAACP “a disgrace to America” and dubbed Planned Parenthood “a wicked organization more devoted to killing babies than to helping women.” He and his wife helped found a Christian school that, at least at the time of his election in 2019, reserved the right to expel students for being gay or even for having parents who are gay.
Rebecca Bradley, as a university student, wrote opinion pieces in which she called being gay “an abnormal sexual preference” and suggested that people with AIDS deserved to die. In other writings, she referred to abortion as “murder” and said the feminist movement was “largely comprised of angry, militant, man-hating lesbians who abhor the traditional family.” Bradley apologized when these writings came to light, saying she is “frankly embarrassed at the content and tone of what I wrote those many years ago.” Whew!
Ziegler, the current chief justice, is the only justice in Wisconsin history to be given a public reprimand by her peers, for failing to disclose conflicts of interest in almost a dozen cases involving a bank whose board of directors included her husband. She was elected in 2007, when outside interest groups, which previously spent only negligible sums on state Supreme Court elections, poured $3.1 million into that race, almost all to benefit Ziegler, according to the Wisconsin Democracy Campaign, a nonpartisan watchdog group. Since then, every competitive state Supreme Court race has been a high-spending affair, with the state’s big-business lobby group, Wisconsin Manufacturers & Commerce, leading the pack.
In 2020, when Karofsky beat Kelly, the total spent by outside groups was $5 million, about the same as that raised and spent by the candidates’ campaigns—both record amounts.
In this spring’s election, these sums may come to seem trivial.
Last fall’s race for Wisconsin governor, won by Democrat Tony Evers, burned through $164 million, says the Wisconsin Democracy Campaign. In the Senate race in which Republican Ron Johnson beat Lt. Gov. Mandela Barnes, at least $204 million was spent, nearly two thirds by outside groups, according to my compilation of data from the Federal Election Commission and Open Secrets.
All parties that have ever shown an interest in Wisconsin elections—and there are lots of them—are going to be all in on the state Supreme Court race. Wikler told me the state Democratic party will be doing “door-to-door organizing in every corner of the state” to spread the word about the race’s importance through “whatever screens people might be looking at.” A PAC funded by Illinois residents Dick and Elizabeth Uihlein has vowed to spend “millions of dollars to help educate voters in support of Justice Dan Kelly.”
In fact, the lack of tsunami-level spending so far (only a light dusting of TV ads have appeared) suggests to me that the campaigns are fairly certain, based on internal polls, that there will not be a resolution of this issue in February. All it takes for the math to not work to lift two liberals or two conservatives out of the primary is for any one candidate to do significantly worse than the others. Maybe that’s what they expect.
The two liberal contenders, Janet Protasiewicz, 60, and Everett Mitchell, 45, are as different as possible from the two conservatives.
Protasiewicz (pronounced “pro-tuh-SAY-witz”) is a judge in Milwaukee. She was a Milwaukee County prosecutor for 26 years. She has said it’s okay to use the word “progressive” to describe her social views. Yet, like her three fellow candidates, she supports a change in the state constitution to determine bail for criminal defendants not just on the basis of whether they’ll show up for court, but also on the seriousness of the crime, the defendant’s criminal record, and the likelihood of their reoffending if allowed to walk. Critics have questioned whether the proposed amendment will further entrench inequality in the state’s justice system.
Mitchell, a pastor at Christ the Solid Rock Baptist Church, is a judge in Dane County, which includes Madison. He presents himself as a court reformer.
As the head of the Dane County court’s juvenile division, Mitchell helped to do away with the routine use of restraints and handcuffs during court appearances by juvenile defendants. He talks about how he married a same-sex couple who had been together for more than 40 years “even before the [U.S.] Supreme Court gave us cover to do so.” He believes the court ought to be “an instrument of balance and justice rather than partisan divide.”
Both Protasiewicz and Mitchell are quite clear in their messaging that they support access to legal abortion. The next court will likely act on whether to uphold the state’s 1849 abortion ban, passed well before women in the state even had the right to vote. In addition, Protasiewicz has called the maps used for legislative redistricting “rigged,” and pegged the court’s conservatives as “four radical right-wing extremists.”
If either liberal candidate makes it to the April 4 ballot, he or she will be targeted with a wave of attack ads. For Protasiewicz, these will likely focus on decisions she’s made in a quarter century of being a prosecutor and nearly nine years as a judge. Mitchell, meanwhile, has said some dicey things, like arguing, when he was a University of Wisconsin official and not a judge, that people who shoplift from big-box stores should not be prosecuted. There are also allegations of abuse his ex-wife brought forward during a custody dispute over their daughter in 2010; he denies the allegations, and she says she wants to leave them in the past.
In last year’s Senate race, Mandela Barnes lost after being relentlessly portrayed as a scary black guy, a fact that Mitchell, who is also black, has addressed on the campaign trail, saying “Just because Mandela didn’t win [doesn’t] mean I can’t win.” He added, graciously, “The fact that you have negative racist ads that dissuade people doesn’t make the state racist. It makes the process racist.”
In the end, the difference may be difficult to discern.