Partisan control of the Wisconsin Supreme Court will be determined in statewide election on April 4, 2023. Republicans currently hold a 4-3 majority on the court. Justice Patience Roggensack (R) is retiring, and the results of the February 21 primary narrowed the race to two candidates: former Wisconsin Supreme Court Justice Daniel Kelly (R), and Milwaukee County Circuit Court Judge Janet Protasiewicz (D). Court watchers and election experts have noted that this race could become the most expensive judicial race in state and national history, with the potential for far-reaching consequences in the lives of Wisconsin residents.
Following the Republican wave election of 2010, Republicans in the state legislature drew maps that heavily favored their party, and then-Governor Scott Walker, also a Republican, approved them, giving Republicans total control of the state government for the following eight years. A Supreme Court controlled by Republicans since 2008 allowed Republicans to dominate every level of the state government. They used this advantage to implement a controversial conservative agenda that included gutting collective bargaining rights for the state’s public employees and rolling back other protections for workers and families in favor of corporations and wealthy taxpayers. 2016, Gov. Walker appointed Daniel Kelly to the Wisconsin Supreme Court. Kelly ran for election to a full term in 2020 and lost by 10 points, shifting the balance of the court from a 5-2 to 4-3 Republican advantage. If Judge Protasiewicz wins the race for Justice Roggensack’s seat in the April 4 election, control of the Wisconsin Supreme Court will flip to Democrats for the first time in 15 years.
With several watershed cases prepared to go before the Wisconsin Supreme Court and a potential fight over the integrity of the 2024 presidential election that could echo the attempt by some Wisconsin Republicans to overturn the results of the 2020 election, it is crucial that Democrats win control of the state’s highest court so they can put a stop to the extreme agenda of Wisconsin Republicans through at least the end of 2024.
Reproductive Rights: Wisconsin Attorney General Josh Kaul (D) has sued three county prosecuting attorneys to block a state law first enacted in 1849 making it a felony for a doctor to perform an abortion at any stage of pregnancy unless the procedure is performed to save the mother’s life. Kaul filed the suit just days after the U.S. Supreme Court’s June 2022 ruling in Dobbs v. Jackson Women’s Health Organization, which overturned the right to an abortion outlined in the Court’s 1973 ruling in Roe v. Wade. Due to the long-dormant state law, providers across Wisconsin stopped performing abortions in the wake of the Court’s ruling in Dobbs. Kaul’s suit argues that the 1849 ban should not be enforced because it is in conflict with and superseded by other state laws. The case is currently being heard in the Circuit Court, and will most likely be appealed to the Wisconsin Supreme Court.
Fair Representation: The Wisconsin Constitution requires that district maps be drawn by the state legislature and approved by the Governor. Following the 2020 Census, the Republican-controlled legislature drew new maps based on the maps from 2011, which had concentrated Democratic voters in a small number of urban districts and practically guaranteed that Republicans could not lose more than 50% of seats in the State Assembly. However, Governor Tony Evers, a Democrat, rejected the new maps and proposed his own maps as an alternative. The Republican legislature sued Governor Evers before the Wisconsin Supreme Court in a bid to install their maps, but the court endorsed Evers’ maps. The Republicans then appealed the case to the U.S. Supreme Court, which struck down Evers’ maps and sent the dispute back to the Wisconsin Supreme Court for reconsideration. The Wisconsin Supreme Court’s conservative majority then decided to endorse the Republicans’ idea of a “least changes” approach, using the 2011 maps as a basis to draw new maps that would favor the Republicans once again. Voting rights advocates have raised strong objections to these maps and have signaled their intention to litigate the use of the 2011 maps as the foundation for the maps the court used, arguing the rationale has no basis in state law or the state constitution.
Democracy and Voting Rights: During former President Donald Trump’s efforts to overturn the results of the 2020 election, the Wisconsin Supreme Court came within one vote of ruling in favor of the former president to throw out President Biden’s victory in the state. In several 4-3 decisions, the court rejected Trump’s argument that 200,000 votes from the state’s two largest Democratic counties should be invalidated, playing a pivotal role in upholding the results of the 2020 election and helping to avert Trump’s attempted coup. Court watchers believe the Wisconsin Supreme Court may find itself in a similar position in 2024 as Trump continues to deny that he lost the 2020 election while preparing to run once again.
The Wisconsin Supreme Court also ruled in early 2022, against the advice of the Wisconsin Elections Commission, to bar the use of most ballot drop boxes ahead of the 2022 midterm elections, finding that the use of unstaffed drop boxes violated state election law requiring voters to physically return their own absentee ballots to their clerk. The ruling required the closure of 570 absentee ballot drop boxes being used across the state before the April 2022 election, and also prohibited local election officials from filling in missing information on absentee ballot return envelopes.
Meet the Candidate
Judge Janet Protasiewicz is a judge for Branch 24 of the Milwaukee County Circuit Court, where she has presided over homicide, sexual assault, misdemeanor, domestic violence, and drug courts, and currently sits in the Family Court division. Prior to her election to the circuit court in 2014, she served as a Milwaukee County assistant district attorney for more than 25 years and also argued successfully before the Wisconsin Supreme Court. She grew up in a working-class family, earning her bachelor’s degree in history from the University of Wisconsin-Milwaukee in 1985 and her law degree from Marquette University in 1988, where she later served as an adjunct professor of law. She received the Community Involvement Award from the Association of Women Lawyers in 2018 and the Women in the Law Women of Influence Award from the Wisconsin Law Journal in 2018.
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