By Scott Bauer
A Democratic-backed Milwaukee judge won the high stakes Wisconsin Supreme Court race Tuesday, ensuring liberals will take over majority control of the court for the first time in 15 years with the fate of the state’s abortion ban on the line.
Milwaukee County Circuit Judge Janet Protasiewicz, 60, defeated former Justice Dan Kelly, who previously worked for Republicans and had support from the state’s leading anti-abortion groups.
The victory speaks to the importance of abortion as an issue for Democrats in a key swing state, with turnout the highest ever for a Wisconsin Supreme Court race that didn't share the ballot with a presidential primary.
In a jubilant scene at her victory party, the other three liberal justices on the court joined Protasiewicz on the stage and raised their arms in celebration.
Protasiewicz tried to downplay the importance of abortion as an issue in her victory, even though she and her allies, including an array of abortion rights groups including Planned Parenthood, made it the focus of much of her advertising and messaging to voters.
“It was really about saving our democracy, getting away from extremism and having a fair and impartial court where everybody gets a fair shot in the courtroom,” Protasiewicz told The Associated Press after her win. “That’s what it was all about.”
The new court controlled 4-3 by liberals is expected to decide a pending lawsuit challenging the state’s 1849 law banning abortion enacted a year after statehood. Protasiewicz said during the campaign that she supports abortion rights but stopped short of saying how she would rule on the lawsuit. She had called Kelly an “extreme partisan” who would vote to uphold the ban.
In addition to abortion, Protasiewicz's win is likely to impact the future of Republican-drawn legislative maps, voting rights and years of other GOP policies. It will also ensure that liberals will have the majority leading up to the 2024 presidential election and immediately after.
Four of the past six presidential elections in Wisconsin have been decided by less than a percentage point and Trump turned to the courts in 2020 in his unsuccessful push to overturn his roughly 21,000-vote loss in the state. The current court, under a 4-3 conservative majority, came within one vote of overturning President Joe Biden’s win in the state in 2020, and both major parties are preparing for another close race in 2024.
Kelly is a former justice who has also performed work for Republicans and advised them on a plan to have fake GOP electors cast their ballots for Trump following the 2020 election even though Trump had lost.
Ahead of the vote, Protasiewicz called Kelly “a true threat to our democracy” because of his advising on the fake elector scheme.
Kelly had expressed opposition to abortion in the past, including in a 2012 blog post in which he said the Democratic Party and the National Organization for Women were committed to normalizing the taking of human life. He also had done legal work for Wisconsin Right to Life.
Kelly was endorsed by the state’s top three anti-abortion groups, while Protasiewicz was backed by abortion rights advocates.
Kelly was appointed to the state Supreme Court by then-Gov. Scott Walker, a Republican, in 2016. He served four years before being defeated in 2020 on the same ballot as the Democratic presidential primary. Kelly was endorsed by Trump that year.
Trump did not endorse this year. Protasiewicz’s endorsements included Hillary Clinton.
Kelly tried to distance himself from his work for Republicans, saying it was “irrelevant” to how he would work as a justice. He tried to make the campaign about Protasiewicz’s record as a judge, arguing that she was soft on crime and accusing her of being “bought and paid for” by Democrats.
The Wisconsin Democratic Party gave Protasiewicz’s campaign more than $8 million, leading her to promise to recuse herself from any case brought by the party.
Protasiewicz said that while she anticipates many of the issues raised in the campaign will come before the court in the coming years, she pledged to be impartial and not beholden to Democrats and her liberal backers who poured an unprecedented amount of money into the race.
“I’ve told everybody on the entire time that I was running, despite the fact that I was sharing my personal values, every single decision that I will render will be rooted in the law,” she said. “And that is the bottom line. They’re independent and rooted in the law.”
Kelly, in a statement after his loss, said Protasiewicz “made her campaign about cynical appeals to political passions, serial lies, and a blatant disregard for judicial ethics and the integrity of the court.”
“I wish Wisconsin the best of luck,” he said. “I think it will need it.”
Protasiewicz was outspoken on Wisconsin’s gerrymandered legislative maps, calling them “rigged.” Kelly accused her of prejudging that case, abortion and others that could come before the court.
The state Supreme Court upheld Republican-drawn maps in 2022. Those maps, widely regarded as among the most gerrymandered in the country, have helped Republicans increase their hold on the state Legislature to near supermajority levels, even as Democrats have won statewide elections, including Tony Evers as governor in both 2018 and 2022 and Biden in 2020.
Protasiewicz will serve a 10-year term starting in August replacing retiring conservative Justice Pat Roggensack.