The state seal of Wisconsin bears a simple one-word motto: “FORWARD.” For a majority of the state’s voters, Tuesday’s Wisconsin Supreme Court election — a decisive victory for the liberal candidate, Janet Protasiewicz, over conservative Daniel Kelly — might have been the first moment in years when that word carried anything close to the symbolic weight it held when it was coined over 170 years ago.
As a rule, Wisconsin judicial elections — “nonpartisan” contests held in the spring, often awash in vague platitudes about respect for the rule of law rather than concrete campaign promises –– rarely attract the kind of attention and voter turnout seen in races up the ballot. The same could not be said for Tuesday’s election.
By all accounts, the contest between Protasiewicz and Kelly proved to be the most expensive judicial election in US history, attracting a level of voter turnout that shattered state records for off-cycle elections. The investments in ads — including the Kelly campaign’s shot-for-shot remake of the infamously racist “Willie Horton” commercial from the 1988 presidential election — as well as significant statewide field operations gave the race the flavor of a pitched battle for the governorship, if not the presidency.
It is not difficult to see why. By securing a four-three liberal majority on the state Supreme Court, Protasiewicz has done more than loosen conservatives’ ideological grip on the court. In a state that critics describe as a “democracy desert” — largely, though not exclusively, because its gerrymandered legislature hamstrings the ambitions of electoral majorities — her victory provided voters with a long-awaited sense of possibility. “The ground just shifted,” Milwaukee-based journalist Dan Shafer wrote in his postmortem of the race.
The court’s seismic potential will hinge not only on the opinions of its new majority. Rather, as Protasiewicz’s election victory itself shows, creating new political possibilities in Wisconsin depends just as much on what happens off the bench.
The story of Protasiewicz’s election victory begins not with the start of campaign season, but with a sharp right turn in Wisconsin politics that began more than a decade ago. After consolidating control of the legislature and governorship in the “red wave” election of 2010, the state’s Republicans — led by Governor Scott Walker — unleashed a systematic assault on the institutional foundations of Wisconsin’s democracy.
The opening shot was pointed at organized labor. In 2011, Walker signed the now-infamous Act 10 into law, which decimated public sector workers’ collective-bargaining power. Together with the passage of “right to work” legislation, the anti-labor move slashed Wisconsin’s unionization rate in half within a few short years.
Republicans then opened a second front in the electoral arena. Within a year of Act 10’s approval, the legislature had enacted one of the strongest partisan gerrymanders in the country — ensuring that the GOP would retain control of both Assembly and Senate chambers, even when Democrats won a majority of votes in legislative elections. Still not content, Republicans then enacted measures like a new voter ID law, aimed at raising the costs of participating in elections.
By the middle of the 2010s, the state legislature had disbanded the nonpartisan Government Accountability Board, praised by one legal observer as a “worthy model for other states considering alternatives to partisan election administration at the state level.” Their reason was obvious: the board’s recent investigation into the alleged unlawful coordination between the Club for Growth and Walker’s campaign during the 2012 recall election.
Republicans were no less assiduous in heading off threats to their political supremacy. When Democrat Tony Evers eked out a victory in the 2018 midterms, legislative leaders introduced a package of lame-duck bills constraining the authority of the state’s executive branch and expanding their own power to block rules that the Evers administration created. During the early days of the COVID-19 pandemic, the GOP-dominated legislature passed another suite of measures that gutted state public-health authorities. When the term of a Walker appointee to the state Natural Resources Board expired, Republicans simply refused to appoint a replacement. (The appointee — a dentist and hunter from the town of Wausau — refused to resign, holding on to his office for over a year after his term expired.)
At the same time, state Republicans undercut the prerogatives of counties and municipalities. Under the Walker administration — and a legislature controlled by Speaker of the Assembly Robin Vos, a landlord and erstwhile popcorn-factory owner — Wisconsin became a leader in the state preemption of local measures like minimum-wage hikes and fire-safety regulations. A Milwaukee Journal Sentinel investigation would later find that the nullification of local tenant protections contributed to a surge in avoidable electrical fires, killing hundreds of people statewide.
At every turn, Republicans could rely on the Wisconsin Supreme Court to back their bare-knuckle tactics. The conservative majority dutifully endorsed the GOP’s gerrymandered state legislative maps, ratified Act 10, and authorized a lame-duck power grab. No matter how absurd the legal argument, the court’s conservatives returned the correct result, sometimes with florid quotations of Eminem.
Wisconsin voters have therefore been forced to watch as surrounding states adopt a variety of broadly popular reforms, ranging from free school lunches to Medicaid expansion to the legalization of recreational marijuana, that would simply be dead on arrival in the state legislature. Republican legislative leaders appear to take glee in their crushing of majority will. When the state’s all-powerful Joint Committee on Finance holds field hearings around the state during the annual budget cycle, its members now flatly refuse to even visit Milwaukee, Wisconsin’s largest city.
If there is one obstacle to Republicans’ plan to weaken Wisconsin’s democracy, it is statewide elections. Because Wisconsin does not allow voters to introduce legislation at the ballot box, the only hope for a majority locked out of power in the legislature is to use its voice in elections for governor, top executive-branch officials, and the state Supreme Court judges. And as the legislature has squeezed the executive branch, the court — paradoxically — has taken center stage as the primary actor capable of combating the GOP’s counter-majoritarian machinations.
This is not to say that the opposition party has always understood the assignment. In 2017, conservative Supreme Court justice Annette Ziegler ran for office unopposed. In 2019, the ostensible liberal candidate, Lisa Neubauer, ran a lackluster campaign for an open Supreme Court seat that distanced the race from political struggles over the stark consequences of unchecked Republican power. Her opponent, Brian Hagedorn, built a more starkly ideological campaign with strong ties to the antiabortion movement. (He still won by less than 1 percent.)
The laughable pretense that judicial elections with tens of millions in outside spending can somehow remain above politics still colors the elite discourse in America’s Dairyland. Yet in recent years, liberal candidates for the court like Rebecca Dallet and Jill Karofsky have proven that it pays to respect voters’ intelligence about such matters. In 2020, Karofsky beat the Walker-appointed Daniel Kelly by a whopping 11 percent. Protasiewicz won by a similar margin on Tuesday, running up significant numbers in large population centers.
For a liberal Supreme Court candidate running in 2023, there were several “built-in” advantages. Chief among them was that Kelly seemed intent on reprising the same campaign that lost him reelection three years ago — a fact that seemed to escape him as he delivered a hissy concession speech, declaring that he had faced an “unworthy” opponent. In the wake of the US Supreme Court’s Dobbs decision — which revived Wisconsin’s abortion ban, originally passed in 1849 — Kelly did nothing to untether himself from the antiabortion movement. In fact, he pulled the straps tighter; on election eve, Kelly flew around the state on a plane owned by some of the most zealous antiabortion activists.
Kelly’s appearance on the April ballot was hardly guaranteed from the outset. His opponent for the conservative lane — a state circuit court judge named Jennifer Dorow — had recently made a name for herself when she presided over the trial of Darrell Brooks, the man responsible for killing six and injuring dozens more at a Christmas parade in the city of Waukesha. The trial elevated Dorow’s status as a contender for the state court and netted her endorsements from state Republican officials and police associations. Yet Dorow lacked not only Kelly’s familiarity with running a statewide campaign, but also the millions of dollars from Richard Uihlein, owner of Uline, the Wisconsin-based packaging-material company. While Kelly proved to be a horrible candidate in the general, he had the one quality Uihlein evidently desired: he was a reliable right-wing vote, even if his judicial opinions were so incoherent that other conservatives on the court felt compelled to write concurrences clarifying them.
Yet while Kelly had the ear of the state’s most powerful donors, a look at endorsements from state and local party leaders reveals deeper divisions on the Right. Key state party leaders, as well as conservative Supreme Court justices, split their support between Kelly and Dorow. By contrast, Protasiewicz quickly consolidated backing from the moderate and progressive wings of the Wisconsin Democratic Party. Of the unions that endorsed in the primary, all but one favored Protasiewicz. Her competitor in the center-left lane, Everett Mitchell, attracted only a handful of endorsements, largely from progressive groups and party officials concentrated in Madison and Milwaukee.
By the time Protasiewicz advanced in the February 21 primary, this unified bloc was poised to benefit from a wave of voter enthusiasm. If the results of last year’s abortion referendum in Kansas were any indication, even in deep-red territory, voters rout attempts to limit abortion access when given the chance. According to a 2022 Marquette University Law School poll, 55 percent of registered voters in Wisconsin opposed the Supreme Court’s decision to strike down Roe. An identical share oppose barring abortion either in all or most cases. Republicans’ response to this was to introduce legislation that left the state’s 1849 abortion ban in place and provided exceptions only in the cases of rape or incest. The governor quickly announced he would veto it.
Not only did the Protasiewicz-Kelly election crystallize for voters the issue of abortion restrictions — the abortion issue itself served as the most visceral and powerful reminder of the deleterious state of Wisconsin’s democracy. While Kelly’s ideological commitments were plainly visible to voters, in public forums, he maintained the pretense that judges should not, and indeed could not, talk about their beliefs or biases. Protasiewicz largely dispensed with this conceit, talking explicitly about her support for abortion rights and her opposition to partisan gerrymandering. She linked Republicans’ assault on abortion rights to their assault on democracy.
And the message worked. When compared to other off-year, down-ballot elections, the 2023 vote for Supreme Court broke all statewide turnout records. The “most important election nobody’s ever heard of,” in short, became both a means of ensuring abortion rights and a counteroffensive against Republicans’ long struggle to insulate themselves from political competition.
Protasiewicz’s victory will have its most immediate effects on the state’s grotesque 1849 abortion ban. Soon after the Dobbs decision, Wisconsin’s attorney general, Josh Kaul, filed a lawsuit aiming to strike down the ban as unenforceable because it conflicts with other statutes passed over the last hundred years. The first oral arguments in the case will be heard in the Dane County Circuit Court next month and may reach the Supreme Court soon afterward.
Where redistricting is concerned, the impact of a flipped court will take longer to materialize. Even assuming the court rejects the state’s egregious partisan gerrymander, the opening of political possibilities will not be automatic. Wisconsin has a political geography that naturally advantages Republican control of the state legislature, since Democratic voters are “inefficiently distributed” throughout the state. What fairer maps will do is create the possibility for political competition where none currently exists. Seizing on that opportunity will require recruiting and vetting high-quality candidates who can speak to working-class voters spread across Wisconsin’s disparate political geographies — no mean feat.
In recent years, Wisconsin has become synonymous with the concept of “rural resentment,” a shorthand for small-town voters’ attribution of their own economic disempowerment to people in the cities. This animus has allowed conservative candidates for statewide office to consolidate the nonmetropolitan vote in recent elections. As long as suburbs can be counted on to swing to the right, galvanizing rural resentment has been a recipe for electoral success.
Yet recent election cycles have seen the opposite. Affluent Milwaukee suburbs have leaned Democratic. Between his first and second elections to office, Governor Evers saw his support jump by more than 20 percent in municipalities like Wauwatosa, River Hills, and Mequon. In the April 4 election, Protasiewicz flipped nine Milwaukee metro-area municipalities that gave a majority of their votes to conservatives in the primary, including Greendale, Franklin, and Waukesha. Statewide, she also followed the trend seen in Karofsky’s 2020 Supreme Court victory, picking up close to a dozen counties that went for the conservative Hagedorn in 2019.
Crucially, the demolition of a conservative majority on Wisconsin’s Supreme Court raises the chances of reversing Walker’s devastating offensive on labor. During her campaign Protasiewicz repeatedly argued that Walker’s union-busting Act 10 was unconstitutional. Paradoxically, she also told the Milwaukee Journal Sentinel that she would consider recusing herself should the issue come before the court because she participated in protests against the measure.
Given the political stakes of undoing Act 10, a recusal seems unlikely. What appears almost certain is that Republicans will try to identify one or more opportunities to retaliate against any politically significant decision. On Tuesday, Republicans won a special election for a vacant seat that gives them a two-thirds majority in the State Senate. The winner of that contest, Dan Knodl, has suggested that this new threshold would allow the GOP to remove sitting justices from office, and that he would consider impeaching Protasiewicz.
Even if Republicans manage to overcome (or simply ignore) the many legal constraints on their ability to do this — hard, but not impossible, to imagine — the legislative math here is dubious. It would take a two-thirds vote of the State Assembly to impeach, and another two-thirds vote in the Senate to remove. Still, Wisconsin Republicans have demonstrated an increasing allergy to electoral competition and a taste for political hardball. Should they decide to pounce, it would be an opportunity for a statewide political mobilization not seen since the Act 10 protests.
All of this illustrates an important point about Tuesday’s election. While the end of the conservative majority is a crack in the edifice of the undemocratic regime Republicans have built up over the last ten years, seizing the opportunity to reconfigure Wisconsin politics will take an extraordinary amount of creativity.
The state Supreme Court is an inadequate vehicle, by itself, for such a transformation. Litigation is hardly efficient or expedient. Plaintiffs must be found, briefs filed, appeals made, oral arguments heard, and lengthy decisions written. Still, whereas the federal judiciary was born out of an explicit distrust of majoritarian democracy, Wisconsin’s political institutions were designed with the opposite principle in mind. Delegates to the state’s first constitutional convention argued explicitly that an elected judiciary would fulfill “an axiom of government in this country, that the people are the source of all political power, and to them should their officers and rules be responsible for the faithful discharge of their respective duties.” Over the last ten years, Wisconsin’s Supreme Court has played a pivotal role in undermining this very tenet. A new majority will have to make it their mission to restore it.
In any case, the work of resuscitating Wisconsin’s democracy will require a prodigious amount of collective action outside the Supreme Court chamber. A legal support structure will only help reconstitute Wisconsin politics in the interests of the many if it has a strong working-class political movement providing the key catalytic power. Building such a movement will require going well beyond appeals to voters in affluent suburbs. Instead, it will require speaking directly to both rural and urban residents who, while driven apart by Walker’s “divide and conquer” politics, have all found themselves on the losing end of Republican policies.
Protasiewicz’s victory may have moved the earth in Wisconsin. But it’s time to map the new terrain.