Everyone Agrees That The Supreme Court Race Is Too Close To Call
Next Tuesday is Election Day in Wisconsin. You’ve probably heard about the race to fill a pivotal empty Supreme Court seat that pits a mainstream jurist, Janet Protasiewicz, against a fascist MAGA extremist, Dan Kelly. But there is also an extremely important special election for a state Senate seat in southeastern Wisconsin (parts of 4 counties: Milwaukee, Ozaukee, Washington and Waukesha), where Republican Alberta Darling has retired. The race is between one of the Assembly’s most radical right, anti-Choice members, Dan Knodl and Democrat Jodi Habush Sinykin. If Knodl wins, the Republicans will have a 2/3s majority of the grotesquely gerrymandered state Senate. Last November the MAGA gubernatorial candidate won the district, which has been moving in a more blue direction, with 52% of the vote. Knodl has threatened that if Protasiewicz wins the Supreme Court seat on Tuesday, he would back impeaching her.
When Knodl was interviewed by fascist former sheriff David Clarke on Tuesday, he reassured Clarke that far right voters don’t have to worry about his intentions. Clarke: “Here's what's important to conservatives, and this is what they tell me, so this isn't what's important to David Clarke: Act 10, gun rights, including carry conceal licenses and constitutional carry which we don't have yet, educational freedom through school choice, voter ID, and redistricting. Just comment on those I understand you can't go into how you'd vote… [W]e ask people to vote for somebody, and we don't know who the hell they are, other than, you know, I'm gonna apply the law. And you know, that's, that's pretty generic stuff. I and others, we need to know that we can trust you on these. And there's probably more issues that you're going to be dealing with on a state Supreme Court. But these are important to us right now. And if we don't know where you stand, we can end up with another Hagedorn. Comment, please.”
Kelly had no problem responding and reassuring Wisconsin extremists. “I don't think you have to worry about that with me, mostly, because I've already served for several years as one of your Supreme Court justices.” Exactly… he leaves no doubt that he’ll be just as extreme and corrupt as the last time he was on the court.”
Protasiewicz came up on top in the open primary and the 2 Democrats outpolled the 2 Republicans:
Janet Protasiewicz (D)- 446,403 (46.42%)
Daniel Kelly (R)- 232,751 (24.20%)
Jennifer Dorow (R)- 210,100 (21.85%)
Everett Mitchell (D)- 71,895 (7.48)
Yesterday, the Milwaukee Journal Sentinel reported that "There used to be almost no correlation between voting trends in these nonpartisan spring races and voting trends in partisan fall races. How an area voted for state Supreme Court wasn’t all that closely related to how it voted for governor or president. That has changed entirely over the decades. On a scale of zero (no correlation) to 1 (perfect correlation), the relationship between the county-by-county vote for state Supreme Court and the county-by-county vote for president has risen from almost zero in the 1970s to an average of 0.2 in the 1980s, almost 0.4 in the 1990s, more than 0.6 in the 2000s, more than 0.8 in the 2010s to 0.92 and 0.94 in the past two court contests (2019 and 2020)... There are several explanations for this. Even in partisan races, voters are more consistently voting for one side as public opinion grows more polarized. And they’re seeing the courts settle hugely contentious issues, including political disputes."
The paper also noted that "The early evidence of the Trump era suggests that in statewide elections these trends may be posing a bigger challenge to Republicans and conservatives than to Democrats and liberals... [I]n the six years since Trump was elected president and redefined the image of the Republican Party, the right has just won just two narrow victories in Wisconsin’s most consequential statewide races (president, governor, U.S. Senate and state Supreme Court)... The left has won six important races, some of them quite comfortably: two Supreme Court elections by double-digits (2018 and 2020); a U.S. Senate race by 11 points (Tammy Baldwin in 2018), a governor’s race by 3 points (Tony Evers in 2022) and 1 point (Evers in 2018), and a presidential race by less than 1 point (Biden in 2020)... [I]t appears as though the [GOP]’s billowing deficits in high-growth Dane County and its slide in the populous Milwaukee suburbs have made the electoral math more difficult for Republicans than it was a decade ago, despite their rural gains."
On Monday, Joel McNally reported that next week’s election “is the first opportunity for a majority of voters anywhere in America to fight back against a radical, rightwing judiciary hellbent on abolishing constitutional rights that have been protected for decades in our democracy… At a time when Americans everywhere are concerned about how long their rights are going to be endangered by a hostile Supreme Court, Wisconsin has the first opportunity in 15 years to finally rid its state of a corrupt, rightwing Republican majority on its own high court. In 2018 and 2020, by double-digit margins a majority of state voters replaced partisan, rightwing extremists on their highest court with ethical Supreme Court justices upholding the constitution. By electing Protasiewicz, they can finish the job by creating a new 4-3 court majority to protect their constitutional rights and equal justice.”
Amid the constant flood of millions of dollars in television attack ads by partisans on both sides, voters statewide know exactly what’s at stake in the election and who the candidates really are. Another record voter turnout is expected in the final election on April 4. That’s bad news for Kelly and good news for democracy.
In the record primary turnout of nearly a million voters, Protasiewicz won more than twice as many votes as Kelly. Kelly is the candidate voters previously defeated by l0 percentage points in 2020 for a full term after he served a four-year court appointment by Gov. Scott Walker.
Kelly has become even more deeply involved since in attempting to overthrow President Biden’s state election victory over Trump. Kelly says he’s running for the court again because rightwing Justice Brian Hagedorn’s refused to join the court’s election deniers to throw out the state’s election results so Republican legislators could declare Trump the winner. If he’d been on the court, he would have thrown out all 3.3 million presidential votes cast in Wisconsin.
Republicans also paid Kelly $120,000 to advise them on election issues including Trump’s illegal scheme to create “fake electors” submitting fraudulent federal documents claiming to be “duly elected” to cast the state’s electoral votes for Trump. Bad advice. Former party chairman Andrew Hitt and nine other state Republicans now face possible prosecution for attempting to defraud the government.
The only televised debate between Protasiewicz and Kelly clearly identified the most important issues in the race as protecting voting rights and restoring abortion rights. Most Americans always thought women’s reproductive rights would be constitutionally protected. Protasiewicz has no qualms about supporting women’s rights to make their own decisions about their bodies, health care and how many children to have.
Kelly avoids honestly answering the question, but everyone knows how he’ll vote. Kelly’s been endorsed by the extreme anti-abortion groups Wisconsin Right to Life and Pro-Life Wisconsin and has campaigned with a rightwing Brookfield pastor who calls the murder of abortion providers “justifiable homicide.”
The Wisconsin court race is just the first state battle to come around the country to repair Trump’s damage to our democracy. In case you haven’t identified what’s happening yet, Trump and all the other Republicans running for president, just like the Republican justices Trump appointed to the Supreme Court, want to create the America that would have existed if the South had won the Civil War.
The South claimed they weren’t fighting for slavery or against equal rights. They were fighting for state’s rights. The supercharged Trump Supreme Court is trying that out by abolishing constitutional protections for the rights of women to make decisions about their own lives. Allowing each state to decide how much freedom women should have is the beginning of the end for the beautiful American ideal of a democracy in which we’re all treated equally with unalienable rights.
Fortunately, Wisconsin appears ready to elect a new majority on its state Supreme Court committed to restoring constitutional rights and enforcing equal treatment under the law until the U.S. Supreme Court stops moving in the opposite direction.
Yesterday, Politico reported that Republicans have the state so gerrymandered up that despite statewide wins for Democrats, the GOP still controls the show there. But that could be ending next week. If Protasiewicz wins, Wisconsin could throw out some of the most gerrymandered district lines— state and federal— in the country.
A win by Democrat-backed Janet Protasiewicz— which could shift control of the court from a one-seat advantage for conservatives to a 4-3 liberal majority— could have a domino effect in the state. She is facing former state Supreme Court Justice Dan Kelly, the conservative candidate backed by the state GOP in the technically non-partisan race.
Most immediately, the court will likely decide the fate of abortion rights in Wisconsin; that and crime have been the focus of much of the debate surrounding the race. But there’s another hugely consequential matter the court could take up: a challenge to the state’s congressional district and legislative lines. And an adverse ruling for Republicans would pose a direct threat to the delegation’s GOP-heavy makeup.
Currently, Republicans have a near-ironclad hold on the state legislature, a fact that has hamstrung Democratic Gov. Tony Evers throughout his two terms. The GOP is a few seats shy of a supermajority in the state Assembly, and a special election for a red-leaning state Senate seat on Tuesday will determine if the GOP hits the two-thirds mark in the state Senate again.
The state’s congressional delegation, meanwhile, is 6-2 Republican— four safe Republican seats, two deep blue Democratic districts and a pair of red-leaning but potentially competitive districts that the GOP carried in the midterms.
But that GOP dominance is built upon conservative-friendly state and congressional district maps— lines that Democrats are itching to challenge in court.
Wisconsin’s congressional and legislative lines went through lengthy court fights following the 2020 census, after the GOP-controlled legislature and Evers could not reach an agreement on the maps. After a series of rulings from both the state and U.S. Supreme Courts, the state landed on its current legislative and congressional lines.
…A win for Protasiewicz could reopen those decisions. Broadly, operatives on both sides believe a redrawn map could endanger the seats of Reps. Bryan Steil and Derrick Van Orden, the two Republicans who represent the red-leaning seats. And the district of Rep. Mike Gallagher could be redrawn to become more competitive.
…Perhaps even more consequential than any would-be redistricting case is the potential for the Wisconsin Supreme Court to rule on the outcome of a future election— including the 2024 presidential race. In the immediate aftermath of the 2020 election, the state Supreme Court tossed then-President Donald Trump’s challenge to the outcome in the state. At the time, Justice Brian Hagedorn— a conservative who still serves on the court and has been a swing vote in other big cases— joined the liberal minority on the case.
The most glaring near-term issue the court will grapple with, however, is abortion rights. The state currently has an 1840s law on the books banning abortion in almost all circumstances. A challenge to that law is expected to eventually land in front of the state Supreme Court, but abortion providers in the state have, in the interim, stopped performing the procedure.
Earlier this month, Republican Assembly leaders put forward a proposal to allow for the procedure in cases of rape or incest up to 12 weeks of pregnancy, along with clarifying a “health of the mother” exception. But Republican Senate leaders promised to not take it up, and Evers said he would veto it. Soon after, the governor introduced his own proposal to repeal the 1849 law, but it will not pass the legislature.
Protasiewicz and her allies are hoping the issue will propel her to victory, as it did for many Democrats last fall who outperformed expectations in the midterms. But the race has attracted significant attention from both pro-abortion rights and anti-abortion groups, who say their supporters have been fired up by the contest.
Gracie Skogman, the legislative and PAC director of Wisconsin Right to Life, said there has been an “unprecedented” response from anti-abortion advocates. “I have been truly shocked to see the amount of people who are willing to be involved in this election. That was very unexpected for us,” she added.
Writing for The Bulwark yesterday, Bill Lueders noted that after their debate “Kelly claimed that Protasiewicz, if elected, will ‘forever afterwards be known as being bought and paid for by the Democratic party in Wisconsin,’ because it has donated to her campaign. She has vowed to recuse herself from any lawsuits involving the party. In contrast, Kelly contends that his own deep partisan connections are completely benign and irrelevant. But Kelly ran his failed 2020 campaign out of the state Republican party’s offices and was paid $120,000 by the GOP over the past two years for services that include giving legal advice to participants in the plot to steal the 2020 election for Trump by convening a slate of fake electors. His current campaign is getting communications and research help from the party. Kelly has not promised to step aside from deciding cases involving the Republicans. Kelly is a hardcore religious conservative who has consistently allied with the right, including his past leadership role with the Federalist Society in Milwaukee. He has compared affirmative action to slavery and derided those who receive Social Security and Medicare as ‘people who have chosen to retire without sufficient assets to support themselves.’”
An astonishing three-quarters of Milwaukee Bar Association members who had an opinion last week rated Kelly as “Not Qualified” for the supreme court. Protasiewicz was deemed “Qualified” by 86 percent of respondents.