On Tuesday, in a state judicial election loaded with national significance, Wisconsin’s primary vote put progressive Judge Janet Protasiewicz in the catbird seat for the swing seventh vote on the state’s Supreme Court. Her 46 percent tally in a four-way race nearly doubled the 24 percent of the vote taken by former Judge Dan Kelly, her closest rival and a staunch conservative. They will face each other in a runoff on April 4 that is being accurately billed as the most consequential election of the 2023 off-year cycle.
Protasiewicz’s resounding primary win sends a clarion call across the country: Support for reproductive freedom remains fierce. The race will determine the future of reproductive rights for Wisconsinites. Wisely, Protasiewicz’s television advertising focused on women’s “freedom to make our own decisions when it comes to abortion.”
Typically, conservative voters dominate off-year elections. But not this time around in battleground Wisconsin. Together with Everett Mitchell, the second candidate in the race who backed reproductive rights, progressives collected 54 percent of the votes.
In a swing state like today’s Wisconsin, 54 percent for progressives—an 8-point margin of victory—is more than a landslide, it’s an earthquake. The gap contrasts with Republican Sen. Ron Johnson’s much more typical 1-point win over Mandela Barnes in November and President Joe Biden’s less-than-1-point win over Donald Trump in 2020.
Should Tuesday’s results hold in April’s general, it will be just one more data point that voters around the country are furious with the Supreme Court’s decision overturning Roe v. Wade and are making their choices at the ballot box with that in mind. Wisconsin voters were plainly fired up Tuesday by the serious danger to women’s health and freedom. Protasiewicz has called Dobbs the worst Supreme Court decision in decades.
There’s a reason why that powerful condemnation struck a chord in Wisconsin. Dobbs, by allowing states to deny women’s reproductive rights, revived an 1849 Wisconsin law making abortion a crime. Democratic Gov. Tony Evers and state Attorney General Josh Kaul have sued to overturn it; that suit will ultimately find its way to the Wisconsin Supreme Court, where the vote of either Protasiewicz or Kelly will likely be the tie-breaker.
While Protasiewicz took the issue head-on, Kelly has ducked questions on abortion and other issues, offering only catchphrases like saying that he will “follow the law.”
He undoubtedly recognizes the political unpopularity of his views on reproductive rights. In the past, he wrote that Democrats favored abortion “to preserve sexual libertinism,” and “its primary purpose [was] harming children.” Kelly previously served on the Wisconsin Supreme Court from 2016–2020 after his appointment by former Republican Gov. Scott Walker.
In circuit court Judge Jennifer Dorow, Republicans had a candidate of integrity as an alternative to Kelly, who had already lost an election in 2020. She earned national fan mail as “a freakin’ saint” for her skillful management of the trial of an often out-of-control defendant, Darrell Brooks Jr., the now-convicted murderer who plowed his SUV over scores of pedestrians at Waukesha, Wisconsin’s 2021 Christmas parade, killing six.
Dorow attracted 22 percent of the vote, 2 fewer points than Kelly. Unlike him, she was honest enough to say she supported Dobbs. Dorow might well have been a tougher runoff opponent for Protasiewicz to beat, but—like with last year’s midterm elections—GOP voters apparently couldn’t resist putting the most extreme possible candidate up for the general election.
Even running against Kelly, Protasiewicz’s supporters cannot afford to get complacent. Republicans have a plan for the April runoff. The Legislature that they control through gerrymandered districts has placed red-meat initiatives on the ballot to draw conservative voter turnout.
One initiative would permit judges to consider a person’s criminal history in setting bail—not only the risk of flight. The other would “advise” the legislature on whether low-income individuals must show they have searched for a job to receive welfare benefits. On Feb. 20, a judge gave the initiatives a green light to appear on the April ballot.
And so progressive groups such as Swing Left, which backed Protasciewicz by knocking on doors, writing letters, and hosting virtual phone banks for out-of-state volunteers, will need to redouble their efforts. The fundraising group Emily’s List, which made Protasiewicz the first state Supreme Court candidate it has ever endorsed, will have to do the same.
The race has national significance on at least three other fronts.
First, 2024. In the last presidential election, the Wisconsin Supreme Court rejected, by a 4–3 vote, Trump’s flawed lawsuit to overturn the state’s election. Protasiewicz’s ascendance to the court would help provide a fair result should a similar case arise in 2024.
By contrast, in late 2020, Kelly was “special counsel” to the state party and counseled Andrew Hitt, the former state party chair, when he participated in the Republican “fake elector” scheme in Wisconsin. The future of democracy in Wisconsin—and potentially the United States—would not be safe with Kelly as the state high court’s swing vote.
Second, gerrymandering. Wisconsin, a state whose voters are evenly divided, has six Republican congressional representatives and only two Democrats. The state’s Legislature is overwhelmingly controlled by Republicans. Districting is so skewed in Wisconsin that in past years Republicans have dominated the state Legislature even when pulling fewer votes than Democratic candidates.
Kelly represented the Republican Legislature in disputes over the 2010 redistricting maps. Protasiewicz has called the current maps “rigged,” and given the state Supreme Court’s 10-year terms, if elected in April, would be on the court to judge any legal disputes when redistricting again occurs after the 2030 census.
Third is equal justice for LGBTQ people. Kelly has called a Supreme Court ruling recognizing same-sex marriage “destructive.” Protasiewicz supports marriage equality.
These issues, however, were not likely the central question on which most Wisconsin voters made and will make their decisions. Abortion is front and center. Protasiewicz continuing to pound her contrast with Kelly on reproductive rights has every prospect of carrying her to victory in April.