MILWAUKEE — Janet Protasiewicz, a liberal Milwaukee County judge, won a seat on the Wisconsin Supreme Court on Tuesday — giving liberals a majority on the court for the first time since 2008 and bolstering their hopes that the state’s ban on abortion, along with its Republican-friendly electoral maps, could be revisited.
Protasiewicz, 60, defeated conservative former state Supreme Court Justice Daniel Kelly, who has now mounted two unsuccessful bids for a full term on the court. Kelly, 58, was appointed by Republican former Gov. Walker in 2016 to fill a seat vacated by a retirement, but was defeated by Jill Karofsky, the liberal candidate, in 2020.
The Associated Press called the race at 8:35 p.m. with Protasiewicz up nearly 14 points over Kelly, with 60% of votes counted.
Protasiewicz, speaking to her supporters around 9:30 p.m., had a simple message: “We did it.”
“Just over a year ago, I got into this race,” Protasiewicz said. “I made the decision because I saw that Wisconsinites were ready for common sense and fairness on their Supreme Court.”
Protasiewicz said that throughout her three-decade career in the law, the people of Wisconsin “are the only client I have ever served.”
She said Tuesday’s election showed voters chose “to reject partisan extremism in this state,” adding that it also “means our democracy will always prevail.”
Protasiewicz embraced her soon-to-be liberal colleagues, Justices Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky, on stage while addressing supporters. They joined hands, raising them to a roar from the gathered crowd.
Earlier in the night, the three current liberal justices were visibly emotional after the race was called for Protasiewicz.
“Our state motto is forward,” Protasiewicz said. “And today I am proud that we are going to be able to live up to our motto.”
The race was the most expensive judicial election in American history, with the campaigns and outside groups spending more than $42.3 million as of Monday morning, according to a tally from the Wisconsin Democracy Campaign. The previous spending record was $15 million, which came in a 2004 Illinois judicial contest.
Protasiewicz’s victory could be the start of a period of political upheaval in Wisconsin. In the weeks and months after she is sworn in, a flurry of lawsuits about highly contentious topics could be filed and work their way before the new liberal majority. That includes potential challenges to Wisconsin’s voting maps, the state law (Act 10) limiting the influence of public-sector labor unions and the decision outlawing unstaffed absentee ballot drop boxes.
A lawsuit already filed in Dane County challenging the enforcement of Wisconsin’s 1849 abortion ban is also expected to work its way before the Wisconsin Supreme Court. While Protasiewicz has said she hasn’t reviewed the case, she campaigned as an outspoken supporter of abortion rights, and her presence on the court makes the lawsuit, filed by Attorney General Josh Kaul and Gov. Tony Evers — both Democrats — more likely to succeed.
Kelly had the backing of several prominent anti-abortion groups, but said those endorsements were based on his judicial philosophy, not any commitment to rule a particular way.
Reapportioning Wisconsin’s legislative maps — considered to be some of the most heavily gerrymandered in the nation — is also high on the list of Democrats and their allies. The state’s current districts, drawn by Republican lawmakers, were put in place last year by the state Supreme Court. The maps reflect a controversial move from the high court to take a “least-change” approach to redrawing the state’s legislative maps, and in November led to a veto-proof majority in the state Senate and an almost two-thirds majority in the Assembly.
Protasiewicz, while on the campaign trail, declared that the maps were “rigged.”
“I think anybody with any sense knows our maps are rigged,” Protasiewicz said on an episode of the Cap Times’ “Wedge Issues” podcast. “We have amongst the most gerrymandered maps in the entire country. I have told people, ‘I don't think you can sell, to any rational person, that our maps are fair.’”
She said during that interview that if she were to be elected, she “would anticipate that at some point, we'll be looking at those maps," adding that Wisconsin’s intense and close statewide elections are not reflected in the dominant Republican majorities in the Legislature
There’s also a “real possibility,” said UW-Madison professor and Elections Research Center director Barry Burden in a recent interview, that the court will be involved in settling the outcome of the 2024 presidential election in this swing state. Protasiewicz noted in an interview that it was one swing vote — conservative Justice Brian Hagedorn — that resulted in the court rejecting Republican former President Donald Trump’s effort to overturn the results of the state’s 2020 presidential election.
Kelly previously ran for a full term on the bench in 2020. Kelly and his allies made a concerted effort to focus the race on crime. He told the Cap Times that “there's enough room on the (state) Supreme Court for the Constitution, or for my opponent, but not both.”
He framed the stakes of the race this way: “Will we continue to have the rule of law? Or will we instead have the rule of Janet?”
Those arguments came up short with voters.
In a statement sent after the race was called, Kelly 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.”
“But the judgment of the people of Wisconsin is paramount, and this is what they have chosen,” he said, adding: “I wish Wisconsin the best of luck. I think it will need it."
Protasiewcz’s victory marks the second statewide election in the last six months in which abortion rights have played a role in securing a victory for liberal candidates.
The U.S. Supreme Court’s June ruling in Dobbs v. Jackson Women’s Health Organization ended the constitutional right to terminate a pregnancy and activated Wisconsin’s abortion ban, which had been unenforceable under the court’s 1973 Roe v. Wade decision.
In November — the last time the Marquette University Law School polled on the question — 33% of Wisconsin voters said they supported the decision to overturn Roe, while 55% opposed it. Also in November, 84% of voters said abortion should be legal in the case of rape or incest, while 10% said it should not. In an August Marquette poll, 65% of voters said abortion should be legal in “all or most cases,” while 30% said it should be illegal in all or most cases.
Protasiewicz will be sworn in Aug. 1.