Should a more liberal-leaning jurist win the job in the April election, it would flip the balance of the state’s highest court for at least two years. There are significant policy outcomes hanging on the result. The court chose the state’s political maps for the decade after the Democratic governor and Republican Legislature deadlocked, and it’s likely to hear a case challenging Wisconsin’s 19th-century law banning almost all abortions in the near future. Wisconsin’s Supreme Court also decided major cases on election laws and voting rights before and after the 2020 presidential election.
“The 2023 Wisconsin state Supreme Court race is the most important election that nobody’s ever heard of,” said Ben Wikler, the chair of the state Democratic Party. “It has implications that will affect national politics for years to come, really at every level of government.”
Party organizations and ideological outside groups — both sides of abortion debate, for example, as well as labor groups — are planning to spend millions on advertising and activating extensive field networks. It will be the latest multimillion-dollar judicial race in recent years, which reflects both the outsize importance of the outcome and the increasing focus on contests further down the ticket — and away from Washington.
The court currently has a 4-3 conservative majority. But one of the conservative-held seats is open after Justice Patience Roggensack decided not to seek another term. Further scrambling the politics, another conservative justice — Brian Hagedorn, who was elected in 2019 — has sided with the liberal justices in the past on some high-profile cases.
“It is becoming clear the Democrats want to use the Supreme Court as a vehicle to circumvent legislators who actually make policy decisions,” said Mark Jefferson, executive director of the state Republican Party, ticking through a range of additional issues that could be in play at the court, from school choice to photo ID for voting and gun control measures. “If the liberals pick up another seat, they will have a rock-solid majority that never deviates from liberal activism.”
Voters must first navigate an unusual primary before choosing the new justice. There are four judges running for the position, which is technically nonpartisan, with two on either side of the ideological divide.
Former state Supreme Court Justice Daniel Kelly, who was appointed to a spot on the court by then-Gov. Scott Walker in 2016 before losing a 2020 election for a full term, and Waukesha County Judge Jennifer Dorow, who rose to prominence for her handling of the trial of the Waukesha Christmas 2021 parade attack, are running on the right. On the left, the candidates are Dane County Judge Everett Mitchell and Milwaukee County Judge Janet Protasiewicz.
The top two finishers in the Feb. 21 primary will face off in the April 4 general election. The split field raises the possibility that two ideologically similar candidates advance to the general election, as has happened in some recent congressional elections with all-party, top-two primaries. But most observers don’t think that is likely.