Protasiewicz defeats Kelly in the general election for Wisconsin Supreme Court, switching control of the court to a 4-3 liberal majority

Janet Protasiewicz defeated Daniel Kelly in the nonpartisan general election for Wisconsin Supreme Court on April 4, 2023. Protasiewicz’s election means the balance of the court will switch from a 4-3 conservative majority to a 4-3 liberal majority for the first time in 15 years.

The election determined who would succeed retiring conservative Justice Patience Roggensack, whose term expires in July 2023. While supreme court elections are officially nonpartisan, justices and candidates are considered to be liberal or conservative. With Roggensack—a member of the court’s conservative majority—retiring, the general election determined the ideological control of the court.

Wisconsin media identified abortion, election administration, and legislative redistricting as legal issues the court could address following the election.

Protasiewicz, a former assistant district attorney, has served on the Milwaukee County Circuit Court since 2014. Ahead of the election, Protasiewicz said, “We’re saving our democracy in the state of Wisconsin. … I’m talking about the ability to vote, to have a vote that counts about women’s rights, reproductive freedoms, the fact that the 2024 presidential election results could likely come into our Supreme Court chamber, just everything people care about.”

Kelly served on the supreme court from 2016, when Gov. Scott Walker (R) appointed him to fill a vacancy, to 2020, when he lost re-election to Jill Karofsky 55.2% to 44.7%. As a result of that election, the supreme court went from a 5-2 conservative majority to a 4-3 conservative one. Ahead of the 2023 election, Kelly said, “If an activist were to win next April, Wisconsin’s public policy would be imposed by four lawyers sitting in Madison instead of being adopted through our constitutional processes. I won’t let that happen on my watch.

Protasiewicz and Kelly met at a March 21 debate, in which Protasiewicz criticized Kelly for accepting the endorsements of organizations that opposed abortion and said Kelly would support keeping in place an 1849 state law that prohibits abortion in most cases. Protasiewicz also accused Kelly of advising state Republican officials who planned on sending an alternate slate of electors to Washington D.C. after the 2020 election.

Kelly criticized Protasiewicz for accepting contributions from the state Democratic Party and said those contributions might influence her actions as a member of the court. Kelly also criticized Protasiewicz for publicly stating her views on issues that could come before the court, including abortion and legislative redistricting. 

The three liberal justices on the court—Rebecca Dallet, Ann Walsh Bradley, and Jill Karofsky—endorsed Protasieweicz. EMILY’s List, a political action committee dedicated to electing Democratic women who support abortion, also endorsed Protasiewicz.

Conservative justices Roggensack, Rebecca Bradley, and Annette Ziegler endorsed Kelly. The groups Wisconsin Right to Life, Wisconsin Family Action, and Pro-Life Wisconsin also endorsed Kelly.

The election set a new record for campaign spending in state judicial elections. According to WisPolitics, more than $44 million had been spent in the race as of March 30, three times the $15 million spent in the previous record holder, a 2004 Illinois Supreme Court race.

Protasiewicz and Kelly were the top two vote-getters among the four candidates who ran in the February 21 nonpartisan primary. Protasiewicz received 46.5% of the primary vote, and Kelly received 24.2%. Waukesha County Circuit Judge Jennifer Dorow, a conservative candidate, and Dane County Circuit Judge Everett Mitchell, a liberal candidate, received 21.9% and 7.5%, respectively. Together, Protasiewicz and Mitchell received 53.9% of the vote to Kelly and Dorow’s combined 46.1%.

Voters also approved three ballot questions, including two constitutional amendments related to cash bail and an advisory question related to work requirements for welfare benefits. The third measure was an advisory question asking voters whether able-bodied childless adults should have to apply for work before receiving welfare benefits. 

As of 2023, Wisconsin has a divided government. The governor is Democrat Tony Evers, while the Republican Party controls both chambers of the state legislature.