Liberal Candidates for Supreme Court Won a Majority

Xue Ping shows a poll worker her identification card before voting Tuesday, Aug. 9, 2022, at the Brookfield Conference Center in Brookfield, Wis. Angela Major/WPR

Wisconsin’s crucial Supreme Court race could end with a photo finish in April, but there are signs that suggest Democrats are off to an early head start.

While the race is officially nonpartisan, the two candidates backed by Democrats — Judges Janet Protasiewicz and Everett Mitchell — received a combined 54 percent of the vote in Tuesday’s primary. The candidates backed by Republicans — former Supreme Court Justice Dan Kelly and Judge Jennifer Dorow — received a combined 46 percent.

That’s not how general elections are won and lost, of course. The primary campaign is over, and in April, voters will choose between Protasiewicz or Kelly for a 10-year term on the court.

But an 8-point margin is noteworthy in a state where close elections are a way of life.

“That would be, by Wisconsin standards, a sizable win,” said Marquette University pollster Charles Franklin. “This is a notable majority, actually, for the two liberals.”

Recent history suggests that a lopsided finish between the parties is not the norm in a Supreme Court primary.

In 2020, the Supreme Court primary featured Kelly and two liberal challengers, then-Judge Jill Karofsky and Marquette University law professor Edward Fallone. Kelly led the field, but Karofsky and Fallone combined to receive 50 percent of the vote.

The 2018 Supreme Court race also featured a three candidate primary. That year, conservative Judge Michael Screnock received 46 percent of the vote in the primary, while two liberals, then-Judge Rebecca Dallet and attorney Tim Burns, received a combined 54 percent.

Karofsky and Dallet went on to win in their general elections, and are currently serving 10-year terms on the Wisconsin Supreme Court.

There’s no recent example of a party coming from behind, so to speak, after a primary for a Wisconsin Supreme Court race. But Franklin cautioned against reading too much into this year’s primary results.

“I think the main point I would make is it’s a new race in April,” Franklin said. “It’ll be new in turnout, though I think it will go up everywhere. And it will be new in the sense of pitting these two candidates directly against each other.”

Turnout on Tuesday broke records for a nonpartisan February primary as approximately 20.5 percent of the state’s voting age population turned out to vote, according to unofficial totals from The Associated Press. The previous record of 16 percent was set in 2020.

Still, that number represents a relatively small portion of Wisconsin’s electorate. In 2020, when there was also a presidential primary on the ballot, turnout in April topped 35 percent.

Given past trends, there will likely be hundreds of thousands of voters who cast ballots in April but did not vote in February.

“There are going to be a lot of voters coming out in April that are only just getting to know Protasiewicz and Kelly between now and then,” Franklin said. “And so that’s a case where the campaign can matter a lot.”

On Wednesday, Protasiewicz lobbed the first general election attack ads against Kelly, releasing 30-second TV spots criticizing his record as a defense lawyer and his opposition to abortion. In both ads, the narrator described Kelly as “an extremist who doesn’t care about us.”

Protasiewicz far outpaced Kelly and the other candidates for the court when it came to campaign fundraising in the primary election. As of Friday, her campaign had reported raising a total of nearly $2.2 million, which was more than the other three candidates combined. By comparison, Kelly raised a total of $470,000.

The state’s political parties could also get more involved, although in the early going, the Democratic Party of Wisconsin has a major fundraising edge over the Republican Party of Wisconsin. It raised $3.5 million in the first five weeks of the year compared to $56,000 for the state GOP.

Money from outside groups could dwarf what’s spent by the candidates between now and the April 4 election. In the primary, the pro-Kelly group Fair Courts America was the leading spender, purchasing more than $2.4 million in ad buys, according to the Brennan Center for Justice. Fair Courts America is funded by GOP megadonor Richard Uihlein.

Kelly also received the endorsement of Dorow Wednesday as conservatives look to unite their base.

“Judge Janet Protasiewicz has already told us that she will put her thumb on the scales of justice,” read a written statement from Dorow. “We can’t let her succeed. I ask all those who volunteered, contributed and voted for me to now get behind Daniel Kelly.”

Dorow, a Waukesha County judge, performed well in the Milwaukee suburbs on Tuesday. Kelly, with the help of millions of dollars in outside advertising, performed better nearly everywhere else.

But Protasiewicz, the top vote-getter Tuesday, won more counties than Democratic Gov. Tony Evers in last year’s November election. And in Dane County — the Democratic stronghold that helped Evers win in November — the liberal candidates’ share of Tuesday’s vote was a staggering 82 percent.

Editor’s note: The total percentage for Janet Protasiewicz and Everett Mitchell has been updated to 54 percent.

Listen to the WPR report here.

Liberal candidates outpace conservatives in Wisconsin Supreme Court primary was originally published by Wisconsin Public Radio.