This article is part of TPM Cafe, TPM’s home for opinion and news analysis, and first appeared on the Substack blog Can We Still Govern?
We pay a lot of attention to SCOTUS picks, for very good reason, but less to state courts. But the most important election this year is arguably for the Wisconsin state Supreme Court seat that Wisconsin voters will choose in April. It will also be the most expensive judicial election in American history, and a test of whether donor money will be enough to elect an unpopular far-right candidate.
In the primary, Judge Janet Protasiewicz and Justice Daniel Kelly advanced, the former being the clear choice of Democrats in the state, and the latter favored by Republicans, though the elections are nominally nonpartisan.
Why is this election so important
Wisconsin is a purple state that governs like a deep red state. The most obvious reason for this is an extreme gerrymander that has ensconced a permanent Republican majority in the legislature regardless of how well Democrats perform. This gerrymander was created under a Republican trifecta, but persists into its second decade even with a Democratic governor because the 4-3 conservative majority picked Republican maps.
That gerrymander, and the court’s blessing of it, has contributed to democratic backsliding in large and small ways. Most obviously at stake is the right to an abortion. Right now, Wisconsin’s abortion laws date back to 1849, meaning abortion is not available in the state, even though about 60% of voters have expressed consistent support for legal abortion. If Republicans maintain control of the courts, the gap between people’s preferences and policy will continue.
In less dramatic ways, the courts have contributed to democratic backsliding by:
- Upholding an unprecedented powergrab in 2018, when the Republican legislature stripped the newly-elected Democratic governor and attorney general of powers for the crime of defeating their Republican opponents.
- Allowing former Governor Walker appointees to continue to keep positions in state government years after their term ended, while co-partisans in the legislature block the nomination of their replacements.
- Making it harder to vote, most recently by banning dropboxes after Republicans said they gave Democrats an unfair advantage by, uh, making it easier for people in more urban areas to vote.
But the most dangerous threats from the Wisconsin Supreme Court may lie ahead of us, and have national implications. In the last two presidential elections, Wisconsin was a swing state decided by about 20,000 votes. In 2020, Trump tried to get 221,000 votes from heavily Democratic counties tossed. He failed, but three of the four justices were shockingly open to going along with Trump’s suggestion. The gerrymandered legislature could easily have switched state electoral votes from Biden to Trump if the courts had given them the green light. This was a near miss, but as long as Wisconsin remains a swing state with a conservative majority on the court, the risk remains.
Meet Daniel Kelly
So who is Daniel Kelly? The kind of guy who posted this at a shooting range fundraiser the day after a mass shooting in Wisconsin left five people dead.
Kelly has made clear he will maintain a ban on abortion. He has also committed to keeping the current gerrymandered legislative maps. This is not a surprise, since Kelly was chosen by then Governor Scott Walker to defend the maps in court in 2011. Walker then appointed Kelly to the state Supreme Court when a vacancy arose in 2016, despite lacking any judicial experience. Kelly had four years on the court before he had to run for his seat, at which point he was soundly beaten.
Kelly’s close ties to the GOP mock the notion that he is anything other than a rubber stamp for the party. After all, he campaigned from state GOP headquarters in 2020, and has been a paid consultant for the party in recent years on election issues (which he would certainly rule on as a justice).
Perhaps most disturbing, Kelly’s $120,000 consulting gig occurred as party members organized fake electors to try switch the state’s electoral votes from Biden to Trump. Kelly, as counsel on election issues, was part of this discussion. According to Daniel Bice at the Milwaukee Journal Sentinel:
Kelly was at the center of the discussion in December 2020 with top Wisconsin Republicans over their highly controversial plan to covertly convene a group of Republicans inside the state Capitol in the weeks following Donald Trump’s loss to Joe Biden to sign paperwork falsely claiming to be electors.
Former state Republican Party Chairman Andrew Hitt said in a deposition last year to the U.S. House committee that investigated the Jan. 6, 2021, attack on the U.S. Capitol that he and Kelly had “pretty extensive conversations” about the fake elector scheme. Kelly was serving as the party’s “special counsel” at the time.
Money and judicial elections
Didn’t Republicans have a better candidate? They did. Democrats did not want to face Judge Jennifer Dorow, who had gained national attention after presiding over a high-profile case.
Kelly’s main selling point to voters was money. More specifically, that the billionaire Uihlein family were behind him, having already bankrolled his campaign with millions to the point that Kelly did not have to spend any of his own campaign resources on TV ads.
Liz and Dick Uihlein were described by the New York Times in 2018 as “the most powerful conservative couple you’ve never heard of.” Since then, their spending has only increased.
Much of that money goes to far-right candidates, reflecting a family tradition where the Uihlein’s funded the John Birch Society, George Wallace and the original American First group.
Uihlein money dragged Senator Ron Johnson over the finish line in a closely fought 2022 Senate race, after Johnson had personally intervened to insist on a tax loophole that saved them hundreds of millions.
As they have spent more money, the Uihlein’s have favored election deniers who campaign on the claim that Trump won, or groups that spread such lies. According to the Brennan Center, the Uihleins spent “almost $63 million to election denial candidates and super PACs supporting them” in the 2022 election cycle. The Uihleins have also poured tens of millions into state court races guessing, probably correctly, that the return on investment is higher relative to spending on other races.
So the question is: can a far-right and relatively unpopular candidate be elected so he can maintain a pattern of judicially-driven democratic backsliding that he helped to create? The answer depends on how much a single billionaire family can sway the electorate.