A few days before an enormously important Supreme Court race in Wisconsin, both Democrats and Republicans are, perhaps unsurprisingly, projecting equal confidence that their candidate of choice will win.
“Dan Kelly’s gonna win,” Rep. Derrick Van Orden (R-WI) told TPM.
“It’s been a really well-done campaign and I feel like turnout will be at a level that will make sure that people are heard, and I think that means Janet Protasiewicz will win,” Rep. Mark Pocan (D-WI) added to TPM, minutes later.
There has been no public polling in the contest between Milwaukee County Circuit Judge Janet Protasiewicz, backed by Democrats, and former state Supreme Court Justice Dan Kelly, backed by Republicans. Protasiewicz reportedly has the advantage in private polling, as well as the clear edge in fundraising.
If Protasiewicz wins, liberals will retake the court majority for the first time in nearly 15 years.
The race is technically nonpartisan, but the campaigns have been anything but. Protasiewicz in particular has staked much of her candidacy on protecting abortion rights in the state, which are under threat from an 1849 ban.
Kelly and his Republican backers have attacked Protasiewicz for her candor.
“My concern is that Janet has already made public how she would be voting on things,” Van Orden said. “And that’s not what you’re supposed to do because you’ve already decided how you’re gonna vote. You’re not really listening to what the people are saying.”
Kelly himself has a long track record of endorsements from anti-abortion groups, and was on the Republican National Committee’s payroll as recently as December. Republicans also paid him to advise on the fake electors scheme in Wisconsin, a key plank of then-President Donald Trump’s plan to overturn the election. That history is all the more relevant, since the new slate of justices will very likely be the one to handle any election disputes stemming from 2024.
The race has gotten nasty, with Kelly calling Protasiewicz a “liar” and Protasiewicz describing Kelly an “enemy of democracy” during their first and only debate earlier this month.
When TPM asked about the race, Rep. Glenn Grothman (R-WI) quickly pivoted to allegations being lodged by Protasiewicz’s ex-stepson — which local outlets including the Milwaukee Journal Sentinel declined to initially cover due to their origin on a right-wing site with a “checkered past” and inconsistencies in the man’s story — concerning abuse in Protasiewicz’s first marriage and her use of the N word decades ago. She has called the allegations “an absolute lie, 100%” and said she’s mulling a lawsuit.
Another factor of the race that has attracted significant attention is the sheer deluge of money pouring into it: over 30 million dollars. Protasiewicz has been able to spend 20 times what Kelly has on television advertising, something Republicans are quick to point to as “proof” of nefariousness.
“The left is pulling out all the stops, all kinds of outside money,” Sen. Ron Johnson (R-WI) told TPM as he jogged through the Capitol basement. “They don’t really respect democracy, they just want to rule by judicial fiat.”
Kelly, of course, has also benefited from millions in outside spending, a good chunk of which came from GOP mega-donor Richard Uihlein. Such outside spending used to be more limited in Wisconsin, when there was some public funding for statewide judicial campaigns and caps on amounts of money given by state parties. But in 2015, Republican legislators and then-Governor Scott Walker (R) passed a law allowing for donors to give to state parties in unlimited amounts, and for those amounts to be directly passed on to the candidate.
“I had a friend who works for a group that gave a lot of money to the conservative candidate who said to me, by the way, your candidate has run the most perfect campaign that we’ve ever seen in the state,” Pocan said. “So it really has been a very strong campaign. A lot of money has come into the race, without question, but it’s been a really well done campaign.”
Ultimately, the race will come down to turnout. It’s hard to nail down any solid predictions for an election that has enormous bearing on the trajectory of the state, but that is being held by itself in early spring.
Pocan said that he felt confident that his constituents are “engaged,” that voters are paying attention to the oddly timed race.
Van Orden, meanwhile, seems to be trying to reverse some damage done by Trump, who used early and absentee voting as an entry point to sow doubt about the trustworthiness of the 2020 election. Many Republican voters soured on the voting methods as a result, sending some Republican officials rushing to assure their supporters that it’s safe — the better to bet on multiple days of voting, instead of counting solely on Election Day. These Republicans include those who had their own role in spreading the Big Lie like Van Orden, who attended the January 6 rally but said he didn’t enter the Capitol.
“The Republican Party has to embrace early voting,” he said. “Suppose there’s a blizzard; we live in Wisconsin. It’s an integral part. It’s accepted, and it works.”