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What to Watch For in a Consequential Court Election in Wisconsin

BELOIT, Wis. — It is a funny thing about American politics that for one night, the nation’s most important campaign of 2023 descended on Cheezhead Brewing, a tavern where about 50 Republicans gathered to discuss the Wisconsin Supreme Court race.

Standing in front of a Green Bay Packers logo made from green, gold and white bottle caps, Jennifer Dorow, a Waukesha County judge who is one of two conservatives running in Tuesday’s four-way primary, told the crowd on Sunday night that “fairness and impartiality are squarely on the ballot this election.”

What fairness and impartiality mean, however, depends entirely on one’s political stripes.

Democrats say Wisconsin’s Supreme Court, controlled by conservatives since 2008, has enacted unfair legislative maps that have allowed Republicans to take near-supermajority control of the State Assembly and Senate in an evenly divided state — making nearly everything the State Legislature does unfair. The leading liberal candidate in the race, Janet Protasiewicz, a Milwaukee County judge, calls the maps “rigged” and has said she would vote to throw them out.

For conservatives like Judge Dorow, publicly telegraphing one’s intentions on the court and prejudging cases are violations of the judicial oath.

But few in Wisconsin are fooled about the stakes of this officially nonpartisan race for an open seat on the seven-member court. If a liberal candidate wins a 10-year term, the court will tip in liberals’ favor, and the state would be likely to throw out its 1849 law banning abortion in nearly all cases and to redraw its legislative maps. If a conservative wins, abortion will remain illegal and Republicans will retain a lock on the Legislature for at least another decade.

A protest for abortion rights last month in the rotunda at Wisconsin’s Capitol. The Supreme Court race could decide the fate of Wisconsin’s abortion ban.Credit…Jamie Kelter Davis for The New York Times

The top two candidates from Tuesday’s primary will advance to the general election on April 4. As voters cast their ballots, here is what’s happening in the race.

The G.O.P. establishment is fighting outsiders.

Last fall, Wisconsin’s Republican establishment rallied behind Daniel Kelly, a former Supreme Court justice who, in 2020, lost a bid for re-election — just the second sitting justice to do so since 1958.

But whispers soon emerged on the right about Justice Kelly’s ability to win. He lost that 2020 race by 10 percentage points, an enormous margin in battleground Wisconsin, where a three-point victory in a statewide race constitutes a blowout.

Around the same time, Judge Dorow was presiding over the most prominent local court case in years — the murder trial of a man eventually convicted of killing six people by driving through a 2021 Christmas parade. She was on the news every night for weeks.

More on Abortion Issues in America

  • Abortion Bills: More than 300 abortion-related bills — a majority of which seek restrictions — have been proposed around the United States. Doctors are the most vulnerable to punishment.
  • A Missed Opportunity: Abortion rights activists say President Biden’s State of the Union speech could have done more to address what they view as a national health crisis.
  • State Constitutions: Divergent decisions by state supreme courts in South Carolina and Idaho displayed how volatile the fight over abortion rights will be, as advocates and opponents push and pull over state constitutions.
  • A New Lawsuit: A company that makes an abortion pill filed a lawsuit challenging the constitutionality of West Virginia’s ban on the medication. A wave of similar cases are expected to be filed in coming months.

There hasn’t been a Wisconsin Supreme Court race with multiple conservative candidates since the turn of the millennium, and Justice Kelly’s allies were determined to avoid one.

“I personally called Jennifer before she entered the race and pleaded with her not to jump in,” Shelley Grogan, an appellate court judge who serves as a Kelly surrogate, told the Cheezhead Brewing audience. “It’s really hard for a conservative to win. So if there’s more than one person interested, they sit down and talk about it and decide who we can all get behind.”

(In a subsequent interview, Judge Grogan said she was interested in running for the State Supreme Court in the future. A liberal justice’s term is up in 2025, and a conservative justice’s will expire in 2026.)

Jennifer Dorow, a Waukesha County judge, is one of two conservatives running in Tuesday’s four-way primary.Credit…Caleb Alvarado for The New York Times

Judge Dorow told the audience she would not wait her turn.

“I don’t believe in deciding candidates in a back room,” she said. “I believe it’s important that the voters in the state of Wisconsin do that.”

The 2020 election still looms large — for both parties.

When the Wisconsin Supreme Court ruled, in a series of 4-to-3 votes, to uphold Joseph R. Biden Jr.’s 2020 victory in Wisconsin, it was a conservative justice, Brian Hagedorn, who provided the key vote to reject President Donald J. Trump’s argument to invalidate 200,000 votes.

Those decisions have energized Democrats, who are poised to pour tens of millions of dollars behind Judge Protasiewicz (pronounced pro-tuh-SAY-witz). But they have also animated Justice Kelly, who has repeatedly accused Judge Dorow of being the second coming of Justice Hagedorn — a sort of untrustworthy Trojan horse who would betray Republicans when it counts.

Justice Kelly, who The Milwaukee Journal Sentinel last week revealed has for two years been paid by the Republican National Committee to work on “election integrity issues,” has repeatedly tied Judge Dorow to Justice Hagedorn. Along with voting against Mr. Trump’s efforts to overturn the election, Justice Hagedorn sided with several pandemic mitigation efforts by Gov. Tony Evers, a Democrat, in 2020. Justice Hagedorn has been a reliable conservative vote on most matters, including redistricting, but many on the right have not forgiven him for defying Mr. Trump.

“I’m kind of in the same place that I was with Brian Hagedorn, all I have is what she says about herself,” Justice Kelly said at a meeting of Republicans on Monday night in Sheboygan. “Jennifer may very well be a judicial conservative, she might be, I just don’t know because there’s nothing there to tell me that she is.”

Justice Hagedorn, in an email, said he was “not interested in commenting at this time.”

Republicans are arguing about what it means to be electable.

Justice Kelly’s 2020 defeat is the animating feature of Judge Dorow’s campaign.

“I’m the only conservative who can win in April,” she wrote on Twitter, linking to a radio advertisement in which one of Milwaukee’s leading conservative talk radio hosts delivered a monologue supporting her candidacy.

But besides offering the basic bromides about being a conservative judge who will abide by the Constitution, Judge Dorow has said little else about her candidacy. She has declined nearly all interview requests, and in Beloit a campaign aide said she would respond only to preapproved questions. She did not linger at the bar to speak with voters after her remarks.

Judge Janet Protasiewicz is the leading liberal in the officially nonpartisan race.Credit…Caleb Alvarado for The New York Times

Justice Kelly has been much more explicit about his political advantages. He has support from the billionaire Uihlein family, whose super PAC, Fair Courts America, has spent $2.7 million on ads backing him and attacking Judge Protasiewicz. Justice Kelly has said major conservative donors will abandon the race if he does not advance to the general election. A spokesman for Fair Courts America did not respond to questions.

“You need to be the kind of candidate that will attract the independent expenditures to get the message out across Wisconsin,” Justice Kelly told Republicans gathered at a Lincoln Day dinner in Sawyer County this month. “If it’s not me in the general election, it’s not like that money just moves over to Jennifer. It just won’t be spent. So if I’m not the candidate in the general election, Jennifer will jump in completely unarmed when the left is going to spend upwards of $25 million.”

Democrats seem to prefer to face Justice Kelly and the Uihlein money rather than Judge Dorow’s shallower record.

A Better Wisconsin Together, a Democratic super PAC, has spent $2 million in TV ads attacking Judge Dorow in the primary but nothing against Justice Kelly. Democratic opposition research has been focused on damaging Judge Dorow, who is less well known but perceived as more likable and reasonable than Justice Kelly by voters in Democratic focus groups.

Democrats are vowing not to replay their 2022 Senate race.

Last year, Wisconsin Democrats watched as Mandela Barnes, a popular, progressive, young Black candidate coalesced support before losing the general election to Senator Ron Johnson, a better-funded, older white Republican.

Determined not to repeat that recent history, the party’s top leaders and fund-raisers coalesced behind Judge Protasiewicz, a white, female career prosecutor and jurist from the suburbs who is not as vulnerable to the types of barely coded attacks that helped doom Mr. Barnes last fall.

Judge Protasiewicz built a commanding fund-raising advantage and has opened a wide lead in both parties’ private polling ahead of the primary. She is widely expected to place first on Tuesday, with the other liberal candidate in the race, Everett Mitchell, a more progressive Black judge from Dane County, projected to finish fourth.

The near unanimity among Democrats combined with a fractured G.O.P. has Democrats planning and Republicans fearing a mountain of attack ads beginning as soon as Wednesday against whichever conservative candidate advances to a likely matchup with Judge Protasiewicz. A reverse dynamic in August damaged Mr. Barnes, while Mr. Johnson and his allies poured tens of millions into attack ads before the Democrat could recover.

“There is no world in which Janet is defined by the right in the first weeks of the race,” said Sachin Chheda, a top strategist on the Protasiewicz campaign. “We are prepared for whatever the results are on Tuesday and will be hitting the pedal to the floor on Wednesday.”

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