Issue #104: Liberals win control of the Wisconsin Supreme Court

At look back at 12 years of elections

On April 4th, Democrats and left-leaning groups scored a massive win in the State of Wisconsin. The election of Janet Claire Protasiewicz has resulted in a 4-3 liberal majority in the state’s Supreme Court, ending a decade plus reign of conservatives on the court.

Since at least 2011, court races in the state have been at least partially run around the issue of court control. While non-partisan officially, the races often see major party investment. Each term is 10 years.

The results of Tuesday’s vote could have massive implications for gerrymandering, voting, and civil rights. In honor of this, I wanted to take a look back at the last decade of court races to see how we got here.

The Decade of Contests

These elections are held in the spring using a top-two layout. A first round is normally around February, with a general in April. If more than two candidates file, then the first round decides who advances. A note though, even if someone gets 50% in the first round, a general is still held.

The most infamous Supreme Court election in Wisconsin was no doubt 2011. This spring election was held just a few months into the term of Governor Scott Walker. As Walker’s anti-union push led to massive protests, the court race became a major battleground. The court had four steadfast conservative justices, two liberals, and a swing voter that leaned more to the right.

Incumbent David Prosser faced Deputy AG JoAnne Kloppenburg. A Prosser loss would give three liberals a chance to work with the swing vote. The contest got more partisan than many past races. In the end, Prosser would end up winning by just 7,000.

This contest is also controversial because on election night it appeared Prosser had lost. However, uncounted ballots out of deep-red Waukesha pushed Prosser to the lead. An investigation found clerical error from the county clerk was at fault for the confusion, but no criminal wrongdoing. Recounts that followed confirmed the narrow GOP win. This was heartbreaking to unions. This meant a solid conservative majority remained on the court.

In 2013, another conservative justice, Pat Roggensack, was up for another term. However, unlike 2011, the contest generated much less attention. While challenger Ed Fallone, a law professor, had some democratic support, the contest was very lopsided in terms of money. Roggensack was able to tout her experience and dominated the airwaves. The result was a conservative win in a forgotten race.

While liberals didn’t make much of a fight in 2013, the reverse happened two years later.

In 2015, liberal justice Ann Walsh Bradley faced James Daley. This time, Bradley led in fundraising. With Walker’s re-election win in 2014 and a solid conservative majority, there was not much attention on the race. Bradley would easily win.

The bigger contest was actually a referendum about the supreme court. Republicans pushed the measure, which made it so the Chief Justice would be picked by the current justices. The previous method was the most Senior Justice was chief - liberal Shirley Abrahamson. The referendum was heavily backed by Republicans and had lopsided cash in favor of the YES camp. The measure won, and shortly after Conservative Pat Roggensack was named Chief Justice. I wrote about this referendum back in 2015.

The 2016, liberals were dealt a big blow on the court. A special election for 2016 was scheduled after Scott Walker appointed Rebecca Bradley to the court in 2015. Bradley was replaced Justice Crooks, the long-time swing vote on the court. In the first round of the election, liberal-leaning candidates outpaced conservatives. The general, however, saw Bradley win by 5%.

The general election for the court was the same day as the Presidential primaries for both parties. Democrats saw Clinton and Sanders clash, while the Republicans saw Trump vs Cruz. More Republican primary votes were cast, no doubt helping Bradley.

The results of this race meant that the court was now solidly 5-2 conservative.

Liberals would get a much-needed boost in 2018 when they managed to flip a seat. Incumbent Conservative Michael Gableman was retiring, and his seat was one by Milwaukee judge Rebecca Dallet.

This result left the court at 4-3 conservative. Liberals could now see a future opportunity to flip the court down the line.

Liberal hopes to flip the court were severely damaged in 2019. That year, former liberal Chief Justice Shirley Abrahamson was retiring. Democrats and liberals believed they had the advantage, with Trump dragging down GOP prospects. However, in what amounted to a shock, conservative Brian Hagedorn defeated liberal Lisa Neubauer.

Hagedorn was a justice on the court of appeals an a former legal counsel to Scott Walker, a bitter pill for liberals to swallow. This left the court back at 5-2 conservative.

After 2019, it seemed conservatives would have a long reign in control of the court. Liberals would need to win the next two races in a row to take the court.

The first step in this process would happen in 2020. Democrats were aiming to knock off appointed justice Daniel Kelly, who had been appointed after David Prosser, of 2011 fame, resigned early. Kelly was a very conservative and outspoken justice. The race was held as the COVID pandemic led to many turnout issues. Despite the complications with voting, liberal Jill Karofsky easily won.

I highly recommend reading my 2020 article on this contest. The COVID pandemic had led to massive polling shortages, especially in the Milwaukee area. This led to much weaker turnout for the county. While statewide turnout between the February and April races was way up, it lagged badly in Milwaukee. The city itself only had FIVE polling sites. Karofky’s win is all more impressive conserving this. Read more about this saga here.

Absentees definitely helped Democrats, but the turnout effect was clear. Had the race been a narrow Kelly win, it would have been easy to lay the blame on the Milwaukee contest.

The result led to a 4-3 conservative court.

The 2023 Election

This finally brings us to 2023 and the race to replace the retiring Patience Roggensack, a conservative.

The first round saw liberals rally around Milwaukee judge Janet Protasiewicz. The conservative block was dived between the returning Daniel Kelly and Waukesha County judge Jennifer Dorow. Liberals absolutely wanted to face Kelly again, and worked to promote him in the first round. They got their wish.

The general election was heavily driven by the repeal of Roe v Wade and the upcoming likely cases on redistricting and abortion that the court would no doubt be hearing. Kelly was a poor campaigner and had far less cash than Protasiewicz. While many expected the race to be close, it wound up being a solid 11 point liberal win.

And with this result, the liberals now hold 4 spots on the state Supreme Court. If there was any doubt about the new majority, the presence of the 3 incumbent liberal justices at the victory party should settle any doubts.

Sam Levine @srl

Wisconsin’s four liberal justices, the new majority on the state Supreme Court, take the stage

The results are the culmination of a decade-plus of court fights. Below is a table that hopes to summarize the events since 2011.

The results of these races will be critical for Wisconsin in the coming years.