Wisconsin: Tomorrow’s Takes Today

When writing about elections, the sage columnist typically waits for results before pronouncing What It All Means. Especially when that election is as complex and consequential as today’s Supreme Court runoff in Wisconsin.

One can’t decipher the will of the people until the people have spoken, or so one might think if one were naive about the cynical nature of punditry.

I’d prefer to wait until morning to opine about Wisconsin, but this newsletter and every other political publication in America outside of Milwaukee will be consumed by other matters tomorrow.

So let’s not wait. It’s so easy to predict how the average cable-news panel will react to either candidate winning that we can skip ahead and pre-spin both possible outcomes, leaving us free to return to the, ahem, crime beat on Wednesday.

For a primer on Wisconsin, I commend to you the preview written last month by my colleague Harvest Prude. This race has been unusual in two ways, one of which is how brazen each candidate has been about signaling which way they’re likely to rule on contentious issues. Liberal Janet Protasiewicz believes in “a woman’s freedom to make her own reproductive health care decisions” and has described the state’s redistricting maps as “rigged.” Conservative Daniel Kelly has endorsed partisan gerrymandering and criticized abortion passionately for years. We’ve grown accustomed from U.S. Supreme Court confirmation hearings to winking ambiguity by judicial nominees about their core beliefs, but that’s out the window in Wisconsin.

Both candidates have indulged in occasional throat-clearing about not pre-judging cases, but there’s scarcely any pretense that they might not provide the judicial outcomes their respective constituencies are seeking if elected. That’s what happens when you make judges directly accountable to the people, Sarah Isgur reminds us today, all the more so in a country in which neither side trusts the other any longer to behave fairly if granted authority. Wisconsin’s “judicial” election is little more than raw power politics by another name.

The other unusual aspect is how much is at stake. Conservatives have enjoyed a 4-3 majority on the state Supreme Court for more than a decade; a victory by Protasiewicz would flip that to a 4-3 liberal majority with momentous implications for a rich stew of issues. The state’s 19th-century ban on abortion remains good law for the moment but likely not for long if she prevails. The GOP’s mind-boggling gerrymandering edge in Wisconsin would also be imperiled, as would Scott Walker’s famous collective-bargaining reforms for public employees.

And if Trump were to end up back on the ballot in 2024 and Wisconsin’s election went down to the wire again, his chances of overturning an adverse result in court may depend bigly, as the man himself might say, on who wins tonight.

All of that being so, which narratives will the commentariat weave tomorrow to explain the results? Let’s count.

If Kelly Wins

Kelly is the underdog. The two liberal candidates in February’s primary combined for 54 percent of the vote versus 46 percent for the two conservatives, and liberal turnout for judicial runoffs in Wisconsin has tended to outpace conservative turnout in recent years. This isn’t the first time voters there have considered Kelly for a seat on the court either: The last time he was on the ballot, in 2020, he lost by double digits.

On top of all that, Protasiewicz has outraised him by $10 million.

He’s expected to lose. If he doesn’t, to what will he owe his victory?

1. Crime, crime, crime.

Check this out. (Click through to see the video.)

If something there feels “off” to you, there’s a reason. The font, the static-y low resolution video, and the slightly muffled voiceover are all more redolent of a vintage political ad than the slick standards of our modern era, when smartphones can produce professional-quality stuff.

It’s deliberate. Compare:

If you’re running against a self-described progressive jurist, American Politics 101 all but requires you to attack them as soft on crime. But doing a shot-for-shot remake of the infamous Willie Horton ad is next-level.

Protasiewicz invited it with some of her rulings as a lower-court judge. Kelly and his allies have seized the opportunity, running multiple ads about her bleeding-heart pedigree in a state still smarting from the Kenosha riots of 2020. Ron Johnson also used “soft on crime” attacks against Democrat Mandela Barnes in last year’s Wisconsin Senate race and squeaked out a 1-point victory on a rough night for Republicans nationally.

If Kelly pulls it out this evening, the entire punditocracy will be Ruy-Teixeira-pilled tomorrow. Especially if Paul Vallas, the Democrat who wants to beef up his city’s police force, also prevails in today’s Chicago mayoral runoff over progressive Brandon Johnson.

2. Election chaos in 2024.

Kelly isn’t any random Republican. He worked on election issues for the GOP in Wisconsin in 2020.

And yes, by “election issues” I mean exactly what you think I mean.

One of the two conservative candidates for an open Wisconsin Supreme Court seat was paid by state and national Republicans to advise on election issues, including the plan to have fake GOP electors cast ballots for Donald Trump even though he lost the state.

…

Kelly’s work for the state GOP was revealed in testimony that former party Chairman Andrew Hitt gave the U.S. House committee that investigated the Jan. 6, 2021, attacks on the U.S. Capitol.

Hitt, according to his testimony that was released by the committee last month, said Kelly was working as a “special counsel” and had “pretty extensive conversations” about the fake Republican electors. Hitt testified that he brought in Kelly to “kind of advise on election law matters.”

For what it’s worth, Kelly’s spokesman insists that he told Hitt he “wasn’t in the loop” about the fake electors scheme. But he was endorsed by Trump during his last campaign for the state’s high court and has called Justice Brian Hagedorn—the deciding vote in rejecting Trump’s 2020 election challenge in Wisconsin—“supremely unreliable.”

Conservative judges performed bravely and admirably in thwarting Trump’s legal machinations after the election, but as the modern right transitions from a mainstream political faction into … something else, democratically elected conservative judges may be less likely to continue the trend. Protasiewicz has attacked Kelly in ads over what he might do the next time Trump tries to stage a coup, accusing him of having been “behind the scenes of it all” in Wisconsin’s 2020 drama. Without question, a Kelly win means better odds for Trump’s next “Stop the Steal” campaign succeeding.

3. A Trump effect?

It has not escaped your attention, perhaps, that there’s other major political news happening as Wisconsinites go to the polls.

I’m skeptical that the average Republican voter in Waukesha County will be more motivated to get off the couch and vote today by Donald Trump being arraigned in Manhattan than he will by the prospect of the state Supreme Court reversing a decade of conservative policy gains if Kelly loses.

But I’m viewing that through a framework of rationality. And as we’ve discussed recently in this newsletter, to assume that modern Republican voters form their political priorities rationally is to assume too much.

If Kelly overperforms and conservative turnout is much higher than expected, the temptation to attribute his victory to an X factor will be irresistible. Wisconsin Republicans showed up to avenge Trump, many pundits will insist. And … maybe they’ll be right?

Trump’s numbers have soared in national polls since he was indicted. There’s clearly a “rally around the accused felon” dynamic within the party at the moment, fleeting or not. Why would it be surprising that some otherwise disengaged Republican voters in rural Wisconsin, inflamed by the indignity visited upon their hero, might decide to cast a ballot today after all?

We might even see a hot take or two, or 20, tomorrow that Kelly’s victory presages Trump’s reelection as president and that Ron DeSantis is better off not running. 

If Protasiewicz Wins

1. Abortion, abortion, abortion.

Both candidates recognize that the future of the state’s 1849 statute banning abortion is a top priority for voters and both understand that it favors Protasiewicz. In the last six weeks she’s spent $12 million on ads hammering the fact that she’s pro-choice while Kelly isn’t. All told, abortion has been mentioned in fully a third of all advertising run by pro-Protasiewicz entities.

It’s been mentioned in 1 percent of pro-Kelly ads.

If she wins going away, anxious Republican strategists will confront the frightening reality that this issue has “legs.” There was a moment last fall when it appeared the backlash to overturning Roe v. Wade would fizzle before the midterms, but it didn’t. Abortion helped Democrats on Election Day. Protasiewicz skating to victory five months later would mean that it still hasn’t fizzled, and that will further incentivize liberals to put pro-choice legislation on the ballot next cycle to motivate left-wing turnout and entice pro-choice Republican voters to cross the aisle.

It might even cow some Republican politicians into reconsidering their support for federal restrictions on the practice.

On Monday, Florida’s state Senate passed a bill that would shrink the term for legal abortion in that state from 15 weeks to six. Ron DeSantis will soon come under pressure from pro-life activists to promise similarly aggressive limits on abortion nationwide if he becomes president. A Protasiewicz win might make him think twice about making that pledge. It might also push Donald Trump further toward a somewhat more moderate stance on abortion, the better to contrast his position with that of his supposedly electable rival.

Either way, a bad result in Wisconsin will cause Republican angst to spike about what might happen in 2024 if federal courts rescind FDA approval of abortion medication, the next legal flashpoint on this topic. Democrats will assuredly run on that issue in 2024, hoping to extend the post-Roe backlash at the polls. A Protasiewicz victory will leave Republicans wondering how potent that backlash might be.

2. Democrats continue to wreak havoc—successfully—in Republican primaries.

Protasiewicz finished with the most votes by far of any liberal candidate in February’s jungle primary, but Kelly’s victory was more closely run. He took slightly more than 24 percent, less than 3 points ahead of fellow conservative Jennifer Dorow.

Three slim points. What was the difference? Hmmm:

The state’s Democrats and Judge Protasiewicz’s campaign believed Judge Dorow would be a stronger opponent in the general election. A Better Wisconsin Together, a Democratic super PAC, spent more than $2 million on television ads before the primary attacking Judge Dorow.

That should sound familiar. Democrats did the same thing last year to Republican Rep. Peter Meijer, spending to help his MAGA primary opponent in the belief that that opponent would be easier to beat in a general election. They also did it in Pennsylvania’s Republican gubernatorial primary, lending far-right Doug Mastriano a hand because they thought he’d be easy pickings in November.

All told, they spent tens of millions of dollars across eight states to play in Republican primaries before the midterms. And you know what?

It worked like a charm. The populist tomato cans whom they helped to victory in GOP primaries ended up getting squashed by Democrats in the general election.

Eventually their luck with this strategy will run out, to our mutual detriment. They’ll get behind some Republican kook candidate in a primary, convinced that that candidate can’t win in November, only to find out the hard way that they were wrong. I pray it’s not the particular Republican kook I have in mind.

A Kelly upset tonight might cause Democrats to think better of this cynical, dangerous, yet effective strategy. A Protasiewicz victory will cause them to double down on it.

3. Look out for Republicans trying to impeach the new justice.

As absurd as it sounds, there’s chatter already in Wisconsin about impeaching Protasiewicz.

Impeachment is, or should be, a remedy for misconduct committed by an official while in office, not before. Whether prior misconduct is disqualifying in a political candidate is a matter for the people to decide at the polls; if Wisconsinites choose the liberal judge, by what right should Republicans in the state legislature undo their decision?

Some are thinking about it regardless. Republican Dan Knodl is also on the ballot today as a candidate for state Senate and says he’s willing to consider impeaching Protasiewicz as a lifetime achievement award of sorts:

The Wisconsin Constitution allows lawmakers to remove state officials “for corrupt conduct in office, or for crimes and misdemeanors,” but Knodl said Sunday he would consider launching impeachment proceedings for criminal justice officials “who have failed” at their jobs

…

In an appearance on WISN-TV’s political talk show “UpFront,” Knodl said the “Milwaukee County justice system is failing” and said he believes its prosecutors and circuit court judges “need to be looked at” including Milwaukee County District Attorney John Chisholm and Protasiewicz.

“She has failed,” Knodl said. When asked directly if he would support impeaching Protasiewicz, Knodl said “I certainly would consider it.”

Another Republican state senator suggested he’d be open to impeaching Protasiewicz if she misbehaves once she’s seated on the high court. The misbehavior he has in mind, it seems, is issuing liberal rulings. “If she truly acts in terms of ignoring our laws and applying her own personal beliefs, then maybe that’s something people will talk about,” Duey Stroebel told the New York Times. “If the rulings are contrary to what our state laws and Constitution say, I think there could be an issue.”

To understand what’s driving their desperation, you need to know that Republicans are just one seat shy of a two-thirds majority in the state senate. Knodl is the candidate for that currently vacant seat. He’s using the specter of a Protasiewicz victory statewide to motivate Republicans in his district to turn out for him today, hinting that they have the power to keep her off the court by sending him to the capitol.

But I think it’s more than an empty campaign promise. The risk that a newly liberal state Supreme Court will undo the GOP’s massive gerrymandering advantage in Wisconsin is so great that Republicans really might talk themselves into contriving a reason to kick Protasiewicz off the bench.

Despite the fact that it’s a proverbial 50/50 state with a Democratic governor and one Democratic senator, Republicans have a nearly 2-to-1 advantage in both the state Assembly and the state Senate and a 6-2 advantage in House districts. They’re not just losing an abortion ban or Walker’s collective bargaining law or their ability to rubber stamp a Trump election challenge in 2024 if Protasiewicz wins. If she’s true to her word about revisiting “rigged” state legislative maps, they’re losing their stranglehold on power potentially.

And as we learned in 2020, modern Republicans are willing to go a mighty long way to retain their grip on power when they feel it slipping, democratic norms be damned.

Knodl’s race is almost as important as Protasiewicz’s in determining the future of the state, in other words. Depending on how it turns out, Wisconsin will see either a fragile new equilibrium or a chapter of even rawer power politics as Republicans consider their procedural options to oust a newly elected liberal judge. It could, and probably will, get ugly since that’s the only direction in which American politics moves anymore. But no state will be more interesting over the next two years than this one.