2023’s Biggest, Most Unusual Race Centers on Abortion and Democracy

In just 10 weeks, Wisconsin will hold a election with greater policy stakes that any other contest in America for 2023.

The April race, for a seat on the state’s evenly divided Supreme Court, will determine the fate of abortion rights, gerrymandered legislative maps and the governor’s appointment powers — and perhaps even the state’s 2024 presidential election if the outcome is again contested.

The court’s importance stems from Wisconsin’s deadlocked state government. Governor. Tony Evers, a Democrat, has faced off against a Republican-controlled Legislature with near-supermajority control thanks to one of the country’s most aggressive partisan gerrymandersThe Wisconsin justices also approved it last year.

Wisconsin’s Supreme Court has been left to arbitrate a host of thorny issues in the state, and has nearly always sided with Republicans. Now, however, liberals are hoping to reverse many of those decisions as they take control of the open seat, along with its 10-year term, after a conservative justice retires.

“If you change control of the Supreme Court from relatively conservative to fairly liberal, that will be a big, big change and that would last for quite a while,” said David T. Prosser Jr., a conservative former justice who retired from the court in 2016.

This contest could easily break all spending records in any state for a judicial race and even double the most expensive. Wisconsinites are set to be inundated by a barrage of advertising, turning a typically sleepy spring election into the latest marker in the state’s nonstop political season. The seat is not partisan by design, and officials from both sides will be supporting the chosen candidates.

The court battle is quite a spectacle because it is so blatantly political.

Although past state judicial candidate and United States Supreme Court nominees were unsuccessful, largely avoided weighing in on specific issues — instead pitching opaque judicial philosophies and counting on voters or senators to read between the lines — some of the Wisconsin contenders are making all but explicit arguments for how they would rule on topics that are likely to come before the court.

Janet Protasiewicz is a Milwaukee-area liberal county judge. She leads the charge for both fund-raising as well as the new approach to judicial campaigns. She turned heads this month at a candidate forum when she declared the state’s gerrymandered legislative maps “rigged.”

In an interview last week, Judge Protasiewicz argued that abortion should be “a woman’s right to choose”; said that Gov. Scott Walker’s 2011 lawIt was effectively that collective bargaining rights were eliminated for most public employees. She predicted that if she won, the court would hear a case to invalidate the Republican-drawn congressional and state legislative maps.

“Obviously, if we have a four-to-three majority, it is highly likely that we would be revisiting the maps,” she said.

The other liberal candidate, Judge Everett Mitchell of Dane County, which includes Madison, the state capital, said in an interview that “the map lines are not fair.”

Both candidates support the right of abortion. It was illegalized last summer by a law that was passed in 1849. is being challenged by the state’s Democratic attorney generalIn a case that is likely to be heard by the court in this year.

The declarations are a sign of how the race is changing into a statewide vote like any other Wisconsin election, and a constant political battleground. Like November’s contests for governor, state attorney general and the Senate, the court election is set to be dominated by a focus on abortion rights (for Democrats) and crime (for Republicans).

“We’re still on the November hangover where the top two issues were crime and abortion,” said Mark Graul, a Republican political operative in the state who is a volunteer for Jennifer R. Dorow, a conservative Waukesha County judge in the Supreme Court race. Judge Dorow presided. the trialA man was convicted last fall of six murders by driving through the 2021 Christmas parade.

Judge Dorow and Dan Kelly, another conservative who was a former justice of the Wisconsin Supreme Court, lost a 2020 electionTo retain his seat, he will face the two liberals in an official nonpartisan February 21 primary to replace Justice Patience D. Roggensack.

The top two candidates will move on to an April 4, general election. The winner will join the court, which is currently split between three conservative and three libertarian justices.

In narrowly divided Wisconsin, a one-seat edge is all the majority needs to change the state’s politics.

The court has also ruled in favor of Republican-drawn maps in recent years. most drop boxes for absentee ballots are illegal; struck down Mr. Evers’s pandemic mitigation efforts; stripped regulatory powers from the state schools superintendent, a Democrat; allowed political appointees of Mr. Evers’s Republican predecessor to remain in officeSeveral public schools were required to pay for transportation for parochial schools long after their terms expired.

Many of those cases, which Democrats hope to roll back, were brought to the court by the Wisconsin Institute for Law and Liberty, a think tank and legal organization that has served as the leading edge of the state’s conservative movement. The group’s founder, Rick M. Esenberg, said the court’s role ought to be upholding laws precisely as legislators have written them — not proposing major changes to them.

“Having control of the judiciary shouldn’t mean that you can make new policy,” Mr. Esenberg said. “Some judicial candidates have spoken as if that’s exactly what’s at stake. And for them, it may well be.”

Judge Dorow and Justice Kelly are conservative candidates. While they were less direct about what they would do, both left plenty of clues for voters. Justice Kelly last year participated in an “election integrity” tour sponsored by the Republican Party of Wisconsin. Judge Dorow, who was so well-known in Milwaukee suburbs that many knew him by his name. dressed as her last HalloweenIn, a 2016 legal questionnaireLawrence v. Texas was the U.S. Supreme Court’s worst decision. the 2003 decision that struck down anti-sodomy laws.

Both have strong ties to Donald J. Trump. In 2020, Trump supported Justice Kelly. praised him at a Milwaukee rally. Judge Dorow’s husband, Brian Dorow, was a security officialFor Trump campaign events in Wisconsin. Judge Dorow and Justice Kelly were not willing to be interviewed.

The state has broken records for raising funds for judicial races. Judge Protasiewicz — whose campaign on Tuesday released a cheeky video teaching Wisconsinites how to say her name: pro-tuh-SAY-witz — raised $924,000 last year, more than any Wisconsin Supreme Court candidate ever in the year before an election. Judge Dorow and Justice Kelly raised approximately one-third of the amount, while Judge Mitchell received $115,000.

Far more money will flow in from outside groups and the state’s political parties, which have no limits on what they may receive and spend. Both parties will likely direct millions of dollars to their preferred general election candidates.

Justice Kelly has the backing of the billionaire Uihlein families, whose political committee pledged last summer to spend. millions of dollars on his behalf. So far, the Uihleins’ contributions have amounted to just $40,000 — a pair of maximum individual contributionsHis campaign. Last year the Uihlein-backed super PAC spent $28 million in Wisconsin’s Senate race; Richard and Liz Uihlein contributed an additional $2.8 million to the state Republican Party.

Dan Curry, a spokesman for Fair Courts America, the Uihleins’ political action committee, declined to answer questions about the family’s spending plans in the Supreme Court race.

There has not been an equal public interest in the huge stakes involved in this race. Marquette University Law School, which conducts Wisconsin’s most respected political polls, has no plans to survey voters about the Supreme Court election, said Charles Franklin, the poll’s director.

Ben Wikler was the chairman of Democratic Party of Wisconsin. He stated that it was clear that spending on the race would exceed the $15 million spent in 2004 on the Illinois Supreme Court’s campaign for the highest-priced U.S. judiciary race, according to Brennan Center for Justice.

Mr. Wikler, who has spent recent weeks stumping for cash from major Democratic donors, said he hoped to make the race a national cause célèbre for liberals along the lines of Jon Ossoff’s 2017 House campaign in GeorgiaOr the referendum on abortion rightsKansas, last year.

He cited the court’s 4-to-3 ruling in December 2020 that rejected the Trump campaign’s effort to invalidate 200,000 votes cast in Milwaukee County and Dane County — an argument that has resonated with top Democrats in Washington worried that a more conservative court could reach an opposite conclusion in the future.

“Wisconsin is extremely important for the presidency,” Senator Chuck Schumer of New York, the majority leader, said in an interview. “The Supreme Court is the firewall to an extreme Legislature that wants to curtail voting rights. And so this election is very important, not just for Wisconsin, but for the country.”

Eric H. Holder Jr., an ex-attorney general who heads the National Democratic Redistricting Committee (NDRC), plans to campaign in the state for the next primary.

After a dozen years of playing defense, Wisconsin Democrats see the election as an opportunity for them to imagine a world in that they have some control over policies and not just trying to block Republican plans.

In an interview last month, Mr. Evers called the race “a huge deal.” His election lawyer, Jeffrey A. Mandell, said that if a liberal candidate won, the governor would ask the State Supreme Court to take direct action to invalidate the state’s legislative maps on Aug. 2, the day after the new justice is seated.

Kelda Roys, a Democratic state senator, said the campaign would focus almost entirely on abortion rights — because the next justice will be in position to overturn the state’s ban and because, she argued, the midterms showed that it was a winning issue.

“It’s going to be abortion morning, noon and night,” Ms. Roys said, “even more than November was.”

Kitty Bennett contributed research.