A Donald Trump ally who advised Republicans on legal efforts to overturn the 2020 presidential race has advanced to the Wisconsin Supreme Court general election, putting him one step closer to a seat on the powerful bench.
Daniel Kelly is a former state Supreme Court justice with connections to a plan hatched by the former president's allies to reverse the 2020 election results in Wisconsin through the use of “fake electors.” He was one of two candidates to advance in Tuesday’s Supreme Court primary, according to projections by The Associated Press.
The other to move forward was liberal candidate Janet Protasiewicz, a Milwaukee County circuit judge who was endorsed by the Democratic abortion rights group Emily’s List.
Protasiewicz and Kelly will face off in an April 4 general election that will determine political control of the court — and, with it, the future of many pivotal issues the court is likely to decide in the coming years, including abortion rights, elections and gerrymandering. The winner is elected to a 10-year term.
Although the court and its members are technically nonpartisan, conservatives hold a 4-3 majority. But with conservative Justice Patience Roggensack retiring, that majority hangs in the balance.
There has not been a liberal majority on the court in 15 years, and Democrats see the election as a prime opportunity to shift the balance.
Kelly was one of two conservative candidates in the primary election; the other, Jennifer Dorow, is a Waukesha County circuit judge best known in the state for having presiding over the criminal trial of Darrell Brooks, who was convicted last year of killing six people at a Waukesha Christmas parade in 2021 when he crashed his SUV into the crowd.
Protasiewicz won about 46% of the vote Tuesday, a commanding victory based on Democratic turnout, particularly in Milwaukee and Dane counties, that was especially high for an off-year, down-ballot, winter primary election.
The two liberal candidates in the race together won 54% of the vote, compared to about 46% for the two conservative candidates combined.
Kelly only narrowly bested Dorow for a second-place finish, with the two basically splitting the support of voters who turned out for a conservative candidate. Kelly outperformed Dorow in rural counties, while Dorow outdid Kelly in the heavily Republican suburban counties surrounding Milwaukee.
Kelly is a former state Supreme Court justice who lost his seat in a 2020 election to liberal Jill Karofsky. He was appointed to the seat in 2016 by former Gov. Scott Walker, a Republican. He has remained tied to Trump allies through a plan that was intended to reverse the results of the 2020 presidential election in the state with the use of “fake electors.”
In a deposition to the House committee investigating the Jan. 6, 2021, attack on the Capitol, former Wisconsin GOP chairman Andrew Hitt said he and Kelly had “pretty extensive conversations” about the plan, and the Milwaukee Journal Sentinel reported last week that the Republican Party at the state and national levels had paid Kelly $120,000 to advise it on “election integrity” issues.
A spokesperson for Kelly's campaign did not respond to questions about his involvement in those efforts. Kelly spokesperson Jim Dick told the Journal Sentinel that Kelly "believes Joe Biden is the duly elected president of the United States." Dick also suggested to the newspaper that Kelly's beliefs about the election were not necessarily aligned with what his clients believed, saying, "It is a maxim in the legal profession that the views of clients are not attributable to their attorneys."
Kelly based much of his campaign on heavy criticism of Protasiewicz for having openly suggested how she would rule on pivotal cases likely to come before the court involving hot-button issues with national ramifications, like abortion rights, elections and gerrymandering.
Protasiewicz, one of two liberal candidates in the race (the other was Everett Mitchell, a Dane County circuit judge), focused her campaign heavily on her support for abortion rights. Her television advertisements, for example, emphasized that support: One featured her talking directly to the camera, saying, “I believe in a woman’s freedom to make her own decision on abortion,” while a second featured several women touting that support and slamming “extremists” on the other side of the argument.
The issue has taken center stage in the race. After the U.S. Supreme Court overturned Roe v. Wade last year, an 1849 state law banning abortion in almost all cases snapped back into effect.
Gov. Tony Evers and Attorney General Josh Kaul, both Democrats, have said they will not enforce the law, and Kaul has filed a lawsuit alleging that it is unenforceable. The suit is expected to eventually make its way before the state Supreme Court, most likely giving the court the power to decide on abortion rights in Wisconsin.
Kelly, who has refrained from saying how he would rule in such a case, was endorsed by three groups that oppose abortion rights.
The court is also very likely to hear various challenges to existing election laws, as well as cases that might relate to recounts, absentee ballots and other facets of election administration that could have material impacts on the outcomes of close elections in the perpetual battleground — including the 2024 presidential election.
For example, in a 4-3 decision last year, the state Supreme Court deemed all ballot drop boxes outside election clerks’ offices illegal — a setback for Democrats, who had advocated to preserve one of the more lenient rules about the boxes that arose during the coronavirus pandemic. Two years earlier, the court, in another 4-3 vote, narrowly upheld the 2020 election results in the state. Court watchers predict similar cases in the future.
Other issues that could make it before the court in the coming years include challenges to Act 10, a law enacted by then-Republican Gov. Scott Walker that eliminated collective bargaining for most public workers. It could also hear cases about redrawn legislative maps (the current map, which experts have said is one of the most gerrymandered in the country, was approved by the current state Supreme Court last year). As is the case in many states, in Wisconsin, if the governor and the Legislature cannot agree on legislative maps, the issue falls to the state Supreme Court.
The general election is on pace to be the most expensive Supreme Court race in Wisconsin history. Candidates and outside groups have already spent more than $9.2 million, an amount that, through the general election, will clearly exceed the record $10 million spent in 2020.
