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, bringing him one step closer to a seat on the powerful bench.
Daniel Kelly is a former state Supreme Court justice with ties to a scheme hatched by the former president’s allies to flip the 2020 election results in Wisconsin through the use of “fake voters.” He was one of two candidates to advance in Tuesday’s primary for the Supreme Court, according to forecasts from The Associated Press.
The other to advance 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 face off in an April 4 general election that will determine political control of the court — and thus the future of many key issues the court is likely to decide in the coming years, including abortion rights, elections and gerrymandering. The winner is chosen for a 10-year period.
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 hasn’t been a liberal majority on the field in 15 years, and Democrats see the election as an excellent opportunity to shift the balance.
Kelly was one of two conservative candidates in the primary; the other, Jennifer Dorow, is a Waukesha County circuit judge best known in the state for having leads the criminal proceedings of Darrell Brooks, who was convicted last year of killing six people at a 2021 Waukesha Christmas parade 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, which was particularly high for an off-year winter election, downvoted.
The two Liberal candidates in the race won a combined 54% of the vote, compared to about 46% for the two Conservative candidates combined.
Kelly only narrowly edged Dorow into second place, with the two broadly split in the support of voters who turned out for a conservative candidate. Kelly outperformed Dorow in rural areas, while Dorow outperformed Kelly in heavily Republican suburban counties around Milwaukee.
Kelly is a former state Supreme Court justice who lost her 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 intended to flip the results of the 2020 presidential election in the state using “fake voters.”
In a deposition to the House committee investigating the attack on the Capitol on January 6, 2021, former Wisconsin GOP Chairman Andrew Hitt said that he and Kelly had “quite extensive conversations” about the plan, and The Milwaukee Journal Sentinel reported last week that the state and national Republican Party had paid Kelly $120,000 to advise it on “election integrity” issues.
A spokesman for Kelly’s campaign did not respond to questions about his involvement in those efforts. Kelly spokesman 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 in line with what his clients believed, saying, “It is a maxim in the legal profession that the views of clients cannot be attributed to their lawyers.”
Kelly based much of his campaign on heavy criticism by Protasiewicz for openly suggesting how she would rule on key cases likely to come before the court involving hot-button issues with national implications, such as abortion rights, elections and gerrymandering.
Protasiewicz, one of two liberal candidates in the race (the other being Everett Mitchell, a Dane County circuit judge), focused her campaign heavily on her support for abortion rights. Her television commercials, for example, emphasized this support: One of them spoke directly to the camera and said, “I believe in a woman’s freedom to make her own decision about abortion,” while a other featured several women touting that support and slamming “extremists” on the other side of the argument.
The question has been at the center of the race. After the US Supreme Court overturned Roe v. Wade last year, an 1849 state law ban on abortion in almost all cases came back into force.
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 it is unenforceable. The case is expected to eventually make its way to the state Supreme Court, most likely giving the court the power to rule on abortion rights in Wisconsin.
Kelly, who has refrained from saying how he would rule in such a case, was approved with three groups who oppose abortion rights.
It is also very likely that the court will hear various challenges to existing election laws, as well as cases that may relate to recounts, absentee ballots and other facets of election administration that may have a significant impact on the outcome of close elections in the eternal battleground – including presidential election in 2024.
For example in a 4-3 decision last year, the state Supreme Court ruled all ballot boxes outside election clerks’ offices illegal — a setback for Democrats, who had advocated preserving one of the more relaxed rules about the boxes that emerged during the coronavirus pandemic. Two years earlier, the court voted with 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 come to court in the coming years include challenges to Act 10, a law passed 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 Supreme Court last year). As is the case in many states in Wisconsin, if the governor and legislature cannot agree on legislative maps, the issue falls to the state Supreme Court.
The parliamentary election is on track to be the most expensive Supreme Court races in Wisconsin history. Candidates and external groups already have spent more than 9.2 millionan amount that, through the general election, will clearly exceed them record $10 million spent in 2020.
