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With Protasiewicz win, Democrats flip the Wisconsin Supreme Court


— In last night’s high-stakes state Supreme Court race in Wisconsin, Democratic-aligned Janet Protasiewicz comfortably dispatched former Justice Daniel Kelly, giving liberals a 4-3 majority on the court.

— Compared to some previous Democratic-aligned judges, Protasiewicz had a more “nationalized” voting coalition, although she still carried several Republican-leaning parts of the state.

— A liberal state Supreme Court could revisit redistricting-related matters, to the benefit of Democrats, although there are a lot of moving pieces. With that in mind, we are downgrading our rating for southeastern Wisconsin’s 1st District from Safe Republican to Likely Republican.

Table 1: Crystal Ball House rating change

District Old Rating New Rating
Bryan Steil (R, WI-1) Safe Republican Likely Republican

Another 11-point win for Democrats

In Wisconsin last night, Judge Janet Protasiewicz defeated former state Supreme Court Justice Daniel Kelly in what became a nationally-watched (and very expensive) race. Importantly, Protasiewicz will be replacing the retiring Pat Roggensack, a conservative veteran of the court — this will give the court’s liberal bloc a 4-3 majority on the bench. During the campaign, Protasiewicz was clear that, if elected, she would side with Gov. Tony Evers (D-WI) over the Republican leadership in the legislature when it came to high-profile issues like abortion or gerrymandering (more on that later).

In our write-up last week, we called Protasiewicz a mild favorite: though the race was hard to nail down exactly, we wrote that we expected anything from a double-digit Protasiewicz win to a slight Kelly win. A commanding Democratic win would have followed the pattern of 2 of the last 3 state Supreme Court races (2018 and 2020) while the 2019 race offered a template for a Republican-aligned upset.

The result last night was nearly a carbon copy of the 2018 and 2020 results: Protasiewicz won by 11 points, or about the same margin as now-Justices Rebecca Dallet and Jill Karoksfy, who she will soon join on the bench.

Though former President Trump’s indictment happened a day after we put out our analysis last week, it was something that would, according to some punditry, rally Republicans. But, as we’ll explore here, last night’s returns offered scant evidence that Kelly disproportionately benefited from any Trump-inspired backlash.

One of our other pre-election predictions held up well: high turnout was a hallmark of last night’s election. In February’s primary election, roughly 960,000 votes were cast. As of this writing, that number roughly doubled in the second round, with close to 1.84 million votes cast. 2023 featured the second highest-turnout April state Supreme Court race of the last decade, falling only behind 2016. About 1.95 million votes were cast in that 2016 race — importantly, it was held in conjunction with the presidential primary that year, where both sides saw competition.

Though turnout was down slightly from 2016’s contest, it rose in 10 counties. Dane County (Madison), which is one of the two Democratic powerhouse counties in the state, was among those 10 — it easily had the largest increase, casting 23,000 more votes than in 2016. The county that saw the largest decrease was actually the state’s other blue bastion, Milwaukee, which tallied 45,000 fewer votes this year. But that Milwaukee decline was not necessarily to Democrats’ detriment. Kelly earned only half as many votes in Milwaukee (124,000 compared to 63,000) as Justice Rebecca Bradley, the conservative that year, while Protasiewicz garnered 17,000 more votes there than JoAnne Kloppenburg, the liberal candidate who lost statewide by 5 points.

As noted earlier, in terms of the percentage margin, 2023 lined up nicely with the toplines from 2018 and 2020: in all 3 instances, the Democratic-aligned judges won by about 11 points.

Conveniently, for the sake of comparison, Kelly was the conservative candidate in both the 2020 and 2023 elections. Last week, we wondered whether the increasingly partisan nature of state Supreme Court elections, coupled with the expected high turnout this year, could lead to a more “presidential” coalition. As Map 1 shows, that was basically the case.

Map 1: 2020 vs 2023 Wisconsin Supreme Court races

Protasiewicz fared about half a percentage point better than Karofsky overall but lost ground in 59 of the state’s 72 counties. The 3rd District, which takes up a large swath out west, illustrates some of the gains Kelly made in non-metro Wisconsin. According to our rough unofficial calculations, Protasiewicz carried the district by about 10 points — which is quite respectable, considering it gave Trump a 5-point margin and flipped to Republicans last year. But in 2020, Karofsky would have carried the 3rd District by closer to 15 points (the seat was barely altered in redistricting).

Though we flagged the area as a potential Democratic cause for concern — mostly because it torpedoed their chances in 2019 — Protasiewicz performed well in metro Milwaukee. As the third image on Map 1 illustrates, Milwaukee County was the sole county where Protasiewicz improved by more than 10 points on Karofsky’s showing. In fact, Protasiewicz swept all 19 municipalities within the county — this has likely not been done by a Democratic or liberal candidate since 2017, when Evers was reelected in a 40-point landslide to his previous position, state Superintendent of Public Instruction.

In an era when, from election to election, Democrats have seen their most obvious gains come in the suburbs, last night’s result represented something of a change of pace. Compared to Karofsky, Milwaukee proper was one of the municipalities that shifted most to Protasiewicz, as Table 2 shows.

Table 2: Milwaukee County in 2020 & 2023 Supreme Court races

To be clear, Table 2 is not meant to single out Karofsky as a poor performer in Milwaukee (her numbers were quite robust), but it is more to emphasize how strong Protasiewicz’s showing was. In fact, Protasiewicz’s 81.9% within the city of Milwaukee was even stronger than the 80.1% two-party share that Joe Biden received there.

Aside from Menominee County, a small county in the north that consists of an American Indian reservation, the county that shifted most to Democrats since February’s first round was Waukesha, one of the Republican-leaning “WOW” suburban counties that border Milwaukee County. Six weeks ago, Waukesha County gave the Republican-aligned candidates a combined 64%-36% share over the Democrats. Kelly’s advantage there last night slipped to 58%-42%. In February, Kelly’s GOP rival was Judge Jennifer Dorow, who had a base in Waukesha and performed better than him in most Milwaukee metro counties. Given last night’s result, we have to wonder if Dorow would have been a stronger conservative candidate than Kelly. At minimum, Kelly likely suffered some defections from Dorow voters.

A notable result from last night — and one that Democrats will certainly try to replicate in actual partisan races — was that Protasiewicz narrowly carried the City of Waukesha, the largest municipality in the similarly-named county.

The road ahead

The victory by Protasiewicz opens the door to the Wisconsin Supreme Court to potentially intervene against the state’s congressional map, which is a version of a Republican partisan gerrymander. Other state courts have done so in recent years against both Republican and Democratic gerrymanders.

This has national implications given the closely-divided U.S. House. Despite being one of the nation’s most competitive states, Republicans now hold a 6-2 advantage in the state’s U.S. House delegation. After losing the red-trending Obama-to-Trump WI-3 in western Wisconsin last year, Democrats are now confined to just a pair of heavily blue enclaves centered around Madison and Milwaukee.

The current congressional map is actually one drawn by Evers. Following Evers’s decision to veto the Republican legislature’s maps during the post-2020 census round of redistricting, the state Supreme Court and its 4-3 Republican majority asked both sides to submit maps, but they asked for only minimal changes to the existing map. So the map, which is a Republican partisan gerrymander from a decade ago, was just tweaked. The court, in a 4-3 decision reached by the 3 Democratic-aligned justices as well as Republican-aligned Brian Hagedorn, picked Evers’s map. But, again, it’s still functionally a Republican gerrymander, although Wisconsin’s political geography also lends itself to Republican advantages in redistricting. Our understanding is that one might not expect a “fair” map, however defined, to produce 50-50 outcomes in a 50-50 political environment in the state, although we also don’t think a 6-2 Republican advantage in the congressional delegation and huge Republican state legislative majorities really reflect the political makeup of Wisconsin. (We analyzed the current map in depth last year.)

So we’ll see if the court decides to intervene now that Democratic-aligned justices are in charge. Protasiewicz does not take office until August, and litigation that would eventually lead to the state Supreme Court ruling against the congressional map remains only a hypothetical at this point, although a progressive law firm plans to ask the state Supreme Court to hear a redistricting case once Protasiewicz takes office, the New York Times reported.

Still, we are not going to necessarily assume that Wisconsin will have a new U.S. House map next year. There are a number of hurdles to be jumped first. That could include the Moore v. Harper U.S. Supreme Court case, which could end up constraining the ability of state Supreme Courts to intervene in cases regarding congressional gerrymandering. That case concerns the formerly Democratic North Carolina state Supreme Court’s intervention against a Republican congressional gerrymander there. But now that the North Carolina court flipped to Republican control last November, the new state court is rehearing a related case and may reverse the old decision. So it’s possible that the U.S. Supreme Court will just punt on Moore v. Harper following the change on the North Carolina court.

However, consider this possibility: What if the U.S. Supreme Court stands down on Moore v. Harper, and then the Wisconsin Supreme Court intervenes against its state’s congressional map? Couldn’t Moore v. Harper be revived, only this time as a Wisconsin case, as opposed to a North Carolina one? That is one of the moving pieces we’re keeping in mind as we think about the Wisconsin congressional landscape.

One other thing: As part of last night’s election, Republicans narrowly held a state Senate seat in a Trump +5 seat in a special election, which gives Republicans a supermajority in the Senate. That gives Republicans the power to potentially convict officials, such as Supreme Court justices, as part of an impeachment process initiated in the state House. State Sen.-elect Dan Knodl (R), who won the state Senate race last night, suggested the possibility of impeaching Protasiewicz in a pre-election interview. So a high-stakes battle over redistricting could also involve the “I” word. (And that doesn’t even get into abortion, the issue that likely played a huge role in Protasiewicz’s victory.)

We are making one rating change following the liberal takeover of the Wisconsin court. Rep. Bryan Steil (R, WI-1) moves from Safe Republican to Likely Republican. We considered listing Steil — Paul Ryan’s successor in the House — in our initial ratings, as he holds a district that is competitive on paper (Trump only won it by 2 points, and Protasiewicz carried it with about 53% in last night’s contest). The added uncertainty of redistricting gives us more reason to list it, as it’s possible that if the court imposes a new map and if it is in place for the 2024 election, both WI-1 in southeast Wisconsin and WI-3 in western Wisconsin could take on blue chunks of the Milwaukee and Madison areas, respectively. Those changes could seriously imperil newly-elected Rep. Derrick Van Orden (R, WI-3) and Steil in WI-1.

So they’ll both be Likely Republican for now, with the potential for much more dramatic changes down the line depending on how what appears to be a looming redistricting legal battle goes.