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Wisconsin Supreme Court race breaks records

SCOTT DETROW, HOST:

State Supreme Court races are often sleepy affairs, but not this year, not in the current political climate and especially not in the key swing state of Wisconsin. This Tuesday, a race for one seat on the Wisconsin state Supreme Court has broken national spending records, and that's because the winner could be the key swing vote on cases deciding everything from abortion rights to redistricting to potentially the result of the 2024 presidential race. This big little election has amassed so much attention and money that we wanted to hear from Shawn Johnson all about it. He is Wisconsin Public Radio's political reporter. Hey, Shawn.

SHAWN JOHNSON, BYLINE: Hey, Scott.

DETROW: So big picture - let's start with the candidates and the key issues.

JOHNSON: So the candidates are Janet Protasiewicz and Dan Kelly. And this is a nonpartisan race, but it's about as partisan as they come. Protasiewicz is a Milwaukee County judge. Her biggest donor is the state Democratic Party. Kelly, a former state Supreme Court justice who was appointed by former Governor Scott Walker, has worked as a private attorney for the national and state Republican parties in just last year. This is a big-deal race for us because it will decide the court's majority at a time when very big issues are on the way. If Kelly wins, it preserves the court's conservative majority for another few years, likely. If Protasiewicz wins, liberals would gain a majority on the court for the first time in 15 years.

DETROW: And we don't, obviously, know exactly what would come before the court with this new justice determining the makeup, but what are some of the key issues that we expect will probably make their way there, one way or another?

JOHNSON: Yeah. We're almost certain that there will be a case involving abortion coming before the court. When the U.S. Supreme Court overturned Roe v. Wade last summer, Wisconsin's abortion ban, which was first written in 1849, went back into effect. There's a lawsuit challenging that ban on its way to the court. Whoever wins this race is almost certainly to be on the court when the justices decide it. And so you can kind of look at this race as deciding whether abortion will be legal in Wisconsin or not. There's also a chance that redistricting could come before the court. You know, Wisconsin is a 50-50 state. But under the legislative and congressional maps Republicans drew, they have held big majorities in Wisconsin for, you know, more than a decade now. If Protasiewicz wins, this court could order the maps redrawn.

DETROW: And a reminder that with the House of Representatives here in Washington so narrow, a couple new lines in a couple of districts could possibly determine control of the House. So it makes sense that a lot of money is being spent on this race, given these issues. Give us a sense of how much money we're talking about and the scope of this spending.

JOHNSON: It has totally smashed the old national record for a state Supreme Court race, which, according to the Brennan Center for Justice, was 15 million, set in 2004 in an Illinois Supreme Court race. Brennan's numbers now have Wisconsin's advertising spending at $29 million. Tally of all spending by Wisconsin politics site called WisPolitics has it at 45 million. So you're looking at double or triple the old record, and we're not done yet.

Protasiewicz has received much of her donations from a large network of Democratic donors, including some big Democratic donors. Kelly's fundraising has been small by comparison, but he's received big money from outside groups. That said, there has been a late surge of Republican money. There could be a couple reasons for that. It could be that internal polling shows that this race is close, and we've seen that happen in a recent Wisconsin Supreme Court race. It could also be that Republicans want to leave it all on the field for Kelly and not wonder what if in this election of all elections.

DETROW: So voters are being inundated with advertising. And the key issues here are issues that are really personal and people have strong opinions on. That makes me wonder what you're hearing from voters about all of this.

JOHNSON: I think, broadly speaking, Democrats are hopeful of what they could gain if Protasiewicz wins. She's been very open about her personal beliefs on issues that could come before the court. On abortion, she says she believes in a woman's right to choose. She calls the Republican-drawn legislative maps rigged. It's really frank talk from a candidate for the court, but her supporters say they like that. Cailin O'Connor (ph) of Madison spent a recent Saturday canvassing for Protasiewicz. She says she's glad that she's been open about her values.

CAILIN O'CONNOR: I mean, I know they're nonpartisan seats. But in this current climate, it's kind of impossible to be truly nonpartisan. And we certainly know where Daniel Kelly stands, which is against any kind of positive progress. So I'm glad that I know that Janet is on our side because it would be really hard to make a choice without knowing that.

JOHNSON: And Kelly has a long history of working with Republicans. There are a number of Republican issues that his voters say could be up for grabs if he were to lose. But he's declined to talk about these issues, saying it's not appropriate for somebody running for the court. Longtime Republican activist Sue Lynch, who supports Kelly, says she's OK with that. She doesn't think it's appropriate for a justice to share their personal values on issues like abortion when they're running for the court.

SUE LYNCH: No. No. I think Dan is - his campaign is based on the fact that he understands the Constitution and the office that he's running for and the boundaries in which he will act as a justice.

DETROW: So the 2020 presidential race was decided by the slimmest margin in Wisconsin. We know that there were all sorts of legal challenges to the result. You have to imagine 2024 will be close as well. Could this race Tuesday have any effect on next year's presidential race?

JOHNSON: You are definitely hearing people from both parties framing it that way. Ben Wikler, the chair of the Democratic Party of Wisconsin, has been saying that the stakes are high because of that race. He was at a recording of a "Pod Save America" event in Madison, which was there to turn out the vote for Protasiewicz. And he asked Democratic voters to imagine it's election night 2024. The eyes of the nation are on swing state Wisconsin. Republicans file a lawsuit claiming some voting irregularities, and the court's conservative majority stops the count.

(SOUNDBITE OF ARCHIVED RECORDING)

BEN WIKLER: And record scratch - freeze frame. You think to yourself, in 2023, I had a chance to stop this guy from getting on the Supreme Court and casting that deciding vote.

DETROW: I think that says a lot right there, the fact that this high-profile national liberal podcast is holding an event focused entirely on the state Supreme Court race. But the scenario that Wikler is laying out - that isn't totally hypothetical.

JOHNSON: No. I mean, in 2020, you mentioned it. There was an extremely close decision on the Wisconsin Supreme Court in the lawsuit filed by former President Donald Trump seeking to overturn President Joe Biden's narrow victory in Wisconsin. So we know that lawsuits will be coming in 2024. And while we don't know what they'll be, we know that this court would hear them.

DETROW: Yeah. That's Shawn Johnson, political reporter at Wisconsin Public Radio. Shawn, thanks for doing this, and good luck between now and Election Day.

JOHNSON: Thanks, Scott. Transcript provided by NPR, Copyright NPR.

Shawn Johnson covers the State Capitol for Wisconsin Public Radio. Shawn joined the network in 2004. Prior to that he worked for WUIS-FM, a public radio station in Springfield, Illinois. There, Shawn reported on the Illinois legislature. He also managed the station's western Illinois bureau, where he produced features on issues facing rural residents. He previously worked as an Assistant Producer for WBBM-AM radio in Chicago.