Win Or Lose, Dan Kelly Poised for the History Books in Wisconsin Supreme Court Race
Kelly will become either the first ex-Wisconsin Supreme Court Justice to be voted back into the chamber or just the second former justice to try and fail
Whether or not Wisconsin’s 2023 Supreme Court election is significant enough for MSNBC’s Steve Kornacki to bring out the big board on Tuesday evening remains to be seen, but the statewide race is seen by many political observers as the first major proxy fight of 2023 between the nation’s two major political parties.
While technically a nonpartisan office, Democrats in the battleground state have thrown their support behind Milwaukee County Circuit Court Judge Janet Protasiewicz as the GOP backs former Supreme Court Justice Dan Kelly.
Kelly was appointed to the bench by Governor Scott Walker in 2016 but lost by 10.5 points to Dane County Circuit Court Judge Jill Karofsky when his name was put before the electorate in 2020.
In doing so, Kelly became just the ninth Wisconsin Supreme Court Justice to be defeated at the ballot box since statehood and just the fifth to do so over the last 100+ years.
The other eight justices to lose their seats were:
- 1852: Justice Charles Larrabee lost to Justice Edward Whiton in an incumbent-vs-incumbent matchup as the Court was reduced from five to three justices
- 1855: Justice Samuel Crawford was defeated by former Whig U.S. Representative Orasmus Cole by 12.2 points
- 1908: Appointed Justice Robert Bashford lost to state Railroad Commissioner John Barnes by 21.3 points
- 1917: Long-serving Justice Roujet Marshall was defeated by state Attorney General John Barnes by 3.4 points
- 1947: Appointed Justice James Rector lost to Winnebago County Circuit Court Judge Henry Hughes by 21.6 points
- 1958: Appointed Justice Emmert Wingert fell 4.9 points shy of holding his seat in a loss to attorney and former Washington County Justice of the Peace William Dietrich
- 1967: Chief Justice George Currie was defeated by Milwaukee County family court Judge Robert Hansen by 11.9 points
- 2008: Appointed Justice Louis Butler narrowly lost to Burnett County Circuit Court Judge Mike Gableman by 2.7 points
In addition, Justice Levi Hubbell lost the Democratic Party nomination in 1852.
Prior to Kelly’s 2023 campaign, only one defeated justice – James Rector – attempted to win back a seat on the court.
Following his 1947 loss, Rector finished just sixth in the 12-candidate primary held on April 5, 1949 for a seat eventually won in a runoff by 13th Judicial Circuit Court Judge Edward Gehl.
And so, if Kelly wins next Tuesday, he will become the first ex-justice to win back his seat at the ballot box and return to the court.
It should be noted that one Wisconsin justice did serve interrupted terms more than 150 years ago. Milwaukee County Judge Byron Paine was elected to the Supreme Court in 1859 but resigned in 1864 and was appointed Lieutenant Colonel of the 43rd Wisconsin Infantry Regiment. In 1867, Paine was appointed back to his old seat by Governor Lucius Fairchild after the resignation of his replacement on the Court, Justice Jason Downer. Justice Paine served until 1870 and then resigned due to ill health.
In addition to the 10 aforementioned former justices of the Wisconsin Supreme Court who failed to retain their seat, 26 others died in office, 24 decided not to run for another term, 18 resigned from the bench, and one left due to hitting the mandatory retirement age of 70 in effect at the time.
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Anyone who reads this, if you live in WI or know someone who does, please make sure that all family, friends, neighbors and co-workers get out and VOTE like your lives depend on it.
Aside from the court election, there will be a special election for a WI Senate seat located in suburban Milwaukee – which could result in a 2/3 Republican majority in the upper chamber – plus final round of balloting for the Chicago mayoral and aldemanic elections, and the initial round of voting for mayor of Lincoln, NE. Yeah, the chances of “Khaki King Kornacki” bringing out the electronic board on election night seem fair to excellent indeed.
A switch of as few as 2991 votes in the 2019 WISC election in favor of Lisa Stephens Neubauer (she lost to Brian Keith Hagedorn, a rightist jurist with an occasional independent streak, by a scant 5981 votes out of a bit less than 1.3 million cast) – in addition to the resounding 2020 win for the current junior justice – would assuredly have resulted in a markedly different election dynamic for the current election.
(P.S. How much of a lift could ex-jurist Kelly receive from the indictment – as many as 33 or 34 counts – that was confirmed against “the Queens/Florida Man” – in the final stretch?)
Certainly an extremely consequential election, in light of the Dobbs decision, the redistricting process, and the heightened focus on election administration/litigation.
I wonder if Kelly’s comparatively large defeat in 2020 was partly due to the fact that Wisconsin’s presidential primary was on the same ballot and the Democrats still had a competitive one [sort of – Sanders withdrew the very next day] whereas the Republicans did not.
A similar effect might have impacted the special House election in California’s 25th district following Katie Hill’s resignation. The top-two primary on March 3, 2020 was held concurrently with the state’s presidential primary, and the combined Democratic vote share actually exceeded the combined Republican vote share by a margin of 50.7%-49.3%. In the general election on May 12, however, the Republican candidate won by about 10 points.
Are there other examples? (i.e. an important general election where the two parties had differing turnouts, because of a larger primary where only one side was competitive)