Supreme stakes: what voter turnout in the state Supreme Court race could mean in the 2023 race

The upcoming election is a must-win if they want a shot at pulling it off in 2023.

Liberals won’t have a chance to wrest control of the Wisconsin Supreme Court from conservative justices this spring. But the upcoming election is a must-win if they want a shot at pulling it off in 2023.

Spring state Supreme Court races aren’t great predictors of what’s going to happen the following fall. But they’re still a chance for both sides to fine-tune their voter turnout operations.

As this spring’s state Supreme Court race starts to heat up, Capitol insiders see several political forces converging come April. That includes whether there’s a long-term path for liberals to flip control of the court. There’s a possible short-term boost for the winning side as it tries to claim momentum going into November. And there’s a presidential primary hanging over it all.

With conservatives enjoying a 5-2 majority on the court, April’s election at best provides a chance for liberals to close that gap. Pull it off and they would then look to 2023, when conservative Chief Justice Patience Roggensack, 79, would be up for another 10-year term.

But first up is conservative Justice Daniel Kelly, who is seeking a full term after former Gov. Scott Walker appointed him to a vacancy in 2016. Trying to unseat him are Marquette University Law School Professor Edward Fallone, who ran unsuccessfully for the state Supreme Court in 2013, and Dane County Judge Jill Karofsky, a former prosecutor.

The top two vote-getters in the Feb. 18 primary will advance to the April 7 general election, when forces outside their control will likely have a significant bearing on the outcome.

Perhaps none will be bigger than the presidential primary.

In 2019, with no other statewide races at the top of the ticket, 1.2 million Wisconsin voters cast ballots in the state Supreme Court race. In 2016, when the court race shared the ballot with contested presidential primaries on both the Democratic and Republican sides, nearly 2 million Wisconsinites cast ballots in the court contest.

And the vote tallies of both conservative Justice Rebecca Bradley, who retained her seat in 2016, and her liberal challenger, JoAnne Kloppenburg, just narrowly trailed turnout in the GOP and Democratic presidential primaries, respectively.

That dynamic wasn’t lost on Republican lawmakers in late 2018 as they toyed with — but eventually dropped — the idea of moving the 2020 presidential primary to a date all its own.

The motivation was clear: With President Donald Trump unlikely to get much of a challenge for the GOP nomination, and with a wide-open Democratic field to run against him, the likely turnout wouldn’t be in Kelly’s favor.

The same goes for Gov. Tony Evers calling the special election to fill the heavily Republican 7th Congressional District for May. Putting it on the April ballot instead would’ve created another incentive for Republican voters to turn out, possibly cutting into the expected Democratic advantage.

That dynamic also presents a challenge for Republicans as they work out any kinks in their turnout operation.

Brian Hagedorn’s surprise victory in 2019 for an open court seat was fueled by a late surge in conservative enthusiasm and money. But even so, the 606,414 votes he received were a far cry from the 1 million who could turn out this year in the Democratic presidential primary — and who would likely vote in the Supreme Court race while they’re there.

That means Republicans may have to gin up presidential primary level turnout on their side without a presidential primary to pull their voters to the polls.

The primary is one factor that will make it difficult to divine from the state Supreme Court results which direction Wisconsin is headed in November. Here’s another one: In 2008, conservative Michael Gableman beat incumbent liberal Justice Louis Butler by less than 3 percentage points. Seven months later, Democrat Barack Obama romped to a nearly 14-point win in Wisconsin.

Still, expect whichever side wins to spin the results.

“It’s the unspoken rallying call if you win — ‘We can do this,’ ” says Brian Nemoir, who has worked on several state Supreme Court races for conservatives, including former Justice David Prosser Jr. in 2011.

JR Ross is the editor of WisPolitics.com.

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