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The following program is a PBS Wisconsin original production.

Janet Protasiewicz:

It is the absolute honor of a lifetime to be elected as your next justice on the Wisconsin Supreme Court.

Frederica Freyberg:

Janet Protasiewicz wins the open seat on the high court in a spring election that brought record spending and record turn-out.

I’m Frederica Freyberg. Tonight on “Here & Now,” Wisconsin held the most important election of 2023. We’re breaking down all of the results with reporter Zac Schultz and political panelists Scot Ross and Bill McCoshen give us their partisan takes. It’s “Here & Now” for April 7.

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Funding is provided by the Focus Fund for Journalism and Friends of PBS Wisconsin.

Frederica Freyberg:

Janet Protasiewicz won a smashing 11-point victory Tuesday night, winning a seat on the Wisconsin Supreme Court and creating a new liberal majority in the process. Protasiewicz defeated conservative Daniel Kelly 55.5% to 44.5% in a race that set spending records and turned out nearly two million voters statewide. As part of our “Here & Now” 2023 election coverage, senior political reporter Zac Schultz was at the Protasiewicz party on election night and has this story.

Janet Protasiewicz:

Well Wisconsin, guess what? We did it. We did it.

Zac Schultz:

The stakes of Tuesday’s race for a seat in the Wisconsin Supreme Court could not have been more clear. The winner would determine the ideological balance of the court in a record $45 million in campaign spending, made sure everyone in the state knew issues like abortion and redistricting were hanging in the balance.

Janet Protasiewicz:

First, it means that Wisconsin voters have made their voices heard. They’ve chosen to reject partisan extremism in this state.

Zac Schultz:

Janet Protasiewicz spent most of the campaign talking about her values, making it clear to voters how she felt about issues like abortion, even if she declared that that would have no impact on how she might rule on the challenge to the state’s 1849 abortion ban.

Janet Protasiewicz:

Our state is taking a step forward to a better and brighter future, where our rights and freedoms will be protected.

Zac Schultz:

This was the second blow-out loss for conservative Daniel Kelly. Appointed to the court in 2016, he blamed his loss in 2020 on turn-out for the Democratic presidential primary held on the same day. This time, he had no one else to blame. He spent the latter part of the campaign calling Protasiewicz a serial liar. He repeated those claims Tuesday night and did not attempt to look gracious in defeat, even refusing to make the customary phone call conceding to his opponent.

Daniel Kelly:

I wish that in a circumstance like this I would be able to concede to a worthy opponent. But I do not have a worthy opponent to which I can concede.

Janet Protasiewicz:

And I will be a part of the solution to make our Supreme Court, along with my soon-to-be new colleagues.

Zac Schultz:

Meanwhile, Protasiewicz could barely finish her victory speech as she was welcomed into the new majority on the Wisconsin Supreme Court.

Frederica Freyberg:

The results of this election upset the 15-year conservative balance of power on the court. Zac Schultz joins us from outside the Supreme Court chambers now at the state Capitol. Hi, Zac.

Zac Schultz:

Hello, Fred.

Frederica Freyberg:

So this race, as you’ve said, set a lot of records. What explains the huge win for Protasiewicz?

Zac Schultz:

Well, I think you have to look at a number of issues, but campaigns come down to the quality of the campaign. Protasiewicz got out early, raised a ton of money and spent a lot of money and you have to look at the quality of the candidates. Dan Kelly has run and lost before. There were a lot of negatives associated with him and then you have to look at the salient issues, and clearly abortion was one of the most important issues that people were connecting to this campaign and Protasiewicz ran on that issue. And I think all three of those merged together for the margin of victory that we saw on Tuesday.

Frederica Freyberg:

Where did she make gains and Kelly take losses that were different from other elections?

Zac Schultz:

Well, certainly you first have to look to the WOW counties, the Waukesha, Washington and Ozaukee counties, those suburban counties outside of Milwaukee. For decades, those have been Republican strongholds, where giving Scott Walker overwhelming majorities kind of countering out the power of Dane and Milwaukee for the liberal strongholds and kind of leaving most elections up to the rest of the state to decide. We’ve seen the erosion of Republican power at the top of the ballot since Donald Trump came into office, as those places are packed with suburban, educated women and families and as issues like abortion have become more and more important, especially with the Dobbs ruling overturning Roe v. Wade, Democrats have been campaigning on that and we’re seeing continually slippage of what were once very strong Republican strongholds now becoming up for grabs or at least not so much of a blow-out for Republicans. But if you look past that and you get outside of the southeast Wisconsin, you can look to the Fox Valley. Protasiewicz did really well in Brown, Outagamie and Winnebago counties, the so-called BOW counties that are in that next class of counties, and then she even did well in southwestern Wisconsin. When Democrats do well there, they win statewide. That’s what you’ve seen with prior liberal wins for the Supreme Court and when Tammy Baldwin has had big victories in her Senate races. She’s done well in those parts of the state as well.

Frederica Freyberg:

With the big issues, as you’ve said, being abortion and redistricting, how soon are such cases expect to find their way to the Supreme Court?

Zac Schultz:

Well, for abortion, that issue is already in the courts. It’s at a lower court. We’ve seen the Evers administration and Josh Kaul, the attorney general, file lawsuits regarding that for a while and they’ve been kind of slow playing that. They didn’t want that issue to get up to the Supreme Court too fast under the current conservative makeup because then they wouldn’t rule in the way they hoped they would. And so now maybe that lawsuit picks up a little steam, perhaps even gets reached down and picked right up to the Supreme Court once the new majority is in there in August. Protasiewicz doesn’t take the seat on the bench behind me until then. So you’ll see those start to percolate throughout the summer and definitely into the fall. As for redistricting, we’ve already heard reports of some of the liberal law firms starting to put their case together for their reasons why they believe that it’s an unconstitutional gerrymander. We saw the blueprint for one possible overturning redistricting in the liberal dissent to the redistricting case last year in which at the time three liberals on the court said that they believe that there could be a trial held in response to the U.S. Supreme Court’s ruling on Wisconsin’s maps. So expect those to be happening going forward. Definitely through this fall and into winter. For redistricting, obviously there’s an election in 2024. Those maps need to be in place by the spring if they are going to be done so there’s not a ton of time for these big, big issues to come before the court and then get settled.

Frederica Freyberg:

In terms of the balance of the court, there are other Supreme Court elections in the offing as you know, namely in 2025, when the term of liberal Justice Ann Walsh Bradley is up.

Ann Walsh Bradley:

Absolutely going to run again. I do have, by the way, I do have an idea, and it is, yes, after tonight’s performance and seeing the energy in this room, I’m not only going to run, I’m going to win.

Frederica Freyberg:

So liberals feel like they are on a new roll now. Is that fair?

Zac Schultz:

Oh, absolutely. You look at the past few elections for the Supreme Court, aside from 2019, where that was expected to be a liberal win and Justice Hagedorn won by just a few thousand votes. Liberals have been winning by large margins, 10-point margins for the last few races outside of that particular one and we have to point out that no person ever elected to the Supreme Court has gone and lost a re-election. The only time that a sitting member has been defeated in a re-election is when they were appointed. That happened to Justice Kelly and that happened to Lewis Butler back in 2009. So the history of elected officials is quite strong when it comes to looking forward to 2025, which is when Ann Walsh Bradley would be on the ballot again.

Frederica Freyberg:

A process question. At this point, does Ann Walsh Bradley de facto become chief justice?

Zac Schultz:

No, she does not. According to the constitutional amendment that was passed by Republicans and approved by voters a couple of years ago, the Supreme Court gets to elect their own chief justice. Right now that is conservative Annette Ziegler and she was just re-elected recently. However, the Supreme Court gets to make their own rules so when Janet Protasiewicz becomes Justice Protasiewicz this summer, they will have a majority and they could decide they want to take a vote on who the chief justice is at that time and you would expect if that happens, that it would be Ann Walsh Bradley who would become the chief and that will be up to the court at that time, because they get to set their own rules and quite honestly, there’s no one else to appeal to. They are the Supreme Court.

Frederica Freyberg:

Indeed. So having reported on this as well, Zac, you know that another big election Tuesday was for the State Senate 8th District with a supermajority on the line. In a super close race, Republican Dan Knodl topped Democrat Jodi Habush Sinykin 50.9% to 49.1%. Now, the supermajority allows the Senate to impeach public officials. Dan Knodl spoke to that opportunity ahead of the election.

Dan Knodl:

That really could involve any elected official, particularly elected officials, our government officials as well, appointed. So I would think it’s — I view it initially as all encompassing.

Frederica Freyberg:

So Dan Knodl seems all in on impeaching people, but how serious is the Republican majority about those new powers?

Zac Schultz:

Well, they have yet to be tested. This has not been a reality in the modern era of Wisconsin politics. Dan Knodl was campaigning at that time. He wanted that issue to be salient for the voters in his area as why he should be elected. The question is whether that would actually happen. That is a big process. It’s not something to be taken lightly. Even though Republicans have 22 members, that is a huge majority and not every one of those members would seem to be on board at this time. We’ve heard from Senate Majority Leader LeMahieu saying they are not going to just willy-nilly impeaching people and the whole process right now is uncertain legally. Some of those terms aren’t defined, which would seem to be leaning back to the courts getting involved if they wanted to go through this process for anybody.

Frederica Freyberg:

So it could turn out to be a lot of time and trouble if they went ahead with that. Zac Schultz, thanks very much. Thanks for your coverage through these election seasons.

Zac Schultz:

Thanks, Fred.

Frederica Freyberg:

At the bottom of Tuesday’s ballot were two questions posed to voters to amend the state Constitution. The first question on expanding conditions of release passed with more than 66% voting yes. The second question on expanding when cash bail can be imposed also passed with more than 67% voting yes. For some in the court system, this was good news. For others who opposed the measures, they’re warning of the consequences the amendments could have on the accused.

Eric Toney:

It goes back in 2017, where this was first floated to amend the Wisconsin Constitution, really gained more traction after the Waukesha parade massacre with Darrell Brooks.

Marisa Wojcik:

The two sides of the courtroom have come down on opposing sides of the questions that came before Wisconsin voters.

Eric Toney:

Our Wisconsin District Attorneys Association has supported this constitutional amendment and we are very excited that the voters of Wisconsin joined us in overwhelmingly voting to give more factors for our judges to look at when setting cash bail as well as some of the non-monetary bail conditions, so it should have a net effect of making Wisconsin safer, but also ensuring that our judges are all setting bail with the same rules.

Marisa Wojcik:

That opinion contrasts from state public defenders.

Adam Plotkin:

We did speak against the amendments when they were making their way through the legislative process. Really our primary concern with them is the expanded role that money would play in the bail system under the amendment, because fundamentally, cash is not a guarantee of public safety and these are going to have significant impact on the number of individuals who are in custody while still presumed innocent.

Marisa Wojcik:

Overall, the amendments passed will expand the criteria judges can consider when setting pretrial release conditions.

Eric Toney:

When you look at what cash bail was for prior to this amendment, the only reason in the Wisconsin Constitution that allowed for cash bail was to assure a defendant’s appearance in court and now it says that we look at the dangerousness of the defendant. We look at the prior criminal record of the accused. We look at the defendant appearing in court. We also look at protecting witnesses from serious harm. So there are a number of additional factors that a judge is now able to look at to determine if cash bail is appropriate.

Adam Plotkin:

By expanding the number of considerations, you take away the ability to argue that this person will show up in court in the future and that limits the ability to argue against cash bail. The use of cash for SPD clients who are by definition poor, even low cash bail amounts of $250, $500, can be enough to keep them in jail. And so when we increase the role of cash and the number of situations in cases where it’s used, we’re going to see an increase in the number of people who can’t afford to pay that cash bail and who are held in custody.

Eric Toney:

I’ve had judges that will ask somebody, how much money do you have in your pocket right now? $10. Okay. That’s what we’re going to order for cash. There are times where we’ll make a request for $25, $50, maybe $100, where it’s something that we believe a defendant might be able to post, but we also understand that could be a significant amount of money for that particular defendant, depending on their circumstances, but it doesn’t require a judge to order cash bail and there are already protections in our legal system for defendants who have cash bail ordered. It’s also those non-monetary conditions that the — one of the amendments addressed to look at serious harm, not just what was previously serious bodily harm. So there are other factors that judges now get to look at when — if they’re not going to order cash, now the judges have an expanded ability to look at the harm that might be cause to protect from economic, emotional, other type of potential harm that could be caused.

Adam Plotkin:

The list of violent offenses is beyond what I think most people would consider to be violent. It includes crimes such as disorderly conduct, if you have a knife or other low-level offenses that right now are not even often charged. The most important thing to understand is keeping an eye on the impact on public safety. As I said, the research and evidence suggests that we won’t see a decrease in crime rates as a result of this. In fact, there may be a slight uptick. That’s also why the research shows that a better model is one that is based on risk assessment and not the role of cash bail. There’s going to be a realization in the very near future that this has significant impact on cost to counties in terms of increased jail population.

Eric Toney:

Probably it may be hard to see exactly how this plays out in different counties and you might be able to look at a jail population to see if a county is experiencing a higher number of defendants pretrial in jail. That is a number that certainly can be looked at, but you can’t look at that in isolation because sometimes there can be an uptick in crime that could be responsible for that or it could be that cases are taking longer to resolve because of other issues.

Adam Plotkin:

Now we have to wait and see how this has a practical impact day to day, county-by-county, judge-by-judge, and try and figure out what some of those practical impacts are. And then that other question to ask is, you know, when the county boards are considering the budgets each summer and fall when those costs go up and the taxpayers are asked to shoulder that burden, is this how you want your tax dollars being spent, is it having the intended effect?

Frederica Freyberg:

Results of the main choice on the ballot left a jubilant winner and an angry loser. The high stakes, high-cost Wisconsin Supreme Court race shifts the balance of the court to a liberal majority, a much-watched result with political implications going forward. For more, we check in with our political panelists Democrat Scot Ross and Republican Bill McCoshen and thanks for being here.

Bill McCoshen:

Thank you for having us.

Scot Ross:

Good to be here.

Frederica Freyberg:

First, I want to ask about Daniel Kelly’s concession speech. What are your thoughts on that, Bill?

Bill McCoshen:

Well, you want to win with grace and humility and lose with class and humility and he did not do that. I mean, when you lose by 11 points, that’s a landslide in the state of Wisconsin. You need to be a little more humble. I think it was insulting to all the people that worked so hard for him, folks that donated to him. I mean, that’s a representation on them too, and he didn’t think about that. You’ve got to lose with class.

Frederica Freyberg:

Scot, when you saw that, what did you think?

Scot Ross:

I thought it’s the face of the Republican Party right now because it has been decisive. It has been extreme. He is the embodiment of where the Republican has gone. It’s not where Bill’s at. It’s where — it’s the Trump, it’s the DeSantis, it’s the division, just the rejection of what have been norms in both policy and politics.

Frederica Freyberg:

So, Bill, this was an 11-point win, as you pointed out. That was a trouncing. What exactly happened?

Bill McCoshen:

Well, it was twice as bad as his last race in 2020. He lost by about 110,000 votes a couple of years ago and this one was more like 225,000 votes. I think money was a factor and there are different types of money. The money that Janet Protasiewicz was able to raise in her campaign goes further buying more campaign ads. She had way more gross rating points than he did. He always struggled to raise money. Jennifer Dorow raised twice as much money than he did in the primary and he never picked it up in the general, so she had a huge advantage on the types of ads she could see buy and at what rate. Things seemed a little bit equal as it related to third parties, but those ads are far more expensive and the candidate doesn’t control those messages, so he was outmanned and out moneyed.

Frederica Freyberg:

Was it about the money, Scot?

Scot Ross:

I think it’s four things. Let me say that Bill reminds us, you know, in talking about Kelly’s last loss, that since 2016, Democrats have won 15 of 18 statewide elections. This is a trend. They won the 2018 Supreme Court seat, 55 to 45. They won the one in 2020, 55 to 45. And they won the other night 55 to 45. The amount they’re winning by has increased. It’s gone from 110,000 to 150,000 to 200,000. The trends are not right for the Republicans both in the turn-out in places like Dane County and Milwaukee County, but also in the WOW counties. Janet Protasiewicz won the city of Waukesha, the place where Scott Walker had 73% in 2014. But again, the Democrats have – they do have the money, they have the message, they have the machine, and they have the motivation and that’s going to win elections.

Frederica Freyberg:

What kind of a wake-up call is this for Republicans? Are Republicans now on the wrong side of the abortion issue politically?

Bill McCoshen:

No, we had the wrong candidates. We won on issues on Tuesday night. There were three statewide referenda on the ballot. Two related to bail, cash bail. One passed with 67%. The other had 68%. Then there was a referenda question, an advisory referenda question on able-bodied childless adults working. That passed with 80%. All 72 counties voted for those three referenda, including Dane and Milwaukee. We’re right on the issues. We got to do a better job on candidate screening.

Scot Ross:

You’re not going to win a statewide issue on any of the three things he’s talking about, but on abortion, you’re going to because it hits people hard. It’s now a disqualify — to be on the Republican side in statewide elections is disqualifying. In the last several years of elections, save for like one. Save for Ron Johnson. But what we see is not only is it toxic in places like Dane County and Milwaukee, but Janet won the 3rd congressional district, the 1st congressional district soundly. She won in places like the French Quarter, Eau Claire and La Crosse, 64% in both of those counties. Republicans are in a lot of trouble if they don’t change. I don’t think they’re going to.

Bill McCoshen:

Kelly let Protasiewicz define his position on abortion. Voters never knew what his position was on abortion. If you’re going to be pro-life, that’s fine, but you’ve got to defend your position, right? You can’t let your opponent define you on issues such as that and it was this huge problem for Kelly. No question about that.

Frederica Freyberg:

Scot, does this kind of spell the turn from the Scott Walker era?

Scot Ross:

Without a doubt, absolutely, 100%. Given where the Republicans are on abortion and given where the public is and how they see the Supreme Court being that A to B line, because the overturning of the 1849 ban when it happens, that’s going to be involved in the Supreme Court elections from now until the next 10 years. So we’ve got one up in ’25, two Republicans up in ’26 and ’27. After ’27, Democrats could in theory have six of the seven Supreme Court seats.

Bill McCoshen:

We’ve sort of run through Walker-backed candidates with Rebecca Kleefisch and now Daniel Kelly, but now his policies are going to be up for grabs in the new Supreme Court. When Janet Protasiewicz gets invested in August, there’s two years where progressives will have full control or the majority on the Wisconsin Supreme Court and a lot of his policies might be on the line.

Frederica Freyberg:

Bill, Scott Walker says that UW-Madison helped Dane County’s numbers because he says, “Liberals are indoctrinating young people and turning them out to vote.” What’s your response to that?

Bill McCoshen:

My response is Dane County has been a problem for Republicans for 20 years. We finally have some new leadership here in the county. Brandon Maly is going to do a very good job. Chrissi Ilgen. I’m encouraged by the new leadership in Dane County, but we’re a ways behind where Democrats are. They have figured out that they can harvest more votes here in Dane County than any other county in the state and build up a massive advantage. Janet Protasiewicz had 153,000 vote advantage just in Dane County. It’s going to take some time to fix it for Republicans. Message matters, candidates matter, and it’s going to take some time.

Scot Ross:

Janet won 12 counties that have UW campuses. The reason that people aren’t voting is because Scott Walker wants to raise money for his new operation. It’s because Republicans are wrong on the issues: abortion, transgender, rights, voting, education all across the board.

Frederica Freyberg:

A minute left. What are the implications for 2024?

Scot Ross:

The implications are that — what’s his name Derrick Van Orden and Bryan Steil better watch out because it sounds like they might be going out if DC invests in Wisconsin elections, we’re going to win. We’ve proven it time and time again. You put the money in, we get the right candidates, we win the elections.

Bill McCoshen:

Too soon to tell. We need a different candidate at the top of the ticket other than Donald Trump if we want to win back in the suburbs. For Republicans, you have to win the BOW and the WOW counties: Brown, Outagamie, Winnebago, Washington, Ozaukee, Washington. Janet Protasiewicz won all three of the BOW counties and she cut the margins in the WOW significantly. We need a different candidate at the top of the ticket. At the legislative level, just keep passing proactive policies that voters respond to and I think that formula works.

Scot Ross:

27 counties she won including the entire southwest and south-central part of the state, 27 counties.

Frederica Freyberg:

We need to leave it there. Scot Ross, Bill McCoshen, thanks very much.

With spring elections over, state lawmakers turn their attention to crafting the new two-year state budget. After Governor Tony Evers released his budget proposal in February, Republican legislators are now building their own spending plan working with a $7 billion surplus. More than 1,500 people showed up Wednesday as the legislature’s budget writing committee held its first statewide public listening session. Many of those testifying before the Joint Finance Committee came seeking more money for K-12 education.

Kathleen Davis-Phillips:

Having no increase on the per pupil revenue limit for the last two school years has been extremely challenging, especially during a time when we’ve had to react to extreme inflation rates, staff shortages, and navigate a safe return to school in this global pandemic. Having no increase in the revenue limit during a time when we needed it the most has caused us to rely on one-time dollars and these dollars are running out.

LaToya Woods:

I was pleased to know that I had found an education facility that met my needs for my son and my needs as a parent as well. I found it within my community. I ask that you support closing the funding gap across all sectors of education in the state of Wisconsin so that our schools can continue to close the achievement gap that has plagued our city.

Frederica Freyberg:

The Joint Finance Committee will hold three more public listening sessions on the state budget later this month in Eau Claire, Wisconsin Dells and Minocqua. For more on this and other issues facing Wisconsin, visit our website at PBSwisconsin.org and then click on the news tab. That’s our program for tonight. I’m Frederica Freyberg. Have a good weekend.

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Funding is provided by the Focus Fund for Journalism and Friends of PBS Wisconsin.