Voters Overcome Pandemic to Change the look of the court

The Wisconsin Supreme Court room at the state Capitol building.

A Wisconsin circuit court judge from a liberal-leaning county declared victory Monday evening in the race for a seat on the state’s highest court against a conservative incumbent.

Dane County Circuit Court Judge Jill Karofsky announced her win over Wisconsin Supreme Court Justice Daniel Kelly just before 7:00 pm. With 60% of precincts reporting, Karofsky had 53% of the vote to Kelly’s 47%.

Incomplete results Monday night tallied more than 560,000 votes for Karofsky, a healthy 68,000 vote advantage to Kelly’s 492,000. The results arrived six days after voters went to the polls despite the dangers of the Covid-19 pandemic,
after numerous attempts to delay the primary or extend absentee voting failed.

Karofsky’s consequential upset wins her a 10-year term and narrows the conservative majority on the Badger State’s highest court from 5–2 to 4–3.

Kelly was appointed to the bench by former Republican Wisconsin Governor Scott Walker in 2016 after Justice David Prosser stepped down. Karofsky will take Kelly’s place in August.

Wisconsin voters elected conservative Justice Brian Hagedorn to the bench last April in a tight race against Wisconsin Court of Appeals Judge Lisa Neubauer. The next election for the state’s high court is set for 2023, when Chief Justice Patience Roggensack’s term is up.

Karofsky’s campaign put out a statement Monday sending “a heartfelt thank you to the hundreds of thousands of Wisconsinites who made their voice heard in this unprecedented election.”

The statement acknowledged the chaos and uncertainty surrounding Wisconsin’s primary election.

“Although we were successful in this race, the circumstances under which this election was conducted were simply unacceptable, and raise serious concerns for the future of our democracy,” Karofsky said.


After warning of the effects of voter suppression hours before the results were announced Monday, Democratic National Committee Chair Tom Perez championed Karofsky’s win “despite Republicans best attempts to steal this election.”

The political high drama leading up to Wisconsin’s primary featured multiple lawsuits, a stalled special session of the Wisconsin Legislature and an 11th-hour party-line decision from the U.S. Supreme Court barring an extension to absentee voting that had been ordered by U.S. District Court Judge William Conley, a Barack Obama appointee.

The day before the April 7 primary, Democratic Governor Tony Evers issued an executive order calling off in-person voting altogether due to risks presented by Covid-19 but that was enjoined hours later by a 4–2 party-line decision from the Wisconsin high court.

So voters donned masks and braved the polls, even in Milwaukee, which offered only five out of 180 polling places for its 600,000 residents in light of massive shortages of personnel and protective equipment. Over 100 other Wisconsin jurisdictions reported similar critical shortages caused by the coronavirus leading up to Election Day.

As of Monday, Wisconsin tallied more than 3,400 confirmed cases of Covid-19, including 154 deaths. Milwaukee County accounted for roughly half of both of those figures.

Sara Benesh, a professor of political science at the University of Wisconsin-Milwaukee, noting Kelly’s incumbency and a statewide stay-at-home order in effect due to the global pandemic, said Monday night that “the fact that the liberal challenger won under these circumstances is a really big deal.”

Benesh said that “it is likely that Covid-19 depressed turnout, in Milwaukee especially” which may have dampened the potential Democratic advantage, but she also pointed out that Democrats had more incentive for going to the ballot box due to the presidential primary.

Former Vice President Joe Biden easily won Wisconsin on Monday with 64% of the vote, while only 31% of the vote went to Vermont Senator Bernie Sanders, who suspended his campaign last Wednesday.

Despite being officially nonpartisan, the race between Karofsky and Kelly was plainly, and bitterly, partisan in tone. The two sniped at each other through the media and at debate forums, with each condemning the other to be bought and sold by the special interests that support them.

That support was immense. The Brennan Center for Justice at NYU Law reported as of Monday that over $3.5 million in special interest cash was dropped on advertisements alone. High-profile endorsements, including President Donald Trump’s support for Kelly and Sanders’ for Karofsky, proved that those in the halls of power saw the race for a seat on Wisconsin’s highest court to be a top priority.

John Johannes, professor of political science at Villanova University, called ostensibly nonpartisan races like the one for Wisconsin Supreme Court “something of a joke” and opined that the race shows that “national politics and partisanship now dominates state elections.”

Johannes sees the outside money flowing from across Wisconsin’s border for the race as “representing efforts by partisans of both parties to influence state elections, both for the legislatures that control the drawing legislative and congressional districts and for state supreme courts that eventually will rule on gerrymandering and other partisan issues.”

Legal challenges to Monday’s results and the processes by which voters cast their ballots are already underway, as there has continued to be confusion and discrepancies over absentee ballots, some of which were requested but never sent to voters, did not feature proper postmarks, or were sent but never recorded as returned by the bipartisan Wisconsin Elections Commission as of Monday afternoon.

Fourteen disenfranchised voters filed suit against legislative leaders and the state elections commission in Madison federal court on Monday, asking for class certification and ultimately a revote in the first post-primary filing to challenge the electoral process for Wisconsin’s primary.

U.S. Senators Tammy Baldwin, a Democrat, and Ron Johnson, a Republican, have called for an investigation into the U.S. Postal Service over undelivered absentee ballots.

Ryan Owens, a professor of political science at the University of Wisconsin, offered an upshot to the madness of Wisconsin’s primary, saying that “both sides are looking at this election as a test run for the fall.”


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