Jill Karofsky & Dan Kelly — Wisconsin Supreme Court Race Is Not ‘Stunning Upset’



(Carlos Jasso/Reuters)

Not really.

Conservative Wisconsin supreme court justice Dan Kelly lost his race for a ten-year term to liberal challenger Jill Karofsky by eleven percentage points in the state’s spring election, according to official results released Monday night.

New York Times reporter Reid Epstein calls the liberal win a “stunning upset,” but that seems to be an overstatement. There was certainly a great deal of uncertainty over how an election would play out in the middle of the coronavirus pandemic. But for well over a year, the (sensible, obvious, and bipartisan) conventional wisdom was that the liberal candidate would be a strong favorite because there was a Democratic presidential primary at the top of the ticket, while Donald Trump would not face serious opposition in the Republican primary.

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In 2018, Republicans were so worried about the advantage the primary would give the liberal candidate down-ballot that they considered moving the supreme court and primary elections to different dates. As the Milwaukee Journal Sentinel reported in April 2019, following the surprise loss of liberal supreme court candidate Lisa Neubauer, “Liberals had hoped to have Neubauer win this year so they could be on a path to taking control of the court next year, when conservative Justice Daniel Kelly’s term is up. The April 2020 election will coincide with Wisconsin’s presidential primary, when Democratic turnout is expected to be high.”

The last-minute fight between the Democratic governor and the Republican legislature over postponing the election may have had some effect on the size of the liberal victory, but it probably wasn’t a big one. A record 1.1 million votes out of 1.5 million total votes in the April elections were cast absentee (either by mail or in-person early voting), but most of those votes were cast before the fight over postponing the election erupted. Democratic governor Tony Evers did not call for postponing the election until the afternoon of Friday, April 3, and the deadline to request absentee ballots was 5 p.m. that day. Absentee ballots had to be postmarked by April 7 to be counted.

The Democratic primary at the top of the ticket and the absence of a competitive GOP presidential primary still seem to be the biggest factors determining the outcome of the down-ballot supreme court race.

Total turnout for the April 7 elections ended up being roughly what could have been reasonably expected under normal circumstances when a Democratic presidential primary is combined with a state supreme court election.

In 2019, when a supreme court race was the most important contest in Wisconsin’s statewide spring election, the conservative candidate won with 606,000 votes, defeating the liberal candidate by less than one percentage point. In 2020, losing conservative candidate Dan Kelly got 693,000 votes — 87,000 more votes than the victorious 2019 conservative candidate. But in 2020, nearly 900,000 votes were cast in the Democratic presidential primary (about 100,000 fewer than were cast in the 2016 Democratic primary), and the liberal supreme court candidate won 856,000 votes down-ballot.

In Wisconsin’s spring 2016 elections, there were competitive Republican and Democratic presidential primaries, and the performance of supreme court candidates down-ballot corresponded almost perfectly with the turnout in the presidential primaries. That year, 97,219 more ballots were cast in Trump–Cruz–Kasich GOP race than in the Clinton–Sanders Democratic race, and the conservative supreme court candidate won by 95,515 votes.

What does the liberal victory in Wisconsin mean going forward? It shrinks the conservative majority to 4–3, and it gives liberals a chance to win a majority in 2023. But it’s hard to find any relationship between Wisconsin supreme court elections and presidential elections. A narrow conservative victory in the spring of 2011 was followed by a decisive win for Barack Obama in 2012. A double-digit liberal supreme court victory in 2015 was followed by Donald Trump’s surprise upset in 2016. Another double-digit liberal victory in 2018 was followed by a one-point loss for former GOP governor Scott Walker that fall.

Whether Republicans pay a price in November for the GOP legislature’s refusal to postpone the election remains to be seen. Democratic governor Tony Evers deserves his fair share of blame for waiting until April 3 to call for delaying the election and then issuing an executive order the day before the election to postpone it — a unilateral action Evers had until then described as illegal. Though four weeks passed between the coronavirus outbreak in the United States and Wisconsin’s April 7 elections, Evers, the GOP legislature, and local officials collectively failed to use that time to ensure in-person voting throughout the state would be as safe as going to a grocery store. But if there is a spike in COVID-19 cases and deaths in the coming weeks that can be attributed to in-person voting, Wisconsin voters may indeed punish Republicans in November.


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