In December of 2020, the presidential election was over. Joe Biden had won. The results had been decided, and in legal challenges in state after state, the Trump campaign was losing case after case.
No court in the nation was siding with Trump in his absurd legal effort seeking to overturn the election results, and many of these votes were not close. The U.S. Supreme Court unanimously rejected the challenge, with even the three Trump-appointed justices voting against the then-president. This wasn’t really a close call anywhere; the votes everywhere were rather overwhelming.
Well, almost everywhere. The votes on the Wisconsin Supreme Court were close. Startlingly close, in fact. In multiple efforts, it was by just a one-vote margin that lawsuits seeking to overturn the 2020 presidential election in the state were rejected.
In those rulings, Justice Brian Hagedorn, a conservative elected in 2019, sided with the court’s three liberal justices as the deciding swing vote. It was the closest any court in the nation came to siding with the Trump campaign in its efforts to overturn the election. In one ruling, rejecting a lawsuit from a conservative group called the “Wisconsin Voters Alliance,” Hagedorn unloaded, saying this:
“Something far more fundamental than the winner of Wisconsin’s electoral votes is implicated in this case. At stake, in some measure, is faith in our system of free and fair elections, a feature central to the enduring strength of our constitutional republic. It can be easy to blithely move on to the next case with a petition so obviously lacking, but this is sobering. The relief being sought by the petitioners is the most dramatic invocation of judicial power I have ever seen.”
That was on Dec. 4. Ten days later, Hagedorn joined the court’s three liberal justices once more to reject a lawsuit from the Trump campaign that was seeking to disqualify more than 221,000 ballots in Dane and Milwaukee counties. That ruling was handed down just hours before the state’s 10 official electors cast their votes for Joe Biden.
But the fact that three conservative justices on the Wisconsin Supreme Court cast multiple votes siding with efforts to overturn the results of the 2020 presidential election in the state continues to be astounding. Even typing it all out now, I can’t believe that really happened, that it was really that close. That preserving democracy in Wisconsin came down to one swing vote on the state Supreme Court.
But while a constitutional crisis was narrowly avoided, those three votes were revealing. How in the world was it that close? The votes from the three conservative justices — Annette Ziegler, Patience Roggensack and Rebecca Bradley — illustrate just how extreme and how unbelievably partisan the core of the court’s conservative majority has become in Wisconsin.
Daniel Kelly is the conservative candidate to have emerged from the Feb. 21 primary, a hard-fought race on the right where he won 24% of the vote, placing him second ahead of fellow conservative Jennifer Dorow. He’s running to return to the Wisconsin Supreme Court, where he served as an appointed — but never elected — justice for four years.
Kelly was appointed to the Wisconsin Supreme Court in 2016 by then-Gov. Scott Walker, following the early retirement of conservative Justice David Prosser. Kelly ran for a full term on the court in 2020, but was defeated by now-Justice Jill Karofsky in the infamously chaotic election held in the early weeks of the pandemic, where she won by a double-digit margin. Karofsky was sworn in in August 2020.
If Daniel Kelly had still been on the court for that December vote, all evidence suggests that it would have gone differently. Kelly was endorsed by Trump in 2020, is generally aligned with the farther-right wing of the state’s Republican Party, and was one of the featured speakers on the Republican Party’s “Election Integrity Roundtable” tour, spreading lies about the 2020 results. Kelly has also repeatedly ripped Hagedorn — the only conservative justice to uphold the 2020 election results — saying he’s “supremely unreliable” and that “we were a little bit surprised at how he turned out,” and even went so far to say he would not endorse fellow conservative Jennifer Dorow if she were to win the primary over his concerns that Dorow could be like Hagedorn on the bench.
In all likelihood, Kelly and a 5-2 conservative majority would have thrust the state into a full-blown constitutional crisis in December 2020; Hagedorn’s swing vote would not have made the difference. It’s a good thing Kelly lost his last bid for a full 10-year term in the spring election that year. It doesn’t seem like an overstatement to suggest that voters choosing Karofsky may have saved democracy in Wisconsin.
Because around the time when Karofsky was ruling to uphold the results of the 2020 presidential election, Daniel Kelly was working on something to do just the opposite.
Kelly had been hired by the Republican Party as special counsel and, according to a bombshell report from the Milwaukee Journal Sentinel, “was at the center of the discussion in December 2020 with top Wisconsin Republicans over their highly controversial plan to covertly convene a group of Republicans inside the state Capitol in the weeks following Donald Trump’s loss to Joe Biden to sign paperwork falsely claiming to be electors.” That report quotes a deposition to the Jan. 6 Committee from former Republican Party Chairman Andrew Hitt, one of the state’s 10 fake electors, where he said he had “extensive conversations” with Kelly about the fake electors plot.
Kelly clearly played a key role in the Republican plot to overturn an American election. Putting Daniel Kelly back on the bench would be a genuine threat to democracy in the state — and the nation.
A Kelly victory in this coming race in April would bring immediate concerns over how the court would rule on potential election challenges in 2024, where Donald Trump remains the frontrunner to win the Republican nomination, and election denial remains a core plank of his platform.
But it goes beyond that. So many statewide races in Wisconsin are decided by decimal points. Of the last six presidential elections, four were decided by less than 1%. We just saw the closest election for U.S. Senate in more than a century. Races for governor, attorney general and so on are often extremely close.
The next justice elected to the Wisconsin Supreme Court will serve for 10 years. They will be on the court through 2033. That term will include three presidential elections, two gubernatorial elections and a host of other statewide races. In this 50-50 swing state, it’s likely that many of those elections will be close. Electing Daniel Kelly to the Wisconsin Supreme Court could put the results of any of those elections at risk of being overturned.
We also have recent history as a guide to how these election conspiracies can escalate in Wisconsin. Following the 2020 election, Republicans in Wisconsin have spent a tremendous amount of time and money re-litigating the results, highlighted by the disgraced sham “investigation” conducted by Michael Gableman, a conservative former justice on the Wisconsin Supreme Court, which lasted 14 months, cost taxpayers nearly $2 million, and found no evidence of election fraud.
There were rumors floating around last year that Gableman would run again for Wisconsin Supreme Court. A full term for Daniel Kelly would be the next closest thing to electing Gableman.
Gableman’s term on the Wisconsin Supreme Court ended in 2018, so that means he and Kelly overlapped in their time on the court. During that time, Kelly sided with Gableman more frequently than any other justice, according to an in-depth review by SCOWstats, an independent website analyzing the Wisconsin Supreme Court run by Marquette professor Alan Ball. That is incredibly concerning.
This race for Wisconsin Supreme Court is unique. It’s unique because it is a rare opportunity for voters to determine the ideological balance of the court, but it’s also unique because of how extreme the current conservative majority has become, how deep the rot of election denialism has become in the state’s Republican Party, and because of the uniquely problematic candidate running as the conservative in this race.
When Kelly was announced as a speaker for the “Election Integrity Roundtable” tour, Janet Protasiewicz — the liberal justice running in this election, who had a strong first-place performance in last week’s primary — responded in a statement. She said:
“There are two reasons Donald Trump lost more than 60 court cases trying to overturn the results—the law and the facts. It’s too bad that Dan Kelly continues to join Mike Gableman in courting extremists who oppose democracy. A Supreme Court justice needs to be independent and follow the rule of law despite their own personal beliefs. Dan Kelly and Mike Gableman have demonstrated to the citizens of Wisconsin that they are not fit to be on the bench.”
She’s right about that. If Daniel Kelly were elected, the future of democracy in Wisconsin would be at risk. That’s not a chance any of us should be willing to take.
Dan Shafer is a journalist from Milwaukee who writes and publishes The Recombobulation Area. He previously worked at Seattle Magazine, Seattle Business Magazine, the Milwaukee Business Journal, Milwaukee Magazine, and BizTimes Milwaukee. He’s also written for The Daily Beast, WisPolitics, and Milwaukee Record. He’s won 13 Milwaukee Press Club Excellence in Journalism Awards. He’s on Twitter at @DanRShafer.