MADISON, Wis. — Wisconsin voters will choose between a Republican appointee, a Madison judge and a law professor as they winnow down the candidates for a state Supreme Court seat in a primary Tuesday.
Conservative Justice Dan Kelly will face off against liberal-leaning Jill Karofsky and Ed Fallone. The top two vote-getters will advance to the April 7 general election with a 10-year term on the high court at stake.
The race can’t change the court’s ideological leaning since conservative-leaning justices currently have a 5-2 edge. But a Kelly defeat would cut their margin to 4-3 and give liberals a shot at a majority in 2023.
Here’s a look at the primary candidates, their backgrounds and their stances.
Then-Gov. Scott Walker, a Republican, appointed Kelly to the Supreme Court in 2016 to replace the retiring David Prosser. An attorney by trade, he’s often seen walking the streets of Madison wearing a Sherlock Holmes-style cape. He represented Republican lawmakers in a federal trial over whether they illegally gerrymandered Wisconsin’s legislative district boundaries in 2011. He’s also a member of The Federalist Society, a conservative organization that advocates for a strict interpretation of the U.S. Constitution.
Kelly is part of the conservative bloc that controls the Supreme Court. Justices are supposed to be nonpartisan, but over the years their races have grown into partisan battles as bitter as any other statewide race, raising questions about their objectivity on the bench. The Wisconsin State Journal reported in December that Kelly is renting space from the state GOP and the party helped him circulate nomination papers. Last June he tweeted a photo of himself holding an assault-style rifle and in November he spoke at a Kenosha County Republican Party gathering.
Karofsky has accused Kelly in two forums of being corrupt because he has repeatedly rules in conservative groups’ favor. She pointed out that he ignored precedent and joined the conservative majority in reversing the court’s 2016 ruling that the state schools superintendent can create policy without the governor’s permission. Kelly shot back that the court should be allowed to fix past mistakes and the liberal-leaning Karofsky sees everything through a political lens. At a forum last month he accused Karofsky of slandering him and said he would take her allegations “out back and throw them in the garbage.”
Kelly has the clear financial advantage in the race. He raised nearly $1 million over the last 13 months, more than twice what Karofsky accumulated and more than five times as much as Fallone managed.
Karofsky is a wiry marathon runner who has completed two Iron Man competitions. She also won the state doubles tennis championship in 1982 for Middleton High School.
She has served as an assistant prosecutor in the Dane County district attorney’s office, general counsel for the National Conference of Bar Examiners and executive director of the state Department of Justice’s Office of Crime Victim Services. She won election as a Dane County circuit judge in 2017.
Despite her criticism of Kelly as a Republican operative, she herself has been working to court Democratic-leaning voters.
She tried to drum up support at the state Democratic convention in June, delivering a speech lamenting how politicized the legal and judiciary systems have become and signaling she agrees with a number of party values. She said her children benefit from public schools and judges must protect the environment as well as civil rights. She added that “our fundamental rights as women are under assault,” a veiled reference to abortion restrictions.
Fifteen Democratic legislators as well as former Democratic Gov. Jim Doyle have endorsed her.
Fallone has taught law at Marquette University for 27 years. His mother was raised in Mexico and he has served on the boards of Voces de la Frontera Accion, the lobbying arm of immigrant advocacy group Voces de la Frontera, and Centro Legal, a Milwaukee nonprofit that provides low-cost legal services.
He ran unsuccessfully for the state Supreme Court in 2013.
He has tried to paint himself as above party politics, although he, too, appeared at the Democratic convention. He delivered a speech attacking Kelly, saying Walker appointed Kelly as a reward for his political loyalty. He also stressed his Hispanic heritage, saying he’d be the first Hispanic justice on the state Supreme Court, and like Karofsky signaled support for a host of Democratic planks. He promised to be a voice for working families, equated women’s rights to human rights and criticized the criminal justice system for incarcerating too many minorities.
Six Democratic legislators have endorsed him, along with Milwaukee’s Democratic mayor, Tom Barrett.