What to know about the Wisconsin Supreme Court primary vote

MADISON - Voters will pare the field of state Supreme Court candidates from three to two Tuesday in a primary that will kick off a campaign sprint to determine the makeup of Wisconsin's highest court.

Conservative Justice Daniel Kelly is seeking a 10-year term on a court he joined in 2016. He faces challenges from two opponents who have received liberal backing — Marquette University law professor Ed Fallone and Dane County Circuit Judge Jill Karofsky.

The two who do best will advance to the April 7 general election.

If Kelly wins in April, the conservatives will preserve their 5-2 majority. If one of the others wins, the conservative majority will shrink to 4-3.

Kelly was appointed to the court in 2016 by then-Gov. Scott Walker to replace Justice David Prosser when he retired. As a justice, Kelly has voted with the majority to uphold lame-duck laws limiting the powers of Democratic Gov. Tony Evers and strike down a ban on carrying guns on Madison buses.

Before he was on the court, Kelly was in private practice with Reinhart Boerner Van Deuren and at a small firm he set up. He was involved with conservative legal groups, serving as president of the Milwaukee chapter of the Federalist Society and sitting on an advisory panel for the Wisconsin Institute for Law & Liberty.

As an attorney, he defended a redistricting plan Republicans drew to improve their majorities in the state Legislature. The court changed two Assembly districts but left others in place.

Fallone has spent more than 25 years as a Marquette professor focused on constitutional law. He made an unsuccessful run for the court in 2013, when he got about 43% of the vote in his challenge to Justice Patience Roggensack.

Karofsky won a seat on the Dane County court in 2017. She was previously director of crime victims service for the state Department of Justice, an assistant attorney general and deputy district attorney for Dane County.

Kelly has had the fundraising advantage in the race. Since the race began, Kelly has raised nearly $988,000, Karofsky about $414,000 and Fallone about $172,000.

Kelly has focused on his judicial philosophy, saying he is committed to interpreting laws as they are written. Karofsky has stressed her values. Fallone has said he believes it's wrong for justices to adhere to an overarching, one-size-fits-all theory for how to handle cases.

While it is a three-person race, Kelly and Karofsky have gone after one another directly.

Kelly criticized Karofsky for sentencing Daniel Lieske for homicide to life in prison with the possibility of being released on extended supervision in 20 years.

“It was a particularly heinous murder,” Kelly said. “And the gentleman who committed it — no gentlemen — received the lightest possible sentence allowed by law. And it seemed the only justification for that was that she wanted to see him get back into the community as soon as possible. And that troubles me."

Karofsky defended herself but said she could not say much about the case because it could return to her. She said Kelly should not be talking about a case that could get to the Supreme Court.

“In a case like that, just as in any homicide sentencing, I will go to sentencing factors, which are the severity of the crime and the character and rehabilitation needs of the offender and protecting the public, and do that analysis in every single case," she said. "So in this case, I'm going to let the transcript speak for itself.”

She has accused Kelly of appearing corrupt.

"He's put on the Supreme Court (and) the only reason is to make sure that he is always deciding in favor of right-wing special interests," she said. "And he does it every single time. I think it’s corruption when you have a guy who doesn't follow the rule of law, but follows what his political interests are."

Kelly called her claim baseless and contemptible.

"That particular accusation was shameful," Kelly said. "It was sloppy. And it was completely irresponsible and not befitting a jurist.”

Fallone has tried to stay above the fray.

“I'm running a campaign that's talking about my qualifications, talking about the principles I have fought to defend over my career," he said. "I am not trying to politicize this election, and so I'm not going to comment on the other candidates’ attacks against each other."

Kelly in January got a shout-out when President Donald Trump held a rally in Milwaukee. Kelly, who is getting help from the state Republican Party, has declined to say whether he voted for Trump in 2016 and whether he supports him now.

Fallone would not say who he voted for in 2016. Karofsky said she voted for Democrat Hillary Clinton in 2016 and would not vote for Trump in 2020.

Fallone and Karofsky signed petitions to recall Walker when he was governor. Walker survived the 2012 recall attempt.

Differences on cases

Kelly has differed sharply with Fallone and Karofsky over high-profile decisions.

In addition to striking down a gun ban on Madison's buses, Kelly has said he agrees with a 2008 U.S. Supreme Court decision that found the right to bear arms is an individual right, rather than one belonging to militias. Fallone and Karofsky have expressed skepticism of the logic behind both decisions.

Fallone and Karofsky have embraced same-sex marriage, while Kelly wrote that legalizing it was an "illegitimate exercise of state power." After the U.S. Supreme Court ruled in favor of same-sex marriage, he wrote that the country no longer had a democracy.

Kelly has opposed abortion and wrote that those who support it are trying "to preserve sexual libertinism." Fallone has said rulings upholding the right to abortion should not be overturned and Karofsky has said the issue should be left between women and their doctors.

Before he was on the court, Kelly wrote favorably of Act 10, the 2011 law that limited collective bargaining for public workers, and discounted the merits of a legal challenge to it. Fallone has criticized the Supreme Court's handling of an Act 10 case and Karofsky has backed the ability for public workers to unionize.

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.