GOPers in gerrymandered state legislative seats float possibility of removing newly elected Justice over state gerrymandering case...
UPDATE 08/23/23: Elections Commission files neutral response; WI Legislature moves to intervene; named GOP Senators oppose, named Dems respond in support; UPDATE 08/26/23 briefing scheduled on GOP recusal motion...
By Ernest A. Canning on 8/21/2023, 9:19am PT  

If acted upon, a recent threat by Wisconsin's Republican Assembly Speaker Robin Vos to impeach newly seated state Supreme Court Justice Janet Protasiewicz could give rise to a Badger State constitutional crisis --- albeit, a crisis that can be somewhat ameliorated by the ability of Wisconsin's Democratic Governor Tony Evers to appoint her replacement.

The political gamesmanship that could play out in the weeks ahead, thanks to sore loser Republicans in the state's gerrymandered Legislature, may rival or even surpass some of the worst partisan excesses of the fading Scott Walker era.

As detailed last week, Wisconsin voters, mathematicians and computer scientists filed a pair of petitions (Clarke v. Wisconsin Election Commission and Wright v. Wisconsin Election Commission) directly with the Wisconsin Supreme Court earlier this month.

Petitioners seek to break the chains of the GOP's 12-year entrenched and politically-engineered control of both chambers of the Badger State legislature --- control that was and is the product of what petitioners allege to be unlawful extreme partisan gerrymandering.

The petitions, consistent with a dissent issued by three of the Court's liberal justices last year in Johnson v. Wisconsin Elections Commission, allege that the Badger State's existing Legislative maps violate voter rights as guaranteed by multiple provisions of the Wisconsin Constitution.

The voters' petition in Clarke not only seeks the creation of fair state Senate and Assembly maps in time for next year's election, but also seeks the issuance of an emergency writ that would schedule a Special Election for those WI Senators whose terms would not otherwise expire until 2027. The voter petitioners argue that all currently serving state Senators "lack legal entitlement" to their respective offices because they were procured via unconstitutionally configured districts.

Vos, who owes his position as Speaker to those partisan gerrymandered maps, claims Protasiewicz "prejudged" the outcome of the new cases during her campaign for the seat earlier this year. He threatened to impeach her if she dared take part in the pending challenges. That "prejudgment" accusation, however, would be far more apt when applied to right-wing WI Supreme Court Justice Rebecca Bradley when, last year, she joined with the right wing majority, in Johnson --- a decision, which, per the dissent, violated Wisconsin's constitutionally-mandated separation of powers by overriding a governor's veto in order to saddle the electorate with the Republican-drawn, partisan gerrymandered Legislative map.

Bradley authored an intemperate dissent in the new cases...

The "prejudgment" allegation

The core issue in these two cases is whether Wisconsin's gerrymandered 2011 and 2021 maps violate the Badger State Constitution.

Last January, Protasiewicz, then a candidate for the Supreme Court seat she now occupies after winning her April election, said that the state's 2021 Legislative map had been "rigged". In doing so, she was recognizing an indisputable fact.

Consider, for example, the Republican-drawn, color-coded map of Wisconsin's Assembly District 47, which is depicted in yellow, including a number of tiny areas disconnected from the main part of the District...

Those non-contiguous yellow dots represent instances in which the Republican map makers cracked off sections of the largely Democratic college town of Madison into large swaths of an otherwise solidly Republican-leaning rural Assembly District. Lack of contiguousness is one of the constitutional violations alleged by petitioners in the two new cases.

While a judicial candidate or nominee should avoid preconceived conclusions about how he or she may decide any specific case, they needn't pretend to be blind to that which is incontestable.

Over the course of her campaign, Protasiewicz described the maps as "unfair", while adding: "I can't tell you what I would do in a particular case."

That "particular case" is embodied in the two petitions now pending before the state's High Court, where liberals have taken a 4 to 3 majority as of August 1, following Protasiewicz' 11-point victory last Spring. Both cases contest the constitutionality of Wisconsin's "rigged" Legislative maps.

Unlike the position taken last year by her three liberal Supreme Court colleagues, by way of a formal dissent in Johnson, Protasiewicz has never expressed the view that the Legislative maps are unconstitutional. Therefore, the evidence fails to support Vos' allegation she has "prejudged" the issue before the Court.

Bradley's intemperate dissent

On August 15, the WI Supreme Court issued an Order [PDF] in Clarke and a second Order in Wright in response to petitioners' request that it exercise its original jurisdiction to hear and rule on petitioners' legal challenge to the state's gerrymandered Legislative maps. The Court's majority directed the state's Election Commission to file its response to the petition by August 22.

Conservative Justice Brian Hagedorn concurred, noting that the Court's order would allow the parties an opportunity be heard that would "give [the Court] a fuller picture of the issues" in order "to determine how best to proceed".

Despite Hagedorn's concurrence with the liberal majority, Justice Rebecca Bradley --- a 2015 Scott Walker appointee who The Nation's John Nichols described as "the most over-the-top judicial activist" on the WI Supreme Court --- lashed out at her liberal colleagues in what might politely be described as an intemperate dissent...

[T]he majority forces the parties to expend considerable resources –- including taxpayer money –- to respond to a petition everyone knows will be granted by Ann Walsh Bradley, Rebecca Dallet, Jill Karofskuy and Janet Protasiewicz. Despite receiving nearly $10 million from the Democrat [sic] Party of Wisconsin and declaring the maps "rigged", Protasiewicz has not recused herself from the case. These four justices will adopt new maps to shift power away from Republicans and bestow advantage for Democrat candidates, fulfilling one of Protasiewicz's many promises to the principal funder of her campaign.

Citing a 5-4 U.S. Supreme Court decision regarding a lack of recusal by a West Virginia state Supreme Court Justice in Caperton v. Massey Coal Co. Inc (2013) --- as if it were a controlling precedent --- Bradley argued that the opposing parties in the two petitions would be deprived of due process if Protasiewicz failed to recuse.

No valid reason for recusal

Bradley's sua sponte arguments are wrong on so many levels, it's difficult to know where to begin.

For starters, the right-wing jurist failed to identify, and research failed to disclose, so much as a single "promise" Protasiewicz made to the Democratic Party of Wisconsin ("DPW"), let alone one that is specific to the case before the Court.

Second, in Capton, the U.S. Supreme Court held that due process was denied because a Supreme Court Justice in WV who failed to recuse, had received a $3 million campaign contribution from the CEO of a coal company that was a party defendant in the case before him.

During her campaign, consistent with that ruling, Protasiewicz pledged to recuse herself from any case in which the DPW was a party to the judicial proceeding.

If Bradley had simply read the Clarke petition heading, she'd have realized that the DPW was not a party to the case before her. The plaintiffs are Wisconsin voters who've argued that the state's partisan gerrymandered maps violate their rights, under the WI Constitution, to contiguous districts, equal protection, free speech/association and a provision that mandates the maintenance of a free government.

Sadly, Justice Bradley fails to recognize the voters' nonpartisan desire for free and fair elections, as opposed to the deeply undemocratic project embodied by more than a decade of GOP political entrenchment in the state Legislature, thanks to their extreme partisan gerrymandering.

Bradley's own partisan lens appears to lead her to view the issue solely based upon which political party would benefit from the outcome. In doing so, she projects her own hyper-partisan ideological world view onto her liberal colleagues, who she charges with seeking only to help the Democratic Party. In truth, her liberal colleagues, in their previous Johnson dissent, expressed nonpartisan concerns about how extreme partisan gerrymandering adversely impacts small "d" democracy.

On the bright side, Bradley's argument that fair maps would benefit the Democratic Party can at least be seen as an offhand admission that Wisconsin Republicans can't win absent "rigged" maps.

Justice Bradley's third point entails little more than blatant hypocrisy.

If mandatory recusal is triggered by the mere fact that the issue of fair vs. gerrymandered maps favors a Party which helped fund a judicial campaign, then Bradley should have recused herself last year when the Court took up Johnson . In that case, she and other members of the Court's former right-wing majority overruled Democratic Gov. Tony Evers' veto in order to saddle Wisconsin with the GOP's partisan gerrymandered maps now at issue.

During her 2016 campaign, in addition to receipt of $114,049 from the Republican Leadership Committee, Bradley benefited from an estimated $2.3 million attack ad campaign purchased by the so-called "Wisconsin Alliance for Reform" --- a "phony front group" that was "created by former GOP legislators and state Republican Party staffers."

Constitutional crisis

Thanks to extreme partisan gerrymandering, WI Republicans not only have the majority required in the Assembly to impeach Justice Protasiewicz, they also maintain a 2/3 supermajority in the Badger State Senate. That's the precise number of votes that could enable Republicans to impeach, try, convict and remove an ethical jurist from the bench, facts be damned.

Just last April, the People of Wisconsin spoke loudly and clearly at the polls. Protasiewicz was elected "by 11 percentage points, a huge margin in a narrowly divided state," as observed by The New York Times.

Her impeachment and removal by a gerrymandered State Legislature just months after her election and weeks after taking office for a ten-year term would amount to an assault on democracy, albeit a non-violent one, nearly as brazen as the attempted insurrection at the U.S. Capitol on January 6, 2021.

A constitutional crisis arises because the Wisconsin Supreme Court may lack the judicial power to prevent such a lawless act. Applying the theory advanced by the Clarke plaintiffs --- that Republican state Senators "lack legal entitlement" to their gerrymandered office --- the Court would be hard-pressed to enjoin the effort, short of at least one conservative Justice joining with the Court's liberals to put the brakes on the nakedly partisan judicial coup. That's because recusal would be mandatory for any Justice whose own impeachment was at issue.

If WI Republicans initiate impeachment proceedings, the right of WI voters to fair maps and representation may come down to whether the Court orders new maps before entrenched Republicans have the time --- and chutzpah --- to remove a newly elected jurist from office. While Gov. Evers could appoint her replacement, it's unlikely the new Justice would be sworn-in until after the time expired for creating fair legislative maps for the 2024 elections. The alleged twelve year illegitimacy of GOP entrenched power in the Wisconsin Legislature would be then extended through 2026.

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UPDATE 8/23/2023: The Wisconsin Elections Commission filed a neutral response in reply to the petitions, in which it simply noted: "If this Court takes jurisdiction, the Commission intends to...advocate for timely and expeditious resolution of all issues."

Wisconsin's Republican-controlled Legislature filed a Motion to Intervene in order to defend its institutional rights. The Court's Docket reflects that the Legislature also filed a "Motion to Recuse J. Protasiewicz". Unfortunately, the docket does not contain a link to that motion at this time.

A dozen WI Republican state Senators who are subject to the petitioners' request for a writ compelling a special election of all Senate seats in 2024, and were therefore named as respondents in the Clarke petition, filed a Response opposing the petition on multiple grounds. They repeated Justice Rebecca Bradley's argument that due process would be denied if Protasiewicz did not recuse.

The Senate Democrats named as respondents in the Clarke petition --- because they too would be required to take part in a 2024 Special Election if the emergency writ was granted --- filed a Response in which they supported and reinforced the arguments made by the Clarke petitioners calling for new Senate maps and an emergency special election next year for all sitting state Senators.

My appearance on yesterday's BradCast discussing these cases is now posted here.

UPDATE 8/26/23:: Wisconsin's Republican-controlled Legislature filed a formal Motion to Recuse, Justice Protasiewicz issued an Order which authorizes all other parties to file a written response to the recusal motion on or before August 29.

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Ernest A. Canning is a retired attorney, author, and Vietnam Veteran (4th Infantry, Central Highlands 1968). He previously served as a Senior Advisor to Veterans For Bernie. Canning has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing

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