Newly liberal state Supreme Court majority decides to hear challenge to the Badger State's wildly gerrymandered legislative maps in time for 2024 elections, even as unprecedented impeachment threat looms...
UPDATE, 10/12/23: Governor Evers files motion to intervene...
By Ernest A. Canning on 10/10/2023, 12:32pm PT  

It's game on, Wisconsin!

Last Friday, eight days after it declined to hear an emergency request to block the Wisconsin Assembly from initiating impeachment proceedings against recently seated Justice Janet Protasiewicz, the state's Supreme Court partially granted a request to determine whether The Badger State's existing legislative maps violate the state Constitution.

The Court's 4-3 Decision [PDF] to review the constitutionality of arguably the most politically gerrymandered maps in the nation comes on the heels of liberals recently assuming a majority on the bench for the first time in more than 15 years.

In their initial filing [PDF] seeking new, fairer maps, the petitioners in Clarke vs. Wisconsin Elections Commission argued (1) the Wisconsin Supreme Court should grant the petition because it is the only entity that can resolve the issue; (2) that extreme partisan gerrymanders violate the Wisconsin Constitution; (3) that the current legislative districts, both in the state Senate and Assembly, are unconstitutionally noncontiguous, and (4) that the current maps violate separation of powers.

The High Court's narrow majority determined that it will only hear issues (3) and (4). It directed the parties to file briefs by Oct. 16 that will address four specified questions, including the standards the Court should apply in adopting a remedy if it finds the existing maps to be unconstitutional and "the legislature and governor fail to adopt maps that comply with the Wisconsin constitution."

That wasn't the only critical decision issued on Friday regarding what is likely to be a landmark ruling by the High Court...

For her part, last Friday, Justice Protasiewicz also issued her own 47-page Memorandum Decision and Order [PDF] setting forth her legal reasoning as to why there is no basis to demand her recusal from the gerrymandering case. Republican Assembly Speaker Robin Vos had demanded exactly that, threatening articles of impeachment if she remained on the case.

In fact, the controlling decisional authority, Protasiewicz observed, reflects that the unfairly assailed Justice would be violating her oath of office if she did recuse.

For the moment, it remains unclear if Vos will be dissuaded from moving forward with his previous impeachment threat. If carried out by the gerrymandered Assembly, Protasiewicz would be barred from hearing any cases until after an impeachment trial was completed by the gerrymandered state Senate. A Court majority needed to restore fair maps to the Badger State in time for use in the 2024 election might otherwise be lost.

But Vos failed to mention his impeachment threat during public remarks on Monday in response to both Protasiewicz' decision not to recuse and the High Court's decision to move forward with the gerrymandering case. He also failed to "return a text message asking if his comments meant that impeachment was now off the table," according to AP. Vos, AP also reported, had been advised by former WI Supreme Court Justice David Prosser, and by former WI Supreme Court Justice Jon Wilcox, that he should not move forward with impeachment.

UPDATE 10/12/23: Wisconsin's Democratic Governor Tony Evers filed a Motion to Intervene in this landmark redistricting case. In an accompanying Memorandum, citing pertinent case law, Gov. Evers argues that "redistricting is not only a legislative task but also squarely involves the Governor," whose office is "the one institution guaranteed to represent the majority of the voting inhabitants of the state. [Citation]."

Gov. Evers also noted that the Court's decision to address the separation of powers issue --- whether the former right-wing Wisconsin Supreme Court majority, in Johnson v. Wisconsin Elections Commission (2022), "usurped" gubernatorial power when it essentially overrode Gov. Evers's veto in approving the gerrymandered, Republican-controlled Legislature's map --- justifies intervention because the veto is a "core power" of the governor's office.

The Court promptly approved Gov. Evers's motion to intervene.

Stay tuned...

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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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