Liberals argued in a legal filing this week that Republicans were trying to nullify the election of a Democratic-backed Wisconsin Supreme Court justice by asking her to recuse herself from hearing redistricting lawsuits that could result in drawing new legislative electoral maps.
Attorneys in two separate redistricting cases filed arguments Tuesday objecting to the Republican-controlled Legislature's request that Justice Janet Protasiewicz recuse herself. They argued that there was no legal or ethical obligation for Protasiewicz to step aside, despite her comments during the campaign that she thinks the current maps are “rigged” or because she accepted nearly $10 million from the Wisconsin Democratic Party.
One motion objecting to Protasiewicz's recusal argued that such a move would be unsupported by fact or law and “it would be contrary to her duties as a justice on the Supreme Court.”
“Unhappy with this electoral result, which they could not prevent through gerrymandering, (Republicans) now seek to nullify the results and pick their Justices," said the filing from Law Forward, a Madison-based liberal law firm, the Stafford Rosenbaum law firm, Election Law Clinic at Harvard Law School, Campaign Legal Center, and the Arnold & Porter law firm.
The Republican-controlled Wisconsin Legislature argued in filings last week that Protasiewicz has pre-judged the cases, which could result in new more Democratic-friendly maps being drawn before the 2024 election. Republican legislative leaders have threatened to impeach her if she hears the cases, a move that they have enough votes to do.
Protasiewicz is part of a 4-3 liberal majority on the court, and her election ended a 15-year run of conservative justices in control. Two redistricting lawsuits were filed in the first week after Protasiewicz joined the court on Aug. 1.
Republicans argued in their recusal motion that “Justice Protasiewicz’s campaign statements reveal that her thumb is very much on the scale in this case.”
During her winning campaign, Protasiewicz called the Republican-drawn maps “unfair” and “rigged” and said there needs to be “a fresh look at the gerrymandering question.” Protasiewicz never said how she would rule on a redistricting lawsuit.
Protasiewicz did not make any “pledges or promises” about how she would rule, which would require recusal, said attorneys in the second redistricting lawsuit representing voters who support Democratic candidates and several members of the Citizen Mathematicians and Scientists.
The U.S. Supreme Court made clear that judicial candidates can discuss political issues, and nothing she said indicates that she has prejudged the case, the attorneys argued.
But her comments have led some Republican state lawmakers, including Assembly Speaker Robin Vos, to say that impeachment should be considered if she doesn’t recuse from the cases. He was among the Republicans who filed the motion asking that she step aside from the cases.
It would take only a simple majority vote in the Assembly to impeach Protasiewicz, and a two-thirds majority vote in the Senate to remove her from office. Republicans have a 65-34 majority in the Assembly and a 22-11 majority in the Senate.
Wisconsin’s Assembly districts rank among the most gerrymandered in the country, with Republicans routinely winning far more seats than would be expected based on their average share of the vote, according to an Associated Press analysis.
Both lawsuits ask that all 132 state lawmakers be up for election that year in newly drawn districts. In Senate districts that are midway through a four-year term in 2024, there would be a special election, with the winners serving two years. The regular four-year cycle would resume again in 2026.
The state Supreme Court has yet to decide whether it will hear the redistricting challenges. It is up to Protasiewicz, and not the entire court, to decide whether to recuse herself or hear the cases.