Wisconsin redistricting fight focuses on the recusal of a key justice as impeachment threat lingers

Republicans who drew legislative electoral maps are making new arguments in calling for a key liberal Wisconsin Supreme Court justice to recuse from a case about whether to keep the maps

Scott Bauer
Tuesday 19 September 2023 20:13 BST
Wisconsin Redistricting
Wisconsin Redistricting (Copyright 2023 The Associated Press. All rights reserved.)

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Republicans fighting to preserve Wisconsin legislative electoral maps they drew argue in new legal filings that a key liberal Wisconsin Supreme Court justice must recuse from the case despite the dismissal of complaints against her related to comments she made about redistricting.

Democratic allies asking the Wisconsin Supreme Court to throw out the Republican maps counter in court filings Monday that the judicial commission's actions are further proof that Justice Janet Protasiewicz can legally hear the case.

If Protasiewicz doesn't recuse herself from the redistricting cases, Republican Assembly Speaker Robin Vos has threatened to consider taking the unprecedented step of impeaching her.

Protasiewicz's win flipped majority control of the court to 4-3 for liberals when she took her seat in August. In her first week, two lawsuits seeking to overturn the GOP maps were filed.

The Republican-controlled Legislature argued that Protasiewicz prejudged the case and must step down from hearing it, which could leave the court deadlocked 3-3. Republicans pointed to comments she made during the campaign calling the maps “rigged” and “unfair” and her acceptance of nearly $10 million in donations from the Wisconsin Democratic Party.

Protasiewicz never said how she would rule on a redistricting lawsuit.

The Wisconsin Judicial Commission earlier this year rejected complaints filed against Protasiewicz. She released its May 31 decision earlier this month and then asked both sides in the redistricting cases to weigh in on how that action affected their arguments.

The commission did not give a reason for why it dismissed the complaints, but said in its letter to Protasiewicz that it had reviewed her comments, the judicial code of ethics, state Supreme Court rules, and relevant decisions by the state and U.S. supreme courts.

The commission's decision confirms that she didn't break any law and should not step aside, attorneys in both redistricting cases argued.

“Without such grounds, each Justice has a duty to hear this case,” attorneys representing Democratic voters argued.

Furthermore, Protasiewicz's comments not only don't warrant recusal, they should be expected from judicial candidates who “must communicate with the voters who bear the constitutional responsibility of choosing judges,” the attorneys argued.

The question looked at by the judicial commission is different than the one facing the state Supreme Court, the Legislature’s attorneys countered. They argue that the U.S. Constitution’s due process clause and state law require her to recuse from the cases.

“Perhaps those statements were permissible on the campaign trail, as judged by the Judicial Commission, but Justice Protasiewicz cannot hear a case she has prejudged,” attorneys for the Legislature argued in filings Monday.

The commission also did not consider the nearly $10 million in Democratic Party donations, Republican attorneys said. They also point to the $4 million the Democratic Party promised to spend countering Republican efforts to possibly impeach Protasiewicz as evidence that she can't fairly hear the case.

The legislative electoral maps drawn by the Republican-controlled Legislature in 2011 cemented the party’s majorities, which now stand at 65-34 in the Assembly and a 22-11 supermajority in the Senate. Republicans adopted maps last year that were similar to the existing ones.

Wisconsin’s Assembly districts rank among the most gerrymandered nationally, 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.

One lawsuit was filed on behalf of voters who support Democrats by 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 other case was brought by voters who support Democratic candidates and several members of the Citizen Mathematicians and Scientists. That group of professors and research scientists submitted proposed legislative maps in 2022, before the state Supreme Court adopted the Republican-drawn ones.

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