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Protasiewicz denies GOP call for recusal as liberal Court majority takes up gerrymandering lawsuit

by Henry Redman, Wisconsin Examiner
October 7, 2023

In a 4-3 decision, the Wisconsin Supreme Court’s liberal majority voted to accept a case challenging the state’s legislative maps as unconstitutional because of the partisan advantage they give to Republicans. 

In addition to the order accepting the case on Friday, liberal Justice Janet Protasiewicz ruled against Republican requests that she recuse herself from the case, deciding that the Republican arguments were without merit even as Republican legislators have spent months threatening to impeach her if she weighs in on the case. 

One state lawmaker, Sen. Dan Knodl (R-Germantown) had suggested he’d vote to impeach Protasiewicz before she was even elected. Since the lawsuit challenging the maps was filed in August, just days after Protasiewicz was sworn into office, Republicans in both houses have continued to threaten impeachment. Republicans called for her recusal and have made the impeachment threats because during her campaign this spring, Protasiewicz called the legislative maps “rigged” and accepted millions in campaign donations from the state Democratic Party. 

Republicans have argued that Protasiewicz’s comments on the maps amount to “pre-judging” the case and that because the Democratic Party could benefit from a redrawn map, Protasiewicz is compromised and should not weigh in on the matter. Legal experts and nonpartisan analysts  have found Wisconsin’s maps to be among the most gerrymandered in the country. The Democratic Party of Wisconsin is not a party to the gerrymandering  lawsuit. 

“Recusal decisions are controlled by the law. They are not a matter of personal preference. If precedent requires it, I must recuse. But if precedent does not warrant recusal, my oath binds me to participate,” Protasiewicz wrote.

In her order, Protasiewicz listed the campaign support all the justices have received from political parties and allied ideological groups, writing that the work of the court would shut down if recusal were required every time a high profile case involved issues of interest to a political party. She also noted that none of the justices had recused themselves from the case that implemented the maps last year. 

“It would be unworkable, and again unprecedented, to conclude that the Due Process Clause requires every elected judge to recuse whenever their involvement might be predicted (before they have even cast a vote) to benefit non-parties who supported their campaign,” she wrote. “Indeed, this court would grind to a halt if that were the constitutional standard for recusal. We would be flooded with requests for “conservative” or “liberal” justices to recuse whenever a case involved issues of great social or political importance to any major campaign funder.”

As Republican lawmakers have threatened to impeach Protasiewicz if she weighs in on the lawsuit, Assembly Speaker Robin Vos (R-Rochester) said he was relying on a panel of  three former justices to advise him on what the law requires. As an appendix to her order, Protasiewicz cited a recusal decision by former Justice Daniel Prosser, the only publicly named member of the panel. 

In that decision, Prosser, who had also previously served as the Republican speaker of the Assembly, wrote that campaign contributions don’t require him to recuse himself from a case. 

Accepting the case on Friday, the Court’s liberal majority ruled that it will be deciding four questions: whether the current maps violate the state constitution’s requirement that districts be contiguous; if the Court violated the separation of powers when it instituted maps that had previously been vetoed by Gov. Tony Evers last year; and what the Court should consider if it tosses out the maps and faces instituting new ones. 

In the redistricting case that installed the current maps last year, the then-conservative majority ruled in a decision benefiting Republicans that the proposed maps must comply with a “least change” standard under which the proposals couldn’t differ much from the previous maps. Those maps, drawn in 2010, created the partisan gerrymander that has allowed Republicans to retain impenetrable control of the Legislature since. 

But in their dissents to the order accepting the case, the now-conservative minority complained that the liberals have pre-decided the case to benefit their ideological allies. 

Justice Rebecca Bradley opened her dissent with a quote from “Alice’s Adventures in Wonderland.” 

“Ironically, an election for the office of supreme court justice makes possible this purely political proceeding — unconvincingly masquerading as a ‘judicial’ one,” Bradley wrote. “Janet Protasiewicz and Jill Karofsky delivered their sentence first — ‘Rigged!’ — and will form a majority with Ann Walsh Bradley and Rebecca Dallet to shift legislative power from Republicans and bestow an electoral advantage on Democrats, fulfilling one of Protasiewicz’s many promises to the principal funder of her campaign, the Democratic Party of Wisconsin. At least the King in Alice’s Adventures in Wonderland wouldn’t have wasted time on a show trial contaminated with copious conflicts of interest.” 

In her order declining to recuse herself, Protasiewicz wrote that the questions presented in the lawsuit in some ways go against the interests of the Democratic Party of Wisconsin because the voters who brought the suit are seeking to have all partisan gerrymandering declared illegal. 

“This original action petition has been filed by citizens who allege violations of their own individual rights,” Protasiewicz wrote. “Those citizens, moreover, are not mere stand-ins for a political party. As voters, they claim to advance legal interests in excluding partisan influence of all kinds from the districting process. Taken at face value, those interests may, in some circumstances, contradict the interests of the DPW.” 

In the order, the Court’s majority set oral arguments in the lawsuit for Nov. 21.

Wisconsin Examiner is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Wisconsin Examiner maintains editorial independence. Contact Editor Ruth Conniff for questions: info@wisconsinexaminer.com. Follow Wisconsin Examiner on Facebook and Twitter.

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