A newly elected liberal Wisconsin Supreme Court justice, who has called Republican-drawn electoral districts “rigged,” declined Friday to recuse herself from a pair of redistricting lawsuits.
Justice Janet Protasiewicz’s decision to remain on the cases increases the chance that Republicans, who control the Legislature and drew the maps, may proceed with the unprecedented step of impeaching her. Assembly Speaker Robin Vos has threatened impeachment if she doesn’t step down.
On Thursday, Vos told WKOW that if Protasiewicz doesn’t recuse, “the Legislature will take the appropriate actions to make sure that the laws are followed.” As of 6 p.m. Friday, Vos hadn’t issued a new statement regarding the justice or impeachment.
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In a post to the site formerly known as Twitter, Wisconsin Manufacturers and Commerce Executive Director Scott Manley said “it’s not surprising Janet Protasiewicz would use a Friday evening news dump to announce her violation of the Judicial Code of Ethics and decision to deny due process to the litigants in this case.”
Republicans argue Protasiewicz has pre-judged the cases, which could result in new, more Democrat-friendly maps being drawn before the 2024 election.
The Wisconsin Judicial Commission, which investigates complaints against judges, earlier this year rejected complaints filed against Protasiewicz related to her comments on redistricting during the campaign.
Two lawsuits challenging the latest maps were filed in the first week after Protasiewicz joined the Supreme Court on Aug. 1. Protasiewicz is part of a 4-3 liberal majority on the court, ending a 15-year run with conservative justices in control.
On Friday, the court’s liberal majority agreed to take up one of those cases, which drew strong rebukes from their three conservative colleagues.
Chief Justice Annette Ziegler called the decision “nothing more than a motion for reconsideration” of the Supreme Court’s 2022 redistricting ruling, which resulted in Republican-drawn maps being put in place by the court’s conservative majority at the time. Conservative Justice Rebecca Bradley’s Friday dissent cited scenes from “Alice in Wonderland” before claiming “The probability of actual bias on Protasiewicz’s part likely approaches 100 percent.” Conservative Justice Brian Hagedorn, seen as a swing vote on the court, wrote that the drawing of legislative districts stirs disagreement and that if justices “were following the normal judicial process” the petition asking the Wisconsin Supreme Court to take original action on the redistricting case would be denied.
“There’ll be time enough to evaluate the merits of these arguments as this case unfolds,” Hagedorn wrote. “But make no mistake, the process here smells.”
Republicans asked that Protasiewicz recuse from both redistricting cases, arguing in their motion that “Justice Protasiewicz’s campaign statements reveal that her thumb is very much on the scale in this case.” They also pointed to the nearly $10 million she received from the Wisconsin Democratic Party, which is not a party on the redistricting cases but has advocated for drawing new maps.
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.
Attorneys who brought the lawsuits argued that there was no legal or ethical obligation for Protasiewicz to step aside. They also point to the Wisconsin Judicial Commission rejecting complaints against her related to her comments during the campaign about redistricting.
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 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 the Stafford Rosenbaum law firm, Election Law Clinic at Harvard Law School, Campaign Legal Center, the Arnold & Porter law firm and Law Forward, a Madison-based liberal 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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