Republicans have effectively had unbreakable control of the Wisconsin state legislature for more than a decade. And now they have a plan that could entrench their rule forever.
The state’s legislature is so aggressively gerrymandered that it is likely impossible for Republicans to lose control of it in an election. In 2018, for example, Democratic state assembly candidates received 54 percent of the popular vote in Wisconsin, but Republicans still won 63 of the assembly’s 99 seats.
There is, however, a light at the end of this tunnel both for small-d democrats and for large-D Democrats in the notoriously contentious swing state. Last April, Justice Janet Protasiewicz won a landslide election victory over a former, very conservative state justice. She took her seat at the beginning of August, giving Democrats a 4-3 majority on the state supreme court. (Technically, supreme court races in Wisconsin are nonpartisan, but every recent race has pitted a liberal supported by Democrats against a conservative supported by Republicans.)
Litigants challenging the gerrymandered state legislature filed a lawsuit, known as Clarke v. Wisconsin Elections Commission, the very next day.
A quirk in the state constitution, however, may allow Wisconsin’s gerrymandered legislature to strip Protasiewicz of her ability to decide cases, and to do so indefinitely. That would leave the state supreme court evenly divided between Democrats and Republicans, and thus unable (or, at least, unwilling) to strike down the state’s gerrymander.
According to the New York Times, “Republicans in Wisconsin are coalescing around the prospect of impeaching” Protasiewicz. If the state assembly moved forward with impeachment, and then the gerrymandered state Senate convicted her, that wouldn’t actually be that big of a deal. Democratic Gov. Tony Evers could immediately appoint a replacement justice, who would then provide the fourth vote to strike down the gerrymandered maps.
But the state constitution also provides that “no judicial officer shall exercise [her] office, after [s]he shall have been impeached, until [her] acquittal.” So the state assembly could conceivably impeach Protasiewicz, and then the state senate could delay her trial forever — effectively creating a vacancy on the court that could last for a very long time.
There’s a very strong argument that this impeachment plan violates the First Amendment. So, if Republicans actually move forward with this plan, Protasiewicz or some other interested party would likely file a federal lawsuit seeking to restore her to office. But, even if that lawsuit succeeds, that could take years.
And there’s no guarantee that the federal judiciary, and especially a US Supreme Court with six GOP-appointed justices, would honor past precedents indicating that Protasiewicz cannot be suspended from her office. Indeed, one member of the Supreme Court, Justice Samuel Alito, has already signaled that he will intervene to ensure that Republicans keep their stranglehold on the state legislature.
The constitutional case against impeaching Justice Protasiewicz
The Wisconsin GOP’s ostensible reason for impeaching Protasiewicz is that, as a candidate for her current office, the justice campaigned against the state’s gerrymandered maps — calling them “rigged.” Republicans claim this means she impermissibly prejudged the Clarke case and must recuse from it.
But there is a US Supreme Court case — Republican Party of Minnesota v. White (2002) —that is almost directly on point here, holding that candidates for judicial office have a First Amendment right to publicly state their positions on contentious legal issues while they are campaigning for election.
In Republican Party, the US Supreme Court struck down a Minnesota ethics rule providing that a “candidate for a judicial office, including an incumbent judge,’ shall not ‘announce his or her views on disputed legal or political issues.’” The Court did so on behalf of a conservative lawyer and candidate for the state supreme court, who “distributed literature criticizing several Minnesota Supreme Court decisions on issues such as crime, welfare, and abortion.”
Justice Antonin Scalia’s majority opinion in Republican Party persuasively lays out why it makes no sense to strip judicial candidates of their free speech rights in the midst of an election campaign. As Scalia wrote, quoting from Justice William Rehnquist, nearly all judges come to the bench having already “formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution.”
Indeed, if a judicial candidate did not have some public record indicating that they have some preconceived ideas about many contentious legal questions, that would be a reason to question their competence. As Rehnquist put it, “proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.”
Similarly, once a judge takes office, it is literally their job to publish long essays laying out their opinions on contentious questions of law. We know, for example, how every single member of the US Supreme Court except for Justice Ketanji Brown Jackson thinks about abortion. That’s because every justice but Jackson, the newest member of the Court, participated in the Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022), which overruled Roe v. Wade.
Minnesota’s ethics rule, in other words, meant that future judicial candidates could express their legal views up until the moment that they declared their candidacy. Then, once elected, they would again express those views in judicial opinions. But those same candidates would be silenced during the very time when voters were paying attention to the candidate’s views and trying to assess whether to vote for them.
Such a restriction makes no sense. As Scalia wrote, “we have never allowed the government to prohibit candidates from communicating relevant information to voters during an election.”
The Court’s decision in Republican Party should prohibit the Wisconsin GOP from impeaching Protasiewicz because she expressed a view on a contentious legal issue while she was a candidate for judicial office. Again, the holding of Republican Party was that candidates for such office have a First Amendment right to express these views.
That said, even if federal courts eventually intervene to shut down such an impeachment, that process could take months. And there’s no guarantee that the US Supreme Court, with its GOP-appointed supermajority, would follow precedent if it would benefit Democrats.
Indeed, there’s already evidence that one member of the US Supreme Court, Alito, has prejudged the question of whether Protasiewicz can hear a challenge to Wisconsin’s gerrymander — and that he plans to rule in favor of his fellow Republicans in Wisconsin.
Last December, during oral arguments in Moore v. Harper, Alito asked whether “it furthers democracy to transfer the political controversy about districting from the legislature to elected supreme courts where the candidates are permitted by state law to campaign on the issue of districting?” So Alito seemed to suggest that it would be improper for a state supreme court to rule in a gerrymandering case if its members are even allowed to campaign on this issue.
This argument by Alito is truly insidious. Wisconsin voters obviously cannot expect to undo a Republican gerrymander by lobbying the very same legislators that benefit from it. And, in Rucho v. Common Cause (2019), the US Supreme Court’s Republican majority ruled that federal courts may not hear lawsuits asking them to strike down a partisan gerrymander.
So, if Protasiewicz’s court also is not allowed to strike down these gerrymanders, the people of Wisconsin will be left with no lawful recourse whatsoever against permanent Republican control of their state legislature.