Wisconsin Supreme Court Will Consider Voting Maps with All Justices Participating

UPDATE: On December 22, 2023, the Wisconsin Supreme Court ruled 4–3 to overturn legislative maps in Clarke v. Wisconsin Elections Commission, accepting plaintiffs’ argument that they violated the constitution because districts are not contiguous. New maps must be in place by March 15, 2024 to be used in the November elections. 

A divided Wisconsin Supreme Court agreed Friday to hear a state constitutional case brought by voters challenging the state’s Republican-drawn legislative maps. That same day, Justice Janet Protasiewicz, who was elected to the court in April, denied a recusal request from the GOP-controlled legislature. Protasiewicz’s election, which shattered national records for judicial election spending, brought a liberal majority to the court for the first time in 15 years. 

The recusal motion, which cited federal due process requirements as well as Wisconsin law, pointed to nearly $10 million in contributions from the Democratic Party of Wisconsin to Protasiewicz’s campaign, as well as statements she made on the campaign trail describing the legislative maps as “rigged” and stating that she would “enjoy taking a fresh look at the gerrymandering question.”

In rejecting the recusal motion, Protasiewicz emphasized that the Democratic Party of Wisconsin wasn’t a litigant in the case before her — which had been brought by voters claiming individual injuries — and pointed to examples where other justices on the court had heard redistricting cases while also receiving contributions of outside support from political parties or politically affiliated groups. Requiring recusal whenever a case outcome “could potentially be seen as beneficial” to a financial supporter, she argued, “would turn precedent on its head, and confound the administration of this court.”

Protasiewicz also drew a contrast with the facts at issue in Caperton v. Massey, a 2009 case where the U.S. Supreme Court ruled that due process required that a West Virginia justice step aside from hearing a case involving a major financial backer in his election. The Court found that the “extreme facts” at issue in Caperton presented a “serious risk of actual bias.” Pointing out that her campaign received nearly $30 million in total contributions and outside support, Protasiewicz argued that unlike in Caperton, the Democratic Party of Wisconsin’s contribution, while significant, didn’t “fully eclipse[] all other spending,” was unlikely to have been the deciding factor in her win, and didn’t relate to a pending case.  

With respect to her campaign comments, Protasiewicz noted that she had repeatedly clarified during the campaign that she was offering descriptions of her “personal values” and was not making any “pledges” — which would be prohibited under judicial conduct rules. If issuing an opinion doesn’t disqualify a judge from “hearing future cases that involve similar issues,” she observed, “then neither does expressing agreement with an opinion or describing my values about political issues.” 

One immediate question is whether Protasiewicz’s recusal decision will prompt legislators to seek her impeachment, in what could lead to a full-blown constitutional crisis in the state. The Wisconsin Constitution authorizes impeachment only for “corrupt conduct in office” or “crimes and misdemeanors.” Yet over the past two months, state Republican leaders have repeatedly threatened to impeach Protasiewicz should she hear a redistricting challenge, claiming that her campaign conduct indicates bias. 

Notably, under Wisconsin law, if the state assembly votes to impeach a judge then that judge is barred from performing their duties unless acquitted by the Senate. Should Protasiewicz be impeached and the state senate fail to act, the court would be left a justice short and with a 3–3 ideological divide. 

Impeachment threats against state judges have become more common in recent years as state courts increasingly take on cases with high political salience. But a vote by Republicans to impeach Protasiewicz — months after her election, and in an effort to keep her from deciding a high-profile case that directly implicates their interests — would be unprecedented not just in Wisconsin but nationally. 

There are early indications that Republican leaders may be reconsidering their impeachment campaign. On Friday, former Wisconsin Justice David Prosser, a conservative who had been tapped by Assembly Speaker Robin Vos to advise on impeachment, reportedly sent an email opining that Protasiewicz’s conduct did not meet the legal standard for impeachment and concluding that “there should be no effort to impeach Justice Protasiewicz on anything we know now.”  On Monday, Vos issued a statement criticizing Protasiewicz’s recusal decision and suggesting that the U.S. Supreme Court would get the final word on its constitutionality, but not mentioning impeachment. 

Protasiewicz’s recusal decision, which prompted sharp criticism by two of the conservative members of the court, also casts a spotlight on Wisconsin’s judicial ethics regime, which is among the weakest in the nation. 

In 2010, for example, the court’s then-conservative majority adopted a rule, submitted by two groups that were regular financial supports of their election campaigns (the Wisconsin Realtors Association and Wisconsin Manufacturers and Commerce), explicitly providing that judges are not required to recuse themselves based on a “lawful campaign contribution, including a campaign contribution from an individual or entity involved in the proceeding.” In 2015, the legislature raised the state’s contribution limits and authorized unlimited contributions from political parties to judicial candidates. In 2017, the court rejected a petition seeking a rule that would require recusal based on significant election spending from litigants or lawyers involved in a case.

Throughout this period, Wisconsin justices have repeatedly declined to recuse on the basis of campaign statements or having received substantial financial support from litigants or amici.  Protasiewicz’s opinion repeatedly pointed to these examples to support her conclusion that recusal was not warranted. 

Finally, not to be lost in the recusal debate is the significance of the court’s decision to take up a new challenge to the state’s legislative maps — one of the most gerrymandered in the country and a major issue during Protasiewicz’s campaign. In 2022, after an impasse in the redistricting process, the Wisconsin Supreme Court ordered the adoption of maps drawn by the state legislature. Days after Protasiewicz took office, two similar petitions by voters were filed before the Wisconsin Supreme Court requesting that the court bypass the lower courts to hear a challenge to these maps under its original jurisdiction. The court granted one of the petitions while narrowing the questions to be considered. 

Notably, the court declined to consider claims that the maps were extreme partisan gerrymanders in violation of various state constitutional provision, because deciding those issues would require “extensive fact-finding.”  However, the court stated that it would take up two issues: whether the maps violate “contiguity requirements” contained in the Wisconsin Constitution, and whether a prior order by the court that put in place the current maps violates separation of powers under the Wisconsin Constitution because the court had adopted, without change, the same map that had been previously vetoed by Gov. Tony Evers without successful legislative override. The court also asked for briefing on crafting a remedy.

The court set an expedited schedule and is expected to hear oral argument on November 21, suggesting that it will seek to rule in time for new maps to be in place before the 2024 election in the event the court rules in favor of the plaintiffs.

Alicia Bannon is the editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.