New justice to stay on Wisconsin redistricting cases
MADISON, Wis. — A newly elected liberal Wisconsin Supreme Court justice, who has called Republican-drawn electoral districts “rigged,” declined to recuse herself on Friday 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 does not step down.
Vos had no immediate comment on her decision, saying he needed to first speak with his attorney.
Republicans argue she has pre-judged the cases, which could result in new, more Democrat-friendly maps being drawn before the 2024 election.
In her 64-page order, Protasiewicz said she understood that the issue had “engendered strong feelings in some quarters among people of good faith.” But she said after searching the law “and my conscience,” she did not need to recuse.
Protasiewicz said that while stating her opinion about the maps, she never made a promise or pledge about how she would rule on the cases.
“I will set aside my opinions and decide cases based on the law,” she wrote. “There will surely be many cases in which I reach results that I personally dislike. That is what it means to be a judge.”
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.
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.
“Recusal decisions are controlled by the law,” Protasiewicz wrote. “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 said that is the case even if the case is controversial.
Protasiewicz said in Friday’s order that she could find no case in which a judge recused because a political party not involved in the litigation had contributed to their campaign. She also noted, in a jab at her colleagues, that “justices of this court have repeatedly participated in redistricting cases despite receiving substantial support from politically affiliated groups during their campaigns.”
She said recusing in this case would “raise a swarm of continuing difficulties for each justice,” before listing large campaign donations received by her colleagues, conservative and liberal alike. The court’s work would grind to a halt if justices recused just because their involvement may be predicted to benefit a nonparty to the case that supported their campaign, she wrote.
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.
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.