It’s been a turbulent week in Wisconsin politics.
Janet Protasiewicz, the justice whose April election gave the Wisconsin Supreme Court a Democratic majority, has heard cases for less than a week. But Republicans want her to recuse from ruling on redistricting cases for comments she made while campaigning and have threatened impeachment if she refuses to do so.
Wisconsin Assembly Speaker Robin Vos, R-Rochester, who has led impeachment talk, backed down from the idea after unveiling a bill Tuesday that would assign the nonpartisan Legislative Reference Bureau (LRB) to write new state electoral maps, using an Iowa-style redistricting model.
Evers already said he would not sign the bill, calling it a “last-ditch effort to retain legislative control by having someone Legislature-picked and Legislature-approved draw Wisconsin’s maps.”
Vos doubled back down Wednesday, asking former Wisconsin Supreme Court justices to probe the topic of impeachment, according to the Milwaukee Journal Sentinel.
"I am asking a panel of former members of the state Supreme Court to review and advise what the criteria are for impeachment and to be able to go to the next step of this process if we're not able to determine an off ramp," Vos said in an interview on WISN-AM, as reported by the Journal Sentinel.
Vos’ sudden shift on redistricting is a move that has little precedent. Here’s everything that led up to this point.
Earlier this week:
Wisconsin voters asked the court on Monday to prevent Republican lawmakers from impeaching Protasiewicz. The lawsuit, filed by former Wisconsin Supreme Court candidate Tim Burns and two other Protasiewicz voters against Vos, argues that impeachment of Protasiewicz would violate the constitutional rights of her voters in the spring election, according to the Journal Sentinel.
During her election campaign, Protasiewicz told the Cap Times she would “enjoy taking a fresh look” at “rigged” electoral maps. She also said she would recuse herself from cases brought forward by the Democratic Party, though the Supreme Court doesn’t require her to do so. Neither of the pending cases in question were brought forward by the Democratic Party.
Vos previously raised the idea of impeachment in August, telling WSAU-AM “you cannot have a person who runs for the court prejudging a case and being open about it.”
University of Wisconsin-Madison Elections Research Center Director Barry Burden said Vos’ recent move in the other direction toward an Iowa-style model — which Republicans have historically opposed — is likely a way to provide protection for Vos, who can lean on recommendations from his team of former justices regardless of whether or not impeachment talks move forward.
“There's probably some division within Republicans in the state Legislature, and there's no room for that because they have just enough votes if they all hang together to make impeachment happen,” Burden told The Daily Cardinal. “This is one way for the party leadership to figure out where everyone is and devise a strategy that doesn't embarrass them and puts pressure back on the Democrats to have to respond.”
What led up to impeachment efforts?
Protasiewicz’s win in April over conservative former state Supreme Court Justice Daniel Kelly gave liberals control of the court for the first time in 15 years. The win opened the door for the new 4-3 majority to legalize abortion and remove Republican legislative maps.
The race was the most expensive state Supreme Court race in U.S. history, and Protasiewicz’s success margin — 11 points — was seen as a blowout victory in Wisconsin, a swing state that could be the electoral 'tipping point' in the 2024 presidential election, according to the Journal Sentinel.
The day after Protasiewicz was sworn into office, a coalition of law firms and voting rights advocacy groups filed a lawsuit known as Clarke v. Wisconsin Elections Commission. Their lawsuit alleges Wisconsin's legislative maps are "extreme partisan gerrymanders” that violate the state Constitution.
A second lawsuit of a similar nature was filed on Aug. 4. The complaints asked for next year’s ballot to include every Wisconsin legislator under newly drawn maps in order to give voters another opportunity to select state senators. Approximately half of senators otherwise wouldn’t be up for reelection until 2026.
GOP leaders called for Protasiewicz to recuse herself from ruling on the cases, citing that she campaigned against the state’s maps and that she took $10 million from the Democratic Party in her race, creating a conflict of interest.
The Democratic Party of Wisconsin and other allies last week launched a "multi-pronged statewide campaign" that will spend at least $4 million in the effort against Republican impeachment proceedings.
What does legal precedent say about Protasiewicz’s past remarks?
A 2002 U.S. Supreme Court decision, Republican Party of Minnesota v. White, held that judges have the First Amendment right to publicly express their opinions on disputed political or legal issues while campaigning.
In Justice Antonin Scalia’s majority opinion, he wrote that “it is virtually impossible to find a judge who does not have preconceptions about the law.”
The Wisconsin Judicial Commission dismissed complaints alleging that Protasiewicz violated the judicial code of ethics with remarks she made during her campaign, with legal experts using the principle of precedent.
Furthermore, conservatives on the Wisconsin Supreme Court adopted a rule in 2010 that involvement with campaign donors isn’t enough to force a judge to recuse themselves from a case, and again shot down a 2017 proposal that would require judges to recuse themselves from cases involving donors, according to the Journal Sentinel.
Wisconsin’s gerrymandered history
Wisconsin is widely considered to be one of the most gerrymandered states in the country. Republicans have maintained outsize control of the Legislature even in years where Democrats scored major victories statewide.
In 2018, when Republican Assembly candidates won 45% of votes, they still kept 63 out of 99 seats in the Assembly. In 2022, when Wisconsin elected a Democratic governor, attorney general and secretary of state, Republicans received 54% of the votes for Assembly candidates but earned 64 seats. They also gained a 22-11 supermajority in the Senate.
In 2011, the Republican-controlled Legislature and former Republican Gov. Scott Walker advantageously passed partisan gerrymanders drawn up in secret, ensuring a Republican legislative dominance.
In the 2022 round of redistricting, a process done every 10 years following the U.S. Census, Wisconsin’s Assembly skew grew, allowing Republicans to keep their outsized influence in the Legislature.
Wisconsin’s impeachment process
Any civil officer in the state can be impeached by the Assembly for "corrupt conduct in office or for the commission of a crime or misdemeanor,” neither of which Protasiewicz has been accused of doing.
Removing an official through impeachment requires two steps. If at least half of the Assembly votes to remove an official through impeachment, the case moves to the Senate, where senators act as a court and conduct a trial based on evidence. Republicans hold a two-thirds majority in the Senate, where a vote of the same majority is needed for removal.
Even though legislative Republicans have the votes to move forward with both steps of the process, Democratic Gov. Tony Evers would presumably appoint another liberal judge for Protasiewicz’s replacement.
However, legal experts have pointed to a catch in the process. If the Assembly votes to impeach, an elected official can’t exercise their office until their acquittal. Republicans could therefore impeach Protasiewicz with no intention of holding a Senate trial.
There is no timeline suggested for the process, meaning Protasiewicz could be put in an indefinite limbo where she can’t function as a justice. If the ordeal takes long enough, it could be too late to redraw legislative maps before the 2024 election and jeopardize Democrats’ hopes to repeal Wisconsin’s near-total 1849 abortion ban.
There is minimal precedent for the process. A Wisconsin judge has been impeached once in state history in 1853, when Milwaukee circuit court judge Levi Hubbell was accused of taking bribes. He was later acquitted by the Senate.
Could it go to the federal level?
If there was dispute over the handling of the impeachment, the case would go to the Wisconsin Supreme Court. If justices divided 3-3 on the case, that may push the legal challenge into what Democratic Party of Wisconsin Chair Ben Wikler called “uncharted constitutional territory.”
Potential backlash in 2024
Legal experts have cautioned that the impeachment proceedings could raise questions over election legitimacy in Wisconsin, where senators are simultaneously trying to oust Meagan Wolfe from her office as Wisconsin's election administrator.
“I think the possibility of impeachment has become less likely in the last few days because Vos and Republicans seem to be backing away and turning attention to the redistricting effort,” Burden said.
A Better Wisconsin Together poll of registered Wisconsin voters released Wednesday found that 86% oppose impeachment efforts.
Removing Protasiewicz could have stark consequences for Republicans in 2024, where issues like abortion could mobilize voters around Democrats. Republicans will likely keep the Legislature without new maps, but Wisconsin voters could hand President Joe Biden the state’s electoral college votes.
Still, Burden warned there is a persistent movement within the Republican party that wants to pursue impeachment.
“The discussion of [impeachment], at least, is not going away,” he added.