Nullifying Democracy in Wisconsin

Wisconsin voters overwhelmingly elected Justice Janet Protasiewicz to the Wisconsin Supreme Court. In a record turnout, she received 1.2 million votes and won by 11%. But before she could hear a single case, Republicans were threatening to impeach her.


This outrageous call for impeachment is a blatant effort to nullify the election. If Republicans can overturn the election of Justice Protasiewicz, democracy is dead in Wisconsin. Who will be next? What outrageous maneuver to maintain their ill-gotten power and control will be next?


In America when voters elect someone, opposition politicians don’t get to overturn that election just to stay in power. State legislators do not get to override election results because they do not like the political views, or the policy preferences, of the winning candidate.


Justice Protasiewicz has done nothing to justify impeachment. Being of the opposing party is not grounds for impeachment. Neither is the fact that a liberal judge got elected and created a new liberal majority on the Court. The Wisconsin Constitution and statues establish proof of “corrupt conduct in office or the commission of a crime or misdemeanor” for impeachment proceedings. No such misconduct has occurred.


Marquette University Law School professor Chad Oldfather explains the principles guiding impeachment, “…’corrupt conduct,’ especially in the era when the Wisconsin constitution was adopted, was mostly understood to be about people using public office for personal gain — not policy or legal disagreements…That’s consistent with the longstanding American norm that judges are not to be impeached simply because the authority with impeachment power doesn’t like the judges’ decisions” (quote from  “What do the Wisconsin Constitution and state law say about how a state Supreme Court justice is removed from office?, Wisconsin Watch, September 18, 2023).


Wisconsin’s extremely gerrymandered electoral districts was a major issue in the Supreme Court election. By an overwhelming margin Wisconsin voters specifically chose democracy over partisan gerrymandering by electing Justice Protasiewicz. The Republican’ threats to impeach Justice Protasiewicz because she had opinions on gerrymandering (and expressed them during her election campaign) is an attack on democracy and a denial of her right to free speech (the U.S. Supreme Court has ruled the First Amendment protects judges who state their political views during a campaign). Impeaching her would be impeaching the will of the people.


In a real democracy, elected judges would be expected to share their judicial philosophy and views on major issues so voters can make informed choices. Justice Protasiewicz did nothing unusual or unethical during the campaign. The Wisconsin Judicial Commission has found her   campaign statements did not violate the judicial ethics code.


Republicans claim Protasiewicz must recuse herself from the gerrymandering case to avoid impeachment. They claim she is biased and received campaign contributions from the Democratic Party. But current and former Republican judges have not recused themselves from cases concerning issues they campaigned on. Six of seven recent Supreme Court justices have received contributions during the campaigns from political parties.


There are other ramifications to this attack more disturbing than removing Justice Protasiewicz from the court. The Republicans could hamstring the Supreme Court indefinitely, and nullify the new progressive majority, without actually removing her from office. This could foil the pending law suit on gerrymandering and potentially defeat litigation on abortion rights, school vouchers, voting rights or other social issues.


A clause in the Wisconsin Constitution says, “No judicial officer shall exercise his office, after he shall have been impeached, until his acquittal.” This means that the Assembly could vote to impeach but if the Senate did not act the judge remains technically in office but unable to function. This would leave the Supreme Court deadlocked 3-3 on many issues. The newly elected progressive majority would be effectively nullified.


Why would Republicans do this? Because if they remove Protasiewicz Gov. Evers can appoint another progressive judge (or perhaps Protasiewicz again) and the Senate has no say in the matter. If the Senate takes no action on impeachment their undemocratic power grab could continue indefinitely into the future with a deadlocked Supreme Court. Diabolically, they gain more by not actually impeaching her.


The Republican’s egregious actions are clearly a hypocritical political maneuver to nullify Justice Protasiewicz’s election and maintain control of the legislature. Their un-American, undemocratic power grab violates Constitutional separation of powers, undermines  judicial independence and the right of voters to effect political change in Wisconsin though the court system.


Since taking power in 2010, Republican have repeatedly attempted to thwart democracy and advance their extreme agenda by any means available. In addition to gerrymandering the electoral districts they passed many bills limiting voting rights. They attempted to criminalize citizen protests, rammed though unpopular legislation (often in the middle of the night), manipulated public hearings to limit public input, and violated open meeting laws. In 2018, in a lame duck session, they voted to strip newly elected Gov. Evers and Attorney General Kaul of long established powers of office.


This last week Republicans again engaged in undemocratic behavior. In an effort to sidetrack the public outrage over impeachment – and the pending law suit on gerrymandering – Assembly majority leader Robin Vos, proposed changing the redistricting laws. His proposal allegedly modeled Iowa’s successful system that uses a non-partisan government agency to draw the initial maps. The Vos proposal was announced, written without Democratic input, received no public hearings and passed the Assembly in three days. Obviously this is not an appropriate way to conduct important public business.


In addition this bill was not honest. It was a smoke screen that resembled the Iowa plan while still maintaining complete partisan control of the process by the legislature. Common Cause Wisconsin, which has long advocated for nonpartisan redistricting based on the Iowa model, said Vos’ proposal “lacks the safeguards to prevent the party in the majority from rigging the process.”  Even Iowa State Auditor Rob Sand stated publicly, “Their bill isn’t the Iowa model.”


In another insult, Vos announced he had established a secret committee of former Supreme Court justices, who were not named, to investigate criteria for impeachment.


If Republicans get away with this power grab, no election, at any level, will be safe from nullification. Citizens of every political persuasion should contact their Assembly representatives and demand an end to this attack on democracy.