Democrats Respond To Republican Attempt to Force Protasiewicz Off Gerrymandering Case

Wisconsin Supreme Court. Photo by Mariiana Tzotcheva.

A group of Democratic voters fighting a lawsuit to have Wisconsin’s legislative maps thrown out because they give Republicans a disproportionate advantage filed a response Wednesday to Republican legislators’ request that Supreme Court Justice Janet Protasiewicz recuse herself from the case.

The lawmakers, and conservative figures across Wisconsin, have been clamoring for Protasiewicz to step aside from the case because of comments she made on the campaign trail this spring that the state’s maps are “rigged.” Academic analysis, nonpartisan experts and several federal judges have found the state’s maps heavily favor Republicans.

The Republicans have argued that Protasiewicz’s comments, as well as political donations she received from the Democratic Party of Wisconsin, mean she is biased and should not have a say in the two lawsuits seeking to have the maps tossed out. Protasiewicz’s ascension to the Wisconsin Supreme Court flipped the body to a liberal majority for the first time in more than 15 years. Since losing control of the Court, conservatives in Wisconsin have been regularly complaining about the actions of the new majority, going as far as threatening to impeach Protasiewicz if she weighs in on the redistricting case.

When conservatives held a majority on the Court, however, they set the body’s recusal rules to state that campaign donations to a justice don’t necessarily require that justice’s recusal from a case involving that donor. The state Democratic Party is not a plaintiff in either of the lawsuits, though Republicans have argued that Democratic candidates would benefit from fairer maps.

In the filing, the attorneys for the group of Democratic voters state that calling for recusal because of accusations of a conflict of interest beyond the parties in a given case is a dramatic expansion of normal court rules. They take issue with the argument that Protasiewicz has a conflict under the precedent established by the U.S. Supreme Court’s decision in Caperton v. Massey, a case involving a West Virginia judge who had to recuse himself from an appeal involving a company that had contributed millions of dollars to his campaign.

“Neither Petitioners nor their counsel are alleged to have made any sizable contribution, and certainly not one that ‘had a significant and disproportionate influence in placing the judge on the case,”’ the filing states. “Respondents seek to rewrite and dramatically expand the Caperton rule by contending that the rule extends to contributions by a non-party, such as DPW, that might ‘receive a benefit should the Petitioner’s claims succeed.’”

The attorneys add that comments made during a campaign have never been required recusal and that going back far enough into any judge’s career is likely to turn up prior comments that could be used as similar grounds for recusal.

“Respondents next argue that Justice Protasiewicz’s comments on the campaign trail require recusal. But there is no recognized basis to require recusal based on campaign remarks,” the filing states. “If this Court were to accept, contrary to precedent, that general comments by a judge not directly involved in a pending case about high-profile legal issues in a judicial campaign were subject to a Caperton-style analysis, then any number of elected judges and justices would be subject to this type of motion. Moreover, such a rule would seriously impede the ability of voters to evaluate candidates, who would necessarily stop speaking on any issue of importance in a race.”

Dem groups file response to Republican attempt to force Protasiewicz off redistricting cases was originally published by the Wisconsin Examiner.