The Impact of Impeachment Threats

This year’s spring election included a statewide race between Janet Protasiewicz and Daniel Kelly for a seat on the Wisconsin Supreme Court. Although the court is nominally nonpartisan Kelly received substantial support from Republicans and Protasiewicz from Democrats.

On the same ballot, voters living within the 8th state senate district, covering parts of Waukesha, Washington, Ozaukee, and Milwaukee counties, were asked to choose between Dan Knodl, the Republican, and Jodi Habush Sinykin, the Democrat. This vote resulted from the resignation of Alberta Darling, the long-time 8th District senator.

The graph below shows the number of votes and the percentages for each of the candidates in the 8th Senate District. As the graph shows, the 8th District vote in both races was very close. Both winners received less than 51% of the vote.

It appears that about 1,200 Knodl voters supported Protasiewicz, enough to give her the majority in the district. (Statewide, she received 55.5 percent of the vote.)

In 2016, no Democrat even bothered to run in the district. By comparison, the district has become increasingly competitive in recent years. An effort to reverse this trend can be seen in the so-called “least change” maps created by Republicans following the 2020 Census. Despite the claim that it represented the least change over the 2011 redistricting, the architects removed several increasingly Democratic wards in the 8th District. This includes all of Glendale, one ward each in Brown Deer and River Hills, as well as the district’s last two wards in the City of Milwaukee.

The election of Knodl did two things. First it gave Republicans 22 state senators, the two-thirds majority of the 33 senators needed to convict in case of an impeachment by the Assembly.

Second, defying the usual rule of thumb that legislators in competitive districts tended to be more moderate than those in districts heavily dominated by one party, Knodl took the lead in threatening Supreme Court Justice Protasiewicz with impeachment unless she recused herself from cases challenging the Wisconsin gerrymander. Given his record, this is unsurprising. While he was in the Assembly, he was one of 15 Wisconsin Republican representatives signing a letter asking Vice President Mike Pence to postpone the January 6th opening and counting of the electoral votes. The letter falsely claimed that:

There are extensive and well-founded accusations of electoral administration mismanagement and deliberate and admitted violations of explicit election laws enacted by state legislatures in Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin.

Knodl’s impeachment threat has been taken up by Robin Vos, the Speaker of the Wisconsin Assembly. However, Republican enthusiasm for impeachment is not limited to targeting Protasiewicz.

Five Republican Assembly members, two of whom signed the letter to Pence, have proposed the impeachment of Meagan Wolfe, the Administrator of the Wisconsin Elections Commission. Their proposed Assembly Resolution lists 15 articles. The list is largely a set of issues that the MAGA crowd disagrees with, such as:

• The use of drop boxes to return absentee ballots.
• The relaxation during the height of the COVID-19 pandemic of the requirement that Special Voting Deputies visit long-term care facilities. This came at a time when these facilities were refusing visitors to protect their especially vulnerable patients.
• The acceptance of grants from organizations such as the Center for Tech and Civic Life aimed at improving the management of elections particularly in response to the pandemic, and
• So called “Ballot curing” to add missing witness addresses on absentee ballot envelopes.

The underlying theme of most of these articles is that the Elections Commission and Wolfe made voting too easy, inviting illegal voting. They offered no evidence for these claims. Oddly, considering this theme, they also object to Wisconsin’s membership in the Electronic Registration Information Center (ERIC), an inter-state compact aimed at updating the voter lists when people move and thus a help to preventing voter fraud.

The Wisconsin Constitution limits impeachment to cases of “corrupt conduct in office, or for crimes and misdemeanors.” Clearly the authors of the Constitution did not want impeachment to become a weapon in policy disagreements.

In the case of the Assembly Resolution against Wolfe, none of the 15 articles can be described as “corruption, crimes, or misdemeanors.” The authors of the resolution tacitly recognize that fact. They never use any of those three words. Instead, they repeatedly accuse Wolfe of “maladministration,” a word they use 27 times.

Protasiewicz’ choice to participate in cases involving the Wisconsin gerrymander does not rise to the level of either corruption or a crime or misdemeanor. I think that the impeachment threat from Vos and Knodl makes it impossible for her to recuse. To do so would be widely regarded as rewarding blackmail. The Legislature would conclude that such blackmail works and use the threat of impeachment for future disagreements with the court.

A New York Times article reports that Susan Collins, the Republican senator from Maine, believes that Brett Kavanaugh misled her with private assurances that he would not vote to overturn Roe v. Wade, assurances he did not keep:

“I am a don’t-rock-the-boat kind of judge,” the justice told the senator in a discussion on Roe, according to notes from a meeting before his confirmation.

“Start with my record, my respect for precedent, my belief that it is rooted in the Constitution, and my commitment and its importance to the rule of law,” he said, according to contemporaneous notes kept by multiple staff members in the meeting. “I understand precedent and I understand the importance of overturning it.”

The expectation that justices should not express any opinions on possible issues invites this kind of signaling. The desire that judges not prejudge cases is understandable. But demanding that they have no opinions on public policy issues simply promotes hypocrisy.

The logic of those demanding that Protasiewicz recuse suggests that the other six justices should also recuse. After all, three have told us that they support an update of the current maps while keeping the bias in favor of Republicans. The other three have told us that they would ask a panel of federal judges to take command of redistricting. Yet no one is advocating that the whole Supreme Court be recused from considering redistricting.

In threatening to impeach a Supreme Court justice, Vos and other Republicans are threatening judicial independence, inserting themselves into court decision making. In threatening to impeach Wolfe, they seek to undermine a carefully balanced bipartisan election commission and the decisions it makes. If this strategy works, we are likely to see more instances where the Legislature uses impeachment or the threat of it to override court decisions or elections commission policies that it opposes.