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Legal fight over Protasiewicz recusal from gerrymandering lawsuits continues

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Legal fight over Protasiewicz recusal from gerrymandering lawsuits continues

Sep 19, 2023 | 4:53 pm ET
By Henry Redman
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Legal fight over Protasiewicz recusal continues in gerrymandering lawsuits
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Wisconsin Supreme Court Justice Janet Protasiewicz takes the bench ahead of a September 2023 oral argument. (Henry Redman | Wisconsin Examiner)

Republican lawmakers seeking to intervene in the two lawsuits that threaten to upend their hold on power in the Legislature argued in a court filing Monday that liberal Justice Janet Protasiewicz should still recuse herself from the lawsuits despite the state Judicial Commission’s dismissal of complaints against her over the same issues. 

Since before the lawsuits were filed, Republicans have complained that statements Protasiewicz made during her campaign this spring regarding the fairness of the state’s political maps — which heavily favor Republicans and are widely considered by analysts to be among the heaviest partisan gerrymanders in the country — warrant her recusal from the cases. The calls for recusal have escalated into threats of impeachment if she weighs in on the lawsuits, claiming that because she said the maps are “rigged,” she has pre-judged the cases. 

During the campaign, Protasiewicz repeatedly said she was sharing her personal beliefs, not how she would rule in any potential case. The question asked in the lawsuits isn’t whether or not the maps are skewed toward Republicans, but whether or not that skew is allowed by the state constitution. 

In the filings, the lawmakers argue that the commission only decided whether or not her comments were allowed by a judicial candidate, not whether they warrant recusal. The lawmakers also state that $10 million in political contributions Protasiewicz received from the Democratic Party of Wisconsin during her campaign and an additional $4 million the Democrats and allied groups are spending to defend her against the impeachment threat, show she has been bought by the party and therefore she needs to step aside from the case because Democrats would benefit from less gerrymandered maps. 

“Perhaps those statements were permissible on the campaign trail, as judged by the Judicial Commission, but Justice Protasiewicz cannot hear a case she has prejudged,” the lawmakers’ filing states. “When a case presents the very issues on which a judge opined during a campaign, “the potential for due process violations is grave and manifest … because of the judge’s personal interest in resolving an issue a certain way.”

However, the Democratic Party of Wisconsin isn’t a litigant in either case. Over the last decade, when the court was held by a conservative majority, the body repeatedly affirmed that political donations from a person or group don’t necessarily require recusal. For example, previous financial support from the Republican Party of Wisconsin didn’t prevent conservative justices from voting to overturn the results of the 2020 election on behalf of former President Donald Trump. 

The groups who brought the lawsuits and several Democratic senators filed responses to the Republicans, arguing that the complaints against Protasiewicz over her campaign statements were over the exact same issues as the recusal request and that the dismissal of those complaints affirms that she doesn’t need to step aside. 

Additionally, they argue that while a judicial candidate can’t promise to rule a certain way in any case, the candidate must provide information to the voters “who bear the constitutional responsibility of choosing judges.” 

“[The commission’s] determination demonstrates how meritless the Respondents’ due process arguments have always been,” one of the filings states. “No Supreme Court case has ever held that due process required a judge to recuse because of the judge’s expression of views, whether on the campaign trail or elsewhere. In fact, the Court has rejected several such claims.”