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 October 25, 2023

Wisconsin Supreme Court Justice refuses to step down from case she advocated for during election

Justice Janet Protasiewicz campaigned against a legislative redistricting plan when she ran for the Wisconsin Supreme Court. 

She will now rule on the legality of that plan, which dissenting justices deem "partisan and political" and whose decision "approaches 100 percent" likelihood of violating the Due Process Clause of the Constitution, as Breitbart News reported.

On April 4, 2023, Democrats successfully elected Protasiewicz, a staunchly partisan Democrat, to Wisconsin's highest court. She was inaugurated on August 1.

Previously, the court consisted of three ardent conservatives, three ardent liberals, and one Republican who frequently voted with the conservative bloc but occasionally with the Left. Protasiewicz replaced replaced one of the conservatives.

Following the most recent census, the Republican-controlled legislature of the Badger State redrawn legislative districts, and Democrats predictably filed suit. Protasiewicz criticized the proposal as a partisan gerrymander while running for the Supreme Court. Following Protasiewicz's appointment, the court voted 4-3 to consider the case.

On the issue of legislative districting, swing-vote Justice Brian Hagedorn was anticipated to vote with conservatives; therefore, if Protasiewicz sits on the case, it seems a foregone conclusion that she will be the deciding vote to strike it down, and likely be part of ordering a map that would be more favorable to Democrats in the 2024 elections.

During her campaign, Protasiewicz called the proposed map "unfair" and "rigged," stating, “I don’t think you could sell any reasonable person that the maps are fair.”

She added that she “would enjoy taking a fresh look at the gerrymandering question” and that she agreed with the dissenting opinion in a previous case ruling on the subject.

In a 64-page order, Protasiewicz declared her decision not to recuse herself, acknowledging that the case "engendered strong feelings" but stating that she had examined both the law and her "conscience" before concluding that she should hear the case.

Chief Justice Annette Ziegler dissented, declaring that the liberal bloc's decision to consider the case "appears to be evidence of a partisan and political, rather than a reasoned and restrained, approach, and thus departs from the constitutional role of the judiciary."

Additionally, Justice Rebecca Bradley dissented independently, objecting to Protasiewicz's participation in the case. She wrote that the “probability of actual bias on Protasiewicz’s part likely approaches 100 percent.”

The Due Process Clause of the Fourteenth Amendment to the United States Constitution states that a state shall not "deprive any person of life, liberty, or property, without due process of law."

In the 2009 case Caperton v. A.T. Massey Coal Co., the U.S. Supreme Court ruled that it violates due process for a judge to consider a case when it appears the judge is biased. Caperton could not be more applicable, as it involved a state supreme court justice hearing a case in which one of the litigants had contributed $3 million to a candidate in West Virginia at the time.

The Wisconsin Democratic Party contributed $10 million to Protasiewicz's campaign, making this the most expensive state supreme court campaign in the United States. This sum is three times the amount of campaign funds at issue in Caperton.

The candidate has also made her position on the precise issue at hand – the 2024 legislative redistricting map – crystal plain. Caperton determined that providing a judicial candidate a substantial amount of money creates a "probability of actual bias."

Bradley argues, in this Wisconsin case, that announcing one's position on a matter increases those probabilities close to '100 percent,' thus crossing the constitutional line.

Once the Wisconsin Supreme Court has rendered its decision, the U.S. Supreme Court will have the authority to review any violations of due process.

Clarke v. Wisconsin Election Commission is the case before the Wisconsin Supreme Court.

Written By:
Charlotte Tyler

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