Two votes in the Wisconsin state Capitol Thursday demonstrate Republicans’ controversial efforts to shape election rules in the battleground state going into the 2024 election cycle.
The first vote saw GOP lawmakers move ahead with a complicated procedural attempt to oust the state’s highest election official. The second seeks a complete overhaul of how Wisconsin’s gerrymandered legislative maps are crafted in the future, and is seen as an effort to preempt action by the new liberal majority on the state Supreme Court.
Both moves have long-term implications for democracy in a coveted swing state where presidential races are often decided by less than a percentage point.
The new court will hear decisions about the 2024 election. In 2020, the Wisconsin Supreme Court heard challenges by former President Donald Trump and his allies to Joe Biden's narrow victory in the state — and came within one justice's vote of throwing out the outcome.
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And the removal of the top elections official could mean chaos for the state's voting administration just months before the 2024 presidential primary.
Impeachment threats, recusal demands and “rigged” maps
Back in April, Justice Janet Protasiewicz won a seat on Wisconsin’s highest court after a campaign that shattered spending records. Her 11-point victory swung the court to the left for the first time in 15 years. Shortly after she took her seat — and before she’d heard her first case — Republican lawmakers began floating the idea of impeachment.
That’s because of comments Protasiewicz made while on the trail describing Wisconsin’s legislative maps as “rigged.”
Those maps, described by some experts as the most gerrymandered in the nation, were upheld last year after a winding court process. They give the GOP outsized power in state politics: Although the Wisconsin electorate is evenly split, Republicans hold about a two-thirds majority in the legislature.
Liberals heralded Protasiewicz’s election as an opportunity to challenge those maps, and progressive groups quickly filed suit.
In response, Republican lawmakers including Robin Vos, the powerful Assembly speaker, called for Protasiewicz to recuse herself from those cases. They argued that her campaign comments — and the $10 million her campaign received from the Democratic Party of Wisconsin — constitute a pre-judgment of the case.
And they suggested that if she does not, impeachment would be on the table.
Under state ethics rules, campaign contributions do not create a conflict of interest that would require a judge to step aside from a case.
And a U.S. Supreme Court decision from 2002 ruled that judges have First Amendment protections while campaigning allowing them to express opinions about issues of the day.
“Simply expressing views or opinions on legal issues is not a commitment that requires recusal,” said Rob Yablon, who co-directs the State Democracy Research Initiative at UW-Madison. Indeed, other state high court justices have shared their personal views on a range of hot-button political issues.
Logistically, however, impeachment could be used to hold Protasiewicz at bay as pivotal cases make their way to the court. The process begins after a majority of the Assembly moves to impeach, and finalized when a two-thirds majority in the Senate does the same.
However, if Republicans impeach Protasiewicz in the Assembly and then simply don’t hold a vote in the Senate, she would be held from the bench indefinitely.
Republicans may be tempering this strategy, which has garnered national attention — even as Vos, the Assembly speaker, has also convened a panel of former justices to investigate impeachment as an option.
Earlier this week, in a notable about-face, Vos announced a proposal to implement nonpartisan redistricting in Wisconsin, which he said would create new maps before the 2024 election cycle begins.
Vos, who has opposed similar efforts in the past, said that he was responding to voters’ wishes, and attempting to stave off costly political battles.
“There will be no need to have the whole discussion about recusal and millions of dollars of attack ads and special interest trying to buy the election and all the things that we know are coming” if his bill is passed, he said.
Democrats, who have called for nonpartisan redistricting in the past, attacked the proposal as fast-tracked and containing loopholes that would allow Republicans in the legislature to hold onto power.
And Wisconsin Democratic Gov. Tony Evers blasted the bill as “bogus” and akin to election interference.
“With the possibility that fair maps and nonpartisan redistricting may be coming to Wisconsin whether they like it or not, Republicans are making a last-ditch effort to retain legislative control by having someone Legislature-picked and Legislature-approved draw Wisconsin’s maps,” Evers said in a statement.
On Thursday the Assembly advanced the measure. If the proposal passes the legislature and is vetoed by Evers, the current Wisconsin maps will stay in place — and the redistricting lawsuits will likely land before the state Supreme Court. If those challenges ultimately succeed, Wisconsin could undergo a dramatic redistricting process that would weaken the GOP's stronghold on state power.
The non-nomination of Meagan Wolfe
Meanwhile, Republicans in the state Senate have undertaken efforts to challenge the administration of state elections. The procedural wrangling has stretched over months — and now faces a legal challenge from the state’s top lawyer.
Senate lawmakers voted Thursday to oust Meagan Wolfe as elections administrator in a confirmation hearing that Democrats called a “sham.” Wisconsin's Democratic attorney general immediately filed a lawsuit asserting that the hearing carried no legal weight because Wolfe — who has held the nonpartisan post since 2019 — had never been officially nominated to a second term.
“This is not a close question,” Attorney General Josh Kaul said at a press conference announcing his lawsuit. “Under Wisconsin law, while the Senate has purported to take a vote on the appointment of Meagan Wolfe, there is in fact no appointment.”
At issue is a legal question about what constitutes a vacancy in public office. Last summer, a conservative majority in the Wisconsin Supreme Court ruled that an appointed official's term expiring does not automatically create a vacancy to be filled.
Democrats at the time blasted that decision, which allowed an appointee of former Republican Gov. Scott Walker to stay in place indefinitely after the end of his term.
Kaul and other Democrats now say that Republicans who defended that decision inadvertently opened the door for Wolfe to remain in the administrator’s job after her first term expired earlier this summer.
“Whatever the law is, you can’t change your approach to it once the positions change,” Kaul said.
Wolfe became a lightning rod for criticism from many Trump supporters after he narrowly lost Wisconsin to Biden in 2020.
That election’s result has been affirmed by multiple recounts, court challenges and nonpartisan audits. Nevertheless, baseless accusations of fraud have been leveled at Wolfe ever since.
Wolfe does not make policy. As administrator, she carries out the decisions of the bipartisan Wisconsin Elections Commission. And some of the voting processes that have been attacked since that election — such as the use of ballot drop boxes, which have since been banned in Wisconsin — predated her tenure.
Republicans said those accusations are part of why they no longer support her.
“Wisconsinites have expressed concerns with the administration of elections both here in Wisconsin and nationally,” said Senate Majority Leader Devin LeMahieu, who pushed forward the confirmation proceedings, before the party-line vote to fire Wolfe.
A timeline for Kaul's legal challenge isn’t yet clear, but Wolfe says that she will continue reporting to work until a court tells her not to.
“Unless a final determination of a court says otherwise, I will continue to serve as the administrator of the [Wisconsin Elections Commission],” she said. “There is such important work ahead, and my hope is that we will quickly get the clarity that we need from the courts.”
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