Wisconsin’s recusal controversy highlights the problems with electing judges. ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

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This week, I’m turning The Briefing over to my colleague Douglas Keith, senior counsel in the Brennan Center’s Judiciary Program and founding editor of State Court Report, to explain a complicated case of ethics, elections, and gerrymandering on the Wisconsin Supreme Court.

—Michael Waldman

Wisconsin, like many states, elects its supreme court justices. Usually these races attract little attention outside of the state. But in April, Wisconsin had the most expensive and one of the most closely watched state judicial elections in U.S. history. The liberal candidate, Janet Protasiewicz, eventually secured an 11-point victory, flipping the direction of the state supreme court after 15 years of conservative control.

On Friday, the Wisconsin Supreme Court agreed to hear a challenge to the state’s heavily gerrymandered legislative maps, which were a major issue during the election. The legislature had filed a motion demanding that Protasiewicz recuse herself because, as a candidate, she called the maps “rigged” and said she would “enjoy taking a fresh look at the gerrymandering question.” Her campaign also accepted nearly $10 million from the state Democratic Party, which, according to the motion requesting recusal, creates a conflict of interest for Protasiewicz.

Protasiewicz refuses to recuse herself. In a lengthy written decision, she claimed that the Wisconsin Supreme Court would “grind to a halt” if justices had to recuse themselves anytime their participation in a case could “benefit non-parties who supported their campaign.” And, Protasiewicz went on, when she criticized the legislative maps as a candidate, she was expressing “personal values” — not pledging to vote one way or the other.

Over the past few months, Republicans in the legislature have threatened to impeach Protasiewicz if she participates in the case. It’s a particularly potent threat, because a vote by the state assembly to impeach Protasiewicz would bar her from hearing any case — including the gerrymandering challenge — until the state senate votes to convict or acquit her. Again, she would be impeached before she ever reached a ruling on this matter.

One Republican who will not be supporting an impeachment effort, however, is Republican former Wisconsin State Assembly Speaker and State Supreme Court Justice David Prosser. Prosser has said that an impeachment under these circumstances “will be viewed as unreasonable partisan politics.”

My colleague Alicia Bannon has a full analysis

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of the situation on State Court Report, the Brennan Center’s new website offering coverage and commentary on courts and constitutions in each of the 50 states.

We at the Brennan Center know well the complications of the Wisconsin mess. As I’ve documented in our Politics of Judicial Elections reports

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, formerly sleepy state judicial elections are becoming more expensive, more national, and more politicized. In the 2020 cycle alone, five states saw more than $10 million spent on their judicial elections, whereas no prior cycle had more than one state pass that mark. (The $51 million election that put Protasiewicz on the bench in 2023 makes that figure look quaint.)

As a result, we’ve recommended

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doing away with elections for state high court judges and replacing them with a publicly accountable process conducted by an independent nominating commission. We’ve also recommended updating judicial ethics rules to suit this new era of rough and tumble judicial politics.

But in the meantime, impeachment shouldn’t be used as a partisan tool to undo voters’ choice about the direction of the court. The impeachment of Janet Protasiewicz would not serve justice — it would be yet another strong-arm political move by people who were repudiated by voters.





AI and Election Security

Artificial intelligence may prove to be a double-edged sword for elections: it stands to make cyberattacks quicker, sneakier, and more damaging, but it also holds the promise of new defensive capabilities. A Brennan Center resource, which kicks off our new series about AI’s potential effects on American democracy, looks specifically at generative AI’s capacity to disrupt the security of election offices and election infrastructure and what we can do about it. Above all, Lawrence Norden and Gowri Ramachandran write, “the most important thing that election offices and vendors can do is redouble . . . the election security best practices that experts in the government and academia have been urging for over a decade.” Read more

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The Pitfalls of AI-Assisted Book Bans

Using AI to implement new state laws banning school libraries from carrying books about gender identity and sexuality poses significant risks to free speech and students’ right to access information. AI tools can’t be trusted to accurately identify supposedly inappropriate content, which could lead schools to needlessly remove books that don’t meet the standard for their state’s ban. “Broad book bans are a threat to free speech. Using generative AI tools to comply with those bans only makes them more dangerous,” Emile Ayoub and Faiza Patel write in Just Security. READ MORE

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Reining In FBI Abuses

Over the summer, three of the four men convicted in 2011 as part of the “Newburgh Four” counterterrorism sting operation were granted compassionate release. The decision pointed to the injustice of the defendants’ decades-long prison sentences for a plot that was planned and urged on by an FBI-paid informant. Alarmingly, the FBI’s lax investigation guidelines that permitted this conduct remain in place. These rules must be reformed “to ensure that future operations are designed to capture real terrorists rather than create them,” Melanie Geller writes. Read more

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South Carolina’s Partisan Gerrymandering Defense

This morning, the Supreme Court heard a redistricting case out of South Carolina that requires the justices to once again wrestle with questions about racial gerrymandering. Though the Court ruled in 2017 that drawing voting maps that sort voters by race isn’t permissible regardless of whether it’s for racial or partisan reasons, state legislatures are now asking the Court to reconsider. “It’s a big case that could open the door for state legislatures to blatantly draw racially discriminatory districts in the name of partisan gerrymandering,” Michael Li writes in the New Republic. READ MORE

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Coming Up

VIRTUAL EVENT: A Supreme Fact-Check: How the Supreme Court Gets U.S. History Wrong

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Thursday, October 12, 6–7 p.m. ET



The Supreme Court’s conservative supermajority has appealed to history to justify its recent opinions that have eviscerated reproductive freedom, gun control, and affirmative action. But should history be the sole source of rights? And what if the history that the Court has relied on is flat-out wrong? Join us to examine these issues with historians Laura Edwards of Princeton University, Kate Masur of Northwestern University, and Karen Tani of the University of Pennsylvania. The discussion will be moderated by the Atlantic’s Adam Serwer. RSVP today

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Produced in partnership with the Society for Historians of the Early American Republic

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News

Kareem Crayton on Alabama’s new congressional map // NEW YORK TIMES

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Elizabeth Goitein on the need for new privacy protections for Americans’ data // THE HILL

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Mekela Panditharatne on the legal attack on the Consumer Financial Protection Bureau // TIME

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Joanna Zdanys on New York’s small donor public financing program // GOTHAMIST

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