Republicans in gerrymandered swing states seek to impeach Democratic state Supreme Court justices

Gerrymandered into power

Two of the nation’s most purple states, with a voting population split nearly 50/50 between the two parties, are also the most gerrymandered to produce a Republican advantage. North Carolina voted for Donald Trump in 2020 by just 1.3% (or 74,000 votes) and has a split state government (with a Democratic governor and Republican legislature), yet the Senate is controlled by Republicans 30-20 and the General Assembly is 72 Republicans and 48 Democrats.

Wisconsin voted for President Joe Biden in the 2020 election by just 0.6% (or roughly 20,000 votes), but its congressional delegation is 6 Republicans and 2 Democrats, its Senate is 22 Republicans and 11 Democrats, and its Assembly is 64 Republicans and 35 Democrats. Like North Carolina, Wisconsin also has a split government with a Democratic governor and a Republican-controlled legislature.

  • Note that Republicans now have a supermajority in both chambers in North Carolina, after Democrat Tricia Cotham switched parties just months after her election to the General Assembly. Wisconsin Republicans also have a new supermajority in the Senate with a special election win in April, giving them the power to impeach officials. Republicans in the Assembly are just two seats away from likewise having a supermajority.

Now, Republicans are using their unfair numerical advantage in both states to consolidate their power through the impeachment of Democratic justices on their respective Supreme Courts.


North Carolina

Last year, Republicans reclaimed a majority of the North Carolina Supreme Court, flipping the bench from 4-3 Democratic control to a 5-2 Republican majority. Only about half of the state’s registered voters participated in the election, choosing Republican Richard Dietz over Democratic incumbent Lucy Inman and Republican Trey Allen over Democratic incumbent Sam Ervin IV. In each race, roughly 200,000 people—or 5% of the total votes—determined the outcome.

  • Both Dietz and Allen are listed as contributors to the Federalist Society.

Background

The conservative effort to capture the state Supreme Court began in 2010 when the Republican party won control over both the Senate and House for the first time in over a century. Then, in 2012, Republican Pat McCrory defeated Democratic candidate Walter Dalton to secure the governorship, becoming the first Republican to take the seat in 20 years. With their new trifecta, North Carolina Republicans passed a bill in 2013 to terminate the state’s pioneering public financing for judicial elections, which, according to a study published in American Politics Research, led justices to be more impartial and less responsive to donor interests.

  • The GOP also passed other bills in 2013 to limit early voting, implement voter ID requirements, and ban same-day registration. They used their newfound power to create congressional maps that diluted Black voting power so obviously, even U.S. Supreme Court Justice Clarence Thomas had to vote in favor of invalidating the districts. A different court case resulted in several state legislative districts being declared racial gerrymanders, as well. The Republican-controlled legislature then voted to cancel a special session called by Gov. Cooper to redraw the maps, saying that redistricting did not satisfy the “extraordinary circumstances” requirement of the state constitution.

In 2016, North Carolina voters elected Democrat Roy Cooper to be governor and ousted Republican-affiliated Supreme Court Justice Robert Edmunds in favor of Democratic-affiliated Judge Michael Morgan, flipping the court from 4-3 conservative-leaning to 4-3 liberal-leaning control.

Crucially, however, judicial elections up until that point were non-partisan—the candidates’ party affiliation was not listed on the ballot. That all changed in the few short months between the election and when Cooper took office. Republicans convened an emergency session of the legislature and, with Gov. McCrory (R) in power for just weeks longer, passed a law requiring judicial candidates to display their party affiliation on the ballot.

“It was a very sudden and brutal use of legislative power,” said state Sen. Graig Meyer, who was a Democrat in the House in 2016 and voted against the changes.

Gov.-elect Roy Cooper, who wouldn’t take office until 2017, was watching closely. “They believed that if they could make judicial races partisan again, that they would have a much better opportunity to control the courts and inject right-wing politics into the judicial system,” Cooper told Public Integrity this spring. “And they have been successful.”

  • Republicans also used the last-minute special session to restrict incoming-Gov. Cooper’s executive power and to give themselves more representatives on state and county elections boards.

Since implementing the requirement that judicial candidates display a party affiliation on the ballot, Republicans have won five of six contests.

Results from Burke County, North Carolina, illustrate the difference the party label makes. The area is the longtime home of the Ervin family, a Democratic political dynasty in the state. In the 2014 state Supreme Court race, without party labels, Sam Ervin IV received 62% of the Burke County vote.

When Ervin came up for re-election as an incumbent in 2022, his party affiliation appeared next to his name. In that election, he received just 34% of the vote in Burke County.

Ervin lost statewide in November, as did the Democrat running for another seat, flipping the court from a 4-3 Democratic majority to a 5-2 Republican one.

Using their new majority, the Republican justices decided to rehear several voting rights cases decided just months earlier by the previously Democratic-led court. All five white Republican justices overturned their predecessors’ rulings—permitting extreme partisan gerrymanders, reinstating a restrictive photo ID law, and upholding the state’s felony disenfranchisement law. The two Democratic justices, both Black, dissented from each opinion, as well as the decision to rehear the cases in the first place:

Nothing has changed since we rendered our opinion in this case on 16 December 2022: The legal issues are the same; the evidence is the same; and the controlling law is the same. The only thing that has changed is the political composition of the Court. Now, approximately one month since this shift, the Court has taken an extraordinary action: It is allowing rehearing without justification…

The consequences of this Court’s orders are grave. The judiciary’s “authority . . . depends in large measure on the public’s willingness to respect and follow its decisions.” Williams-Yulee v. Florida. Bar, 575 U.S. 433, 446 (2015). The public’s trust in this Court, in turn, depends on the fragile confidence that our jurisprudence will not change with the tide of each election. Yet it took this Court just one month to send a smoke signal to the public that our decisions are fleeting, and our precedent is only as enduring as the terms of the justices who sit on the bench. The majority has cloaked its power grab with a thin veil of mischaracterized legal authorities. I write to make clear that the emperor has no clothes. Because this Court’s decision today is an affront to the jurisprudence of this State and to the citizens it has sworn an oath to serve “impartially,” “without favoritism to anyone or to the State,” I dissent.

The justice who wrote that dissent is Anita Earls, a former civil rights attorney who spent her career fighting discriminatory voting laws. In 2018, she won a seat on the North Carolina Supreme Court—the only Democrat to do so since the partisan ballot change mentioned above. Her background, in addition to her well-reasoned opinions on criminal justice reform issues and successful lawsuits against Republican gerrymanders, put her on a short-list to replace retiring U.S. Supreme Court Justice Stephen Breyers. It also put her in the crosshairs of state Republicans seeking to silence dissent…

Impeachment

Last month, Earls filed a federal lawsuit revealing the existence of “a series of months-long intrusive investigations” by the North Carolina Judicial Standards Commission seeking to “stifle [her] free speech rights” and potentially remove her from the bench. The Commission, overseen by Chief Justice Paul Newby (R), opened the investigation in response to an anonymous complaint about Earls’ comments on the lack of racial diversity in the state’s judicial system.

Her statements, made during an interview with Law360 (reproduced in the lawsuit), were in response to a study published by the North Carolina Bar Association that found 90% of the lawyers who argued before the Supreme Court were white and nearly 70% were male. She said, in part:

… For the term that just started in January … there were 14 or 15 law clerks serving in our court and no African Americans. One Latina.

I think another part of this, in terms of the gender and race discrepancies that you see, I really do think implicit bias is at play.

There have been cases where I have felt very uncomfortable on the bench because I feel like my colleagues are unfairly cutting off a female advocate. We have so few people of color argue, but in one case there was a Black woman who argued in front of us and I felt like she was being attacked unfairly, not allowed to answer the question, interrupted. It’s not uniform. It’s not in every case. And so it could certainly factor in the politics of the particular case that’s being argued.

So when that is the culture of our court — that is to say, when the culture is that male advocates and advocates who reflect the majority of the court, white advocates, when they get more respect, when they are treated better —I think it filters into people’s calculations about who should argue and who’s likely to get the best reception and who can be the most persuasive.

I’m not suggesting that any of this is conscious, intentional, racial animus. But I do think that our court system, like any other court system, is made up of human beings and I believe the research that shows that we all have implicit biases.

The Commission alleged that Earls’ statements violated the Code of Judicial Conduct by “suggest[ing] that another judge before whom litigants are appearing is making decisions based on some improper basis.” Earls responded that “none of [her] comments related to a ‘decision’ in case (or the ‘decision-making’ in arriving at such a decision), but concern, at most, only ‘decisions’ to interrupt advocates or fellow justices at oral argument.” Further, Earls argues in her lawsuit, “[t]he Commission’s continuing efforts to investigate and potentially discipline [her] are a blatant attempt to chill her First Amendment rights.”

Outside the technicalities of arguing federal law, one could allege that Republicans—including those on the state’s highest court—are simply using the investigation as a pretense for removing Justice Earls from the bench and consolidating their power. The groundwork for their political gambit was laid years ago when Chief Justice Newby defeated former Chief Justice Cheri Beasley (D) by 400 votes in 2020. Newby fired the head of the Judicial Standards Commission, Carolyn Dubay, for the offense of reminding judges that, ethically, engaging in political campaigning outside of election years is a bad look.

The memo advised judges to limit their political campaigning to the period when they are facing reelection. The idea is that too much politicking by judges undermines public confidence in the courts. This shouldn’t be controversial, but it apparently upset some senior Republican judges who have no problem with judges also being politicians. Their displeasure with the memo was made clear to Dillon, a Republican who was appointed by Chief Justice Paul Newby to chair the commission. The March 11 memo was promptly replaced by an older, less specific version of judicial guidance…

The Republicans’ concern was that the advice offered by the memo would limit judges’ and justices’ free speech – including their ability to solicit donations and make endorsements – as Republicans seek to win elections, including taking control of the state Supreme Court this November.

Newby also ousted McKinley Wooten, Jr., the director of the Administrative Office of the Courts and the first African American to serve in the position, filling his position with a Republican loyalist who immediately “purged” top senior employees. Their replacements included Trey Allen, a former clerk for Newby who is now a Republican Supreme Court justice himself, and the daughter of Republican Court of Appeals Judge Republican April Wood.

  • The North Carolina legislature is currently debating a bill to set next year’s state budget, which just so happens to include a provision that increases the number of members on the Judicial Standards Commission appointed by legislative leaders (coincidentally, all are Republicans) and another that gives the Chief Justice, Newby, the power to specifically select which judges will hear lawsuits challenging the constitutionality of state laws—which would cover redistricting.

Wisconsin

In an April 2023 special election, the Wisconsin Supreme Court flipped from a Republican to a Democratic majority with the victory of Janet Protasiewicz. The race ended up being the most expensive judicial race in U.S. history, reflecting the importance of cases soon to be decided by the state’s highest court on issues like abortion rights and gerrymandering.

Background

The high price tag also reflected the desperate effort of Republicans to keep their stranglehold on power in a state whose population is equally split between both parties. Until the 2010 election, Democrats always controlled at least one branch of state government, holding the Senate for 11 years between 1992-2010, the House for 5 years, and the governorship for 8 years. The Tea Party movement, based at least superficially on Libertarian ideals of small government (and general conservative opposition to the presidency of Barack Obama), ushered in a Republican trifecta in Wisconsin. And the timing could not have been more fortuitous, putting the GOP wholly in charge of redistricting for the first time in 40 years.

  • Background reading: David Daley lays out in “Ratf**ked: The True Story Behind the Secret Plan to Steal America’s Democracy” how Republican operatives like Karl Rove teamed up with wealthy donors and corporations to target campaign money toward gaining control of state governments, where redistricting would take place.

Having gained control of state government in Wisconsin (and other swing states), the Republican State Leadership Committee worked with legislators to create new districts favorable to Republicans using sophisticated software like Maptitude. It was arguably the first time mapping software had been used on a widespread scale to gerrymander one party into power. The resulting Wisconsin maps, created in a secretive backroom process and passed into law after only one public hearing, kept Republicans in power of the legislature for the past 12 years.

Harvard Law Review: Republican leadership reviewed several drafts of regional maps with the relevant partisan scores and chose drafts for each region. The drafters combined these selections to create the final map and performed additional partisan evaluations. The political science professor determined “that Republicans would maintain a majority under any likely voting scenario.” … In the 2012 election, Republicans won 60.6% of the assembly seats with just 48.6% of the statewide vote and, in the 2014 election, won 63.6% of the assembly seats with 52% of the vote.

The governor who signed the gerrymandered maps into law was Scott Walker (R), who was elected with the assistance of the Koch brothers’ Americans for Prosperity. He then went on to eliminate collective bargaining for most Wisconsin public employees (except police, of course), enact right-to-work laws, cut taxes for the wealthy, slash funding for public education, dramatically reduce Planned Parenthood funding, and ban abortion after 20 weeks of pregnancy.

Walker eventually lost his re-election bid in 2018 to the state’s schools superintendent, Tony Evers (D). Just weeks before leaving office, Walker signed a package of bills created by the Republican legislature to limit the power of incoming-Gov. Evers’ administration. Among other provisions, the legislation revoked Evers’ control of the Wisconsin Economic Development Corp. board, gave the Republican-controlled legislature the power to block substantial changes to health care and public benefits programs—in order to prevent Evers from loosening social safety net requirements, and allowed the legislature to intervene in lawsuits when state statutes are challenged and use private lawyers at taxpayer expense instead of the attorney general’s office (to prevent incoming-Democratic Attorney General Josh Kaul from pulling out of lawsuits challenging GOP policies).

The then-Republican Supreme Court ultimately upheld the majority of the laws that limited the power of Evers and Kaul, though some lawsuits are still ongoing. In the intervening years, Republicans kept control of the Court by an alternating 5-2 and 4-3 majority, allowing conservative justices to continue to chip away at the Democratic administration’s authority, ruling ballot drop boxes unlawful, and restricting the power of state officials to institute disease-controlling emergency measures.

Impeachment

Which brings us to April 2023, when Democratic-backed candidate Janet Protasiewicz defeated former Supreme Court Justice Daniel Kelly, flipping the court to a 4-3 liberal majority for the first time in 15 years. The election was largely seen as a referendum on abortion, occurring less than a year after Wisconsin’s 1849 law banning abortion in nearly all cases took effect. Protasiewicz embraced a pro-choice position during her campaign, in sharp contrast to Kelly.

  • The Wisconsin Supreme Court is likely to hear a pivotal case brought by AG Kaul challenging the state’s 174-year-old abortion ban. Dane County Judge Diane Schlipper ruled this summer that the 1849 law applies only to feticide, not consensual abortions. “This pre-Roe statute says nothing about abortion – there is no such thing as an ’1849 Abortion Ban’ in Wisconsin,” Schlipper wrote. Her ruling allowed Planned Parenthood to resume offering abortions on Monday.

Protasiewicz also made redistricting a key part of her campaign, calling Republican-created maps “rigged” and suggesting that “the way [Wisconsin] maps are configured right now, our democracy is at peril.” While objectively true—Wisconsin’s gerrymandered maps have the worst partisan bias of any court-adopted maps in the nation—Republicans have seized on her comments to demand that Protasiewicz recuse herself from upcoming lawsuits challenging Republican-drawn maps…or face impeachment.

“If there’s any semblance of honor on the state Supreme Court left, you cannot have a person who runs for the court prejudging a case and being open about it, and then acting on the case as if you’re an impartial observer,” [Republican Assembly Speaker Robin] Vos told conservative host Meg Ellefson.

“I want to look and see, does she recuse herself on cases where she is prejudged? That to me is something that is at the oath of office and what she said she was going to do to uphold the Constitution. That, to me, is a serious offense.”

Speaker Robin Vos assembled a panel of three former Supreme Court justices to “investigate impeachment criteria” for a possible case against Protasiewicz. Vos did not name the justices on the panel, but the AP reported that one of them is former Republican Justice David Prosser—who also happened to donate to Daniel Kelly, Protasiewicz’s opponent, in a previous election. Another likely, but not confirmed, member of the panel is conservative Patience Roggensack.

Roggensack and Prosser voted to enact a rule allowing justices to sit on cases involving campaign donors. In 2017, a year after Prosser left the court, Roggensack voted to reject a call from 54 retired justices and judges to enact stricter recusal rules.

Roggensack, in 2020, sided with the conservative minority in a ruling that fell one vote short of overturning President Joe Biden’s victory in the state. And she endorsed Dan Kelly, the conservative opponent to Protasiewicz in this year’s election. Prosser donated $500 to Kelly, who replaced Prosser on the court after he retired…There were numerous times during Prosser’s years on the court where he did not recuse himself from cases involving issues he had voted on as a member of the Legislature…

Prosser was also embroiled in one the court’s most contentious periods in 2011, accused by a liberal justice of attempting to choke her. Impeachment was never raised as a possibility, even though police investigated but no charges were filed. The Wisconsin Judicial Commission recommended the court discipline him but nothing happened because the court lacked a quorum when three justices recused. In 2016, Prosser received $25,000 of in-kind contributions from the Wisconsin Republican Party. Less than three weeks later he resigned with nearly three years left on his term.

Two Wisconsin citizens who voted for Protasiewicz brought a lawsuit last week seeking to stop the Wisconsin Legislature from conducting impeachment proceedings against the Supreme Court justice. The plaintiffs argue that there is “no basis to justify the permanent destruction” of over one million people who voted for Protasiewicz. “there is no factual finding of any crime or corruption” to justify the impeachment of Protasiewicz under the state constitution.

In the case of Justice Protasiewicz, there is no factual finding of any crime or corruption. There certainly is no basis to justify the permanent destruction of the vote of the Petitioners and over one million valid Wisconsin electors.

…the conduct of Justice Protasiewicz cannot be in any sense historically deemed as “corrupt.” Justices routinely do not recuse themselves from issues upon which they have expressed clear points of view or in the context of previous donors to their campaigns appearing before them as litigants. Thirteen years ago, this Court modified the Code of Judicial Conduct specifically to permit a Judge to not recuse herself from a case, even where a donation came from a litigant. SCR 60.04(7). Since, there were nine separate Wisconsin Supreme Court elections. Today, six of the seven Supreme Justices have received contributions during the campaigns from party committees. The Court is clear that statements by candidates on issues do not preclude their participation in hearing a case involving those issues.

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