Justice Janet Protasiewicz.
Photo-Illustration: Intelligencer; Photo: AP Images
When Wisconsin Republicans won total control of state government in 2010, they didn’t just pass right-wing policies; they cemented their majorities with a gerrymander so extreme that Democrats in the archetypal purple state were effectively shut out of legislative power permanently. Over the years, Democrats loosened the Republican stranglehold and have controlled one branch of government since Tony Evers defeated former governor Scott Walker in 2018. But they could only get so far — until Judge Janet Protasiewicz won a hugely consequential state Supreme Court race earlier this year. With a liberal majority for the first time in 15 years, the court appeared poised to overturn the skewed maps (which had been blessed by the previous conservative majority), as well as clarify the legality of abortion and give the stamp of approval to other liberal priorities.
But the GOP won’t surrender its grip on power quietly. Leading state Republicans, including state assembly Speaker Robin Vos, have raised the prospect of impeaching Protasiewicz before she has even heard a case, citing what they claim were improper comments regarding the propriety of the maps during her campaign, as well as donations she received from the Democratic Party. Vos has vacillated on actually going forward with the idea, but last week he announced a secret panel of former state Supreme Court justices, which will study the legal basis of impeachment. The assembly also passed a bill that would empower a supposedly nonpartisan redistricting board to draw new maps, a proposal Democratic governor Evers says he will veto. To understand the latest political drama unfolding in Wisconsin, I spoke with Ben Wikler, the state’s Democratic Party chairman. Since taking the role in 2019, Wikler has become a rare celebrity state-party official — a reflection both of his media-centric strategy and of Wisconsin’s paramount importance to Democrats in national elections.
What’s the state of the impeachment drive now?
In the assembly, impeachment requires a simple majority. In the state senate, removal requires a two-thirds supermajority. What’s striking about this moment is that the state senate does not appear interested at all in taking up an impeachment inquiry. This creates the risk that Robin Vos tries to push the whole state through a kind of constitutional loophole, which is that under Wisconsin’s Constitution, if a judge or justice is impeached, they’re suspended until they’re acquitted by the senate. Meaning that Vos could hold a simple majority vote in the assembly, and he could have 12, 13, 14 Republicans vote no — but if he has the remaining 50 Republicans lined up, he could impeach a Supreme Court justice. That person would not be able to rule on any cases, in theory indefinitely.
So it would revert back to a court with three liberals and three conservatives, and the maps would probably stay as they are.
Not only the maps. We just had a trial court rule that the pre–Civil War abortion ban in Wisconsin is no longer in effect. If that were reversed on appeal, the appeals-court ruling would presumably result in a 3-3 deadlock at the Supreme Court, so that law would also stand. If it were Trump versus Biden redux in 2024 and a far-right judge sided with Trump and the case reached a 3-3 court, that would also stand. It threatens the whole idea of having a Supreme Court in the state if you can just impeach people and sideline them. And Robin Vos is threatening to do that over the redistricting case, which is incredibly important but maybe less well known to the public — because he doesn’t want to have this debate over abortion and all the other things that people also voted on in the spring of 2023.
Where do you think this all might end up? Vos seems desperate to do anything in his power to stop Protasiewicz from actually ruling on cases.
Vos’s caucus is visibly divided. Two Republican state representatives have already come out against impeachment. Vos seems to be all over the place — one moment he’s saying that impeachment is the last thing he wants to do and that he hopes it doesn’t come to that, and the next minute he’s appointing his panel of former Supreme Court justices to advise him on how to do it. So I think this is a jump ball, and I think the critical thing is that the public weigh in now. The GOP has a big to-do list. They’re holding their national convention here next summer, and they need to raise tens of millions of dollars in order to pull that off. This is the kind of constitutional chaos and disaster that pushes away the donors that they need to hold a national convention that could be the key to their quest for the presidency.
Does it, though? Because this is not too far off the mainstream of current Republican thinking, I’d think.
A poll found that the public is about roughly two to one against the impeachment push. I think the business wing of the Republican Party recognizes that this may be a bridge too far, whereas the ultra-MAGA wing gets really excited about the idea of having discovered a new norm to smash. For the business wing, the problem with this is that once the legislature can suspend any Supreme Court justice to change a future ruling, the rule of law kind of collapses. And while stacked pro-corporate right-wing courts are something that the business community really likes, not having a system of laws is something that winds up being bad for business.
Though Scott Walker, who embodies that pro-business side of the GOP, is in favor of impeachment if Protasiewicz doesn’t recuse herself.
I think around the Capitol, there are a lot of whispered conversations about how absolutely wild and out of control this is. And I think our sense is there are a lot of Republicans and certainly every Democrat and vast majority of independents who would like this to go away and be a historical footnote of a full-on constitutional crisis. This will engulf Wisconsin politics and every Republican candidate for the next year and a half if they actually move forward.
And Wisconsin is likely to be the tipping-point state, or at least one of them, in next year’s presidential election.
Yeah. If Republicans impeach someone who just won in a landslide a few months ago, then the next several elections become a referendum on whether Republicans should overturn elections and erase the votes of Wisconsinites. And voters tend to choose no on the question of having their votes erased.
Before she beat her opponent Dan Kelly by 11 points, Protasiewicz called the current maps “rigged” and said, “I can’t tell you what I would do on a particular case, but I can tell you my values in the maps are wrong.” I understand that conservative Supreme Court justices have made overtly political statements, but do Republicans have a point in saying that Protasiewicz shouldn’t have made her views so clear before she was even on the court?
Robin Vos testified that he took partisanship into account when drawing these maps. It’s really not a question of whether the maps are rigged. The question is whether it’s constitutional to rig them. And Justice Protasiewicz didn’t say anything about that. Dan Kelly actually was much more explicit about how he would view these arguments and said that those questions can only be made by the legislature. Republicans didn’t seem to have a, didn’t make any noises about impeaching him if he got on the court.
Rebecca Bradley, when she was running for state Supreme Court, wore an NRA hat and had campaign materials holding a gun, wearing NRA logo materials. And has absolutely declined to recuse herself in related cases.
Hey, maybe she just liked the colors. It’s not necessarily an endorsement of the organization.
Scalia wrote a U.S. Supreme Court decision in Republican Party of Minnesota v. White, which made it very clear that you cannot require a judge who has to run for election to recuse themselves if an issue that they spoke about comes before the court. The essence of having elections is to give voters a basis to understand who these justices are. There’s a categorical difference between explaining what your personal values are on issues and making commitments about particular cases. When Justice Protasiewicz ran, there was no case before the Supreme Court, and there was no set of claims about what was unconstitutional about rigging the maps. Yet it was the central fact of Wisconsin politics that the maps were rigged to ensure Republican control. So we’re living in a house that right-wing justices built.
Wisconsin has explicit refusal rules that leave it to the sole discretion of the justice. The conservative majority on the state Supreme Court explicitly rejected a call by dozens of former judges for recusal rules that would bar people from hearing cases brought by campaign donors. In this case, that wouldn’t even apply because the Democratic Party is not a party in any of these cases. The redistricting cases are being brought on behalf of voters in Wisconsin, the people who have the biggest stake in all this. Republicans are making an argument against the very system of rules that they set up because they don’t like the fact that under their own rules they might actually have to face some constitutional scrutiny.
So let’s say Protasiewicz isn’t impeached and rules the maps unconstitutional. This may sound extreme, but do you see Republicans actually complying with the law? I’m wondering whether there might be another kind of crisis.
I have learned the painful lesson that one should never expect calm and clarity in Wisconsin politics. At the same time, you have maps that are selected by the state Supreme Court. So it’s not like Ohio, where the state Supreme Court tells the legislature to draw new maps and then they have to do so. In Wisconsin, if the legislature and the governor don’t agree on a set of maps, then the court can draw it. And it’s up to the court on what process they want to use.
And at that point, you send in the National Guard. Perhaps I’m catastrophizing here.
It’s on the Wisconsin license plate: “Expect the unexpected.”
Is it really?
No, it’s not.
You had me. I was thinking that was a weird state motto.
We’re “America’s Dairyland.”
That makes much more sense. Democrats have suffered a lot of blows in Wisconsin since 2010, from Walker being elected and pushing through the right-to-work law, to the gerrymandered maps, to having to hold an election during the worst days of the pandemic. It’s the only state in the area that hasn’t expanded Medicaid, and abortion remains in a legal gray area. Why are Republicans there so extreme? Is it just a function of the maps? Or is it a function of one party having total control of the government for years in such a closely divided state?
For a very long time, Wisconsin had the national reputation as a sterling example of a laboratory of democracy. But I think that when margins are incredibly narrow, it might increase the temptation for would-be authoritarians to make the kinds of changes that can win a statewide election in a very close private state. Whereas if you’re in a 60-40 state, if you suppress a couple of hundred thousand votes, it’s not going to get you the governor’s office.
So everything has vast stakes here. And for authoritarian conservatives, it’s a certain cast of mind. It creates an overwhelming implication to try to rig things every way they can. And that also made Wisconsin a kind of test kitchen for far-right policies.
“America’s test kitchen for authoritarianism.” That should be the motto on the license plate.
I hope to retire that motto. That is my goal as Democratic Party leader here.
I think Walker was very explicit about this when he was running for governor, and during his years in power — that Wisconsin was this great progressive bastion, and that if Republicans could do it here, they could do it anywhere. It was a very exciting prospect to smash unions in the place that invented public-sector unions.
Yeah, the state has really swung to both poles over the years.
I think that’s also why on the Democratic side we organize so intensely and fight so hard, because we know that if we put in that last ounce of effort, it might make all the difference for a presidential election, and for the future of the state. Nothing’s ever etched in stone here. And as long as that’s true, I think the politics are going to stay intense.
Do you feel that voters are worn out from all the crises and drama, and from being the center of national attention all the time? Are people yearning for a little more normalcy?
Voters are yearning for normalcy, but they’re also yearning for change. We had explosive turnout in 2018, 2020, 2022, and then this spring. That turnout tends to be high when people understand that there’s a real significant substantive difference between the two sides and that their vote could be the one that tips the entire thing. And as long as that’s true, I think engagement is going to stay high even if people wish that the big questions over time could be settled, so they could go back to regular nonpolitical life.
This interview has been edited for length and clarity.