Wisconsin Politics Are A Hot Mess. And That Affects Us All.

Wisconsin State Supreme Court Justice Janet Protasiewicz celebrates her election victory back in April. Photo: Jamie Kelter Davis for The New York Times

Yesterday, I previewed the brewing battle in Wisconsin over the potential impeachment of newly elected state Supreme Court Justice Janet Protasiewicz. The stakes are very high: A landmark redistricting case could wind up redrawing legislative and congressional districts in the state, ending the GOP’s supermajority in both chambers and likely flipping several congressional House seats.

Before I go further, I want to correct something I may have prematurely concluded in my piece yesterday. In my Week Ahead summary, I noted that the Wisconsin state Senate Majority Leader, Devin LeMahieu, had cast doubts upon the Senate moving forward with Protasiewicz’s impeachment. “To impeach someone, they would need to do something very serious,” LeMahieu told WISN-TV. “We are not looking to start the impeachment process as a regular occurring event in Wisconsin.”

I also noted that any removal of Justice Protasiewicz by the Republicans would simply result in Gov. Tony Evers, a Democrat, replacing her with another liberal justice. Impeachment would accomplish nothing. Or so I figured.

Unless…

… unless the whole point of impeachment is to create a legal purgatory, where Justice Protasiewicz is neither removed nor replaceable. 

My thoughts have shifted a bit more pessimistically this morning. To see why this might be precisely what the GOP is planning, we need to go a bit into the weeds on the hot mess that is Wisconsin politics. To illustrate this, I want to tell you a story about a little known position called the Chief Administrator of the Wisconsin Elections Commission, or WEC, and the woman who currently occupies that position, Meagan Wolfe. 

The WEC and the recent battle over Wolfe’s reappointment as the state’s top election official are a microcosm for everything that is currently badly broken in Wisconsin politics, from the supermajority’s abuse of its legislative power, to curbs upon the Democratic governor put in place right before he took office, to kooky election conspiracy activists and indicted election fraudsters, to how the state Supreme Court acted as a political arm of the GOP and how Democrats are fighting back.

In case you believe this is merely a local story, consider three things.

First, Wisconsin is the tipping point state for the Electoral College for both parties. The hard math shows that the GOP almost certainly can’t win the White House without Wisconsin in the red column, which is why they held their first debate in Milwaukee and why the Democrats held their nominating convention there in 2020. The road to the White House runs through Wisconsin.

Second, enough congressional House seats are at stake that, along with other redistricting court fights in the South, a redistricting win at the state Supreme Court level could tip the balance of power in the U.S. House of Representatives to the Democrats in 2024. 

Third, Wisconsin is the last of the upper Midwestern states to hold out against a sharp shift toward more progressive policies. On either side of it—in Minnesota and Michigan—Democratic trifectas have enacted bold new laws to protect rights, restrict guns, and empower workers. Wisconsin is on its way toward this goal, but to get there it needs to redraw its district lines and hold free and fair elections, as neighboring Michigan did. 

As you’ll see in this story, the GOP is doing everything it can to prevent that from happening.

The WEC is supposed to be quite boring

Meagan Wolfe didn’t set out to become a controversial figure when she took on the role of Chief Administrator of the WEC back in 2019. This was well before all the nonsense and conspiracies about elections gripped the GOP. Wolfe had been appointed to her position by Robin Vos, the Republican Speaker of the Assembly, and her job was to be a nonpartisan administrator over one of the most decentralized election systems in the country.

The way elections work in Wisconsin is a bit unorthodox. The WEC, established by the GOP in 2016, oversees elections run by municipal and county clerks. Its role is to support those clerks—some 1,800 statewide—by maintaining the voter registration database and ensuring legal compliance.

The WEC itself is governed by a six-person bipartisan commission, but it’s run by the nonpartisan chief and her staff. Majority vote of the commission sets policy. Wolfe takes direction from the commission and executes its policies, but she doesn’t have a vote. That’s what makes her a chief administrator, and not something like a cabinet member or elected official.

The 2020 Covid pandemic tested the system

As Wisconsin Watch reported, one of the biggest challenges many elections officials faced during the pandemic was how to handle voting in a safe yet accessible manner. On the day a public health emergency was declared in Wisconsin back in March of 2020, the WEC met to discuss the upcoming primary election in April. Among the issues was how people in residential care facilities could vote absentee.

The GOP has always made it harder to vote than it should be, and Wisconsin was no exception. State law required local election officials to send two “special voting deputies” to help residents of these care facilities vote. Only if the deputies had visited twice, and a resident had still not voted, could the resident then receive a ballot in the mail. (I know, so intentionally complicated and suppressive.)

But what should election officials do in the middle of a pandemic? The facilities were not allowing outsiders in, and nursing homes were breeding grounds for outbreaks. So Wolfe’s staff came up with a recommendation to bypass the “special voting deputies” requirement—and the bipartisan commission approved it 6-0. Wolfe issued new guidelines the following day. The guidelines stayed in place for the 2020 general election, with the commission voting 5-1 to keep it in place.

MAGA goes nuts over this and other sensible policies

You might remember what happened next, in the wake of the 2020 election. The Trump Campaign filed a lawsuit claiming, among other things, that the sending of absentee ballots to nursing homes without the use of “special voting deputies” was illegal. A Racine County Sheriff actually called for the arrest of the five commissioners, including two Republicans, who had approved the policy, fueling disinformation and pouring gasoline over the already burning fire.

And even though Wolfe was not responsible for enacting the nursing home policy, she has come under constant criticism for it. She’s also been blamed for the use by some clerks of drop boxes for absentee ballots, something the GOP state Assembly and Senate leadership expressly supported in September of 2020—until they realized it was mostly Democrats who would vote absentee that year. And she’s been blamed for allowing clerks to correct missing witness address information on absentee ballots, even though the guidance allowing that was approved by the WEC in 2016, three years before she became Chief Administrator.

And now, Republicans want Wolfe gone so they can appoint someone who will be less interested in providing free and fair access to the ballot box for the people of Wisconsin.

Wolfe’s reappointment

Wolfe’s four year term expires this year, so she’s up for reappointment. And based upon the highly partisan nature of the Senate, which is heavily gerrymandered in favor of extremist GOP state senators, she is unlikely to receive it. 

But there’s an interesting catch that needs some explaining. As part of the GOP’s efforts to kneecap the power of the Democratic governor to make appointments, certain Republican appointees have simply refused to resign their positions at the end of their terms, meaning there was no vacancy to fill. Sorry, Tony Evers!

If that seems crazy, it gets worse.

The state Supreme Court backed this end-run around appointments in a twisted decision that held that a term’s expiration date did not create a “vacancy.” Former Governor Scott Walker had approved a guy named Fred Prehn to the Wisconsin Natural Resources Board in 2015. When Prehn term expired in 2021, he refused to step down because the state Senate had not confirmed Gov. Evers’s new appointee. That decision had far reaching consequences, because it essentially made it impossible for Gov. Evers to seat any of his new appointees that might need legislative approval. 

It was a power grab, backed by a politicized state Supreme Court. 

Fast-forward, however, to Meagan Wolfe. She is now similar to Fred Prehn, having not resigned her position, with no new appointee confirmed. Her reappointment isn’t properly before the state Senate because, while the three Republican members of the WEC have voted to send her appointment along, the Democratic members have withheld their approval, correctly worrying that the Senate would shoot down her reappointment.

The Senate held a hearing on Wolfe’s reappointment anyway, and it was predictably packed with election deniers spouting the worst kind of debunked conspiracies. Among the speakers were Michael Gableman, a former state Supreme Court justice who led an expensive and unsuccessful probe into the accuracy of the presidential election in Wisconsin. Rep. Janel Brandtjen, who has called for the Wisconsin 2020 election to be decertified, also spoke against Wolfe. Also speaking out was Harry Wait, an “election activist” who has been charged with election fraud for requesting ballots in other people’s names.

If the Senate succeeds somehow in forcing Wolfe out, there would be very little time for a new administrator to come up to speed. This could result in chaos around election time as 1,800 disorganized clerks lacking clear guidance attempt to administer the most consequential election in recent history.

Under state law, per the Supreme Court, Wolfe ought to remain in her position until there is someone actually appointed to replace her. That new appointment cannot happen though, because as the state Attorney General, Josh Kaul, and the Legislature’s own nonpartisan attorneys have both concluded, Wolfe needed at least four commission votes to be reconsidered in the first instance. Until then, she’s in legal limbo, and so is that key position.

Which brings us back to Justice Protasiewicz 

The Wisconsin GOP has already demonstrated that it’s willing to undercut the governor’s office through political loopholes backed up by a partisan state Supreme Court. Now that this same Court is about to flip against them, the Republican Party is desperate to hang on to whatever levers of power it still can. And that could include the Supreme Court majority.

One way to keep it, which I’m quite sure Speaker Vos is considering, is to call for a vote on impeachment of Justice Protasiewicz, despite having no legal grounds to do so, in order to temporarily suspend her from holding office, at least until the Senate can vote on whether to remove her. That is what happens upon a successful impeachment by the Assembly, requiring just a simple majority vote. But remember, removal isn’t really a solution here, because Evers would get to appoint a new justice anyway.

But short of removal, if the Senate refuses at all to act on impeachment, as the state Senate Majority Leader has indicated, that would trap Justice Protasiewicz in a legal limbo: a sitting justice without the right to sit. No power, yet no vacancy to be replaced. 

Speaker Vos understands that an attempt to impeach Justice Protasiewicz when she has committed no crimes would set off a crisis in state government. The people only just elected Justice Protasiewicz by an overwhelming 11-point margin. Sidelining her in this fashion in order to protect the very maps that keep the GOP in power is not only an obvious and desperate power grab, but an anti-democratic and unconstitutional one.

Moreover, impeachment for “bias” shouldn’t even be on the table yet. The state Supreme Court has not yet even taken up the redistricting case, and Justice Protasiewicz has accordingly not indicated whether she would recuse or sit for it. (For the record, she is under no obligation to recuse herself, despite having stated during the campaign that she believes the state maps are unfair. They are, objectively, unfair, but whether they are illegal is a different question entirely and depends on the facts of a specific case, not yet before the Court.)

If history is any guide, the GOP in Wisconsin will attempt to undo the actual will of the voters at every turn. They do it through maps, they did it by kneecapping Evers before he even took office, and they are flouting their own court-created precedent to try and oust Wolfe. All this leads me to conclude that an impeachment of Protasiewicz is a serious threat, and Assembly Speaker Vos might do it because he simply has no other way to stop Wisconsin’s shift leftward.

The people of Wisconsin need to understand what’s in the works and what’s at stake. They need to be prepared to demand an end to the dirty political tricks and illegal power grabs in their state. They need to further demand that the will of the voters and the safety and accuracy of their votes, as represented by Justice Protasiewicz’s election and the unflinching civic service of chief elections administrator Wolfe, be respected and implemented immediately.