Legal Experts Say No Certainty on Supreme Court Decision Regarding Wisconsin's Voting Maps

Tuesday, October 17th, 2023 -- 1:01 PM

(By Rich Kremer, Wisconsin Public Radio) Days after Wisconsin Supreme Court Justice Janet Protasiewicz announced she will not step away from a legal challenge seeking to overturn Republican-drawn voting maps, Assembly Speaker Robin Vos, R-Rochester, issued a statement suggesting U.S. Supreme Court precedent "compels her recusal, and the United States Supreme Court will have the last word here."

But, according to Rich Kremer witih Wisconsin Public Radio, legal experts say that's far from certain. The precedent Vos is referring to comes from a 2009 U.S. Supreme Court decision known as Caperton v. A.T. Massey Coal Co. Inc., in which the High Court required a justice on the Supreme Court of Appeals of West Virginia to recuse himself from a coal company owner's appeal of a $50 million jury verdict against the business.

Former U.S. Supreme Court Justice Anthony Kennedy, writing for the majority, concluded there was a "serious risk of actual bias, based on objective and reasonable perceptions" because the West Virginia judge ruled in the company's favor after receiving $3 million in campaign donations from the company's owner.

"Our decision today addresses an extraordinary situation where the Constitution requires recusal," Kennedy wrote. Vos, other Republican lawmakers and attorneys defending them in Wisconsin's redistricting lawsuit argue $10 million in donations from the Democratic Party of Wisconsin to Protasiewicz's campaign, along with her campaign comments that GOP voting maps are "rigged," mean she cannot fairly rule on the case.  

UCLA Professor of Law and Political Science Rick Hasen told Wisconsin Public Radio he can imagine Republicans trying a Caperton-style appeal if the state Supreme Court's liberal majority were to rule against GOP maps.

But Hasen said there are notable differences and that Caperton "doesn't control this case." First, Hasen said, a direct contribution from a business owner trying to avoid paying out $50 million "is much more direct than, say, the interests of the Democratic Party."

"In addition, parties are somewhat different in that they regularly play a role of supporting candidates," Hasen said. "There are candidates on your state Supreme Court who received support from Republicans. And so, if we're going to make support from a party disqualifying, then perhaps this justice would not be the only one to have to disqualify."

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