Kate Felton v. Wisconsin Elections Commission

REBECCA GRASSL BRADLEY, J. (dissenting). During the most expensive campaign for a state supreme court seat in United States history,¹Susan Crawford participated in "a donor advisory briefing" promoted as a "[c]hance to put two more House seats in play for 2026."²The Democratic Party of Wisconsin invested $11,000,000 in her campaign.³She won. Before she even takes office, two original action petitions have been filed, asking this court—for the third time—to reapportion the congressional redistricting map to advantage candidates of the Democratic Party, recycling issues already decided by this court and inventing new ones that could have been brought four years ago but were not. Crawford's donors expect her presence on the court "could [] result in Democrats being able to win two additional US House seats, half the seats needed to win control of the House in 2026."⁴

Considering the majority's redistricting redux in 2023, the expectation is reasonable. During her 2023 campaign for a seat on the Wisconsin Supreme Court—the second most expensive campaign for a state supreme court seat in United States history⁵— Janet Protasiewicz abandoned universal judicial ethics by promising to hear a renewed

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challenge to Wisconsin's state legislative maps, declaring the maps "rigged"⁶and announcing she would "enjoy taking a fresh look at the gerrymandering question."⁷In Clarke v. WEC, 2023 WI 79, 410 Wis. 2d 1, 998 N.W.2d 370, the members of the majority tossed the court's remedial maps, "usurp[ed] the prerogatives of the legislature, and deliver[ed] the spoils to their preferred political party." Id., ¶185 (Rebecca Grassl Bradley, J., dissenting).

On social media, Protasiewicz also showcased her bias on congressional redistricting by reposting actress Julia Louis-Dreyfus' inducement to vote for her in order to "win" "[f]air maps" and "[a]bortion rights" and "[c]ontrol of Congress." Clarke v. WEC, 2023 WI 70, 409 Wis. 2d 372, 401, 995 N.W.2d 779 (Rebecca Grassl Bradley, J., dissenting). In support of Protasiewicz's campaign, Jill Karofsky did the same, declaring: "When it comes to the maps, the maps are rigged. . . . You can't be in this state and not realize that. Janet Protasiewicz is saying the quiet part out loud."⁸One can't be in this state and not realize that at least some members of the majority already made up their minds on the issues presented in the latest redistricting petitions.

The court should deny both petitions without ordering a response because they seek to relitigate claims this court already decided in 2022. In Johnson v. WEC, 2022 WI 14, ¶25, 400 Wis. 2d 626, 971 N.W.2d 402 (Johnson II), the court adopted Democratic Governor Tony Evers' proposed congressional map. That map remained unchallenged in Clarke. 410 Wis. 2d 1, ¶116 (Ziegler, C.J., dissenting). A few months after Clarke was decided, this court denied a motion asking it to reconsider the Johnson II decision. See Johnson v. WEC, No. 2021AP1450-OA, unpublished order (Wis. Mar. 1, 2024). Forcing the parties to expend considerable resources and taxpayer money to respond to these petitions only signals the majority will once again "flex[] its political power [] to advance

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a partisan agenda despite the damage inflicted on the independence and integrity of the court." Id. at 2 (Rebecca Grassl Bradley, J., concurring).

In Caperton v. Massey, the United States Supreme Court decided due process required a state supreme court justice's recusal from a case because "the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable" based solely on the justice's receipt of $3 million dollars in campaign contributions from the chairman and principal officer of a party to the action. 556 U.S. 868, 876, 884 (2009) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)). Consistent with universal judicial ethics, the justice in Caperton had not made any statements during his campaign suggesting he had prejudged the case. This court adopted the Caperton test, holding that a circuit court judge's repeated social media interactions with a litigant in a contested paternity case pending before the judge constituted a due process violation. Miller v. Carroll, 2020 WI 56, 392 Wis. 2d 49, 944 N.W.2d 542. "To assess whether the probability of actual bias rises to the level of a due process violation, we apply, verbatim, the standard from Caperton." Id., ¶24.

The gross politicization of this court over the last several years is destroying its integrity and will undermine the public's acceptance of its decisions, if it hasn't already.

"Those who would politicize the law offer the public, and the judiciary, the temptation of results without regard to democratic legitimacy." ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 2 (1990). Entertaining these claims makes a mockery of our justice system, degrades this court as an institution, and perpetuates the public's perception that justice is for sale in Wisconsin. I dissent. Samuel A. Christensen

Clerk of Supreme Court

Distribution List:

Lara Sutherlin (U.S. Mail)

Charlotte Gibson (U.S. Mail)

Daniel S. Lenz (Electronic Notice)

Mark P. Gaber (Electronic Notice)

Benjamin Phillips (U.S. Mail)

Marisa Wright (Electronic Notice)

Annabelle E. Harless (Electronic Notice)

Elisabeth S. Theodore (U.S. Mail)

John A. Freedman (U.S. Mail)

Orion de Nevers (U.S. Mail)

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Appendix A

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