Wisconsin voters were bombarded with ads last year in the most expensive state court race in U.S. history, but they probably didn’t notice commercials paid for by Janet Protasiewicz’s campaign featured a number of horses. That unusual detail was never explained to voters — until now, when a campaign official claimed a crude reason.
Protasiewicz’s campaign for Wisconsin Supreme Court used a portion of its massive fundraising haul to hide horse figurines and feature neighing in ads as an apparent subliminal reference to baseless inside jokes about her opponent fornicating with horses, Protasiewicz‘s campaign manager said in a recent interview.
Protasiewicz’s campaign manager Alejandro Verdin said in a Jan. 25 appearance with a liberal podcaster that the campaign hid images of horses in negative campaign ads against former Justice Daniel Kelly, and used audio of a horse neighing in one radio spot, to convey the message he alleged came from focus groups: that Kelly looked like a “horse (expletive).”…
According to a source with Protasiewicz’s campaign, the new justice was not aware of the horse imagery in the ads. Verdin, Protasiewicz, and other members of the campaign declined or did not respond to interview requests.
The U.S. 5th Circuit Court of Appeals has agreed to rehear a decades old voting rights case that established the only majority-Black state supreme court district in Louisiana, according to the court’s docket Monday afternoon.
On Monday, the 5th Circuit granted a petition from the State of Louisiana for a rehearing en banc on Chisom v. State of Louisiana, a gerrymandering lawsuit that stems from the 1980s. In the lawsuit, Black voters argued the Louisiana Legislature gerrymandered the Louisiana Supreme Court districts by packing Black neighborhoods into majority-white districts.
After protracted litigation that reached the U.S. Supreme Court, the state eventually agreed to a consent judgment in 1992 that settled the case by creating a majority-Black district based out of New Orleans. Associate Justice Piper Griffin currently holds the seat.
However, the state, through then-Attorney General Jeff Landry, moved to dissolve the consent judgment in 2021 ahead of the legislature’s special session on redistricting the following year.
Landry, a Republican who now serves as Louisiana’s governor, argued that the state no longer needs a federal court to force it to comply with the Voting Rights Act. He further argued that the consent judgment was only meant to be temporary and is being incorrectly used as a “perpetual federal check on the State.”
Benjamin Edelstein and Sara Benesh have written this article for State Politics & Policy Quarterly. Here is the abstract:
As judicial elections become increasingly expensive, recusal has emerged as a way to address concerns about the impartiality of judges who receive contributions from lawyers or potential litigants. While it is unclear if strict recusal rules are the best remedy for conflicts of interest created by contributions, they may disincentivize potential donors from investing in judicial campaigns by negating their potential goal of influencing decisions. We consider whether donor behavior in judicial campaigns – especially for those donors most likely to be interested in specifically currying favor with judges – responds to differences in recusal standards. Using data from 219 state supreme court races in 22 states from 2010 to 2020, we find that states with stricter recusal rules attract fewer campaign donations to judicial races, and states with more lax rules attract more overall and, most especially, for attorney donors.
New from the Center for Public Integrity.
Ohio Supreme Court Justice Jennifer Brunner is suing to overturn the new law that requires partisan labels for supreme court and appellate court candidates.
In a lawsuit filed on Election Day, Brunner is asking the federal court to either declare the partisan label law unconstitutional or invalidate some of the rules that judges must abide by when campaigning for public office. Those rules include resigning from the bench before running for a nonjudicial office.
The lawsuit hints that Brunner, a Democrat now living in Columbiana County, may want to keep her option open to run for governor in 2026.
Brunner lost her bid for chief justice in 2022 against Republican Sharon Kennedy. That was the first election cycle in which the partisan label law was in force.
Brunner argues that the new law forces some judicial candidates to campaign on an unfair playing field.
They must follow the judicial canons, which restrict how they campaign. Failure to follow the canons can lead to discipline − anything from a public reprimand to disbarment.
Brunner also argues that partisan labels on appellate judges and supreme court justices gives the public the impression that they’ll act as a “partisan check” on nonpartisan trial court judges.
The Philly Inquirer reports.
I am pleased to welcome Michael Kang to ELB Book Corner. Michael, along with Joanna Shepherd, is author of the new book, Free to Judge: The Power of Campaign Money in Judicial Elections. Here is the final of three posts:
Earlier I explained that biasing seems to explain a significant portion of the predictive relationship between campaign contributions to judges and subsequent judicial decisions. We found that the influence of campaign money dropped off dramatically for lame duck judges, ineligible for re-election in their final term, compared to other elected judges. When the possibility of re-election is taken off the table, our lame duck judges in their final term no longer display the same influence of money.
We weren’t focused on causality when we started studying judges. We guessed both selection and biasing were at work, and either way contributors get what they wanted from the judicial system, which by itself was a fundamental worry. That said, there is greater normative concern with biasing than selection. Under a selection story, at least judges are deciding cases the way that they think is correct under the law. Under a theory of biasing, though, judges are deciding cases differently, even incorrectly in some sense, than they otherwise would. Consciously or not, judges would be doing their jobs differently in favor of their contributors so they have a better chance of winning re-election and keeping their jobs.
Our findings therefore challenge the basic logic of Caperton v. Massey. In Caperton, Justice Kennedy was focused on the human tendency toward reciprocity, toward returning the favor of campaign finance support in the form of friendly judicial decisions in contributors’ favor. But we find it’s prospective concerns looking forward to the next election that loom large, not retrospective gratitude about the last election.
Fortunately, we think our findings suggest a politically feasible solution for reducing the influence of campaign money on elected judges. We endorse a reform approach targeting judicial re-election as campaign money’s main influence on judges. Of course, getting rid of judicial elections altogether would solve the problem, as would lifetime appointment along the federal model, and perhaps other proposals as well. No proposal is perfect in terms of insulating judges from political influence, and we underscore this point in the book.
Ultimately, however, we don’t think judicial elections, so popular with the public, are likely to go away. Instead, we endorse a single term limit for a 14-year elected term as a feasible reform that goes a long way in addressing the influence of money in judicial elections. A single term limit offers an achievable reform that maintains judicial elections as the initial means of judicial selection but removes re-election incentives from judging. As we explain in the book, a single long term also can be designed to leave largely unchanged the career incentives for state supreme court candidates and the nature of the job.
In the end, we aren’t doctrinaire about the reform specifics, which implicate lots of other values and institutional considerations, but the important lesson from our work is that re-election of judges, not judicial elections as a general matter, is the primary problem with money in judicial elections.
I am pleased to welcome Michael Kang to ELB Book Corner. Michael, along with Joanna Shepherd, is author of the new book, Free to Judge: The Power of Campaign Money in Judicial Elections. Here is the second of three posts:
Yesterday, I explained the consistent empirical relationship between campaign contributions to elected state supreme court justices and decisions by those justices in favor of their contributors’ interests.
But why do judges predictably favor their contributors’ interests, controlling for other important things? It might be simply that judges are skewed by gratitude or obligation for the campaign money they’ve received, an intuitive story of campaign finance influence that we might call a biasing story. Alternatively, though, money might just align with judicial decisions as a result of a natural matching of campaign money with judicial candidates already predisposed toward their donors’ preferences. Wealthy donors simply may have picked well in choosing whom to support in the first place, what we can call a selection story.
As an empirical matter, it’s actually hard to tell whether biasing, as opposed to selection, is going on. Whether it’s biasing or selection, we’d expect judicial decisions to align with the donors’ interests, so it’s hard to figure out which is responsible.
Our book presents the strongest evidence so far of judicial biasing from campaign contributions, separate from selection. We look at a special category of elected judge—lame ducks who can’t run for another term. Most states impose an age limitation on state supreme court justices so that they can’t run for re-election at a certain point. For this reason, lame ducks were elected and received campaign money just like other elected judges, so selection still matters. However, in their last term, these lame duck judges no longer can be biased by re-election concerns. They’re ineligible for re-election, so continuing to curry favor with donors for re-election purposes no longer applies.
We find that lame duck state supreme court justices, facing mandatory retirement, do not favor their campaign finance contributors in their decisionmaking anywhere close to the same way. The effect of money drops off dramatically by roughly half to two-thirds for lame duck justices in their final term.
This finding indicates that some biasing effect is occurring, because a selection account would not predict this dramatic change in voting behavior during the final term. Of course, the influence of money doesn’t go away totally for lame ducks. Selection matters enough that these justices still reflect their contributors’ interests to a degree, as we’d expect. In short, money still matters, but it doesn’t matter nearly as much as it does for justices still eligible for re-election.
We spend a chapter of our book considering, testing, and ultimately rejecting counter-explanations for our results, such as older age or state-specific characteristics. We believe the best explanation of our results is that the possibility of running for re-election leads elected justices to approach their cases differently than lame ducks do, with a worry about raising support for their next campaign influencing their decisions, consciously or not.
Tomorrow, in a final post, I’ll conclude by discussing the implications of our findings for judicial election reform.
I am pleased to welcome Michael Kang to ELB Book Corner. Michael, along with Joanna Shepherd, is author of the new book, Free to Judge: The Power of Campaign Money in Judicial Elections. Here is the first of three posts:
Thanks to Rick Hasen for the chance to introduce my new book Free to Judge with Joanna Shepherd. Listserv members may know my work in election law better than my empirical work on judicial behavior, but Joanna and I have spent the last decade studying the relationship among judicial campaign finance, judicial elections, and state supreme court decisions. Roughly 9 out of 10 state judges face some sort of judicial election either to reach office or keep it, and to paraphrase Justice Scalia, judicial elections mean judicial campaigning, which means judicial campaign finance. In our book, we document how judicial campaign finance influences and, we argue, actually biases state supreme court decision-making.
As a basic matter, when we look at the broader pattern of data on campaign finance money and judicial decisionmaking, we find a robust and statistically significant relationship between campaign contributions and elected judges’ decisions in favor of contributors’ interests over a wide range of cases. The details are in the book and our articles, but we find, for example, that business groups successfully influence state supreme court justices to favor their interests in business cases, controlling for other important factors. We look at contributions from the broader left and right ideological coalitions and find that money from these coalitions predictably influences decisionmaking toward their respective ideological positions across the spectrum of cases. We look at contributions from political parties and find that their money is associated with decisions in favor of their candidates in election cases. That’s just the basic landscape.
We do not argue that money is the only thing that matters in judicial decisionmaking. Of course, law matters because judges want to apply the substantive law as faithfully as they feel they can. There are certainly many cases where basically all judges agree, regardless of party, ideology, and campaign money, that the law is clear about how the case should come out. Many other cases are harder calls, and judges do disagree about how the law applies and how those cases should be decided as a matter of law. This is where party and ideology, among other things, matter most. But campaign money matters too.
Why does the money matter? How does causality work here? When we’ve presented our work, this question would inevitably come up, and someone always argued that judges might not be influenced (i.e., biased) by campaign money, but instead selected by the money. Smart contributors may have simply picked well in giving money to judicial candidates who they accurately discerned would decide cases as the contributors want. The money aligned with judges’ decisions, not because the judges were swayed by the money, but because the contributors and judges were aligned together from the start.
It’s this question that became the focus of our book. We realized that we had interesting data that told us a consistent story on this point, which I’ll address tomorrow.
The following is a guest post from James Sample:
My basic reaction to Justice Protasiewicz’s opinion is one bordering on intractable depression. It’s both necessary and impossible to disaggregate the interwoven components of the entire Wisconsin political milieu. The matter is a function of myriad interrelated questions, five (ish) of which I set out in wholly incomplete form below:
(1) Should the baseline for Protasiewicz’s recusal analysis be a fresh, de novo consideration of the recusal merits or should it be contextualized by recent Wisconsin practices and shenanigans (See various recent Wisconsin judicial controversies involving, inter alia, Justice (now Chief) Ziegler, Justice Gableman, Justice Prosser, Justice Rebecca Grassl Bradley)? Phrased differently, recent judicial ethics practices in Wisconsin are widely considered to be egregious by comparison to judicial ethics norms generally; should those practices be relied on as precedent, and if so, or if not, what are the consequences?
(2) Whatever the merits or demerits of judicial elections, if one stipulates, as one must, to an elected judiciary, especially in a state in which gerrymandering is as partisan and skewed as just about anywhere in the country, is it proper or improper to view the campaign process and judicial election itself as a kind of mini-referenda on the anti-democratic redistricting? Particularly given that the legislature’s gerrymandering, by definition makes it difficult for voters to meaningfully register their displeasure with legislators insulated by that same gerrymandering, is it not arguable that crediting and making manifest the consequences of Justice Protasiewicz’s relatively convincing judicial-electoral win is the best of the bad democratic options? Is it not arguable that the anti-democratic aspects of partisan gerrymandering would be exacerbated by yet further muting the voters who (at least theoretically) opposed that gerrymander via their judicial election votes?
That is to say, if one believes in judicial elections (and clearly, much to the dismay of most scholars, many people and states do), perhaps then the case exists to be made that a Protasiewicz recusal in this case would deny Wisconsin the attributes of the judicial selection system that, rightly or wrongly, is the one with which they are stuck. Balancing that “attribute” against the due process and impartiality interests inherent in the judicial role is no easy task, and one as to which reasonable minds can differ.
(2a) While I find Protasiewicz’s opinion to be unpersuasive, she is correct that there is a meaningful distinction between a private individual (Don Blankenship for example) with a direct pecuniary interest (same), spending exorbitantly and disproportionately in a judicial campaign (as he did), where that exorbitant spending still amounted to pennies on his own ROI dollar (as it would have, absent Caperton), for that private individual’s litigation-specific pecuniary interests, and a political party with numerous and diffuse supporters, numerous and diffuse interests, and in a (nominally and frankly falsely) non-partisan campaign.
Does that difference in degree justify Protasiewicz’s conclusion that she need not recuse? There is no doubt that the majority in Caperton repeatedly emphasizes the extreme facts, so she is not wrong to advance this line of reasoning, even if one disagrees (as I mostly do) with her conclusion.
(3) While it is arguably politically savvy on her part, given Speaker Vos and his fellow barbarians at the impeachment gates, to lead with Justice Alito (and to repeatedly cite Chief Justice Roberts’ dissent in Caperton), does this “savvy” not also reinforce a sense that we are in a national judicial ethics race to the bottom?
An opinion by a non-recusing jurist that leads off by citing Justice Alito as an ethics exemplar, is an avalanche hurtling down democracy mountain towards judicial ethics oblivion. Whatever one thinks of Protasiewicz’s decision, credit her with this: it is a clear illustration of the fact that the sorry state of judicial ethics in the U.S. Supreme Court has consequences that extend to courthouses far beyond Washington, D.C..
(4) Is it possibly the case that while Protasiewicz might be required to recuse in just about every state other than Wisconsin, she may nonetheless not be required to do so in Wisconsin? It bears noting that Wisconsin law on judicial disqualification does differ in certain respects from most other states and from the federal judiciary. In most states, and in the federal judiciary, the rule is that a judge shall disqualify whenever the judge’s impartiality “might reasonably be questioned.” (See 28 U.S.C. s. 455).
In Wisconsin, by contrast, that exact language has not been adopted. Instead, Wisconsin law lists six specific circumstances in which recusal is required, and then, its seventh category “catch-all” provision is markedly different from the more widely applicable standard. Wisconsin’s catch-all provision requires recusal when the judge “determines that, for any reason, he or she cannot, or it appears that he or she cannot, act in an impartial manner.” (Wis. Stat. § 757.19(2)(g)). Despite the inclusion of the “or it appears that” language which seems to call for an objective component in the inquiry, historical practice in Wisconsin is that the standard is to “place the determination of partiality solely upon the judge.” (State v. Harrell, 199 Wis. 2d 654, 664, 546 N.W.2d 115 (1996)). Thus, while the vast majority of judicial ethics scholars would argue that Wisconsin’s practice on this score is uniquely egregious, and perhaps even that Wisconsin courts have historically misread the Wisconsin law (by ignoring the appearance language), it does offer Justice Protasiewicz more than a fig leaf of cover.
(5) What of Republican Party of Minnesota v. White?
Protasiewicz selectively relies on Republican Party of Minnesota v. White in a self-serving, and not entirely credible fashion. While I happen to agree with her campaign trail statements about the Wisconsin redistricting (and recognize the extraordinary state and national stakes in the case) those statements were much stronger than the statements that were at issue in White. (She used words like “rigged” and “unfair” in describing the scheme). No, her statements didn’t rise to the pledge or promise (as opposed to announce) level, but there is also little doubt that that they come much, much closer than did the statements at issue in White. Would a rose by any other name effectively be a pledge or promise?
Justice Scalia’s opinion in White emphasized the distinction between announcing views on issues (copacetic) and parties (less so). Given the zero-sum game of a two-party system, and the zero-sum game of redistricting, it strains credulity to assert that the support of the Democratic Party of Wisconsin for Candidate Protasiwiecz, can truly be disaggregated from her forcefully stated opposition to the redistricting plan that, should it be upheld, would severely and intentionally disadvantage that same Democratic Party of Wisconsin. I.e., here it is entirely arguable that the “issue” and the “party” are, for practical purposes, one and the same.
(5a) Finally, Justice Protasiwiecz’ own subjective belief that she can magically transform from Candidate Protasiwiecz – who forcefully and repeatedly expressed clear hostility and opposition to the legislature’s redistricting scheme – to Justice Protasiwiecz – who is an ostensibly blank slate – highlights a fundamental tension of judicial elections.
To this end, she writes: “I simply expressed my personal opinions as permitted by [White]. When I put on my robe, I put my personal opinions aside.”
Necessary. And impossible.
The Wisconsin Supreme Court, in a 4-3 vote along partisan lines Friday, agreed to hear a challenge to Republican-drawn legislative maps after a newly elected liberal justice declined to recuse herself.
Justice Janet Protasiewicz’s decision to remain on the case increases the chance that Republicans, who control the Legislature and drew the maps, may proceed with the unprecedented step of impeaching her.
Assembly Speaker Robin Vos has threatened impeachment if she doesn’t step down. Vos had no immediate comment on her decision, saying he needed to first speak with his attorney.
Judge Protasiewicz’s 64-page opinion on recusal is here.
The Mississippi Supreme Court on Thursday struck down part of a state law that would have authorized some circuit court judges to be appointed rather than elected in the capital city of Jackson and the surrounding county, which are both majority-Black.
Critics said the law was an effort by the majority-white Legislature to stomp on voting rights and to treat Jackson and Hinds County residents unfairly in a state where most judges are elected.
In the ruling, justices affirmed a part of the law that creates a new court to hear misdemeanor cases in a part of Jackson that includes the state Capitol and other state government buildings.
In a decision that landed days before the 2022 midterms, the Pennsylvania Supreme Court ordered elections officials not to count any mail ballots on which a voter had forgotten to include a date or scribbled an incorrect one, even if those ballots arrived on time. It was a victory for Republicans who had challenged the state’s mail voting procedures, and voting rights advocates found thousands of Pennsylvanians whose ballots were tossed as a result.
The court was one vote short of ruling that rejecting these ballots would violate federal protections, and thus should be counted; it split evenly on that question, 3 to 3. The tie-breaking vote would have come from Max Baer, the court’s Democratic chief justice, but he had died just weeks before. His death weakened a court majority keen to protect voting rights, and his seat has remained vacant ever since.
Pennsylvanians in November will finally fill Baer’s seat, just one year before the 2024 presidential race. The result could substantially affect the future of election law in this key swing state, with new cases likely looming over mail voting, redistricting, and election certification.
Today the Brennan Center for Justice at NYU Law launched State Court Report, a nonpartisan website devoted to state constitutions and courts. It features commentary and analysis by a wide range of experts, including Judge Pierre Bergeron of the First District Court of Appeals of Ohio, former U.S. Attorney General Eric Holder, retired Chief Justice Bridget Mary McCormack of the Michigan Supreme Court, Cato Institute Senior Fellow Walter Olson, and University of Wisconsin Law Professor Miriam Seifter. State Court Report also offers a database of decisions and briefs from 550 significant state supreme court cases since 2021 across the fifty states, as well as materials from major pending cases.
“State courts and constitutions haven’t gotten the attention they deserve,” said Alicia Bannon, editor in chief of State Court Report and director of the Brennan Center’s Judiciary Program. “The need for more journalism and scholarship has only intensified as Americans are increasingly looking to their state constitutions to protect their rights. State Court Report will foster learning across state lines about this vast and vital part of American law.”
State Court Report tracks cases and emerging trends in state constitutional law, updating continually with news, new commentary from experts, and cases. The website is the first to bring these elements together in one place, allowing users to more easily follow new legal developments in the states and explore questions about constitutional interpretation that cross state lines. Already the website provides such analysis on a broad array of issues, with more to come: the environment, originalism, reproductive rights, elections, torts and liability, civil due process, criminal law, judicial selection, economic liberty, and civil rights.
In addition to the expertise of its contributors, State Court Report relies on an advisory board of law professors, retired state chief justices, and journalists for guidance: Hon. Tani Cantil-Sakauye, retired chief justice of the California Supreme Court; Sue Cross, Institute for Nonprofit News; Hon. Wallace Jefferson, retired chief justice of the Texas Supreme Court; Dahlia Lithwick, Slate; Hon. Bridget Mary McCormack, retired chief justice of the Michigan Supreme Court; Judith Resnik, Yale Law School; Daniel Rodriguez, Northwestern Law School; Kate Shaw, Benjamin N. Cardozo School of Law; and Robert Williams, Rutgers University School of Law….