Wisconsin Republicans seek to nullify election

September 7, 2023

          As I noted yesterday, the reactionary efforts of the Alabama legislature to disobey an order from the Supreme Court betray fear and desperation. The Alabama GOP can see the day when its death grip on minority rule will end. So, too, with Wisconsin Republicans, who are considering nullifying the recent election of Justice Janet Protasiewicz to the Wisconsin Supreme Court by an 11-point margin. Republicans in the Wisconsin Assembly are planning to impeach Justice Protasiewicz and then allow her trial on the impeachment charges to languish forever in the Republican-controlled Wisconsin Senate.

          Why?

          Answer: Because impeachment by the assembly automatically suspends Justice Protasiewicz pending her trial in the Senate. (The Wisconsin Constitution provides, “No judicial officer shall exercise his office, after he shall have been impeached, until his acquittal.”) If a trial after impeachment never occurs, Justice Protasiewicz is permanently suspended based on the unilateral action of Republicans in the Wisconsin Assembly. That perverse abuse of the state’s constitution will nullify the votes of 1,021,822 Wisconsinites. See CNN, Wisconsin GOP weighs moves to sideline elections chief and liberal Supreme Court majority.

          On what grounds will Justice Protasiewicz be impeached? Like the threatened impeachment of President Biden, the grounds for impeachment are pesky details to be supplied later. The impeachment effort is gaining steam even though Justice Protasiewicz has yet to rule on a single case. But the court’s docket includes two lawsuits that challenge the nation’s most egregious partisan gerrymandering that has given Wisconsin Republicans a permanent, corrupt stranglehold on the state legislature.

          Justice Protasiewicz rightly campaigned on a pledge to “restore democracy” and reproductive freedom to Wisconsin—pledges that sent Wisconsin Republicans into a testosterone-fueled rage that may cause them to worsen their already precarious situation. The election of Justice Protasiewicz was a warning sign to Wisconsin Republicans that their days are numbered. Overruling the sweeping mandate granted to Justice Janet Protasiewicz will accelerate the day on which Republicans lose power.

          The situation is Kafkaesque. Republicans seek to nullify an election by wielding the corrupt power of a gerrymandered legislature whose composition is a continuing violation of the Wisconsin and US constitutions. Do the citizens of Wisconsin have any remedy?

          Yes.

          Wisconsinites can pursue several remedies simultaneously. None are completely satisfactory, but taken together, they will hasten the demise of the Wisconsin GOP.

          First, the Wisconsin Democratic Party is mounting an ad campaign to pressure Republicans to stand down from nullifying the election. See Fox News, Wisconsin Democrats launch $4M ad blitz targeting GOP lawmakers considering impeachment of new liberal justice. Many readers of this newsletter made a personal investment in Justice Janet Protasiewicz’s campaign—by writing postcards, phone banking, and donating to her campaign. If you are interested in helping the Wisconsin Democratic Party to protect Justice Protasiewicz’s victory, check out this website: Democratic Party of Wisconsin (wisdems.org).

          Second, all parties with standing to sue the Wisconsin legislature or the state of Wisconsin should do so ASAP. The partisan nullification of an election denies the citizens of Wisconsin a right explicitly granted in the US Constitution: “The United States shall guarantee to every State in this Union a Republican Form of Government.” US Const., Article IV, Section 4. The remedy to be requested is simple: If the legislature impeaches Justice Protasiewicz, it must try her promptly. Holding her in limbo by denying a trial in the Wisconsin Senate is despotic. In candor, the US Supreme Court has consistently refused to hear suits based on the Guarantee Clause (because such suits allegedly present “political questions”). But if ever there is a clear-cut case of a legislature acting in a “despotic” manner, it is one in which the legislature refuses to give effect to a lawful election in the state.

          Third, the people of Wisconsin must make their voices heard through peaceful, persistent protest. Massive protests will demonstrate the future political costs of nullifying the election and may encourage businesses to pressure Wisconsin Republicans to stand down. But if protests are not enough, Wisconsinites should take a page from the civil rights era: General strikes, walkouts, and boycotts that shut down businesses, government offices, and schools in Wisconsin. The latter is a drastic remedy, but if the prevailing rule of governance in Wisconsin is “Elections are given effect only when Republicans win,” it is time for the citizens of Wisconsin to reclaim their right to self-determination.

The televised hearing in Georgia.

          The first hearing in the Georgia RICO case against Trump and others was televised on Wednesday. It was wonderful on many levels. First, the televised hearing gave the public its first glimpse of Judge Scott F. McAfee—a 34-year-old judge who has been on the bench for ten months. That glimpse was reassuring. Judge McAfee was smart, prepared, fair, and decisive. We can’t expect much more. It appears that the defendants and the people of Georgia will receive a fair trial under the supervision of Judge McAfee.

          Second, the hearing previewed the prosecutors and defense counsel, most of whom acquitted themselves well. All were respectful and rational, though the defense arguments were weak and unsupported by case law. Prosecutors had the law on their side and cited it frequently.

          Third, Judge McAfee raised concerns about the logistics of trying seventeen defendants in a trial that prosecutors estimate will last four months. See WaPo, Georgia prosecutors in Trump election case estimate four-month trial. The case seems like a procedural nightmare, but Judge McAfee’s inclination to assign groups of defendants into manageable trials is a good sign.

          Finally, Judge McAfee ruled from the bench. He correctly denied the motions of Ken Chesebro and Sydney Powell to sever their cases. McAfee’s decisiveness is a good sign that the complicated case will be handled with dispatch and firmness. Good!

The environment and climate change.

          President Biden is continuing to deliver on his pledge to protect the environment. See The Guardian, Biden to cancel oil and gas leases in Alaska issued by Trump administration. Per The Guardian,

The US Interior Department has canceled seven oil and gas leases in Alaska’s Arctic National Wildlife Refuge that were part of a sale held in the waning days of the Trump administration, arguing the sale was legally flawed.

Interior Secretary, Deb Haaland, said with her decision to cancel the remaining leases, “no one will have rights to drill for oil in one of the most sensitive landscapes on earth”.

          The lands are still subject to future leases, which must be put out to bid in 2024 under existing law. To prevent future drilling in the Arctic National Wildlife Refuge, Congress must change the law. Yet another reason to retake the House, maintain our majority in the Senate, and reelect Joe Biden.

          News about climate change is frequently grim. There are some bright spots that can give us hope. See Amanda Shendruk in Washington Post, Opinion | After hottest summer, climate data shows path toward optimism.  The author asks, “How can people avoid hopelessness?” in the face of charts filled with red lines that spike ominously upward. Shendruk then writes,

Christiana Figueres, the architect of the Paris climate accord, offers one solution. She calls it “stubborn optimism” — a dissatisfied, gritty, determined confidence that humanity can bring about needed change in the face of great challenges. It’s a necessary precursor to action, and adopting this attitude requires shifting focus from the past to the future.

Crucially, this doesn’t require ignoring reality or becoming complacent. Stubborn optimism calls for work toward solutions.

          Shendruk then presents a series of charts that show progress made in the fight against human-caused climate change. Check out the article linked above (which is accessible to all). The final chart in the article demonstrates the projected decrease in emissions in the US as a result of the Inflation Reduction Act, with the following explanation:

Passed by the Biden administration a year ago, the Inflation Reduction Act is the most significant piece of U.S. climate legislation to date. The law has shifted the trajectory of U.S. emissions toward a net-zero pathway — and moved the future a little farther away from an alarming red line.

          We can’t change the past, but we can control our actions in the future. Do not give in to despair but hold onto the “stubborn optimism” that we can slow and reverse the effects of two centuries of carbon emissions.

Citizens of Colorado file lawsuit to disqualify Trump from ballot under Section 3 of the 14th Amendment.

          Many legal commentators have argued of late that Trump is disqualified from holding the office of the presidency because he engaged in insurrection on January 6th (and before). I agree with that conclusion. I disagreed with the notion that Section 3 of the 14th Amendment is “self-executing,” i.e., that secretaries of state can unilaterally exclude Trump from the ballot under Section 3. I believe that challenging Trump under Section 3 requires due process—in a civil or criminal proceeding.

          Citizens of Colorado have just filed a suit seeking to keep Trump off the ballot in that state by invoking Section 3 of the 14th Amendment. The complaint is here: Anderson v Griswold. The suit was filed with the assistance of Citizens for Responsibility and Ethics in Washington (“CREW”).

I wholeheartedly agree with the approach of filing lawsuits to enforce Trump's disqualification under Section 3. The complaint lays out substantial evidence demonstrating that Trump “engaged in” insurrection and knowingly aided, abetted, and incited the insurrection. If you don’t have time to read the entire 103-page complaint, check out the table of contents, which sets forth a detailed guide to Trump's disqualification.

          The defendants in the lawsuit are Trump and the Colorado Secretary of State—a Democrat. I assume that the Secretary of State will stipulate to the relief requested, forcing Trump to defend another lawsuit.

          CREW intends to file similar lawsuits in other states. See CREW press release, Lawsuit filed to remove Trump from ballot in CO under 14th Amendment.

          This is a positive development in the effort to enforce the disqualification of Trump. The lawsuit is backed by a leading citizens’ rights advocacy group with top-notch counsel. The case will make its way to the Supreme Court with an evidence-rich record. Posturing the challenge in this way maximizes the prospects for success. If you are interested in donating to support the work of CREW in this endeavor, check out its website: CREW | Citizens for Responsibility and Ethics in Washington.

          As a reminder, we must let the lawyers mount these challenges without being distracted from beating Trump at the polls. There will be more suits, some of which will bring disappointment (at least initially). For example, a federal judge in Florida summarily dismissed a lawsuit in Florida challenging Trump under Section 3. The judge ruled that the plaintiff—a private citizen—lacked standing. See AZ Central, Judge dismisses 14th Amendment lawsuit against Trump on Florida ballot.

Federal judge says Trump raped E. Jean Carroll, grants partial judgment in her favor.

          In E. Jean Carroll’s second defamation lawsuit against Trump, the federal judge who presided over the first case ruled that Trump raped E. Jean Carroll, as that term is commonly used, and granted partial judgment in E. Jean Carroll’s favor. The case will now proceed to trial on the issue of damages for defamation. Trial has been set for January 15, 2024, in Manhattan. E. Jean Carroll was awarded $5 million against Trump in her first trial. See Business Insider, Trump Raped E. Jean Carroll, 2nd Trial Will Only Cover Damages: Judge.

          The second trial will remind voters that Trump has been found liable for sexual abuse—described by Judge Kaplan as rape—as the 2024 primary season begins. Moreover, Trump will be required to devote time to another trial, distracting him from his bid for the GOP nomination. Trump has been notably absent from the campaign trail, a fact that may be irrelevant to the GOP nomination but may affect the general election.

Focusing on upcoming elections in Virginia.

          On November 7, 2023—this year—every seat in Virginia’s state House (and Senate!) is up for re-election. Virginia will be crucial to protecting the integrity of the 2024 presidential vote—and constraining Virginia Governor Glenn Youngkin’s reactionary agenda. We can thwart the GOP by flipping the House of Delegates and strengthening our slim majority in the Senate.

          Join Dan Pfeiffer, Senior Advisor to President Obama and Pod Save America co-host, will explain what’s at stake in Virginia and nationally this November and what we can do about it.

          Details: Tuesday, September 12, at 5:00 PM Pacific / 8:00 PM Eastern. Register here: Back to Blue: “Reclaiming the Virginia State House this November.”  

          Also, for a terrific summary of what’s at stake in the Virginia elections, I highly recommend this video from Politics Girl, The Next Big Election - YouTube. I learned a lot by watching this video. You will, too!

Concluding Thoughts.

          I’ve covered a lot of ground in today’s newsletter. Almost every issue underscores the importance of electing Joe Biden—because of his policies, accomplishments, and character. We cannot afford the luxury of doubts or false hopes. Joe Biden is our candidate—and he is objectively a great choice. Compared to the competition, electing Joe Biden is a matter of national urgency.

          Talk to you tomorrow!