Editor’s Note: Joshua A. Douglas is a law professor at the University of Kentucky College of Law who specializes in election law, voting rights and constitutional law. He is the co-editor of “Election Law Stories” and is writing a book on positive voting rights expansions. Follow him on Twitter @JoshuaADouglas. The views expressed here are solely his.
The independent judiciary is under attack. Instead of willingly complying with recent election law rulings, Republican politicians in Pennsylvania and Wisconsin have sought to undermine the judges who issued decisions with which they disagreed, purely for electoral gain. These actions are an egregious attack on the separation of powers and the very legitimacy of the judicial branch.
In Pennsylvania, the state supreme court issued a lengthy decision holding that the state’s congressional redistricting map violated the state constitution by unfairly favoring Republicans. The map was a partisan gerrymander that essentially took away meaningful representation and the right to vote for many of the state’s citizens. The court’s decision was reasonable and thorough, based on a broad theory of how to interpret the state constitution.
The Pennsylvania Republicans’ response? Unsurprisingly, they appealed to the US Supreme Court. Equally unsurprisingly, the court refused to intervene in what was purely a state matter involving the state constitution.
Then the Republicans went for an even bolder move: impeach the elected Democratic justices on the state supreme court who ruled against them. That’s a blatantly partisan tactic to remove judges simply because the politicians disagree with a legal interpretation. The justices in the majority were not acting outside their authority, opining on policy or, as some might say, legislating from the bench. They were simply doing what judges always do: interpret and analyze constitutional text. That’s no sound reason to impeach them. Even the state’s chief justice, a Republican who was in dissent in that case, blasted the impeachment effort as “an attack upon an independent judiciary, which is an essential component of our constitutional plan of government.” The move appears to have fizzled, yet even suggesting impeachment because of an opinion that simply does not go the politicians’ way sends a dangerous message to the public about the courts’ role in ensuring fair and equal elections for everyone.
Republicans in Wisconsin also refused to comply with a judicial order that went against them, at least until they realized they were out of options. The case involved Gov. Scott Walker’s refusal to call a special election to fill vacancies in the state Legislature. Two members of the state assembly resigned their positions last December to join Walker’s administration, creating vacancies that require special elections to fill. But Walker refused to call those special elections, likely fearful of being caught in the Democratic wave that has carried recent special elections in other states. He tried to justify his actions by citing a state statute that says the governor must call a special election if a vacancy occurs “before the second Tuesday in May in the year in which a regular election is held.” His argument was that the vacancy occurred in December 2017, which is not technically “the year in which a regular election is held.”
State Judge Josann Reynolds, who Walker himself had appointed to fill a vacancy on the bench, ruled that this interpretation was “absurd.” The statute allows a vacancy to remain open until the general election only if the vacancy happens to occur close to an election, not a year in advance.
Yet Wisconsin Republicans did not initially comply with Reynolds’ decision. While appealing (and losing), they also drew up legislation that would prohibit the state from holding a special election in the summer of an election year, effectively undoing the judge’s decision. Former Attorney General Eric Holder, whose National Democratic Redistricting Committee helped bring the suit, said, “Even for Republicans in Wisconsin, this would be a stunning action to keep citizens from exercising their right to vote. They appear to be afraid of the voters.” Walker eventually did call the special elections for June, and the Republican legislators dropped their plan to change the law, but only after two more courts rejected Walker’s power grab.
What’s most stunning, however, is how Wisconsin Republicans actively sought to undermine the authority of the judge who issued the initial opinion. Assembly Speaker Robin Vos criticized her as an “activist” and claimed she had injected her “own personal opinion into how we conduct elections.”
“It’s something about the water” in “liberal” Madison, Wisconsin, Vos said. And instead of complying with Reynolds’ ruling as legitimate, Republicans crafted a plan to change the law to deny the citizens of these districts from having an election and any representation in the state Legislature. They only backed down after they lost their appeals and realized their new proposed law would invite further litigation, claiming they were “boxed in” by the courts’ rulings.
These actions by state legislators are unacceptable in a well-functioning democracy. The rule of law requires that all of us recognize the power of the judiciary to interpret constitutional text and legal rules and to accept those decisions, even if we disagree. Our elected leaders in particular have a duty to model proper behavior, upholding the sanctity of an equal branch of government. The answer to a judicial decision that finds one’s actions unlawful is to comply with the law, not to unduly attack the individuals who made the decision.
This approach is not without precedent, but it is still unsavory. In 2010, three Iowa state supreme court justices lost their seats in a retention election based on their ruling that legalized same-sex marriage. In 1986, California voters declined to retain three justices on the state supreme court largely because of their rulings to overturn death penalty sentences. The more recent actions this year are even worse because they have occurred not in the course of regularly scheduled judicial elections, but instead in direct response to legal decisions that the politicians simply don’t like.
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In the 1803 case Marbury v. Madison, the US Supreme Court famously said, “It is emphatically the province and duty of the Judicial Department to say what the law is.” The authority of a court to “say what the law is” derives from its legitimacy, or the notion that citizens will abide by its rulings. To sustain our democracy, we must not allow that legitimacy to remain under attack.
