Jurisprudence

How Two Republican Judges Saved Their States From Plunging Into A Democratic Crisis

Trump fans marching to the Capitol on Jan. 6 holding signs that read Stop the Steal.
Protesters gather in front of the Capitol on January 6, 2021 in Washington, D.C. following Donald Trump’s Stop the Steal rally. Brent Stirton/Getty Images

This week, the Wisconsin and Ohio Supreme Courts approached the brink of partisan destruction—then pulled back, saved in each case by the courageous vote of a lone Republican justice. In Wisconsin, the court authorized the deposition of State Assembly Speaker Robin Vos, a ringleader of Republicans’ “fraudit” seeking to delegitimize President Joe Biden’s 2020 victory. In Ohio, the court threw out a partisan gerrymander that flagrantly violated a state constitutional amendment mandating fair maps. Both decisions were 4–3. And both highlight the immeasurable importance of state supreme courts—and their dwindling number of principled Republicans—as a firewall against subversion of democracy.

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Start in Wisconsin, where the GOP-controlled legislature has launched an assault on the legitimacy of the 2020 election results. After Biden narrowly carried the state, Vos—a staunch ally of Donald Trump—hired former Wisconsin Supreme Court Justice Michael Gableman to investigate the outcome. Gableman, a Republican conspiracy theorist, falsely claimed that Democrats had “stolen” the election, which he decried as “corrupt and unlawful.”

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Funded with taxpayer dollars, Gableman has issued sweeping and error-ridden subpoenas demanding mountains of documents from county clerks, state election officials, mayors, and IT departments as part of his illegitimate audit. Without any evidence, he has preemptively claimed this fishing expedition will prove Democratic malfeasance. Gableman has attempted to arrest the mayors of Green Bay and Madison, falsely claiming that they failed to cooperate with his probe. He hired a former official in the Trump administration, Andrew Kloster, who screamed at state officials and police officers while “observing” the ballot count on Election Day, falsely accusing them of fraudulent tabulation. Gableman’s “interim report” is loaded with unsubstantiated innuendo that the Wisconsin Election Commission, a bête noire of Stop the Steal activists, illegally rigged the election for Biden. (After the election, he publicly asserted that this bipartisan board had tried to “steal our vote” at a rally seeking to overturn Biden’s victory.)

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Gableman’s probe has been conducted in almost total secrecy, but Vos appears to hold some records that might pry open his black box. So the progressive government watchdog, American Oversight,  filed a lawsuit charging him with violations of public record law. The group also sought to depose Vos, a demand that he fought at the Wisconsin Supreme Court. On Tuesday, the court refused to halt his deposition, with Justice Brian Hagedorn, a Republican, joining the court’s three Democrats in a 4–3 vote. For good measure, Hagedorn penned a scathing concurrence explaining why Vos’ “obviously deficient petition” came “nowhere close” to meeting the legal standards for relief. “Our task is to decide disputes based on the claims raised by the parties, not picking sides and not preferring any particular outcome,” the justice wrote. “The rule of law compels no less.” His opinion was aimed not at Vos but at the three other Republican justices on the court, who voted to stop the deposition. In dissent, they argued that the court should have ignored the “obvious” deficiencies in Vos’ petition due to some hazy “weighty issues” and “constitutional principles.”

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Had the court sided with Vos, it would have become complicit in Gableman’s fraudit, bending the rules that apply to everyone else just to shield an elected official from public scrutiny. The Republican justices would have thrown the Wisconsin judiciary behind this disgraceful farce, damaging—perhaps permanently—the public’s perception of its legitimacy and neutrality. It is only by sheer luck that Hagedorn, a conservative through and through, turned out to be an ethical and independent jurist. He has occasionally sided with the liberals in cases with intense political overtones to save his own institution from partisan nihilism. On Tuesday, his vote spared the court from the permanent stain of collusion with election-fraud conspiracy theorists.

Shortly after Hagedorn brought his court back from the brink, another Republican justice—this time in Ohio—kept her own court from tumbling into the abyss. In a pair of 4-3 decisions issued Wednesday and Friday, the Ohio Supreme Court struck down a GOP gerrymander of the state’s legislative and congressional districts. Chief Justice Maureen O’Connor, a moderate Republican, cast the decisive vote against the maps, joined by the court’s three Democrats. The remaining three Republicans dissented. (One of the dissenters, Justice Pat DeWine, refused to recuse himself even though his father is Ohio Gov. Mike DeWine, who served on the redistricting commission and signed the maps into law.)

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What’s most astonishing about these cases is that they were close at all. In 2015, Ohio voters overwhelmingly approved an amendment to their state constitution that severely restricted partisan gerrymandering. The new law transferred redistricting power to a new bipartisan commission and imposed stringent standards on the process. Most notably, maps could not “be drawn primarily to favor or disfavor a political party.” And the amendment directed commissioners to align their maps in rough proportion with statewide preferences, as gleaned from the last decade’s election results. Over this period, Ohio voters’ preferences were about 54 percent for GOP candidates and 46 percent for Democratic candidates.

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The commission’s Republicans brazenly violated these rules. They produced maps that would have handed GOP lawmakers a veto-proof supermajority in the state legislature while giving Republicans 12 out of 15 congressional districts. The Republican-controlled legislature passed the new plans and DeWine signed them into law. A group of voters—along with the League of Women Voters of Ohio and the A. Philip Randolph Institute of Ohio—filed suit, arguing that the maps ran afoul of the new constitutional amendment that sought to abolish such extreme gerrymanders.

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Both decisions should have been unanimous. Instead, it fell upon O’Connor, joined by the three Democratic justices, to vindicate the Ohio Constitution. Incredibly, the three dissenters insisted that the anti-gerrymandering amendment did not actually empower the courts to rein in gerrymandering. Rather, they argued, the new rules were merely aspirational, asking the commission to “attempt” to draw fair maps while prohibiting the courts from checking their work. Incredibly, these dissenters also denied the self-evident partisanship of the new districts. And they had the audacity to accuse the majority of undermining “the integrity and good reputation of this court” for “generations” by “making a policy decision instead of looking only at the words of the Constitution.”

As O’Connor explained in two powerful concurring opinions, this imputation is nonsense. The dissenters deployed a “magician’s trick” to ignore the shameless bias of the maps, she wrote, and sought a hands-off approach that is not “supported by the language” of the Constitution. Indeed, O’Connor was so troubled by the GOP’s corruption of the new commission—and her colleagues’ eagerness to uphold their handiwork—that she urged voters to consider further reforms. “Readers should know that other models of the redistricting process exist,” she wrote, praising citizen-led commissions that “shift the power to redistrict away from partisan actors who have an incentive to gerrymander.”

Unfortunately, O’Connor must retire this year due to age limits. If she is replaced by another partisan Republican justice, the new majority may defang the Ohio Constitution’s anti-gerrymandering amendments, restoring the legislature’s ability to rig elections in their favor. Like Hagedorn, she has served as the sole justice holding her court back from chaos. This week’s decisions should remind everyone, and progressives in particular, that every seat on every court can make or break democracy.

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