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Fair Courts E-Lert: Ousted Wisconsin State Supreme Court Justice Lifts Recusal from Voter Purge Case

This E-Lert highlights a Wisconsin Supreme Court Justice’s decision to un-recuse himself from a controversial voter purge case after election loss, a new report from Fix the Court on the transition of state supreme courts to remote oral arguments, and more.

Published: July 15, 2021

Ousted Wiscon­sin State Supreme Court Justice Lifts Recusal from Voter Purge Case After Losing Elec­tion

Justice Daniel Kelly, who lost his seat on the Wiscon­sin Supreme Court on April 7 to Jill Karof­sky, has indic­ated that he will parti­cip­ate in a pending case on over the state’s voter rolls before vacat­ing his seat in August.

Kelly initially recused himself from the case but signaled the possib­il­ity he might reverse that decision because the case would not be decided until after his elec­tion. In Febru­ary, a Wiscon­sin appeals court struck down a prior ruling that would have removed more than 200,000 voters from the state’s voting rolls. Kelly’s involve­ment in the case could swing the result in favor of the conser­vat­ive major­ity to purge voters.

Justice-elect Karof­sky wrote an op-ed, criti­ciz­ing the Wiscon­sin Supreme Court’s decision to hold the elec­tion and the U.S. Supreme Court’s require­ment that absentee ballots post­marked after elec­tion day would not be coun­ted as “being along partisan lines, with allies of Repub­lic­ans refus­ing to delay the elec­tion.” Karof­sky said that as a justice, she “will make decisions based on the law” and that “we must get away from a partisan view of the law.”

New Fix the Court Report on State Supreme Courts’ Trans­ition to Remote Oral Argu­ments

On April 17, Fix the Court released a new report look­ing at the trans­ition of state supreme courts to remote oral argu­ments in response to the Covid-19 pandemic.

Accord­ing to the report, 22 state high courts have heard remote argu­ments to date, 20 of which were livestreamed to the public, and 11 more plan to hold remote argu­ments over the next few weeks. Prior to the pandemic, 33 state supreme courts livestreamed video argu­ments, 10 livestreamed audio argu­ments, and the rest had a combin­a­tion of broad­cast­ing policies.

The report also found that 15 state high courts have livestreamed their argu­ments by video; five have livestreamed audio of their argu­ments; eight are expec­ted to livestream their upcom­ing argu­ments; three are expec­ted to release live or delayed audio for upcom­ing argu­ments; and the remain­ing 17 have either canceled argu­ments or have not yet announced whether they plan to hold argu­ments remotely.

For more details on how courts are respond­ing to the pandemic, the Bren­nan Center is compil­ing orders and announce­ments from state, federal, and immig­ra­tion courts across the coun­try.

Wash­ing­ton State Supreme Court Becomes the Most Diverse High Court in the Coun­try

On April 13, Governor Jay Inslee announced his appoint­ment of Pierce County Super­ior Court Judge G. Helen Whitener to the Wash­ing­ton State Supreme Court to fill the vacancy of retir­ing Justice Charles K. Wiggins. Earlier this year, Inslee made another historic appoint­ment with the elev­a­tion of Raquel Montoya-Lewis, the state’s first Native Amer­ican justice.

With Whiten­er’s appoint­ment, the Wash­ing­ton State Supreme Court became the most diverse high court bench in the coun­try. “I believe, as a margin­al­ized indi­vidu­al—be­ing a black gay female immig­rant disabled judge—that my perspect­ive is a little differ­ent” and that “having a judi­ciary that is reflect­ive of the community that it serves is truly import­ant in rais­ing trust and confid­ence in the [judi­ciary],” said Whitener shortly before her appoint­ment.

Accord­ing to an analysis by the Bren­nan Center, there are still 23 states with all-white state supreme court benches, includ­ing 12 states where people of color make up at least 20 percent of the popu­la­tion.