“Contumacy” is an archaic word used mainly in legal settings. It is defined as the “stubborn refusal to obey or comply with authority, especially a court order.” There are few occasions when “contumacious” is the appropriate adjective to describe an actor’s conduct, but it perfectly describes the conduct of both the Alabama legislature and defendant Donald Trump.
As explained below, the Alabama legislature and Donald Trump have flouted the rule of law by “stubbornly refusing to obey” orders issued by federal judges, for which they should be rebuked and punished. But there is an uncomfortable truth (for them) lurking beneath their contumacious conduct: They are frightened. They see the day of reckoning approaching—which they fear more than the wrath of angry judges armed with judicial sanctions.
In their respective efforts to suppress equal voting rights for Black Americans and avoid a lengthy prison sentence, the Alabama legislature and Trump have concluded that their best path forward is to flat-out disobey the law—damn the consequences! That is contumacy: raw, unbounded disobedience to the laws that are the foundation of civil society. Contumacy has become the business model for the GOP as it fights a rear-guard action to hang onto power it can longer legitimately claim in a representative democracy. It is a sign of weakness and desperation for the GOP. And, counter-intuitively, it is a sign of hope for Democrats that the day of reckoning for the minority ruling party is fast approaching. Let’s take a closer look.
Alabama redistricting proposal is (again) declared illegal.
In 2022, the US Supreme Court upheld a lower court ruling that the Alabama congressional districts violated Section 2 of the Voting Rights Act. The Court agreed that the Alabama districts were the product of racial gerrymandering designed to deprive Black voters in Alabama of a second “opportunity” district “in which Black voters either comprise a voting-age majority or something quite close to it.” See the US Supreme Court’s opinion in Allen v. Milligan (10/04/22). The Court ordered the Alabama legislature to redraw the congressional district maps in a way that created a second opportunity district.
The Alabama legislature drew new maps that again failed to create a second opportunity district as ordered by the Supreme Court. Voting rights advocates filed another suit against the Alabama legislature. On Tuesday, a three-judge panel rebuked the Alabama legislature for its contumacy and ordered a special master to create congressional districts that complied with the Supreme Court’s ruling in Allen v. Milligan. The district court’s order is here: Singleton v Allen | Injunction, Opinion, and Order.
The three-judge panel was unsparing in its criticism of the Alabama legislature’s contumacy:
We have now said twice that this Voting Rights Act case is not close. And we are deeply troubled that the State enacted a map that the State readily admits does not provide the remedy we said federal law requires. We are disturbed by the evidence that the State delayed remedial proceedings but ultimately did not even nurture the ambition to provide the required remedy. And we are struck by the extraordinary circumstance we face. We are not aware of any other case in which a state legislature — faced with a federal court order declaring that its electoral plan unlawfully dilutes minority votes and requiring a plan that provides an additional opportunity district — responded with a plan that the state concedes does not provide that district.
As explained by Mark Joseph Stern in Slate, the Court also criticized Alabama for attempting to create a situation in which its serial contumacy will be rewarded by the permanent denial of a second opportunity district for Black voters. See Mark Joseph Stern in Slate, Alabama is learning the dangers of defying the Supreme Court.
As explained by Stern:
Alabama Republicans, however, treated the Supreme Court’s ruling as a mere suggestion. After a pointless delay, the Legislature enacted a map that contained the same flaws as the old one. . . . Alabama’s chief argument at this stage is that every time the Legislature redraws a map, courts must throw out their prior analysis and restart the case afresh. Moreover, according to the state, courts must permit elections under the challenged plan while mulling each redrawn map. And if a court strikes down a new map, it must put its ruling on hold for any upcoming races. It must also wait for the Legislature to draw a substitute map before imposing its own, even if the Legislature drags its feet in a bid to run out the clock to the next election. The court found this position not just unpersuasive, but unconstitutional. . . . Alabama seeks to create “an endless paradox that only it can break, thereby depriving plaintiffs of the ability to effectively challenge and the courts of the ability to remedy.” States cannot transform voting rights litigation into an “infinity loop” that only they may stop.
Alabama plans to appeal the ruling of the three-judge panel directly to the Supreme Court. Let’s hope that the Supreme Court summarily rejects Alabama’s petition for review. Otherwise, the Court will be rewarding Alabama’s bad-faith refusal to abide by a lawful order of the US Supreme Court issued last October.
[Robert B. Hubbell Newsletter]
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Wisconsin Republicans seek to nullify election
September 7, 2023
ROBERT B. HUBBELL
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.
[Robert B. Hubbell Newsletter]
