The puzzling argument that Shirley Abrahamson was elected to the position of Chief Justice and has a federal right to keep it.

Wisconsin Chief Justice Shirley Abrahamson has sued in federal court, asserting that her federal constitutional rights have been violated by the new amendment to the Wisconsin Constitution that provides for the Wisconsin Supreme Court Justices to elect their chief. Under the old provision, article VII, section 4(2) of the Wisconsin Constitution, "The justice having been longest a continuous member of said court.... shall be the chief justice," and Abrahamson has been chief justice since 1996.  She had been elected (to a 10 year term) in 1979 and 1989, so she became chief justice in the middle of her second term. The people did not elect her chief justice. We only elected her justice. Someone becomes chief justice by the operation of section 4(2), but the people elected that individual under section 4(1), which says:

The supreme court shall have 7 members who shall be known as justices of the supreme court. Justices shall be elected for 10-year terms of office commencing with the August 1 next succeeding the election....

I don't see how, under the old provision, there was any election to the position of chief. And, as noted above, Abrahamson originally took on the position in 1996, midway through her second 10-year term. Now, I want to focus on paragraphs 41, 42, and 44 in the complaint in Abrahamson's federal court case:

41.  Plaintiff Abrahamson was subsequently reelected as chief justice by popular vote in 1999 and 2009, earning ten-year terms of office in each of those elections. She campaigned extensively and expended substantial resources for reelection on the theme of the administrative work she had done as chief justice and continuity in the chief justice position.

The expression "reelected as chief justice" isn't quite right. In the election previous to her 1999 election, in 1989, Abrahamson could not possibly be said to have been elected to the position as chief since she didn't become chief until 1996. But more important, in all of these elections, she was running under section 4(1), which says only that "Justices shall be elected for 10-year terms of office." I'm not seeing any reference to "as chief justice." The chief justice role falls upon the justice who has the greatest seniority, by virtue of section 4(2), which is separate from the section about elections, 4(1).

Paragraph 41 also says that Abrahamson chose to stress her accomplishments and leadership as chief justice, when she campaigned for reelection in 1999 and 2009, but I don't see how her chosen campaign theme could transform the election into an election to the chief justice position, rather than simply an election as a justice, where there was an assumption that the method of selecting the chief would remain the same. Paragraph 42 continues with this notion that the campaign's theme determines the scope of the power of the office people are voting to fill:

42.  In the most recent election, which took place April 7, 2009, her campaign committee was called the �Chief Justice Shirley Abrahamson Reelection Committee,� and her campaign advertising ended with the tagline, �Wisconsin�s Chief,� attached as Exhibit C, making it clear to voters that a vote for her was a vote to continue her in the office of chief justice.  She campaigned extensively and expended substantial resources for reelection on that theme of continuity in the chief justice position and would not have sought reelection if there was a question about whether her reelection would retain her in the office of chief justice. She also cast her vote in that election to support her continuation as chief justice. Plaintiff Abrahamson won that election on April 7, 2009 with more than 59 percent of the vote.

Note that there is also the assertion that she wouldn't have run for office if she had thought it was possible to be deprived of the position of "chief." That's interesting to know, but it's hard to see how that disempowers the people from amending the constitution to change how the position of chief is determined. Abrahamson counted on being chief, and she wouldn't have deigned to run for a fourth 10-year term if it didn't come bundled with leadership of the group of 7 justices. But so what? Why would her hopes and expectations  � or the hopes and expectations of the people who voted for her � limit our power to amend the constitution? Do those who get elected to office somehow lock in the existing scope of their power? That's a strange notion in itself, but it's even stranger to suggest that the answer to that question would depend on whether you touted a particular aspect of your power in your campaign rhetoric!

44.  As a result of the successful campaign conducted under the backdrop of the seniority rule then contained in article VII, section 4(2) of the Wisconsin Constitution, Chief Justice Abrahamson and her political supporters had the settled expectations that she would continue to serve as chief justice until the end of the term to which she had just been elected, which ends on July 31, 2019.

I don't see how "the backdrop of the seniority rule" in section 4(2) changes the nature of the election provided for in section 4(1), which is an election to the position of justice, not chief justice. There was an expectation that the section 4(2) would remain the same, but I don't see how you can pump that expectation up into a federal constitutional right and deprive the people of the power to change section 4(2).

Abrahamson's argument is that the change to section 4(2) should apply only prospectively and that she has a right to continue in the position until the end of her term in 2019. The argument is based on her rights and the rights of those who voted for her (some of whom are also plaintiffs). She's saying it would violate Equal Protection "by diluting and debasing the value and meaning of the votes" that were cast for her in 2009. And she's claiming that it violated her Due Process rights. (With the chief position comes an extra $8,000 added to the regular salary of a justice, which is $147,403.)

A big problem with filing this case in federal court is that there is a state law question as to whether the amendment to section 4(2) applies immediately. She could win on that state law ground and that would avoid the federal constitutional law question. That is, quite obviously, a reason for the federal court to abstain, since it can't give an authoritative interpretation to the state law question. Federal courts engage in this form of abstention � Pullman abstention � out of respect for the authority of state courts, and yet here is a state supreme court justice invoking the federal authority. I find that very strange indeed. And yet, it seems clear that the state's chief justice wouldn't want to submit to the authority of her own state's courts, where she doesn't see herself commanding a majority. If she did, she could simply accept the amendment to section 4(2) and keep the position of chief because her fellow justices would vote to have her as their chief.

And why wouldn't they? What an affront to take the chief position away in the middle of the venerable justice's term!

ADDED: Someone in the comments asked what the ballot looked like in the 2009 election. But think about it: The ballot could not possibly have denoted the election as an election for chief justice because the opponent in that election wouldn't have assumed the position of chief justice. He would have been the furthest from the position of greatest seniority and the last in line to be chief under section 4(2). The vote had to be only for justice. Nothing else makes sense.