Supreme Court Race Ends in Virtual Tie

MacIver News Service | April 6 2011

[Madison, Wisc…] With all wards reporting in Wisconsin, the unofficial election results indicate that Deputy Attorney General Joanne Kloppenburg leads Supreme Court Justice David Prosser by a margin of 204 votes, a gap so narrow the Associated Press declined to declare a winner in the contest.

The margin was .014 percent.

While the 72 counties reported their results throughout Tuesday night, the lead shifted wildly between the two candidates. Wednesday morning, Prosser was leading, but little by little Kloppenburg caught up and finally took the lead herself as wayward wards in Crawford, Dunn, Sauk and other counties were counted.

The narrow margin of victory guarantees a recount, a process that could leave uncertain the fate of the Wisconsin Supreme Court until June.

The election was billed by the Kloppenburg supporters as a referendum on Governor Scott Walker and his proposal to limit collective bargaining for public sector unions. Unions and their third-party groups invested heavily, looking for a powerful ally on the high court.

As soon as the occupation of the State Capitol began in late February, “Vote Kloppenburg” signs began appearing along side banners and placards protesting the changes in Wisconsin’s law governing collective bargaining.

Prosser lost Dane County, home to the State Capitol and tens of thousands of state workers, by nearly 85,000 votes.

Unable to block the Republican agenda on the legislative floor, Democratic lawmakers and their labor union allies have begun turning to the courts. Last month a Dane County Judge issued a Temporary Restraining Order, blocking publication of the law. The fate of the legislation is expected to remain in limbo until late May when Judge Maryann Sumi is expected to issue a ruling on the matter.

It is widely expected a variety of issues surrounding any law limiting collective bargaining will eventually wind up in front of the state Supreme Court after lower-court rulings are appealed.

The Court currently consists of 4 conservative leaning justices and 3 liberal leaning justices. If a recount propels Kloppenburg to the high court that balance would shift in favor of more liberal-leaning jurists.

County clerks have one week to submit signed certification reports to the State Government Accountability Board. The recount petition must be filed no later than 5:00 p.m. on the third business day following certification by the board of canvassers.

The recounts would then take place in each of the state’s 72 Counties and could take more than a month to complete.

Within five business days after completion of a recount, any candidate, or any elector when for a referendum, aggrieved by the recount may appeal to circuit court.

Chief Justice Shirley Abrahamson would then appoint the state judge who would hear the case if the loser of a recount in a statewide election goes to court over the outcome.

The appeal would be heard by a judge without a jury. Following filing of an appeal, the court must promptly hold a scheduling conference to adopt procedures permitting it to determine the matter as expeditiously as possible.

Within 30 days after entry of the order of the circuit court, an aggrieved party may appeal to the court of appeals. For statewide elections, any appeal would be heard by the 4th District Court of Appeals in Madison.

Any appeals of an appellate ruling would then be heard by the Supreme Court.

A statewide recount is not unprecedented in Wisconsin. In 1989 there was a recount of results of referendum question that would have amended the state constitution’s Uniformity Clause. The question initially failed by 654 votes. In that election 811,204 votes were cast, far shy of the nearly 1.5 million cast Tuesday. After the 1989 recount, the question failed by 1,089 votes, a swing of 435 votes.

Regardless of the outcome of the recount, Justice Prosser continues to serve on the high court until July 31st.