http://www.jsonline.com/newswatch/119308059.htmlUpdated: April 6, 2011 9:59 a.m.
Assistant Attorney General JoAnne Kloppenburg took a very narrow lead over Justice David Prosser in the state Supreme Court race early Wednesday, after a hard-fought campaign
dominated by political forces and outside interest groups.
As of 9:45 this morning, the Associated Press had results for all but 5 of the state's 3,630 precincts and Kloppenburg had taken a 447 vote lead after Prosser had been ahead most of the night by less than 1,000 votes.
That close margin had political insiders from both sides talking about the possibility of a recount, which Wisconsin has avoided in statewide races in recent decades. Any recount could be followed by lawsuits - litigation that potentially would be decided by the high court.
The razor-thin result was the latest twist in Wisconsin's ongoing political turmoil. The state has drawn the attention of the nation in recent weeks because of the fight over a controversial law sharply restricting public employee unions, which caused massive weeks-long protests in the Capitol, a boycott of the Senate by Democrats and attempts to recall senators from both parties.
Interest groups on both sides had portrayed the election as a referendum on Gov. Scott Walker's agenda and particularly on the collective bargaining law. Conservatives backed Prosser, and liberals supported Kloppenburg, even though the candidates themselves insisted they were politically neutral.
Legal challenges to the new law - which would eliminate most collective bargaining for most public employees - are expected to reach the high court, but it's not clear if the justices would take up the case before this race's winner is scheduled to be sworn in Aug. 1.
In the contest for a 10-year term, Kloppenburg is trying to accomplish the rare feat of unseating a sitting justice. Michael Gableman defeated then-Justice Louis Butler in 2008, but before that it had been 41 years since an incumbent lost a race for a high court seat. Unlike Butler, who was appointed to the post, Prosser was elected to his current term.
Campaign managers on both sides were cautious in their statements as the lead seesawed back and forth between the candidates throughout the night.
Either candidate can request a recount once the votes have been officially canvassed. If the margin between the candidates is less than 0.5% - as it is likely to be in this race - the state charges nothing to conduct the recount. If the margin is between 0.5% and 2%, the candidate asking for the recount must pay $5 per ward.
Because of the closeness of the race, a Milwaukee election commissioner has asked police to guard ballots overnight. Robert Spindell, who sits on the city's Election Commission and is active in Republican politics, wrote in an email that he had made the request "until such time that a more formal procedure can be set in place."
From the start, the campaign has been a proxy war, driven by strong feelings about people who aren't on the ballot, issues that may come before the court and, above all, control of a court narrowly split between conservatives and liberals.
Much of that debate has been conducted by outside groups supporting one candidate or the other. Prosser and Kloppenburg both said they would rule impartially, although each disputed the other's ability to do so. And with both candidates accepting public funding and its limits on campaign spending, most television advertising has come from third parties.
The Brennan Center for Justice at the New York University Law School estimates
interest groups spent more than $3.5 million on TV ads, breaking the $3.38 million record set in the 2008 Gableman-Butler contest, with four conservative groups backing Prosser spending a total of 37% more than one liberal group backing Kloppenburg.
During the primary, all three of Prosser's opponents appeared to be running more against Gableman than against Prosser. It was Gableman's defeat of Butler that swung the court majority from 4-3 liberal to 4-3 conservative, with Prosser frequently - but not always - in the conservative bloc.
Gableman's victory also was controversial because of a misleading television ad he ran against Butler. The court deadlocked, 3-3, over whether he violated the judicial ethics code, with Gableman abstaining and Prosser siding with conservatives against disciplining him. Prosser's support of Gableman became a campaign issue.
In the general election, the focus shifted to Walker and his fellow Republicans, who control the Legislature. Anger against the bargaining law mobilized unions and their Democratic and liberal allies. Both sides seized on the nonpartisan court race, with unions urging support for Kloppenburg and conservatives backing Prosser.
As in 2007 and 2008, business groups spent heavily on ads backing the more conservative candidate, in this case Prosser, seeking to ensure rulings favorable to their interests. Kloppenburg was portrayed as soft on crime and overzealous in enforcing environmental laws.
Meanwhile, the liberal Greater Wisconsin Committee ran ads that played up Prosser's 2010 outburst against Chief Justice Shirley Abrahamson, leader of the liberal bloc - in which he called her "a total bitch" and threatened to "destroy" her - and his 1978 decision, as a district attorney, not to prosecute a priest later convicted of sexually abusing children.
Prosser, 68, served two years as Outagamie County district attorney and 18 years as a GOP state representative, rising to Assembly minority leader in 1989 and speaker in 1995. After Prosser lost a 1996 bid for Congress, Republican Gov. Tommy G. Thompson appointed him to the state Tax Appeals Commission in 1997 and to the Supreme Court in 1998.
Kloppenburg, 57, was an intern for Abrahamson while in law school, then a clerk for U.S. District Judge Barbara Crabb. At the state Department of Justice, she spent two years defending the state in civil rights cases, then 20 years as a prosecutor in the department's environmental unit, which she led from 1993 to 2003.
