Walker's Second Victory

Legal troubles may be over for Wisconsin's hotly contested government union legislation.

In what is viewed as a victory for Governor Scott Walker and his attempt to limit the power of government unions, it appears incumbent David Prosser has defeated challenger JoAnne Kloppenburg in the race for a seat on Wisconsin's state supreme court. Angry state Democrats fought vigorously to turn the supreme court race into a referendum on Walker's legislative maneuvers, but their efforts now appear to be a lost cause. More importantly, Prosser's victory will preserve the conservative tilt of Wisconsin's supreme court, paving the way for the controversial union legislation, currently facing legal challenges, to be enacted into law.

Judge Prosser's margin of victory was 7,316 votes out of nearly 1.5 million cast, which provides Ms. Kloppenburg the right to challenge the results, as state law allows for such if a candidate's margin of victory is less .5 percent of the vote. Mr. Prosser's edge was 0.488 percent. The Wisconsin Government Accountability Board (GAB) won’t certify the results until a recount is completed, or Ms. Kloppenburg declines the opportunity to have one conducted. She has until April 20th at 5 pm to make up her mind.

Last Monday, Prosser declared himself the winner. "A funny thing happened to me on the way to my concession speech," he said. "The people of Wisconsin told me to tear it up, and go back to work." The concession to which Mr. Prosser was referring involved the victory speech given by Ms. Kloppenburg the day after the election, when it was initially reported that she had prevailed by 204 votes. "You know the numbers show that we won, and we are gratified to have that victory in hand," said Ms. Kloppenburg at the time. Those tallies, however, were unofficial, and it was the official vote that defeated Ms. Kloppenburg. Because of the substantial difference in the current totals, Mr. Prosser made it clear he considered a recount unnecessary. "Admittedly the election was uncomfortably close," Prosser said. "My opponent ran a very effective campaign. But now that all 72 counties have completed their canvasses, the result of the election is not in doubt."

Prosser campaign advisor Brian Schimming was even more direct: "We don't feel that there is a need for a recount," he said. "The largest number of votes--statewide--that's ever been turned around is 489 votes, and we are now at 7,316? So we really don't see the need for a recount right now. It would be enormously costly, and there's just no evidence there to suggest that a recount's needed." Melissa Mulliken, Kloppenburg's campaign manger, refused to reveal her candidate's intentions. "State statute clearly contemplates recounts when the margin is less than one-half of 1 percent, as it is in this case," she said.

The vote turnaround occurred when Waukesha County Clerk Kathy Nickolaus reported on April 7th that, in her initial count, she had omitted 14,315 votes from the city of Brookfield which she had failed to save on her computer. The GAB investigated, but Democrats demanded an expansion of that investigation, citing a 2006 attorney general race in which the results showed 174,047 votes, but only 156,804 ballots cast. Yet Kevin Kennedy, director of the GAB, while conceding that there was "negligence in the way things were handled on Election night," reported that the board hasn't found any evidence of vote fraud. Mr. Kennedy added that they were already looking into 2006, explaining that the vote discrepancy then was the difference between votes scanned by Wisconsin's voting machines and those that were hand counted. Less widely reported about the current election was a correction in the county of Milwaukee, where 409 votes were added for Prosser and 398 for Kloppenburg, a net gain of 11 votes for Prosser. That discrepancy was due to the fact that two wards on Milwaukee's south side had reported totals for absentee votes only.

As most Americans know, this race was the latest chance for Wisconsin voters to weigh in on that state's attempt, led by Governor Walker and the Republican-controlled state legislature, to restrict the collective bargaining power of the state's government unions solely to wages, and eliminate mandatory dues collection. That effort led to weeks of protests, the flight of 14 Democrat legislators from the state in order to prevent a vote on the issue, a torrent of hate mail and death threats directed a Republic state legislators, as well as a disturbing letter sent to a local businessman by union members demanding he rescind his support of Governor Walker or face a boycott.

Unsurprisingly, as reported by the Brennan Center for Justice, a record amount of spending on television ad campaigns was underwritten by "special interest groups" whose focus was largely centered on negative and attack ad campaigning. The center also notes that only Pennsylvania has spent more on state supreme court elections between 2007-2011.

The reason the Prosser-Kloppenburg race was so important has to do with the current makeup of the state supreme court. As it is currently composed, the seven member court reportedly leans 4-3 to the conservative side of the ledger, including the incumbent and presumably re-elected Prosser. Prosser was appointed to the court in 1998 after serving 18 years as a Republican in the state legislature. Kloppenburg is an assistant state attorney general who, according to Bloomberg.com, "has given money to Democrats." Thus, a win for Kloppenburg would have ostensibly tilted the court in the opposite direction.

The critical context here is the fact that Dane County Circuit Judge Maryann Sumi issued a stay against the results of the legislation curbing government union rights, not because of the law's content, but because Democrats contend Wisconsin's Open Meetings Law was violated. "It seems to me the public policy behind effective enforcement of the open meeting law is so strong that it does outweigh the interest, at least at this time, which may exist in favor of sustaining the validity of the [law]," Sumi wrote in mid-March. On April 14th, Judge Sumi dismissed one of three lawsuits filed against the new legislation by Democratic County Executive Kathleen Falk, who can't litigate because state law forbids an agency or arm of government from challenging the constitutionality of state laws. Two other suits, one by the Dane County district attorney regarding the open meeting statute, and one filed by firefighters and other government union workers are still pending. Governor Walker has asked the state supreme court to resolve these issues -- hence, the importance of the election between Prosser and Kloppenburg. The court itself remains non-committal on whether or not they will take the case at this juncture.

In a related vein, sixteen members of the state legislature, eight Republicans and eight Democrats, have been targeted for recall votes by citizens alternately angry with Republicans for passing the legislation curtailing union power, and with Democrats for fleeing the state to prevent a vote. Of the sixteen, two Republicans and four Democrats are likely to withstand any challenge, while the rest are uncertain.

Prosser's virtual victory represents the latest in a string of defeats for government workers in Wisconsin who have refused to concede the reality that elections -- and state budget shortfalls -- have consequences. And while there may be some people who believe Republicans went too far with respect to curtailing the rights of government workers, much of that resistance is likely to dissipate: the state's non-partisan Legislative Fiscal Bureau said Governor Walker's proposed budget would put the state's finances "in the best shape they've been in for more than 15 years." In a country wracked by economic uncertainty, due in large part to uncontrolled government debt, that bit of reality may be the winningest argument of all.

Arnold Ahlert is a contributing columnist to the conservative website JewishWorldReview.com.