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Wisconsin high court race yields mixed results

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TODD RICHMOND
April 9, 2011
— When a little-known liberal challenged a conservative Wisconsin Supreme Court justice, the once-sleepy race suddenly looked like a backdoor way for Gov. Scott Walker's opponents to sink his agenda.

Then a clerk discovered 14,000 unrecorded votes that vaulted the incumbent into the lead. Experts said the results represented a draw for the governor: He didn't lose, but the slim margin means he didn't win big, either. And the close contest could help ensure Walker's opponents stay energized for the next round.


The outcome also improves the odds that Walker's collective bargaining law would survive a legal challenge before the high court. Yet it falls short of a clear public endorsement of the governor's policy.


The conservative "didn't win by the margin everyone expected him to win by," said University of Wisconsin-Green Bay political science professor Michael Kraft. "If I were Walker, I wouldn't be saying everything is just dandy and people love me."


Only a short time ago, Justice David Prosser had been expected to coast to another term after 12 years on the bench.


In February, he emerged from a four-way primary with 55 percent of the vote, far ahead of JoAnne Kloppenburg, an assistant state attorney virtually no one had ever heard of. She came in a distant second with 28 percent, setting up an uphill run against Prosser in the general election.


Then outrage over Walker's plan to strip public workers of nearly all their union rights reached a crescendo. Tens of thousands of people converged on the state Capitol for three weeks of nonstop protests, and minority Democrats in the state Senate fled to Illinois to block a vote.


Republicans in the Legislature eventually passed the plan without Senate Democrats, and Walker signed it into law last month. The law is bogged down in multiple legal challenges, though, and has not taken effect.


Democrats and Kloppenburg supporters worked to tap into the anger surrounding the measure. They hoped electing Kloppenburg would tilt the state Supreme Court to the left, increasing the chances that the justices might eventually strike down the law.


They attacked Prosser as a Walker clone and sought to tie him to the governor's aggressive budget-cutting agenda. At first it looked as if the strategy had worked.


Kloppenburg's campaign surged, and voter turnout in Tuesday's election shattered expectations. Unofficial returns initially showed Kloppenburg with a 204-vote lead out of 1.5 million votes cast.


Then Waukesha County Clerk Kathy Nickolaus who worked under Prosser when he was a Republican legislator announced Thursday she had failed to record 14,000 votes. Those ballots put Prosser ahead by 7,500 votes.


Nickolaus said she made an honest mistake. Still, state election officials dispatched staffers to the county to review Nickolaus' procedures and confirm the results.


On Friday, county clerks across the rest of the state were still verifying their numbers, too. Final results may not be known for days. Kloppenburg did not concede defeat and began raising money to cover the cost of a potential recount.


Prosser said it would be difficult for Kloppenburg to find another 7,500 in a recount. He said the election wasn't about Walker or collective bargaining, even though many people wanted it to be.


"I think it was about electing me to the Supreme Court," Prosser said.


A Walker spokesman echoed Prosser, saying the governor has consistently described the Supreme Court race as being about judicial qualifications, not a referendum on his policies.


If Prosser's lead holds up, the Supreme Court's conservative majority would remain intact. It's impossible to say for sure whether the bloc would uphold the law, but a Prosser victory would, at the very least, give the measure a better chance before the high court.


"This is a win for the right over the left. Had Kloppenburg won, it would have been a significant victory" for Walker's opponents, said University of Wisconsin-Milwaukee political scientist Mordecai Lee, a former Democratic state lawmaker.


"Now the Supreme Court as the sort of last stop for opponents has become a mirage. There's no point in getting there," Lee added.


Still, Kloppenburg's strong showing against an entrenched incumbent demonstrates that the divide over Walker's agenda remains as stark and deep as ever.


The election didn't deliver a clear endorsement of Walker's policies, but it didn't hurt him, either, said UW-Madison political scientist Ken Mayer.


"If Kloppenburg had won, you could have read that as pushback," Mayer said. "If Prosser had won 85 percent to 15 percent, you could have said, 'Yeah, that is evidence of the rest of the state pushing back against the pushback.'"


The mixed results make it hard to "draw any firm inferences about the fate of Scott Walker from this election," Mayer said.


The fight over collective bargaining now shifts to the efforts to recall some lawmakers. Walker isn't eligible to be recalled until January, after he has served a full year in office, but signature-gathering drives are under way against eight Republican and eight Democratic state senators.


Even though it appears Kloppenburg lost, her performance will probably inject more energy into the anti-Republican efforts and make it easier to gather signatures. On the other hand, both sides have been energized for months already.


Walker's clear goal is "to reshape the political landscape," Mayer said. "That's why emotions are running so high."



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