Twenty-four hours ago challenger JoAnne Kloppenburg was looking at an all but certain recount of her razor-thin victory over incumbent Justice David Prosser in the Supreme Court race. Now that it's come to light that Prosser might take a thin but substantial lead due to a computer error in Waukesha County, Kloppenburg could be the one to trigger a recount. But one thing hasn't changed: both camps are lawyering up and have brought in the big guns.
Kloppenburg's campaign is working with Marc Elias, an attorney with Perkins Coie, a Washington D.C.-based firm with an office in downtown Madison. Elias is the same attorney who represented Democratic challenger Al Franken in his eight-month epic recount battle with incumbent Republican Norm Coleman. Franken eventually prevailed, winning his U.S. Senate seat by 312 votes.
Prosser has hired Ben Ginsberg, a Washington-D.C. attorney who played a prominent role in the 2000 Bush-Gore presidential recount effort in Florida. He was also part of the team that represented Coleman in his recount effort. Prosser has also retained Madison attorney Jim Troupis, and Dan Kelly, who is based in Milwaukee.
Melissa Mulliken, Kloppenburg's campaign manager, said the campaign first hired Perkins Coie months ago to file an amicus brief in a suit lodged by Wisconsin Right to Life over the state's new judicial campaign public financing law, which Right to Life says stifles free speech. Mulliken said Thursday the campaign "plans to continue to work with him (Elias)."
While the unofficial tally from Tuesday's election had Kloppenburg up by 204 votes, canvassing results Thursday have changed the vote tallies for both candidates, with the largest swing apparently going to Prosser.
Waukesha County Clerk Kathy Nickolaus announced Thursday afternoon that, due to human error, no votes were counted from the city of Brookfield.
Nickolaus worked in the Assembly Republican Caucus when Prosser was Assembly Minority Leader. Prosser left the Legislature nearly 15 years ago.
The Brookfield votes give Prosser a roughly 7,500 vote lead, though certification of votes by county officials around the state will continue Friday and likely through next week.
That lead, if it holds, could be a significant number. While Wisconsin does not have a law that automatically triggers a recount in slim victories, candidates do not have to pay for the recount themselves if the margin of victory is less than one half of 1 percent of the total votes cast. In the Supreme Court race, where 1.5 million votes were cast, less than 7,500 votes would have to separate the two candidates for the state to pick up the tab for the recount. Otherwise, there is a $5 per ward fee. The Government Accountability Board today said there are between 6,900 and 6,970 wards in the state, which would put the total at a maximum of $34,850, a manageable sum for either candidate and likely a fraction of the legal costs that a recount would entail.
Under state law, only the candidates themselves can request a recount.
The Supreme Court race, which has been framed by Democrats and liberal groups as a referendum on Gov. Scott Walker, especially his move to eliminate nearly all collective bargaining rights for most public workers, sparked an unusually high voter turnout for a spring election and a record $3.5 million in spending on attack ads by outside interest groups. With much at stake in the outcome, another round of fundraising is already under way in anticipation of a recount challenge.
"We need your help in preserving a victory for Justice David Prosser," reads Prosser's campaign website. "The likely next step is a recount, requiring resources to protect the integrity of the ballots cast and deliver a win."
Mulliken said both campaigns met with officials from the state Government Accountability Board Wednesday and again Thursday morning to clarify fund-raising guidelines.
The certification process, which follows every election held in the state, began at 9 a.m. Thursday in each of the state's 72 counties. It must be completed by April 15. Kevin Kennedy, director of the Government Accountability Board, said he suspected most of the votes would be canvassed as soon as Friday or early next week. The GAB then has until April 15 to certify the election results.
Once certified by the GAB, a candidate has three days to request a recount. So while that means a request for a recount is still several days away, attorneys could "inject themselves at anytime," into the process, said Kennedy.
If a recount request is made, the GAB would issue an order that counties begin recounting ballots simultaneously across the state. Observers would be able to challenge ballots, which would then be set aside for further review, Kennedy said. Once counties finish recounting their ballots, the final numbers would again be sent to the GAB.
Any dispute of the recount results must first be made in circuit court, Kennedy said. Under state statute, Chief Justice Shirley Abrahamson would then assign a reserve judge to hear the case.
"There is no way to know what court that would be at this point," Kennedy said.
An appeal could then advance to the Fourth District Court of Appeals. State statute does not explicitly state whether the Court of Appeals' finding can then be appealed to the state Supreme Court. Disagreement exists in the legal community on this issue, Kennedy said, but it is his understanding that it can.