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Wisconsin Supreme Court Race Too Close To Call, Recount Likely

Justice David Prosser speaks to supporters in Waukesha Wis., on Tuesday.
Justice David Prosser speaks to supporters in Waukesha Wis., on Tuesday.

It's the day after the election and the race for a Wisconsin Supreme Court seat that turned into a proxy battle between Republican supporters of Gov. Scott Walker and his Democratic and union opponents is still undecided at this writing.

In an ostensibly non-partisan race, Justice David Prosser, the Republican incumbent backed by conservatives, had a small lead over Democrat JoAnne Kloppenburg, the assistant attorney general who has union support. As of Wednesday morning, it appeared a runoff was inevitable.

Wisconsin Supreme Court candidate JoAnne Kloppenburg, addresses supporters in Madison on Wednesday.
Andy Manis / AP
Wisconsin Supreme Court candidate JoAnne Kloppenburg, addresses supporters in Madison on Wednesday.

Prosser led by a mere 835 votes in the statewide race, with 99 percent of the precincts counted, according to the Associated Press.

The state supreme court race has drawn national attention coming as it has amid the raucous political fight in the state over collective bargaining rights of public-employee unions that has pitted the Republican governor and GOP-led legislature against Democrats and organized labor.

(Wisconsin Public Radio reporter Shawn Johnson examined the race for All Things Considered listeners recently.)

While Walker and Republican lawmakers pass legislation to curb union negotiating rights over the objections of Democratic lawmakers, some of whom left the state for weeks to stall proceedings, the law has been blocked from going into effect by a lower court judge's temporary injunction.

With the likelihood that the state's supreme court will eventually decide the case, Tuesday's election took on greater significance.

The court race was also viewed by partisans in and outside Wisconsin as the next best thing to a referendum on Walker himself.

As such, it has drawn a great deal of money, much of it from beyond the Badger State's borders, for TV advertising.

The Brennan Center for Justice at New York University School of Law reported Tuesday that special interest groups spent $3.5 million on advertising in the Wisconsin high court race, between the primary and the general elections.

On the seven-member Wisconsin high court, Prosser frequently plays the role of Justice Anthony Kennedy on the U.S. Supreme Court, often, but not always, providing conservatives with a majority.

Prosser, 68, is a former Republican member of the Wisconsin assembly who rose to the post of speaker, then later served as a country district attorney.

His past service as a Republican lawmaker helped stir some of the fierce opposition to him in a state whose partisan lines are now sharply drawn.

Kloppenburg, 57, was a prosecutor for 20 years in Wisconsin's Justice Department's environmental unit.

As Larry Sandler and Patrick Marley of the Milwaukee Journal Sentinel reported, the current Wisconsin race isn't only a proxy for the fight between Gov. Walker and Democrats. There was also an element of payback for the hotly contested supreme court election in 2008.

A Republican ousted a Democrat then, shifting the court's balance from liberal to conservative.

Democrats were enraged by a controversially dubious ad Republican Michael Gableman ran in his successful race to win the court seat.

So the current race was a chance to get even, or better yet from Democrats' perspective, get back their court majority.

As the Journal Sentinel also reported, an elected position, a seat on the Wisconsin Supreme is usually fairly stable.

Just five Wisconsin Supreme Court justices have been unseated by challengers since the court was created in 1852 - Samuel Crawford in 1855; Robert M. Bashford in 1908; James Ward Rector in 1947; George R. Currie in 1967; and Butler in 2008.

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