In case you’ve been in a cave since mid-day Friday, the county-level canvasses of the election have been completed, and Justice David Prosser has a 7,316-vote (or a 0.4881-percentage-point) lead. The 3-business-day clock is running on challenger Joanne Kloppenburg’s and her campaign’s ability to ask for a recount of any or all of the wards in the state, with the costs to the counties being borne by the taxpayers as the margin is just under the 0.5-percentage-point cut-off. The word on the ether, or at least WISN-AM and the Jay Weber Show, is that the Kloppenburg campaign will have a press conference this afternoon, even though they do have until 5 pm Wednesday to inform the Government Accountability Board (Wisconsin’s state-level election authority) of their decision.
There are two choices the Kloppenburg campaign has at this point. They could decide to not ask for a recount, and let the pending GAB re-canvass be the final word. That would result in GAB announcing on May 15, the date assigned for the announcement, that Justice Prosser has won another 10-year term on the Supreme Court.
They could also decide to ask for a recount. It doesn’t matter how many or few wards they request, because, if they choose this path, the goal is not going to be to overcome the 0.4881-percentage-point lead Prosser has. No recent recount with at least 1.5 million votes at stake has resulted in a change of margin of more than 0.05 percentage points, even with a post-recount judicial challenge to boost the margin-of-change.
Assuming that the Kloppenburg campaign strategy is to “win” by any means possible, their goal, under this scenario, is to get a post-recount judicial appeal into what will amount to a kangaroo court, presided over by a reserve (retired, for those of you outside Wisconsin, and thus no longer accountable to the voters) judge appointed by Chief Justice Shirley Abrahamson, who has a thinly-veiled vested interest in a specific outcome. Their strategy will be to have declared, at a minimum, the city of Brookfield (which Waukesha County clerk Kathy Nickoulas forgot to report to the Associated Press on election night, but which was reported on the county-level canvass) incompetent to determine the affairs of
Wisconsin the Kingdom of Dane. Assuming no margin change in a recount, tossing out the city of Brookfield results woudl give Kloppenburg an 87-vote “lead”.
Of course, if the recount finds a further net gain for Prosser (after all, the county-level canvass found, not counting Brookfield, a net gain of 117 for Prosser over the election-night numbers collated by the AP), they might be forced to have declared the entirety of Waukesha County incompetent to determine the affairs of the Kingdom of Dane. Tossing the entirety of Waukesha County would give Kloppenburg a 52,000-vote “lead”.
Any state-level appeal would probably be pointless on its own as it would first go to the Madison-based 4th District Court of Appeals. They would be expected to uphold whatever novel “judicial finding” the kangaroo court creates out of thin air to justify disenfranchising either an entire municipality or an entire county. At best, since either Justice Prosser would need to recuse himself or the seat would be vacant pending a final disposition, a further appeal to the Wisconsin Supreme Court would result in a 3-3 deadlock.
However, whatever novel “judicial finding” the kangaroo court would create out of thin air would almost certainly invoke an equal protection claim a federal court could latch onto. I would expect that, no later than the 7th Circuit Court of Appeals, that claim would find a friendly judicial panel, and after tens of millions of dollars wasted under this scenario, the result would end up being what it is as of today – a Prosser victory.
The ball is in the Kloppenburg campaign’s court. I urge them to consider that, at the end of the day, they can’t win, and spare the state the pain and expense of a “by any means necessary” strategy.
Revisions/extensions (11:43 am 4/18/2011) - I swear that, while Kevin Binversie and I discussed the Butch Coolidge/Marcellus Wallace question, I didn’t crib from Kevin’s take (both his and mine are featured on this morning’s WisOpnion’s round-up). His close – “Because the worst fear the Kloppenburg legal team truly has, is not ‘losing’ a recount. It’s if Waukesha County is allowed to re-run its ballots through its machines again, and the numbers come out the same.”
Just as a reminder, if Kloppenburg opens the recount door, Prosser will be able to force a recount in any ward Klopenburg doesn’t have recounted before any judicial appeal. Given the last anybody heard of GAB’s investigation into Waukesha County was that the as-canvassed numbers from Brookfield were legitimate, one has to wonder if Kloppenburg wants to politically go down that road.