Consistency on WI Recount

There appears to be news from Wisconsin today that the initial election results were affected by a computer error, hiding some 7 thousand votes for incumbent David Prosser. This changes the math a little bit, putting him ahead by nearly six thousand votes. We'll see if there were other errors across the state in reporting, so the numbers could still move quite a bit.

Regardless of the outcome for the court, I am doubling down on my call for the loser of the election to forgo filing for a recount. A judicially overseen recount of a judicial election is a nightmare scenario for the perceived impartiality of the courts. Judges would be in the position of choosing their coworkers and bosses, inviting an already elite heavy institution to become downright oligarchic. The possibility of recounts is a major bug of the elected judiciary, but not an inescapable one. In Wisconsin's case, Kloppenburg could simply dismiss any evidence of fraud or mistakes, deciding not to file for a recount.

There is a bigger question for Kloppenburg, or any loser of a close election: does a recount secure accuracy of democratic results in elections? I find little evidence for the affirmative. If any real grounds for a recount are present, they could be ferreted out by journalists. The competitive search for shocking stories of fraud and abuse will drive enough inquiry into the matter. Would such an outcome leave the public without recourse? Of course not; political pressure would force any illegitimately elected official from stepping down. Recount procedures could quickly be put in place for the removal of intransigent officials.

Nobody who survived the 2000 election recount and abrupt court-ordered end to vote counting can trust courts to always decide political matters with a modicum of fairness or impartiality. That is precisely the lesson of the political question doctrine. Let political actors sort out the political. Vote counting is a technocratic field, not a suitably legal endeavor. If improprieties exist within the state vote counting apparatus, the legal system should involve themselves insofar as prosecuting offenders. The judicial branch has a few comparative institutional advantages to the political branches, but not when it comes to presiding over elections.

Prosser v. Kloppenburg

The Wisconsin Supreme Court election which pitted conservative incumbent David Prosser against Joanne Kloppenburg is heading towards a recount, which is a nightmare scenario for the perception of the judicial branch as an impartial mediator. Courts are typically involved in overseeing election recounts as candidates file legal challenges to the execution of the recount, which can at times deviate from the stated recount procedures. These lawsuits are an integral part of close elections, no less important or legitimate as campaigning.

With nearly 1.5 million votes cast for either candidate, only 204 ballots currently separate Prosser and Kloppenburg, with the challenger coming out narrowly ahead.

There is no automatic recount in Wisconsin; Prosser would have to ask for a recount. Because the total separating the candidates is less than .5% of the vote however, the state will pay for the recount of ballots. Prosser will be allowed to pick and choose wards to recount, though there is also nothing to prevent Kloppenburg from lodging a similar recount request in wards that she believes undercounted her votes. The most important thing about filing a recount in Wisconsin is that there must be specific grounds for believing that a count in a particular ward or municipality are mistaken or fraudulent. Because the recount petition is filed with an administrative body and not a court, there does not seem to be a fact-finding stage of the process to determine the validity of the grounds for recount. However, this is certainly a stage of the recount where the court is likely to be brought in. If Prosser files a recount alleging fraud or mistakes on poor evidence, Kloppenburg may go to the courts to enjoin the recount of districts where the evidence of irregularities is not sufficient.

I say that this is a nightmare scenario for the perceived impartiality of the courts in Wisconsin because such a legal challenge would undoubtedly be appealed up to the Supreme Court within a matter of weeks if not days. The Supreme Court cannot pretend to be impartial. It is a group of nine people working closely together. They certainly have professional and personal biases against or for either candidate, and with any electoral issue before them, the court would be able to choose between retaining Prosser or firing him and gaining Kloppenburg. Even in non-political arenas, this would be an impossibly sticky situation for the judges. Imagine that at your work place, your immediate team and hiring and firing power over a coworker. It's a coworker that at has publicly called your team leader a "total bitch." Judges are idealized to take into account only the issue before them, but petty office politics could easily win the day when the judges retreat to their chambers to come up with a decision.

My point is not that Prosser is doomed if his case comes before the Supreme Court.