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. After all, working with somebody can be an experience that binds you with them, helps you give them the benefit of the doubt. The Supreme Court simply cannot take up this case; it affects the professional interests of everybody else on the Supreme Court, and the Court itself should recuse itself.

But lower courts, too, must work with the professional guidance that the Supreme Court decisions provide, and in a broader sense, any Wisconsin judge is working fairly closely with Prosser on the bench. His shadow sits on each judge's shoulder as they consider whether a particular argument or course of reasoning will resonate upon appeal. Because his presence on the bench changes the strategic choices available to each judge while writing an opinion, each judge also has a stake in his retention or replacement.

The courts must stay out of the recount, but the recount cannot be fair without court supervision. Candidates would have no recourse against illegitimate moves by the recount staff, local precinct officials, or the Wisconsin board of elections. Holding these forces accountable is precisely why courts are ideal avenues for complain in a recount process. Courts do an excellent job at focusing on an issue, discovering the facts of the matter, and making an authoritative judgment on the law of the matter at hand. The process of review, where campaigns watch each ballot vigilantly and protect the integrity of the election, grants the legitimacy of the recount. Without the check of the courts, the recount is no more authoritative than the initial count.

So inevitably the recount must find its way before a partial, self-interested judiciary. The only way to prevent such a nightmare for the Wisconsin Courts is for Prosser to not file a recount petition.