The Battle of Madison Spreads to the Courts

A too-close-to-call election for a Wisconsin supreme court seat turns into a partisan proxy war

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Republican Wisconsin State Legislatures look on as Wisconsin Gov. Scott Walker performs a ceremonial bill signing outside his office at the Wisconsin State Capitol on March 11, 2011 in Madison, Wisconsin. Gov. Walker signed his controversial budget repair bill into law on Friday as angry pro-union activists continued to demonstrate at the Wisconsin State Capitol.

The hand-to-hand combat over new rules limiting the power of public unions in Wisconsin didn't end when Governor Scott Walker signed them into law on March 11; it merely changed venues.

The new law is headed for a challenge at the state's supreme court later this year.

Which is why the election for the court's swing vote on April 5 turned into such a bloody proxy fight for special interests from around the country — as well as Wisconsin's closest race for an elected justice in over 40 years.

Two months ago, incumbent state supreme court justice David Prosser, who often casts the deciding 4-3 vote for the court's conservative bloc, beat moderate assistant attorney general JoAnne Kloppenburg in an open primary vote, 55% to 25%. (Wisconsin Supreme Court races are non partisan; under law, the two top vote-getters compete in a final run-off.) When the votes in their April 5 runoff were counted, the outcome had flipped: Kloppenburg, 57, led Prosser, 68, by 204 ballots out of nearly 1.5 million cast. State election officials were still counting on April 6.

It had been clear for weeks that the runoff was going to be something of a national re-enactment of Wisconsin's long midwinter battle in the rotunda. The Brennan Center at New York University Law School calculated that interest groups spent a record $3.5 million on TV ads during the race, with Prosser's supporters outspending Kloppenburg's nearly 2 to 1. Prosser's camp ran ads portraying Kloppenburg as soft on crime, while Kloppenburg's backers dug up Prosser's decision as a district attorney in 1978 not to prosecute a priest who was later convicted of sexually abusing a child.

Serving 10-year terms, Wisconsin's elected justices rarely lose their races for re-election; the last time it happened was in 1967. If Kloppenburg prevails, it may lead to a weakening of the controversial measure that limits collective bargaining by public employees. If Prosser pulls it out, it is more likely that Walker's reforms will survive intact. State law allows either candidate in a contest this close to ask for a recount, which means the Battle of Madison is almost certain to continue for weeks.