The Wisconsin Supreme Court race remains undecided and the message from the race is unclear too.
One certainty from the race: Voters showed up. Almost 1.5 million Wisconsinites voted in the election, about a 70 percent increase from the historical norm.
Voters turned out in large numbers for the usually ignored Wisconsin Supreme Court race on April 5 because it had become a proxy battle over the legislation that curtailed the power of Wisconsin's public sector unions. Before the legislation passed, conservative Supreme Court Justice David Prosser expected an easy reelection over Wisconsin Assistant Attorney General JoAnne Kloppenburg, the liberal-backed candidate.
Kloppenburg initially held a paper-thin advantage over Prosser for the ten-year term, and she claimed victory. But the result remains too close to call. Updated numbers released Thursday, still unofficial, showed Prosser up by 40 votes out of almost 1.5 million votes cast. Either way, the margin will likely trigger a recount, something that Wisconsin hasn't experienced since 1989. The winner will determine control of the court: conservatives currently hold a 4-3 edge.
While Democrats sought to characterize the vote as a definitive rebuke of Republican Gov. Scott Walker, the high turnout and closeness of the vote demonstrated that Wisconsin is still a swing state and voters from both sides were energized. Still, only one incumbent Supreme Court justice has lost since Wisconsin instituted judicial elections 40 years ago, so Democratic voters were more energized in this case. In essence, the pendulum of voter favor has swung back: President Obama won Wisconsin by 14 points in 2008, Walker won Wisconsin by 5 points in 2010, and Prosser and Kloppenburg are dead even.
The results will likely be litigated, potentially ending up before the state Supreme Court. Even if Prosser loses, his term doesn't expire until August, by which time he may have already weighed in on the collective bargaining legislation that is making its way through the lower courts now. The court challenges to the collective bargaining law are based on the procedures used to pass it, and state legislators have promised that if the courts block the law over procedure, the body will simply pass the law again.
Kloppenburg effectively made her campaign a referendum on the collective bargaining issue, casting Prosser as a rubber stamp for Walker. Outside groups poured money into the race to underscore that point with slogans like "Prosser = Walker." Prosser and Kloppenberg could spend $300,000 each in their publicly funded campaigns, but outside groups spent at least $3.1 million on television ads for the race. Conservative groups ran ads on behalf of Prosser, too.
Prosser was at one time a Republican state legislator, but since he became a justice 12 years ago, the Wisconsin Law Journal analyzed his votes and determined that he was the least predictable of the conservative bloc on the high court.