Wisconsin Recount Means Billable Hours Boost For Madison’s Lawyers

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Wisconsin election officials are still in the process of certifying Tuesday’s unofficial 204-vote victory by assistant attorney general JoAnne Kloppenburg over incumbent state Supreme Court justice David Prosser, but already the state is bracing for a recount.

As I wrote for the magazine yesterday, the vote became a proxy for the battle over governor Scott Walker’s March 11 law restricting public union organizing. That law is likely headed to the closely divided court later this year. With Prosser making up the fourth vote in the court’s 4-3 conservative block, and Kloppenburg backed by union groups from around the country, the normally placid Supreme Court election fight got ugly.

For those who want to understand where the battle goes next, the Milwaukee Wisconsin Journal Sentinel, an outstanding local paper, has a good run down of the coming events here.

Whatever margin officials certify after canvassing the initial count of nearly 1.5 million ballots, the loser is almost certain to call for a recount as doing so costs the contender nothing if the difference is less than 0.5% of the vote (the unofficial count has the two candidates 0.01% apart).

If the recount remains close, as seems likely given the margins, there is the possibility of legal challenges. As the Journal Sentinel discovered in the statute, the “exclusive judicial remedy” to a challenge to the recount is as follows. The chief justice of the Supreme Court, Shirley Abrahamson, appoints a reserve judge to hear the case. As it turns out Abrahamson figured in the recent election, as Prosser’s opponents aired some intemperate personal remarks he made about her.

The reserve judge’s decision can be appealed to the state’s appellate court and eventually up to the Supreme Court. Prosser would have to decide whether to recuse himself. A 3-3 split would uphold the appellate court.

All of which may be taking place at the same time that challenges to the public union law makes its way through the courts towards the supreme court. Happy days for Madison-based state appellate lawyers!

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