Results matching “wisconsin supreme court”

My election prediction - PointOfLaw Forum

72 hours from election day! Who's going to win?

Nate Silver says that "For Romney to Win, State Polls Must Be Statistically Biased." I think this is correct. Silver's model has Obama at a 83.7% favorite, and that is likely to turn into a 90-95% favorite by election day the way his model works. Silver's argument for Obama being a favorite: he's ahead in Ohio, and if he's ahead in Ohio, he's substantially more likely to reach 270 electoral votes. This is also correct.

That said, I do believe that there is a substantial chance that the state polls are a biased prediction of where election day results turn out. Because the 538 (and Princeton) model rely so heavily on the assumption that the state polls are unbiased, if the state polls are biased, then the 538 and Princeton models will also be biased. (Note that "bias" is a neutral statistical term; it does not mean that the pollsters are conspiring to favor Obama, just that their likely-voter model is producing results that overestimate his standing.)

1) Polls have historically had a bias against Republicans relative to how election day turns out. Silver disputes this; I've explained why his analysis on that question might be wrong before. On the other hand, the 2012 polls may have fixed this problem.

2) Polls have historically had a bias overestimating the performance of sitting presidential incumbents. There's certainly a counterargument against this. On the other hand, perhaps Kerry's failure of a 2004 bounce reflects the offsetting bias against Republicans. On the other other other hand, perhaps the 1980 and 1996 collapses by Democratic incumbents from their polling positions reflect the distortion caused by a relatively strong third-party candidate, plus Clinton's 1996 decline might simply reflect a reversion to the mean. But if undecideds break 75-25 against Obama, that's a 1- or 2- point shift relative to the polls.

3) The state poll toplines, which is all that the 538 and Princeton models use in their calculations, show enormous advantages for Democratic turnout in state races, advantages greater than even Obama realized in 2008. I think that this is very likely an error that, if corrected for, will show material change. There are many many reasons to think that the Democratic advantage of 2008 will be weaker or nonexistent in 2012, when Obama won 53-46 nationally (and Ohio by 4.6 points).

(a) Obama leads Obama voters only 84-13. Now, some 2008 McCain voters have died or won't vote for Romney; some 2012 Obama voters will be new voters; some 2012 Obama voters will be 2008 McCain voters; that 84-13 may well turn into 90-10 on election day. But it's hard to see where the improvement in D turnout is going to come from when so many Obama voters are disaffected.

(b) Independents overwhelmingly favor Romney, by 20 points in some polls. It's implausible that independents have swung so wildly, yet Democrats are more enthused and more likely to turn out than Republicans. Some, such as Josh Marshall, have posited that the makeup of independents has been changed because disaffected Perot/Tea-Party/Paulite conservatives have left the Republican party. Dan McLaughlin's counter-argument strikes me as stronger. Even under Josh Marshall's calculation of voter ID, D+7 among "all adults" should not translate into a 2012 that is better than 2008 for Democrats: Republicans are more likely to vote; Republicans are more likely to vote for Romney than Democrats for Obama (especially given the shift in Catholic opinion since 2008); and Marshall necessarily concedes that the independent vote will be less pro-Obama than in 2008. And I don't believe Josh Marshall's claim that the current makeup of all adults is D+7.

(c) McCain intentionally hamstrung his campaign in 2008 with unilaterally disarming self-abnegating campaign-finance limitations, next to no on-the-ground spending for get-out-the-vote efforts ("GOTV"), and wasting money on such tactics as a national ad congratulating Obama on winning the nomination. This undoubtedly made McCain feel better about himself, but meant that the GOP had a historically unprecedented disadvantage in GOTV. Even with the supposed 2012 Obama advantage in field offices (which neglects the fact that GOP turnout efforts are largely volunteer), Romney is doing comparatively better in 2012 than McCain did in 2008, which is the relevant comparison for whether the state polls are accurately predicting that Democratic turnout advantage will be higher in 2012 than in 2008.

(d) Some polls show Republicans more excited about this election than Democrats; others show the excitement level about even. But even taking the latter polls as an accurate metric, the relevant comparison is again versus 2008, where the Democrats had a huge excitement advantage. If the Democrats are going to outperform 2008, which they have to achieve the slim lead they achieved in 2008 given the shift in independents, they need to be more relatively excited than in 2008. They're not.

(e) The Obama campaign is assuming turnout will be 72% white; polls are assuming turnout will be 74% white. But there's a strong argument that turnout will be more like 75% white. Whites favor Romney by about 61-39; non-whites Obama about 80-20. This would be a shift of 0.8% relative to the polls.

(f) Reports about early voting are mixed, with National Review and Battleground Watch reporting relative advantages for Romney versus 2008, and Democrats claiming otherwise. This election will likely have a record percentage of early voters, and it's hard to say to what extent that reflects cannibalization or improved turnout. We'll disregard this as ambiguous.

The Princeton model takes the state polls at face value; Nate Silver has made a decision to have the 538 model disregard each of these factors and assume that the polls are as likely to be biased for Obama as for Romney. Thus, there is a substantial chance that the 538 and Princeton models are reflecting a house effect. GIGO: garbage in, garbage out. McLaughlin's post on the subject is a must-read; so is Kevin Holtsberry on Ohio; Michael Barone makes the aggressive case for Romney.

All that said, if I had a gun to my head the morning of November 3, I would rate Obama a slight favorite, with about 60% to 40% chances, a movement from the tossup I suggested on Twitter. (I'm not going to succumb to the fake precision of Nate Silver's model and suggest I can forecast with three significant digits.) Why?

(1) Each of the effects I mention above are overlapping to some extent. You can't add them up to say that the polls are biased by seven points. And Obama has some lead in the state polls, plus has more favorable electoral-college scenarios than Romney in a close election: the so-called "firewall." Thus, I could be right about three, four, or even all seven of those points about state-poll bias, and it still might not add up to enough of an effect to put Romney over the top.

(2) I have to recognize that there's some chance that I'm suffering from confirmation bias, looking only at the data that favors my preferred result, and that I'm wrong. Nate Silver is spending a lot more time thinking about the election and polls than I am, and it's more likely that he's seeing things that I'm not than I'm seeing things he's not; maybe if I were to try to duplicate his efforts, I would end up with a model that was closer to his than my current thoughts are. I thus have to discount my thinking that Romney is doing better than Silver thinks. I think partisans on both sides have been silly about Silver, with some Democrats treating him as infallible to the point that a challenge of Silver is a challenge of scientific truth, and some on the right being simply innumerate in their attacks on Silver. Still, occasionally Silver lets the mask slip and makes a statement that's pretty close to mine about the unpredictability of the election and the chances his model is wrong.

(3) There are pollsters who do take the effects I mention into consideration somewhat; in particular, Rasmussen is very aggressive in doing so. But even Rasmussen shows an election that is close to a tossup, with Obama having more "outs" in the electoral college than Romney. And I think there is a reasonable argument that Rasmussen is too aggressive in its likely-voter model.

(4) A certain number of intangible factors favor Obama. Hurricane Sandy changed news coverage dramatically in the last week of the election: a disaster brings Americans together, lets a president seem presidential, and, in this particular case, provides a conscious or subconscious reminder of Bush administration incompetence. Moreover, every minute spent on dramatic Sandy stories is a minute the news isn't spending on Obama administration failures in the economy, in energy policy, in deficit reduction, in Libya. It's hard to think that the double-standard of "fact-checking" that more harshly (and often incorrectly) scrutinizes Romney claims than Obama claims doesn't have some effect on undecided voters.

(5) What am I supposed to think about Romney throwing $12 million into Pennsylvania at the last minute? Pennsylvania has consistently voted more Democratic than the rest of the nation. It's hard to imagine a scenario where Romney wins Pennsylvania but doesn't win Ohio and/or 270 non-Pennsylvania electoral college votes. The Pennsylvania U.S. Senate race doesn't seem particularly close. There are four possibilities: (a) the Romney campaign sees a real "undertow" election, and legitimately thinks it can get meaningful coattails in Pennsylvania; (b) the Romney campaign is panicking, and throwing a Hail-Mary in Pennsylvania because it doesn't think it can get to 270 without it; (c) the Romney campaign has more money than it can spend efficiently, and is throwing money at Pennsylvania as an expensive feint to divert Obama campaign resources; (d) the Romney campaign doesn't know what it is doing or inefficiently hoarded money. If one assigns Bayesian probabilities to each of those scenarios, that doesn't look good for Romney.

(6) Finally, the way that Romney (and American Crossroads) are running campaigns suggests some problems as well. The Romney campaign feels that it has to play defense on things where Republicans are correct (such as the Lilly Ledbetter Act); it is affirmatively trumpeting protectionism instead of defending free markets. American Crossroads is blanketing Virginia with advertising attacking Democrats from the left for Medicare and education spending cuts. Romney hasn't made the Supreme Court an issue at all in the campaign. I'm clearly not the swing voter who is being targeted by these ads, and perhaps they reflect an attempt to dampen Democratic turnout. But it's hard not to think that Romney doesn't think he can win the election by selling conservative and free-market ideas. That has longer-term consequences even beyond what it says about the 2012 election.

We'll find out on Tuesday night or late Wednesday morning. That said, it's important to realize that this election is only one data point, and in the absence of an unexpected 55-45 landslide one direction or the other, the election will not be proof or disproof of any particular model of forecasting elections.

My swing-state predictions:
Likely Romney: FL, NC
Lean Romney: CO, VA
Too close to call, slight lean Obama if I have to choose: OH
Lean Obama: IA, WI
Likely Obama: MI, NH, NV, PA
Solid Romney: The other McCain 2008 states, IN, Nebraska 2nd District
Solid Obama: The other Obama 2008 states

Thus: Either 281-257 Obama or 275-263 Romney. Note, though, that the electoral-college scenarios generally favor Obama. Obama can lose WI or IA if he wins OH; if Obama wins IA and WI, he only has to win one out of CO, OH, and VA to get to 270. Note further the small chance of a Romney popular victory and Obama electoral college victory, especially if New York/New Jersey turnout is depressed.

Because of this electoral-college firewall, if the leaning states were really independent toss-ups, Obama would have a much better than a 50-50 or 60-40 chance of winning. In fact the errors are going to be correlated, it's unlikely that Obama wins Virginia and Colorado but loses Wisconsin and Ohio, and my 60-40 estimate reflects a certain chance that Silver/Wang is completely right, a certain chance that I'm right or partially right, a small chance that Rasmussen is completely right and I'm being overconservative, and a very small chance that the state polls are completely wrong and we're seeing an undertow election like Barone and Domenech think.

(Updated to add links, fix typos, and add specific swing-state predictions.)

Update, November 4: One more reason to be a bit more skeptical of the polls.

Jarrett Dieterle
Legal Intern, Manhattan Institute's Center for Legal Policy

The Supreme Court's 2010 decision in Citizens United v. Federal Election Commission, which prevented the government from restricting political expenditures by corporations, caused much Sturm und Drang among some politicos who predicted the decision would allow corporations to disproportionately influence the outcomes of elections.

Lost in the resulting firestorm was analysis of labor union's electoral influence through their political activity and spending, which was also uncapped as a result of the Citizens United decision. Labor unions have long been required to disclose their expenditures on federal elections to the FEC; data disclosing union spending on local elections, however, is not required by the FEC. To unearth local union political expenditures, the Wall Street Journal analyzed data from the Labor Department that includes information on unions' participation in local elections. The result is that total labor union spending on politics is four times as high as previously estimated:

The usual measure of unions' clout encompasses chiefly what they spend supporting federal candidates through their political-action committees, which are funded with voluntary contributions, and lobbying Washington, which is a cost borne by the unions' own coffers. These kinds of spending, which unions report to the Federal Election Commission and to Congress, totaled $1.1 billion from 2005 through 2011, according to the nonpartisan Center for Responsive Politics.


The unions' reports to the Labor Department capture an additional $3.3 billion that unions spent over the same period on political activity.

The costs reported to the Labor Department range from polling fees, to money spent persuading union members to vote a certain way, to bratwursts to feed Wisconsin workers protesting at the state capitol last year. Much of this kind of spending comes not from members' contributions to a PAC but directly from unions' dues-funded coffers. There is no requirement that unions report all of this kind of spending to the Federal Election Commission, or FEC.

The Journal report also discusses the different ways in which corporations and unions spend on the political process:

[C]ompanies use their political money differently than unions do, spending a far larger share of it on lobbying, while not undertaking anything equivalent to unions' drives to persuade members to vote as the leadership dictates.


Corporations and their employees also tend to spread their donations fairly evenly between the two major parties, unlike unions, which overwhelmingly assist Democrats. In 2008, Democrats received 55% of the $2 billion contributed by corporate PACs and company employees, according to the Center for Responsive Politics. Labor unions were responsible for $75 million in political donations, with 92% going to Democrats.

For perspective, less than 1 percent of Super PAC money that has been spent thus far during the Republican nominating campaign has come from publicly traded companies.

What's in the water in Wisconsin? - PointOfLaw Forum

Left-wing thuggishness is disturbingly common there, and not just in the recent unsuccessful union demonstrations to protect their special-interest privileged status from taxpayers.

  • I'm not particularly surprised that the math shows that the University Wisconsin undergraduate and law schools racially discriminate against whites: such racial discrimination is a matter of course in higher education, and I'm surprised that there aren't more entrepreneurial conservative activists taking this sort of thing on in the courtrooms instead of just writing op-eds. What surprises me is the brazenness with which students and administrators violently shut down a press conference on the subject, and how the left defends such violations of freedom of speech. [CHE (with great link roundup); see also OL]

  • "[O]n September 16, [University of Wisconsin-Stout (UWS) theater professor James] Miller placed a new poster on his office door in response to [the university's] censorship. The poster read 'Warning: Fascism' and included a cartoon image of a silhouetted police officer striking a civilian. The poster mocked, 'Fascism can cause blunt head trauma and/or violent death. Keep fascism away from children and pets.'" The university demanded he take that poster down because of the reference to "violent death." FIRE is on the case.
  • Why hasn't Wisconsin Supreme Court Justice Ann Walsh Bradley faced any discipline for making false allegations against a fellow justice? [Blaska]
  • Meanwhile, though Governor Scott Walker won a victory for taxpayers against unions, the victory may only be termporary. In previous rollbacks of excessive union benefits—even rollbacks caused by bankruptcy, patient unions just waited for a future friendly government, and got those same excessive benefits restored retroactively. [Greve @ Fed Soc]

Around the web, August 26 - PointOfLaw Forum

  • Yet another study debunking the vaccine-autism link myth, this from National Academy of Sciences. [WaPo]
  • Also not a surprise: no criminal charges in Justice Bradley's claim of being assaulted by Justice Prosser in Wisconsin Supreme Court hearings. Someone should be disbarred over this. [Adler @ Volokh; earlier]
  • The problem of "malfunction theory" in product liability. [Jackson]
  • Six million small businesses might be ensnared by little-publicized NLRB rule of questionable legality creating liability for failure to put up a sign about the NLRA. [NFIB]
  • Suit over closed-door "merit selection" of judges in Hawaii. [Pero]
  • New disclosure process in pending FCPA case will raise costs to criminal defendants. [BLT]
  • Interesting analysis of Minnesota case about third-party criminal liability for the acts of others. [Volokh]
  • Warren Buffett structures his investment in Bank of America to be tax-advantaged. So much for "stop coddling the billionaires." [Stoll; earlier]

Around the web, July 29 - PointOfLaw Forum

  • Coverage of the Rice Krispies objection from an interesting new original-reporting legal news website, Business Law Daily. [BLD]
  • I wasn't that impressed with the ABA Journal's "30 Lawyers, 30 Books" list. And it seemed that they only found room for one right-of-center lawyer, Professor Eugene Volokh. But I do wholeheartedly concur with Volokh's recommendation for Ward Farnsworth's The Legal Analyst, which is perhaps the most systematic guide to clear thinking this century.
  • Mississippi Supreme Court stays fishy $322M asbestos judgment. [LNL; earlier on POL]
  • Governor Jerry Brown, apparently nostalgic for Rose Bird, nominates Goodwin Liu to California Supreme Court; his confirmation will be a formality. This gives Asian-Americans four seats out of seven on the Court, with the only Latino on the Court retiring for the big bucks of mediation, so one would expect quota advocates—like Goodwin Liu—to call for affirmative action. [Whelan; Severino; LA Times]

  • Attorney-general cy pres slush fund in Arkansas. [Greenberg via Overlawyered; more on cy pres at POL]
  • What isn't being reported in that Justice at Stake poll on the Wisconsin Supreme Court. [Pero; earlier on POL]
  • Google lawyer says patents gumming up innovation. [Bloomberg]
  • Lawyers behaving badly: fight at the end of a deposition. One of these two lawyers is committing perjury, and if it can be proved which one, he should be disbarred. And somehow, it's hard to think that the aggressor was the one who had to miss the ex parte hearing because of a mandatory chemotherapy session with his oncologist. What does the court reporter say? [ATL]
  • McDonald's engages in defensive restauranting, adds apples to Happy Meals; 89% of parents prefer fries. Meanwhile, Campbell's discovers that people prefer salt in their soup. [Olson @NYDN; Chi. Tribune]

  • "Aussie Woman Seeks Workers Comp for Injury During Hotel Sex" [ABA J]
  • In an age of debt crisis, why aren't we auctioning unused broadband spectrum? [Brito @ Time]

The attack on rule-of-law judges - PointOfLaw Forum

Left-wing reporters and blogs pushed an anonymously-sourced story about Wisconsin Supreme Court Justice David Prosser attacking fellow justice Ann Walsh Bradley, but Byron York reveals that the reports are highly exaggerated and possibly even trumped up.

Almost as bad are the bogus ethics charges (led by the now-disgraced Anthony Weiner) against conservative Supreme Court justices; Curt Levey has details, and Randy Barnett comments.

JoAnne Kloppenburg will not challenge the results of Wisconsin Supreme Court election in court, she announced today in a news conference. Following a lengthy county-by-county recount, the Government Accountability Board last week certified incumbent Justice David T. Prosser Jr. as the winning candidate in the April 5 election. Prosser received 752,694 votes and Kloppenburg received 745,690 votes, a difference of 7,004 votes or 0.46 percent.

The announcement by Kloppenburg, a deputy attorney general, means that the Wisconsin Supreme Court retains its 4-to-3 conservative majority and is less likely to be sympathetic toward a legal challenge against the state's news collective bargaining law for public employees. Last Thursday, May 26, Dane County Circuit Judge Maryann Sumi threw out the law, ruling that the Republican Senators had violated open-meetings laws when they passed the legislation with insufficient notice. The Milwaukee Journal-Sentinel has Sumi's expected ruling here, and more coverage here.

Class arbitration and unconscionability - PointOfLaw Forum

In Cottonwood Fin. Ltd., v. Estes, 2010 WI App75, 325 Wis.2d 749, 784 N.W.2d 726, the Wisconsin Court of Appeals held that an arbitration provision that included a class action waiver. An appeal is in abeyance awaiting the decision in the similar U.S. Supreme Court case of AT&T Mobility, LLC v. Concepcion, No. 09-893.

I'm quoted in a Wisconsin Law Journal news story on the Wisconsin case:

"If a company creates an alternative dispute mechanism that provides compensation, and is quicker and better than class actions, where is the unconscionability?" he said. According to Frank, courts in California and Wisconsin, by concluding that the lack of class actions as a remedy is unconscionable, have treated the right to file a class action as an end in and of itself rather than a means, "allowing the procedural tail to wag the substantive dog."

Assistant Attorney General JoAnne Kloppenberg has requested and will receive a statewide recount of the April 5 election for the Wisconsin Supreme Court, which incumbent Justice David Prosser won by 7,316 votes. (Official county-by-county canvas.) Prosser's margin of victory was 0.489 percent, below the 0.5 percent margin means the state, i.e., the taxpayers, will pick up the approximate $1 million cost of the recount to begin next week -- even though no previous recount has ever reversed an election with such a large margin of victory.

At a news conference, Kloppenburg cited various "anomalies" to justify the recount and said:

Wisconsin residents must have full confidence that these election results are legitimate and that this election was fair. A recount will establish where votes were incorrectly tabulated and expose if irregularities compromised the electoral process. A recount may change the outcome of this election or it may confirm it. But when it is done, a recount will have shone necessary and appropriate light on an election which, right now, seems to many people, suspect.

And after the recount, will the losers then declare, "Yes, the vote was fair, we acknowledge the results, and congratulate Justice Prosser on his victory?" Seems unlikely, especially given the tone taken by the same union officials who supported her campaign and paid for anti-Prosser ads. The national AFL-CIO blog reports that Stephanie Bloomingdale, Secretary-Treasurer of the Wisconsin State AFL-CIO, said "This race was a dead heat before something questionable happened in Waukesha."

Each and every voter in Wisconsin deserves to be certain that their vote counted and was counted correctly. No matter the results of the recount-April 5 demonstrates how Gov. Walker's extreme overreach and attack on workers' rights united Wisconsin to turn a runaway win for an incumbent judge into a competitive race.

In Wisconsin, Prosser wins - PointOfLaw Forum

With all counties having canvassed the votes, incumbent state Justice David Prosser has defeated Assistant Attorney General Joanne Kloppenburg for a 10-year term on the Wisconsin Supreme Court by 7,316 votes. Kloppenburg can request a taxpayer-paid recount (the deadline is Wednesday 5 p.m. for the request) but the largest statewide margin ever overcome in a recount was 500 votes.

From Daniel Foster at National Review Online, a transcription of Prosser's comments at a news conference, including:

A public office is a public trust. While I have certainly made misstatements and mistakes along the way, I have never broken the public trust. This proposition was challenged repeatedly and viciously throughout the campaign. My detractors set out to paint a false picture of who I am and what I believe. "

Powerful forces, not always clearly identified, attempted to turn this election. . . into a referendum on the governor of Wisconsin. . . [As a result] the qualifications, experience, even the identity of my opponent became irrelevant. Fortunately the people of Wisconsin rejected this effort.

Also...

Sen. Ron Johnson on the Wisconsin Supreme Court Race - PointOfLaw Forum

Sen. Ron Johnson (R-WI) spoke at the Heritage Foundation's weekly The Bloggers Briefing today on federal spending, the budget and political matters. Johnson was elected in the strong Republican showing in the 2010 Wisconsin elections that brought Scott Walker into the governorship and gave the GOP control of both the state Senate and Assembly.

In response to a question, Sen. Johnson described Tuesday's Supreme Court race between the incumbent Justice David Prosser, a conservative and former Republican legislator, and the union-backed Joanne Kloppenburg as an extension of the 2010 elections:

So if you really take a look at the detailed results of that election, I’m actually pretty buoyed by it. I was pretty depressed. I came in here, I think it was Wednesday morning, and he was up by a couple of votes, and I attended a hearing and come back, and he’s down by 224. And that was depressing. The signal that that would have sent, the amount of energy that would have provided to public sector unions, the bosses, and just to the Left in general, I think would have been terrible for the nation, truthfully.

Prosser ahead in Wisconsin - PointOfLaw Forum

Reports had Wisconsin Supreme Court Justice David Prosser's challenger, JoAnne Kloppenburg, ahead by 204 votes out of about 1.5 million, suggesting a long and painful ballot litigation that might have to go to a Wisconsin Supreme Court where three of the six remaining justices are heavily partisan. But Thursday, Waukesha County announced that it had not counted 14 thousand ballots that gave Prosser a 7000-vote lead. That doesn't change the possibility of litigation, but it does provide some cushion that makes it less likely that the election will be decided by a fluke of the courts.

A slightly different take on Prosser-Kloppenburg - PointOfLaw Forum

If the new vote tally coming out of Waukesha County holds, JoAnne Kloppenburg's self-declaration of victory would seem even more premature than it did at the time. (And isn't it a bit unseemly for a prospective state-supreme court justice to be declaring victory with such a razor-thin margin? These are, after all, the monitors of due process, and a recount here was inevitable. Of course, unseemliness for the judiciary is also a bit inherent in such judicial campaigns overall -- one of the several critiques raised against this method of selecting judges. (But see also here, here, and here.))

I did want to clarify one small point of disagreement with Carter, though: unlike Carter, I tend to agree with Glenn Reynolds (citing Vincent Vernuccio) more than Greg Sargent here -- and Sargent's piece strikes me as a pretty weak political analysis. And that's even if Kloppenburg is ultimately able to prevail after all the inevitable legal wrangling and wind up on top at the end of the day.

Now, I fully agree with Carter that "a victory is a victory is a victory." And for Wisconsin, this election will have major, major implications (even if, as Carter notes, the outcome of Walker's reforms hinge less on it than Kloppenburg's supporters seem to believe).

But critically, Sargent, Reynolds, and Vernuccio are really writing about national, not Wisconsin, political implications. By mobilizing so agressively on what would have otherwise been a sleepy state supreme court race, organized labor was trying to scare the dickens out of anyone who'd try to emulate Scott Walker's approach in wrestling with public financing problems.

And on this score, like Glenn, I'm less than impressed. The unions did indeed go "all in" -- and in a low-turnout election in which their voter mobilization played a disproportionate role, they effectively eked out a tie.

Sargent writes about "a massive and astonishingly fast swing of support away from Prosser and in Kloppenburg's favor" and cites Prosser's primary-vote margin and Wisconsin's historic tendency not to reject incumbent justices as evidence for a big electoral shift here. Poppycock, in my view. Voters in general know not a lick about state supreme court races. They don't pay any attention whatsoever unless the races become highly contested with lots of outside dollars. It's not like Justice Prosser has wide name recognition or a big reservoir of public support on the Wisconsin streets.

Now, to be sure, those Republicans in Wisconsin facing recall elections do have some reason for concern: labor is mad, and they've shown a capacity to mobilize voters with disproportionate impact in a low-turnout race. But as for national implications, all this election shows is that the Left pushed a supreme court election into a virtual tie, after making the governor's controversial plan the defining feature of an otherwise-ignored supreme court race -- in a state that last supported a Republican for president in 1984. If the Democrats generally or the unions specifically read too much into this for the national political scene, then in my view they're deluding themselves.

UPDATE (6:55 p.m.): From WisPolitics.com: "The Waukesha County canvass netted Justice David Prosser more than 7,500 votes over JoAnne Kloppenburg, swinging the vote total dramatically in his direction."

Yes, there's next to no way to overcome a 7,000 vote margin in a recount.

..........

UPDATE (4:47 p.m.): WisPolitics.com has an election blog, from which we learn that Justice David Prosser's legal team for the recount will be headed by Jim Troupis and include Milwaukee-based Attorney Dan Kelly and Ben Ginsberg of Washington, D.C., who was prominent on the 2000 Bush-Gore recount in Florida.

..........
UPDATE (4:23 p.m.): With additional precincts reporting, now Prosser's up by several hundred votes.
.........

Joanne Kloppenburg, the union-backed candidate for Wisconsin Supreme Court, declared victory over incumbent Justice David Prosser Wednesday on the basis of 206 votes out of 1.5 million case. A recount is likely.

Two takes on Kloppenburg's advance are common, typified by:

  • Glenn Reynolds at Instapundit: "WISCONSIN SUPREME COURT: A Referendum That Wasn’t. Nope. The unions went all-in and managed a dead heat in a judicial election. The mountain has labored and brought forth a mouse."

Versus ...

  • Greg Sargent at Washington Post's Plumline blog: "[Even] without a win, labor and Dems will have exceeded expectations big time, and will have proved that the grassroots energy unleashed by Walker’s overreach is still in full force. And of course, if Kloppenburg does pull this off, it will constitute a huge win that will only lend more momentum to the recall drives and confirm that Walker remains as politically toxic as ever."

It pains us to agree with Sargent, but a victory is a victory is a victory. John Fund at The Wall Street Journal raises the possibility of voter fraud, which would be no surprise given the flood of outside activists coming to the state and Wisconsin's same-day voter registration law.

Wisconsin Supreme Court results - PointOfLaw Forum

As of a few minutes after 9 PM Central, with 17% of the vote in, incumbent Prosser is up by less than one percent. It's not clear whether the early count comes from predominantly Democratic or Republican regions, though. You can follow the count on this page.

Update: county by county, Kloppenburg is running six or seven points ahead of John Kerry in 2004; Kerry won the state by 0.4 points that year.

Update: Prosser leads this morning by 835 votes out of over 1.47 million cast, suggesting litigation and shenanigans to come.

Robert Costa of National Review Online reports on a speech Monday to supporters by Joanne Kloppenburg, the union-backed candidate in today's Wisconsin Supreme Court election, running against incumbent Justice David Prosser.

Kloppenburg’s closing argument against Prosser began with a comparison of Facebook profiles. “When you look at my opponent’s Facebook page, you see a lot of meanness, a lot of hatred, a lot of fear,” she said. “When you look at my Facebook page, you see hope.”

Thus does campaigning progress. Next election cycle, candidates will compare Twitter accounts.

Will Kloppenburg, an assistant attorney general, oust Prosser, a rule-of-law jurist, and in the process turn the court's majority into a 4-3 liberal, activist majority? Organized labor certainly hopes so, working hard to elect Kloppenburg with the clear hope she will vote to overturn Gov. Scott Walker's collective bargaining and budget reform legislation. The election results will depend on voter turnout: Will the "progressive" voters of Madison come to the polls in sufficient numbers to outweigh voters from the conservative counties?

The last week or so has not been edifying. Organized labor threatened business owners who refused to post pro-union signs in their stores, a protection scheme that some police unions even signed on to.

The lefty group, the Greater Wisconsin Association, has run ads against Justice Prosser accusing him of cossetting child-abusing priests and damning him for referring to Chief Justice Shirley Abrahamson as a "total b*****." The Prosser campaign responded to the first ad with its own commercial, and The Wall Street Journal's John Fund suggests the original attack may have backfired.

Around the web, April 4 - PointOfLaw Forum

  • How should courts treat "professional objectors"? [Schonbrun; Karlsgodt]
  • Wisconsin Supreme Court election tomorrow, has become proxy vote on Governor Walker union reforms. [Kaus]
  • Chamber continues to oppose Jack McConnell D.R.I. nomination; Senate Judiciary Committee approves. [ILR]

  • Virginia governor vetoes HB1459, which would have increased medical malpractice damage caps. Unlike most states, Virginia law caps total damages, and the bill increased the caps by 2.5% or less a year for twenty years. [WaPo]
  • Medical malpractice reform dies in New York. [Heritage]
  • Nocera on an odd exercise of prosecutorial discretion. [NYT]
  • US FCPA self-reporting down, while UK passes similar Bribery Act. An economist suggests that legalizing bribery (while continuing to forbid bribe-taking) is optimal way to discourage bribery, so these laws move in the wrong direction. [Corporate Crime Reporter; Levick @ Forbes; Tabarrok]
  • Odd, and likely unconstitutional, Arkansas ban on cyber-bullying passed despite sound opposition from Dan Greenberg. [Volokh]
  • Discredited Duke lacrosse accuser Crystal Mangum arrested for stabbing a man. [Raleigh News Observer]

Stephen Moore at The Wall Street Journal reports on the April 5th election for Wisconsin Supreme Court, which organized labor and the political left are trying to turn into a referendum on Gov. Scott Walker's budget and collective bargaining reforms. From Political Diary, "Wisconsin's Battle Supreme":

State supreme court justice elections are typically slam dunks for the incumbent unless there is a scandal or a high-profile court decision that galvanizes opposition. In this case, incumbent David Prosser is caught in the crossfire over collective bargaining issues. Conservatives currently hold a 4-3 majority on the Wisconsin court, but an upset would give liberals the balance of power. Mr. Prosser's opponent, JoAnne Kloppenburg, was a relative unknown and a decided underdog until the protests ignited in Madison. She is now running around that state arguing that Mr. Prosser is a rubber stamp for Governor Walker and his agenda. The liberal groups are up with ads called "Prosser Is Walker."

Union activists and their allies explicitly link Kloppenburg's candidacy to reversing the new collective bargaining law in the Supreme Court. As The Superior Telegram reported, "PeopleFirst rallies behind Kloppenburg," quoting an organizer for the group, Mike Raunio:

Raunio says Kloppenburg could be a vital asset to repealing Scott Walker’s cut to collective bargaining rights.

“She is an ally to the people of Wisconsin. If we help her to get into to position then she will defiantly be an advocate to the rights of workers and everyday citizens.”

Both candidates have accepted public financing limiting their expenditures to $300,000, so outside groups are doing the advertising. Wisconsin Manufacturers and Commerce recently went on the air with a restrained pro-Prosser ad. In a fund-raising appeal to its members, WMC President James Haney wrote, "One union even told its members they want to defeat a Supreme Court justice to 'get even.' It’s shocking and they are putting big money behind their efforts, including boycotts of home-grown Wisconsin employers."

On April 5, Wisconsin voters will elect a justice to the Wisconsin Supreme Court, choosing between 12-year incumbent David Prosser (campaign website) and Joanne F. Kloppenburg, an assistant attorney general (website). Left-wing activists are supporting Kloppenburg's candidacy as the next stage in the fight over collective bargaining for public employees. Talk about politicizing the judicial elections.

Mickey Kaus, now at The Daily Caller, reports:

Second-Half Game Plan: Firedoglake’s David Dayen on the labor-Dem plans to fight back in Wisconsin after losing their battle with Gov Walker. The most intriguing wrinkle is the scheduled state Supreme Court election:

The matchup between David Prosser (R) and JoAnn Kloppenberg (D) for the state Supreme Court on April 5 just got very interesting. It’s a statewide vote, and the balance of power on the state Supreme Court is at stake.  …. If Democrats win, the legality of what took place tonight [i.e. passing Walker's plan-ed.] may be put in greater question.

Will Wisconsin voters feel comfortable turning a judicial election into, in effect, a referendum on a law Democrats don’t like? Will the other 3 Democratic-appointed Supreme Court judges play along with this slightly banana-republicy game? True, conservatives have often campaigned against liberal judges after unpopular rulings (e.g., Rose Bird in California). But it seems even worse, in terms of legal etiquette, to elect a judge in order to make a particular ruling, about a particular law, in a particular upcoming case. …

Ann Althouse, a University of Wisconsin law professor and top-notch blogger, also reports, "Politicizing the Wisconsin Supreme Court election":

There's an election coming up, and JoAnne Kloppenburg is the challenger to the incumbent David Prosser. There are many Kloppenburg signs at the march and, as I've noted before, although it's supposed to be a nonpartisan election, some people try to make it very political. I've seen many people out at the protests stressing the need to make Kloppenburg a Supreme Court Justice so that she can vote against the GOP budget repair bill and do other things that will help the party that lost the elections last fall get something back in the judicial process.

Around the web, February 17 - PointOfLaw Forum

  • Texas asbestos and silicosis reform a success. [LNL; TCJL]
  • Elsewhere in Texas, Governor Perry proposes loser pays and making access to justice easier for smaller cases. [TCJL]
  • Extensive tort reform in Wisconsin undoes some bad Wisconsin Supreme Court decisions, caps punitive damages. [Sachse]
  • Multi-billion dollar judgment in Ecuador in Chevron lawsuit. Chevron has a webpage detailing its response to and summarizing the various collateral litigations, including a Hague international arbitration temporarily prohibiting international enforcement of the judgement.

  • "Climate Policy by Judicial Fiat: How Global Warming Lawsuits Subvert the Democratic Process" [Heritage]
  • Insider trading and the Sentencing Guidelines. [Ribstein]
  • Why is Obama meeting with a group that launders Chinese money? [Carney @ Examiner]
  • DOJ/DHS operation shuts down over 83,000 web sites for no reason. [Blackman]

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