Prosser Won Wisconsin Supreme Court Election Fair and Square

The results in Wisconsin’s Supreme Court election are in. The race was turned into a referendum on Governor Scott Walker’s audacious attempt to address the state’s fiscal mess by reigning in public employee unions. The conservative candidate, Justice David Prosser, has survived a perfect storm of ideological and special interest fury by about 7300 votes out of nearly 1.5 million cast.

It’s over, but, then again, it’s not. Wisconsin has become a 21st century version of the antebellum Bleeding Kansas. It has become a front on which the so-called “progressive” party of government fights to hang on to its privileges and to revive the myth of the Beneficent State. The next stage in this war will be to claim that the election was stolen or hangs under a cloud of suspicion. It wasn’t and it doesn’t.

Here’s why.

Initial reports from the Associated Press had challenger Joanne Kloppenburg ahead by a bit over 200 votes. It turned out, however, that the vote totals reported by heavily Republican Waukesha County were incomplete. The County Clerk had failed to include the votes from the City of Brookfield which, like the rest of the county, went overwhelmingly for Prosser and gave us the result that was certified today.

There has been a great deal of misinformation and inaccurate charges about what happened. There were no votes "found." None were ever missing. It is inaccurate to call this a "ballot blunder." It was not a "counting" error. There are no issues of voting machine malfunctions or computer errors. The votes were not overlooked by the inspectors in the City of Brookfield. In fact, all of the votes in Brookfield were counted on election night and reported to the county clerk. They were even reported to a local online paper, the Brookfield Patch, who published them as “city only” results.

What happened was an error in reporting to the media by the county clerk. She inadvertently omitted Brookfield’s vote from an unofficial running total of Waukesha county’s aggregate vote that were then included in media reports of the statewide results. The error came to light during the next day’s canvas – the official tabulation of the results. Those official results have never changed.

This can be verified in any number of ways. First, the records of persons voting and absentee ballots returned should reflect the higher number of aggregate votes which results from including Brookfield’s voters. Second, the machine counters and absentee ballots should reflect the higher number of aggregate votes. Third, the ballots, which were removed from the machines by the inspectors and secured and sealed, will – if recounted - reflect the results.

None of these are under the exclusive control of the Waukesha county clerk. If one wished to steal an election, this would not be the way to do it. If you want an analogy, think of trying to cheat on your taxes by misstating the income reflected on your W-2s. The information that you are seeking to falsify is in the possession of – and has been reported by – others whom you do not control. It is what it is.

But politics is a war fought on many fronts and we can expect to see a concerted effort to continue the politicization of this judicial race by dark insinuations of fraud and perhaps even an attempt to turn Wisconsin into a reprise of Florida 2000. This will have nothing to do with who sits on the Wisconsin Supreme Court and everything to do with raising money and mobilizing the base. So as you hear partisans cry havoc and more “responsible” voices disappear behind the passive voice (“questions have been raised”) or studied agnosticism (“some say”), remember one thing.

It’s vanilla. Prosser won a close race. That’s the end of this story.

Rick Esenberg is a professor at Marquette University Law School.