MADISON, Wis. — Unofficial results Wednesday showed Assistant Attorney General JoAnne Kloppenburg with a paper-thin lead over Justice David Prosser after a race marked by massive voter turnout, Wisconsin Gov. Scott Walker's union bargaining plan and record spending by outside interest groups.
As of 2:15 p.m., the Associated Press had tallied results for all of the state's 3,630 precincts and Kloppenburg had taken a 204-vote lead after Prosser had been ahead most of the night by less than 1,000 votes. Kloppenburg declared victory based on the AP's results.
"Wisconsin voters have spoken and I am grateful for, and humbled by, their confidence and trust," she said in a statement.
Kloppenburg pledged to be an impartial justice and said she would decide cases "based on the fact and the law."
That last precinct counted was in the Town of Lake Mills, where town officials met just before noon to count the last of the paper ballots.
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The Jefferson County clerk's office reported that Prosser picked up only two votes in the electronic vote in Lake Mills and that 24 handwritten ballots were not yet counted. The town's board of canvassers began meeting at 11:45 a.m. to count ballots, said Jane Hintzmann, a deputy county clerk.
The meeting was publicly noticed and it was her understanding that members of the public were on site in the Town of Lake Mills watching the vote counting.
Hintzmann said the town did not complete its work Tuesday because the process of counting write-in ballots and paper ballots was not done properly. She did not provide details on what steps were not followed correctly.
Some paper ballots were used in the town because officials ran out of official ballots.
Jefferson County's board of canvassers planned to meet today to certify the vote, Hintzmann said.
Even with the precinct reported, the tally is not final. The Associated Press said that it was rechecking all of the totals in all 72 counties to make sure it has an accurate count in each county. The wire service said it anticipated getting the final numbers later Wednesday.
That close margin had political insiders from both sides talking about the possibility of the first statewide recount in more than two decades. Any recount could be followed by lawsuits — litigation that potentially would be decided by the Supreme Court.
Brian Nemoir, Prosser's campaign director, said Wednesday morning he had been through approximately 10 recounts in his political career, but none involving a statewide race.
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"There's no playbook for this," he said.
The slim margin in the race was the latest twist in Wisconsin's ongoing political turmoil. The state has drawn national attention in recent weeks because of the fight over Walker's controversial law repealing most collective bargaining by public employees, which caused massive weeks-long protests in the Capitol, a boycott of the Senate by Democrats and attempts to recall senators from both parties.
Interest groups on both sides had portrayed the judicial election as a referendum on Walker and his collective bargaining law. Conservatives backed Prosser, and liberals supported Kloppenburg, even though the candidates themselves insisted they were politically neutral.
Legal challenges to the new law — which would eliminate most collective bargaining for most public employees — are expected to reach the Supreme Court, but it's not clear if the justices would take up the case before this race's winner is scheduled to be sworn in Aug. 1.
In the contest for a 10-year term, Kloppenburg is trying to accomplish the rare feat of unseating a sitting justice. Michael Gableman defeated then-Justice Louis Butler in 2008, but before that it had been 41 years since an incumbent lost a race for a Supreme Court seat. Unlike Butler, who was appointed to the post, Prosser was elected to his current term.
Campaign managers on both sides were cautious in their statements as the lead seesawed back and forth between the candidates throughout Tuesday night and into Wednesday.
Nemoir said Wednesday that with a recount looming in the Supreme Court race between Prosser and challenger Kloppenburg, the next step is to make sure "ballot integrity" is protected.
Nemoir said the campaign was beginning the process of checking with vote counters in each of the state's 72 counties to make sure ballots are protected and not tampered with.
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He said the campaign would work to make sure there is a reconciliation between the number of votes the media were reporting and what the counties were reporting. Unofficial election returns suggest there are some precincts in the state that have not been tallied.
Nemoir said the next phase after that would be looking at the ramification of a recount.
"I think we're confident. We have had a record turnout, but it will be a close election," Nemoir said.
At 1:12 a.m. Wednesday, Kloppenburg came out to meet a cheering crowd at the Edgewater Hotel in downtown Madison.
"It's not over and we are still hopeful," she said. "Let's get a good night's sleep and see what tomorrow brings."
At the Seven Seas Restaurant in Hartland, Prosser told a handful of supporters at 1:40 a.m., "There is little doubt there is going to be a recount in this race."
"I had a rip-roaring victory speech prepared," Prosser said. "I also had a concession speech." What he did not have was a speech for an impasse.
Either candidate can request a recount once the votes have been officially canvassed. If the margin between the candidates is less than 0.5 percent, the state charges nothing to conduct the recount. If the margin is between 0.5 percent and 2 percent, the candidate asking for the recount must pay $5 per ward.
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With a statewide vote total of nearly 1.5 million in that race, the margin separating the two candidates amounted to just a few hundredths of 1 percent — easily within the state's trigger for a recount at no cost.
The cost of a recount for government is steep, likely much more than $1 million, with those costs largely borne by counties that have to recount the ballots, said Kevin Kennedy, head of the Government Accountability Board.
Candidates can't yet formally request a recount from the Accountability Board because county officials haven't finished putting together their official vote totals, Kennedy said.
The earliest a recount could begin would be next week, he said.
The last time a statewide recount occurred was in 1989 and involved a voter referendum rather than a race between candidates, Kennedy said. The referendum involved a proposed amendment to the state constitution that would have allowed state officials to provide income tax credits on property taxes or sales taxes paid by taxpayers, Kennedy said.
The proposal lost by 650 votes in the first official count and after the recount ended up still losing by the wider margin of 1,098 votes, he said.
"Recounts usually don't make a difference," he said.
Because of the closeness of the race, a Milwaukee election commissioner has asked police to guard ballots overnight. Robert Spindell, who sits on the city's Election Commission and is active in Republican politics, wrote in an email that he had made the request "until such time that a more formal procedure can be set in place."
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After any possible recount, the issue could still go to the courts.
In one twist, state law calls for Chief Justice Shirley Abrahamson to appoint the state judge who would hear the case if the loser of a recount in a statewide election goes to court over the outcome. Abrahamson and Prosser have clashed on the court. Prosser's private remark calling Abrahamson a "total bitch" was the subject of a recent political ad attacking Prosser.
State law says the trial judge in the case should be a reserve judge if one is available.
Once there is a ruling, it may be appealed to the District IV Court of Appeals based in Madison, a court made up of five members.
None of the five judges on the appeals court endorsed either candidate.
The statute says the appeals process outlined above is the "exclusive judicial remedy" in the case of a recount dispute. It does not explicitly say whether the finding of the Court of Appeals could then be appealed to the state Supreme Court, on which Prosser sits.
But Kennedy of the Accountability Board says he understands the law to mean that a decision by the Court of Appeals on the state Supreme Court race could in fact be appealed to the state Supreme Court.
"I don't think there's any question it can go there after the Court of Appeals," said Kennedy.
