Beware of Frivolous Democracy!

This post is in response to an article for Tuesday’s Milwaukee Journal Sentinel which interviewed Justice Prosser and his campaign staff concerning the anticipated recount in the Supreme Court race. Of course this afternoon, Assistant Attorney General JoAnne Kloppenburg requested a statewide recount. Since Justice Prosser’s margin of victory as less that 0.5%, AAG Kloppenburg is entitled to a recount paid for by the state.

I would imagine most of you reading anything on Blogging Blue is familiar with the history of the Prosser/Kloppenburg election results. After a too close to call election on Tuesday night April 5th, the initial results on Wednesday showed AAG Kloppenburg ahead by 204 votes. Prematurely AAG Kloppenburg declared victory.

At that point the conservative right was screaming voter fraud and demanding a recount and certainly every one of us knew that a recount was inevitable at that point. And then Thursday, the Fox River parted and Waukesha County Clerk Kathy Nickolaus appeared from on high with 14,315 stone table votes that propelled Justice Prosser into the lead by in excess of 7,000 votes. Of course the stone tablet reference is a bit of sarcasm, but Clerk Nickolaus was using an out of date computer system in her office which was not part of the county’s computer network and could only be accessed by herself and her immediate staff.

And of course the left immediately started screaming voter fraud and demanding a recount. Now a number of sources support the final numbers reported by Waukesha county and some of the shouting quieted down but by now the damage was done and the election results were doubted on both sides of the aisle.

The fact that Clerk Nickolaus has worked for Justice Prosser while he was in the state legislature and other voting report irregularities in her background, didn’t do much to quiet the dissent.

And of course the statewide election canvass, although finding some issues and adjusting some vote counts (not unusual) confirmed the win by Justice Prosser. Which brings us to the whining from the Prosser campaign:

From Justice Prosser himself:

“Admittedly the election was uncomfortably close.” “But now all 72 counties have completed their canvasses, the result of the election is not in doubt”.

While I won’t disagree that Justice Prosser has won the election, he is a jurist. He certainly has to appreciate the importance of respect and honor in the law. The results although apparently correct have been tainted in a number of ways and the best and fastest way to remove the odor is a full statewide recount. If his victory is reconfirmed I hope he will be a more gracious winner than he’s proved to be so far.

Jim Troupis, an attorney for the Prosser campaign and legal representative for a number of tea party and conservative groups currently suing the state over campaign funding and registration rules, said:

“We will take every and any step to prevent this frivolous matter going forward.”

Democracy is frivolous? Frivolous? Justice Prosser admits the election is very close, uncomfortably so. The State of Wisconsin has anticipated potential issues with close elections and provides free to the candidate recounts in situations exactly like this. So Attorney Troupis wants to interfere with the election process? Again it would be better to not be an obstructionist and allow the recount and finalize the result as quickly as possible. I can’t imagine that the recount will take longer than a long drawn out court battle or cost may cost considerably less.

Attorney Troupis also said that since 1980 there have been 24 statewide recounts nationally and that the most a result had changed has been 1,000 votes. I haven’t checked into this but no one else has raised it as an issue so I will accept it as fact. So with a 7,316 vote lead what is he afraid of? That Justice Prosser will end up winning by 5,316 votes? Why spend the time and money in court if a recount provides closure on the issue?

Another Prosser campaign advisor, Brian Schimming, said that AAG Kloppenburg should not call for a recount because it would be very expensive. Yes, I am sure that it will be but democracy is messy and it’s expensive. But it seems to me that it will be money well spent to reaffirm that voting in Wisconsin is accurate and elections here work. Mr. Schimming estimated that it would cost hundreds of thousands of dollars and if including costs to the campaigns for lawyers and recount observers that may be correct. But GAB spokesperson Reid Magney says that there are too many variables to determine total costs for a recount.

So, step aside Justice Prosser, let the recount begin. If as expected, you retain your seat on the Wisconsin Supreme Court, you can say democracy has spoken and Wisconsin’s election system works! Now what could possibly be wrong with that?

Sidebar: read the last few paragraphs of the article which briefly discuss judicial ethics and recusal. I don’t have the energy to discuss it here. But Justice Prosser will not step aside when the suit brought by his Attorney Troupis is brought before the court.


Related Articles

15 thoughts on “Beware of Frivolous Democracy!

  1. I fail to understand how Kloppenburg calling for a statutorily-allowed recall is “frivolous.” The law is the law, but perhaps Troupis and Prosser are “activists” who don’t want to follow the letter and intent of the law.

      1. I know what the legal standard is for frivolous. And when you have a statutory right to ask for a certain action it cannot be a frivolous action. But if you know you are not going to change the outcome. I would question the prudence of continuing. Although the economic calculus changes when a person has no skin in the game.

        1. From a 4/19/11 post at Uppity Wisconsin by Jud Lounsbury entitled, “WHEN BUSH LOST WI BY SIMILAR MARGIN TO JKLO’S LOSS WALKER & REST OF GOP SUPPORTED RECOUNT” which seems particularly germane to the instant discussion:

          “In 2000, George W. Bush lost Wisconsin to Al Gore by about a 6K vote margin– a similar margin that we’re talking about in the 2010 Kloppenburg v Prosser race. Ultimately, the Bush campaign opted out of challenging Wisconsin, because it wouldn’t have made a difference if they lost Florida. However, its important to note that Wisconsin Republicans were unanimously in support of a recall in Wisconsin:

          “Yes, I do.” -Tommy Thompson, 11/17/2000 when asked if Bush should request a recount.

          “With or without voter fraud, there’s a slim enough margin that a recount could result in a change in the final margin.” -Scott Walker, 11/12/2000

          “This is the narrowest election in state history, and there’s a chance that mistakes were made.” -Tony Jewell, 11/14/2000 Gov. Tommy Thompson Spokesman

          “I hope we seriously consider a recount in Wisconsin, even if it doesn’t change the outcome.” -Speaker of the Assembly, Scott Jensen, 11/21/2000

          “We believe very seriously that the integrity of our election process is at stake.” – Wisconsin GOP Chair, Richard Graber” 11/10/2000

          Now, ten years later, despite an almost identical margin as Bush v Gore, the Wisconsin Republicans call a recount in Kloppenburg’s case “frivolous” and a “waste.”

          How do you say “hypocrite” in Fitzwalkerstanian?”

          1. Ah, but Gore won by 6,000 votes out of 2.5 million, while this election was 7,300 out of 1.4 million cast. So, by focusing on margin without mentioning the pool of votes, the thought is a bit incomplete, no?

            If I lost an election 5,000 to 17, that would be an even smaller margin. But it wouldn’t be a closer election.

            1. That’s actually a really good point. In terms of percentage, Prosser’s margin of victory doubled Gores’ margin. .24% for Gore v. .52% for Prosser.

          2. Wouldn’t you have to have to include all the Democrats who opposed Bush asking for a recount in Wisconsin in 2000 but who now think Kloppenburg should ask for the recount?

      2. It’s hardly pointless to attempt to dispel the inevitable pockets of suspicion that will remain absent a recount. Restoring voter confidence in our elections is more than worthwhile.

        Waukesha County should foot the bill for a recount. Kathy Nickolaus gets elected County Clerk there term after term.

    1. And yet, Jim Troupis, the Prosser campaign attorney, called it “frivolous”.

      It isn’t about right or wrong with these guys. Troupis and Prosser are, as Zach suggested, nothing more than rightwing activists who don’t really care about the integrity of the process. There only, unprincipled concern is to secure an outcome favorable to their side.

      Had the shoe been on the other foot, the rightwing cries of voter fraud would only be getting louder at this point, and the Prosser campaign would be pursuing a recount as if it was a birthright.

      1. Doesn’t surprise me. Calling your opponents position frivolous sounds good In the court of public opinion…just look at how many were calling the attorney generals suit against Obama care frivolous. They can say it, and prossers Atty can say it. But it’s just not legally accurate .

  2. Democracy WOULD be cheaper if only those annoying voters/citizens would not require we follow the Constitution.

  3. Super Id’s take is reasonable; I’m also kind of ambivalent about the recount. I think it’s pretty likely there wouldn’t be one had the Prosser camp not went full-metal wingnut and tried to force her out of the ring James Baker style. Note she used the word “threat” in her presser.

  4. Prosser certainly should not have called the recount request “friovilous”. In addition, I think it is clear that Kloppenburg would be pursuing the same strategy if she were ahead by this margin given that fact that she declared victory with a 200 vote lead before the official canvass was completed.

    You would hope that both candidates would act a little more judicial and less political.

    I thought it would have been very classy of Kloppenburg to simply say that given the margin she did not feel that the recount would change the results and therefore she was going to spare the state the expense. Instead, she seemed to be throwing out vague inferences about voting irregularities that will just fuel the conspiracy theories.

    1. “You would hope that both candidates would act a little more judicial and less political.”

      It illustrates the problem with turning judges into politicians. Once you do that, judges will begin looking to the policitical implications of their decsicions rather than assessing the case on the facts and law before it.

Comments are closed.