A Justice Delayed
David Prosser’s campaign found out he won his election the same time America did.


Christian Schneider



David Prosser just kept saying it over and over. On the other end of the phone was his campaign manager, Brian Nemoir, telling the incumbent Wisconsin Supreme Court justice — two days after the election — that he had just picked up around 7,500 votes in Waukesha County due to a reporting error by the county clerk. The vote pickup meant he was going to win.

“I think I told him seven times, and on the eighth and ninth time, he began to believe me,” said Nemoir.

While on the phone with Prosser, Nemoir was sitting on the second floor of the Coliseum Bar in Madison, watching Waukesha County clerk Kathy Nickolaus’s press conference on the Internet. Earlier, Nemoir, Prosser, and consultant Brian Schimming had had lunch at the bar before Prosser headed back to his capitol office to get some work done. At the time Prosser heard about the news, it was still unclear how 14,000 votes from the city of Brookfield had gone unreported to the Associated Press — so Prosser replied to Nemoir with a sense of “utter disbelief.”

Thursday seemed like months away from election night, which had occurred two nights before. Since February, the Wisconsin Supreme Court race had had the markings of a pre-Christian-era “single combat” contest, in which two armies each picked their strongest soldier for supremacy. In this case, the armies were represented by Wisconsin governor Scott Walker and the state’s public-sector unions. In any normal year, the conservative Prosser would have won reelection going away, but in 2011, JoAnne Kloppenburg’s supporters deemed the liberal attorney their best chance to overturn Walker’s nationally publicized bill scaling back public-sector collective bargaining.

According to his campaign staff, Prosser took the punishing race extremely personally. Over his 30-year career as a legislator and Supreme Court justice, Prosser worked diligently to cultivate a reputation of fairness and bipartisanship. Yet during this election, he was portrayed by Kloppenburg’s supporters as an accessory to pedophilia for a priest-sex-abuse case he had handled as a district attorney 33 years earlier. The victims eventually came forward and said they supported Prosser, even cutting a television ad on his behalf.

As returns began pouring in on election night, Prosser saw his 30-year career in public service vanishing, ward by excruciating ward. It seemed that every five minutes, he overtook Kloppenburg, only to see her pull ahead by a handful of votes. In the campaign war room, the results were being projected on one of the walls — Nemoir had created a program to determine what damage they thought they could or couldn’t sustain, and entered the numbers into the database to be calculated and analyzed.

The Prosser war room was staffed with volunteers and field staff collecting vote totals from campaign operatives standing by at county courthouses throughout the state. There were six main counties that the campaign thought would tell the story of how the night was going to go, and they were getting positive signs before the tallies appeared on the Associated Press website.