Politics & Policy

A Justice Delayed

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



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.

The campaign knew they were going to lose in Dane County, home of the very liberal Madison. “In Dane County, it’s all turnout,” said Nemoir. “It’s not whether you’re going to get punched in the teeth in Dane County, it’s just a matter of how hard.” Yet the campaign also saw that Prosser was outperforming their vote targets in the state’s most populous area, Milwaukee County. Nemoir was shocked to see that their projected margins were off the charts in Brown County (home of Green Bay), Outagamie (Prosser’s home county), and Racine (where unions had been caught threatening local businesses). The campaign remained cautiously optimistic.

The Prosser team had vote watchers stationed in Waukesha County, but didn’t think the numbers looked off at all. The highest vote turnout for any spring election in a non-presidential-primary year had been 890,000 — and on April 5 of this year, turnout was almost double that previous record. Earlier in the day, Nickolaus had said she expected countywide turnout to be 20 to 25 percent, so when it was reported as 42 percent, the Prosser campaign accepted it as a victory.

The campaign simply felt there was no reason to go hunting for unreported or missing votes. “Anyone who says they thought 14,000 votes were still out there isn’t being forthright,” said Nemoir. (Yet, as Craig Gilbert of the Milwaukee Journal Sentinel would later point out, that presumed 42 percent was below many of Milwaukee’s other GOP-heavy “collar” counties.)

Through most of the night, the reported margin stayed within a few hundred votes. Yet at one point, while the Dane County numbers worked their way through the system, Prosser dropped behind by 25,000 votes. Nemoir had to trudge out of the war room to talk to the press and explain that the campaign’s intel showed their projections to be accurate. He recalls the press being extremely skeptical of his pronouncement that the race was still a dead heat. Some volunteers were walking into the war room expressing great optimism, while some looked like they were witnessing a funeral.

As Nemoir expected, the vote margin closed quickly, leaving Prosser in the lead in the wee hours of Wednesday morning. Prosser’s last press conference was held at 1:44 a.m., when he held a precarious lead of roughly 500 votes. The campaign knew from people they had stationed at courthouses throughout the state that the numbers being reported at the time weren’t necessarily going to be what was reported in the morning.

When Wisconsinites awoke on Wednesday morning, late wards began trickling in, giving Kloppenburg a 204-vote advantage. Prosser’s team spent most of the morning trying to assemble a legal team for the inevitable recount. Kloppenburg quickly declared victory, while Prosser waited to issue a statement.

The official vote canvassing began in some areas late Wednesday and continued statewide into Thursday. At about 10:40 that morning, Nemoir got a call from an excited canvass watcher in Waukesha County who told him Prosser had picked up 200 votes in the city of New Berlin.

Nemoir, a Wisconsin political veteran of over 20 years (and third cousin to former Go-Go’s guitarist Jane Wiedlin), responded by doing nothing. “My attitude towards the canvass was ‘let ’em finish, we’ll figure out where we are when they’re all done,’” he said. He figured there was no sense in crowing about 200 gained votes in Waukesha if Prosser was losing 100 in another county across the state.

Nemoir was getting media calls all day asking him to comment on specific vote losses or pickups in the county canvasses. Then he got a media call suggesting something “big” might be headed their way from Brookfield. “Our definition of ‘big’ could have been 200 votes,” he said. The campaign downplayed the story while they continued to work on putting together their legal team.

Yet Nemoir kept hearing from various reporters that there was a problem in Waukesha with the Brookfield votes. He remained skeptical. “I didn’t put a lot of stock in it,” he said.

But then he got word that local news cameras had started showing up at the Waukesha County courthouse. He thought this was odd, pointing out that “a county canvass isn’t exactly must-see TV.” However, he still thought it could have been because of the tight margin and the 200 New Berlin votes. Even if the Brookfield rumors were correct, he wasn’t going to comment.

Then, at 5:07 p.m. on Thursday, a voice mail popped on to Nemoir’s phone while he was on the other line with a reporter. It was Nickolaus telling him that she had scheduled a press conference at 5:30 (he had already heard this news a half hour earlier from one of his canvass observers). In the message, Nickolaus mentioned she would be announcing “a significant vote change in Waukesha County,” but no other details. He tried calling her back, but she was unavailable.

He had read the media reports of what was happening with the underreporting of the Brookfield ballots, but he refused to believe what he was seeing. “If I told you today that Waukesha County had underreported 14,000 ballots, your first, second, third, and fourth impulse would be to not believe it,” he said.

And yet there he was, listening to Nickolaus’s quivering voice on the Milwaukee Journal Sentinel website, telling him that his candidate was now about 7,500 votes ahead — nearly outside the threshold for a state-funded recount. As the Prosser campaign would later point out, 31 statewide races have been decided within 0.5 percent in the U.S. over the past ten years. In the eight that went to a recount, the average vote turn has been 385. The largest number of votes picked up in any Wisconsin recount was 489, for a 1989 constitutional amendment.

If Kloppenburg does call for a recount, it will likely be to keep the appearance of “corruption” alive. The Brookfield Bombshell has brought liberal conspiracy theorists flocking to message boards to condemn the “found” votes. Madison-based congresswoman Tammy Baldwin has stoked the fire, urging the U.S. Justice Department to investigate the misreported votes.

Yet Nemoir wonders what purpose this “corruption” by Nickolaus would serve, as it doesn’t appear there would actually be anything to gain.

“What sort of narcissist would do this?” he asked. “Deprive [Prosser] of his ability to celebrate a clean victory on the night of the election, put him through complete hell for two days, declare a delayed victory, and put yourself in the national spotlight like she has? It doesn’t pass any sort of common-sense test.”

On Wednesday morning, after being up virtually all night, Nemoir wanted to spend some time with his young daughter. He had spent the previous twelve hours dealing with reporters, who peppered him with difficult questions about the election. He felt he had done a fine job as campaign spokesman, but his little girl asked him the toughest question of all:

“Daddy, did you win last night?”

It was the first question in a day that he couldn’t answer. He froze. His wife laughed at him in the background, demanding he answer the question.

Finally, a week later, he can answer her.


— Christian Schneider is a senior fellow at the Wisconsin Policy Research Institute.


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