Magazine | May 2, 2011, Issue

How Wisconsin Was Won

A close call in a proxy war with the Left

Appleton, Wis. — David Prosser awoke near dawn on Sunday, April 3, stretched his 68-year-old muscles, and flipped on his cell phone. He frowned. His campaign had booked a bruising 48-hour itinerary of flying around the state in the election’s last hours. But with an unruly hailstorm fast approaching, senior adviser Brian Nemoir had nixed the twin-pistoned plan.

Nemoir, a lanky, fast-talking politico, had a nightmarish vision of the headline: “Supreme Court Justice Prosser, Others Vanish over Wisconsin.” As he reminded me, a scheduled passenger on those skip-hop flights, “No one wants to be the ‘others’ in that story.”

Prosser donned his on-the-trail uniform — dark suit, starched white shirt, and Reagan-era spectacles, the thin-rimmed type with a metal top-bar between the frames — then jumped into a car, making his way south toward Green Lake, a fishing town. On the road, he was going to have to hustle, especially if he wanted to make it back north by nightfall to get his mug on the evening news in the state’s conservative upper swaths.

As he zoomed down an empty rural highway, rain and ice pelted his windshield. There was a gnawing sense among the tight-knit team that the obstacles were getting Biblical: First came the unions, then the personal attacks, now the very heavens. Prosser’s crew arrived safely and on time at a small hotel on the frozen lip of sprawling Big Green Lake, where local Republicans had gathered in a flag-draped ballroom for their annual Lincoln Day dinner. Mark Slate, a county-judge candidate decked out in a stovepipe hat, welcomed Prosser at the door. Heavyset town officials milled nearby, making good use of the cash bar.

Prosser, a former GOP legislator who briefly served as speaker of the state assembly, turned on the charm, moving from the county chair to the handful of Young Republicans, thanking them for their support. Everyone was kind to the gray-haired judge — patting him on the shoulder, exchanging quips — but anxiety hung in the air.

Prosser was locked in a tight reelection fight, battling JoAnne Kloppenburg, an environmental lawyer, to keep his seat. Green Lake conservatives were nervous about his chances. Prosser took to the podium for some extemporaneous remarks, his hands clasping the top of the wooden frame. “Seven weeks ago, this looked like a very sleepy campaign,” he recalled, almost wistfully. “This race is now the most significant judicial race in the country.”

Prosser had long been expected to coast to another ten-year term on the bench, especially after he won a convincing 55 percent showing in February’s nonpartisan primary, in which candidates of all political stripes competed for two spots on the general-election ballot. Kloppenburg had placed second, with 25 percent, earning herself a slot; an unknown attorney for the state with a few unremarkable academic appointments, she was hardly in a position to surge.

Besides, springtime skirmishes are usually sleepy affairs in the Badger State, with turnout on average below 20 percent. Prosser knew that he would have to go through the motions, debating Kloppenburg and cutting a couple of ads. But a bloody brawl? No way.

Then Madison erupted. Gov. Scott Walker, a Republican, began to unveil his budget agenda. He went to the mat against the public-sector unions, pledging to strip them of their collective-bargaining power. Democrats, depressed after their poor 2010 showing, suddenly began to exhibit alarming signs of life.

For the three ensuing weeks, swarms of protesters, huddled like carolers, screamed outside of Walker’s office deep into the night; dreadlocked undergraduates gleefully papered the capitol’s marble halls with anti-Walker messages scrawled on cardboard posters. Prosser, who thought he had left partisan politics behind in 1998 when he was appointed to the state supreme court by then-governor Tommy Thompson, found himself smack in the middle of a proxy war.

#page#Once Walker’s budget bill passed in mid-March, after much wrangling and lefty hysterics, progressives decided to make toppling Prosser their cause célèbre. Tripping up Walker’s legislation in the courts was their only option with the GOP holding both legislative chambers. So comrades in the Dane County government promptly filed suit, claiming that the bill’s passage procedure violated the state’s open-meeting laws.

Their case was weak, not that it mattered. All 14 Democratic state senators had fled to Illinois once Walker unfurled his bill, hoping to postpone a final vote with their absence. But while they were busy bragging on MSNBC about their great escape, a Senate clerk approved the GOP-only quorum, enabling the bill to pass. It was an utterly aboveboard maneuver, but a county judge sympathetic to the Democrats put the brakes on the law’s implementation.

The Walker administration, appalled, immediately urged a state appeals court to strike down the circuit court’s ruling. But the appellate panel threw up its hands and kicked the bill to the state supreme court. Since then, pressure has mounted on the seven-member high court to weigh in. So far, the court has resisted.

Prosser gives judicial conservatives a 4–3 edge on the bench, so liberals targeted the April election as an opportunity to flip the court and declare the result a career-threatening referendum on Walker. The governor had beaten them at the polls and in the legislature. To topple his signature law, they needed a black-robed coup.

Millions poured in to help the effort. The liberal blogosphere alerted activists across the country. Their brethren in Wisconsin began to organize on the ground, eager for fresh drama and another excuse to picket Capitol Square.

The Greater Wisconsin Committee, a leftist group with deep union ties, funneled millions into anti-Prosser advertising, taking relentlessly to the airwaves. “They are the Left’s biggest political player in the state,” notes Brett Healy, the president of the MacIver Institute, a Wisconsin-based think tank. “They run the ads that no one else wants to run.”

Indeed. The GWC first aired ads that tied Prosser to the budget bill. “Prosser Equals Walker” was the usual theme. But those attacks were fluff compared with the group’s biggest smear, a dimly lit, creepy spot that cast Prosser as soft on pedophilia. That ad alleged that Prosser, as an Appleton-area district attorney three decades ago, failed to properly prosecute a Catholic priest accused of molesting several boys.

Prosser was furious, and the victims in the case rallied to his side, going on statewide television to denounce the GWC’s allegation as an outright lie. In Green Lake, Prosser lamented how the race had devolved into union-fueled horror. “Sometimes,” he sighed, “I feel like David against the whole empire of the Wisconsin Left, and the Left from other parts of the country who are coming into this state to try to determine this race.”

As Election Day neared, Madison activists and their allies were out in full force, walking arm-in-arm with Jesse Jackson down State Street, singing union ditties and Woody Guthrie songs. Kloppenburg was closing in on the incumbent. The mood among the dreadlocked and the marching schoolteachers was upbeat, even jubilant.

Knowing her base, Kloppenburg swung through the capital for a final get-out-the-vote rally at the Edgewater Hotel, which overlooks Lake Mendota. She gave a long-winded oration as dusk settled upon the white granite capitol down the street. Tall and thin, the 57-year-old promised a landslide on April 5 as her supporters, decked in anti-Walker paraphernalia, roared.

#page#Watching from afar, Governor Walker was worried. On Monday night, hours before voters headed to the polls, he told me in his capitol office that she could win. “Two weeks ago, I was extremely worried about Prosser,” he said. “A little bit less so now. But I know that it all comes back to turnout.” Kloppenburg supporters, he acknowledged, “clearly have a real big motivator: anger.”

Tuesday morning saw Wisconsinites turn out in historic numbers: Nearly 1.5 million showed up, approximately 35 percent of the electorate. Prosser, wearied by the onslaught, was blunt about his chances as he prepared to watch returns. “Some people want to send a message — ‘Prosser Equals Walker’ or ‘Stop the Bill.’ But I think the message to the country, if [Kloppenburg] is elected, will be: Wisconsin has gone insane.”

After the polls closed, Kloppenburg supporters mingled at her makeshift headquarters in Madison, sipping cocktails beside the klieg lights of local television crews. An hour past midnight, as even the most ardent backers began to drift away, Kloppenburg emerged from behind a droopy black curtain, in casual garb, to declare . . . nothing.

“It’s not over yet,” Kloppenburg explained softly, wearing a grim smile. “We just heard from the AP that they’ve said the race is too close to call. There are pockets of votes still to be counted around the state.” She urged the throng to go home to bed. On the other side of the state, at the Seven Seas restaurant in Hartland, Prosser relayed a similar message.

Wednesday morning was another headache for Brian Nemoir, who found himself a key player not only in a race that had gone national, but also in an extended vote count that was sure to be contentious. “There is no playbook for this,” he told reporters.

The unofficial tally had Kloppenburg up by 204 votes, an astonishingly slim lead. On Wednesday afternoon, she formally declared victory. Then Madison erupted, again. A tabulation error in Waukesha County, a GOP-heavy region, was discovered. Prosser, thought to have lost a heartbreaker, suddenly netted more than 7,000 additional votes, two days after the election, and one day after his opponent had thanked him “for his service.”

It was almost too much. After the most intense month of his career, Prosser had thought it was over, only to find out, in a shocking reversal, that he had won.

A recount is likely in order, and the final outcome may not be known for weeks. In the meantime, stunned Democrats, such as U.S. Rep. Tammy Baldwin, are calling for state and federal investigations into the Waukesha surprise. Prosser, for his part, is keeping a low profile, pleased with the turn of events and ready to return to his quiet court life.

Nemoir, of course, is keeping busy, tangling with enraged leftists. But as he glances at Prosser’s upcoming schedule, he doesn’t need to check the forecast. It is sunny, with a strong chance of victory.

Robert Costa — Robert Costa is National Review's Washington editor and a CNBC political analyst. He manages NR's Capitol Hill bureau and covers the White House, Congress, and national campaigns. ...

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