Court Race Replays Issues of 2011

Hear the echoes of April 2011 in Tuesday’s Supreme Court election between Milwaukee County Judge Rebecca Dallet and Sauk County Judge Michael Screnock?

On April 5, 2011, Court of Appeals Judge Joanne Kloppenburg challenged incumbent Supreme Court Justice David Prosser for a 10-year term on the Court. More than 1.5 million votes were cast, and it took a historical six-week recount to declare Prosser the winner – by a margin of only 7,004 votes.

A former Assembly Speaker, Prosser was the Republican candidate who his opponents derided as a rubber stamp for Republican Gov. Scott Walker, who only weeks before had pushed through the Legislature and signed into law Act 10. The law all but ended collective bargaining by public employee unions and required state workers to pay more for health care and pensions. It passed amid weeks of huge protests.

Kloppenburg supporters called her the anti-Walker candidate, praised by Democrats and unions who found themselves out of power in the Capitol.

Fast-forward to Tuesday.

Screnock is the candidate of Republicans; the state Republican Party and its local units had spent more than $344,000 as of last week to elect him. Wisconsin Manufacturing & Commerce (WMC) the business lobbying group, is expected to spend more than $1.5 million to help Screnock, who is also backed by the National Rifle Association (NRA). The NRA has been the target of protesting high school students and gun-control groups.

Another Act 10 echo is that Screnock, as a private attorney, argued in court that it was constitutional. The Supreme Court – with Prosser’s vote – ultimately agreed. Walker appointed Screnock a judge in 2015, and he was elected to a six-year term in 2016.

Like Kloppenburg, Dallet is the choice of Democrats, although the state party had not reported spending to help her as of last week. But a national Democratic group led by Eric Holder, attorney general for President Barack Obama, is trying to elect the Milwaukee County judge.

The rhetoric repeats 2011.

Dallet says Screnock will be a “rubber stamp” on the court for Walker, the Republican Party, WMC and the NRA.

Screnock counters that Dallet would be a “judicial activist” bent on deciding cases according to her liberal agenda. He said he wants to prevent a repeat of a four-liberal court majority that existed from 2004 until 2008, although the court would still have a conservative majority even if Dallet wins.

What to watch in the race?

*Turnout: In 2011, Kloppenburg got 35 percent of all her statewide votes from just two counties – Milwaukee and Dane. Kloppenburg got 114,743 more votes than Prosser in those counties. Dallet’s campaign needs a strong turnout in Dane and Milwaukee counties and many of the 95,508 voters statewide who backed Madison liberal Tim Burns in the February primary. One out of every four Burns votes came from Dane County.

But Prosser in 2011 got 59,554 more votes than Kloppenburg in Waukesha County, which is key to a Screnock victory. Screnock must also repeat Prosser’s wins in counties like Brown (6,103-vote  margin) and Outagamie (5,908-vote margin) and in Milwaukee-area suburban counties like Ozaukee (12,556-vote margin).

Elections Commission records show turnout in contested Supreme Court elections has ranged from a high of 34 percent in 2011 to a low of 18 percent in 2009.

A wild-card factor this year: The election comes during spring break for many Wisconsin school districts. If family travel holds down turnout, that favors Screnock.

*Personalities: The energetic, scrappy Dallet is a better candidate than the reserved Kloppenburg. Dallet’s biggest gaffe so far was telling a San Francisco fund-raising event that Wisconsin needed to return to California “values.” Dallet told Wisconsin Public Radio last week that the person who secretly recorded her San Francisco speech broke California law.

Screnock’s quiet, low-key campaign style drives some veteran Republican campaign strategists crazy. But Screnock has managed to stay on message, even when Dallet challenges him three times in one debate to promise that he would withdraw from any cases involving WMC.

*Voter “enthusiasm”: The latest Marquette University Law School poll found that Democratic-leaning residents were 10 percent more excited about voting than Republican-leaning respondents (64 percent to 54 percent). That’s a pro-Dallet gap – if they show up Tuesday and don’t wait until November.

Tuesday’s election invites this question about 2019: Will Justice Shirley Abrahamson, a Progressive icon who has been on the court since 1976, seek a new 10-year-term? She turns 85 in December.

Steven Walters is a senior producer for the nonprofit public affairs channel WisconsinEye. Contact him at stevenscotwalters@gmail.com