Attorney General Race Is A Brutal Battle

Josh Kaul barely won election in 2018, by less than 17,000 votes, a margin of just .04%, in the race for Wisconsin Attorney General. The undervote for Kaul, compared to Democrat Tony Evers, elected governor at the top of the ticket, was 12,000 votes.

For that matter, the incumbent Republican that Kaul defeated, Brad Schimel, had won office in 2014 by a margin of 6%, which was 15 times larger than what Kaul managed.

You got the sense in 2018 that Kaul wasn’t that excited about the grimy process of political campaigning. His calmness when attacked is impressive, but that carefulness doesn’t lend itself to dramatic campaign rhetoric.

Still, that style stood him in good stead in last week’s debate between Kaul and Republican challenger Eric Toney. If you missed the debate, it’s worth watching. I’ve rarely seen a more substantive debate in a state election or a better performance by media questioners. Moderator Eric Franke, Madison News 3 anchor, ran a tight ship, the questions by PBS Wisconsin reporter Will Kenneally, Emilee Fannon of Milwaukee’s Channel 58 and WisPolitics editor JR Ross were substantive and challenging, and the candidates were consistently articulate and hard hitting. It was a battle.

Toney, who says he has run seven marathons, has a lean and hungry (if bearded) look, and was constantly on the attack, with often withering lines: that “Mr. Kaul didn’t manage a lemonade stand before he became Attorney General,” and is “a plastic bag blowing in the wind whichever direction their liberal politics go.”

But Kaul never took the bait and remained cooler under fire.

Toney’s strongest attack was to combine that fact that more sheriffs and law enforcement officials have endorsed him, with charges that Kaul is soft on crime, and “failed at his number one campaign promise of fixing our crime labs, taking over twice as long as former Attorney General Schimel to process DNA evidence.”

A DOJ report shows that, in 2018, during Schimel’s last year as Attorney General, the median turnaround time for DNA evidence was 50 days and the agency took in 8,626 cases. In 2021, median turnaround time was 115 days and there were 3,612 cases total. Kaul said the coronavirus pandemic contributed to a temporary slowdown. He added that when the department adopted probabilistic genotyping, the process became more comprehensive but also more time-consuming and productive: “What that means is that we are able to get DNA matches in more cases, so we were able to solve more cases.”

Yet Kaul barely mentioned the scandalous delay in processing sexual assault kits under Schimel, which Kaul made a priority, completely overhauling the system.

But beyond this issue, Toney’s attacks, though argued with great force, often fell flat on the facts. Toney charged that Kaul has failed to fill vacant positions in the DOJ’s Division of Criminal Investigation, but according to data the Justice Department released earlier in October, 83 of 90 agent positions were filled and about 43 of 50 prosecutor positions were filled as of July 1.

Toney suggested there was a backlog of online child pornography cases at the DOJ but cited no data, other than unnamed sources, to back up that claim. According to data the agency released in October, the Justice Department has seen a 400% increase in tips about online child pornography since 2013 but still managed to make almost 470 arrests last year.

Perhaps no issue showed a greater difference between the two candidates than abortion. Kaul has filed suit in an attempt to block the 1849 state law that bans abortions except when done to save a pregnant person’s life. He’s also pledged not to enforce the law. Toney said he would enforce it and that an attorney general cannot “pick and choose when to enforce the rule of law.”

Kaul noted that district attorneys currently lack the authority to prosecute cases outside of their home counties, but that Toney wants to let prosecutors cross jurisdictional lines to prosecute abortion, calling it a “far right, radical agenda.”

Toney responded that “I never made that proposal,” but In fact, in an October 14 interview he said “I think another approach would be allowing for adjoining counties to be able to investigate and enforce that abortion ban in Wisconsin.”

On gun control Kaul called for universal background checks and “red flag” laws to prevent guns from getting in the hands of dangerous people. Toney disagreed, saying Wisconsin needs “to enforce the laws that we have on the books,” and added that he supports mandatory minimum sentencing for people convicted of violent gun crimes.

Kaul jumped on this, charging that “Mr. Toney has never been willing to stand up to the NRA.”

Toney has sought to walk a fine line on election fraud, saying the 2020 election was not fraudulent, but criticizing the bipartisan Wisconsin Election Commission. “Mr. Toney has claimed Election Commission members have committed crimes and should be removed from office,” Kaul charged.

Toney also supported the election probe of former Wisconsin Supreme Court justice Michael Gableman, which cost taxpayers a million dollars and spread baseless conspiracy theories. “While our elections are under attack from people who are trying to overturn the result of the election, we need an AG we can count on to stand up” for democracy, Kaul declared.

The two also seemed to differ over a a lawsuit filed by Evers against companies over contamination by PFAS or so-called “forever chemicals.” Kaul backs the suit but Toney declined to offer an opinion, saying he couldn’t prejudge a specific case until he saw all the information. “I will fight to protect our environment,” Toney said. “We have to have clean water, we have to have clean air.”

Kaul accused Toney of dodging the question. “I think the reality is that he’s likely to withdraw Wisconsin from that (lawsuit),” Kaul said.

On many of the issues, voters favor Kaul’s positions. Polls show a majority favors abortion rights and universal background checks for guns and believe the 2020 election was fair. But Kaul, while he was strong in the debate, could be more effective on the campaign trail in dramatizing these issues.

Toney, like Republican gubernatorial candidate Tim Michels is putting most of the focus on crime. The reelection for both Kaul and Evers may depend on whether voters buy the charge that the Democrats are soft on crime.

As in 2018 the election is likely to be very close. The most recent Marquette Poll shows a tie vote between Evers and Michels. If it’s that tight a race Kaul can’t afford to under perform vs Evers, as he did in 2018.