Friday, April 22, 2011

Prosser vs.Kloppenburg: A most necessary unnecessary recount

It's hard not to have mixed feelings about Joanne Kloppenburg's legitimate demand for a recount of the votes in her battle to unseat David Prosser from the Wisconsin Supreme Court, a surrogate battle between two political parties in a supposedly nonpartisan race fueled by enormously disgraceful quantitues of special interest money and injudicious conduct by a sitting supreme court justice.

You'd have to be living under a rock not to be aware of the highlights of this soap opera -- little-known Kloppenburg at first claiming a razor-thin victory and then two days later the disclosure by the Waukesha County Clerk that she failed to tally thousands of votes from Brookfield, a Republican stronghold that eventually put Prosser more than seven thousand votes ahead of Kloppenburg.

If that wasn't bad enough, the particular county clerk not only had ties to Prosser but has had her election conduct questioned in the past and was involved in one of the premier legislative scandals when she was a Republican causcus staffer a few years ago.  If that wasn't enough of a cloud, the clerk waited more than a day to disclose discovery of her latest mistake.

Regardless of who you voted for, the Waukesha County fiasco raised very good questions about how we run elections in Wisconsin -- concerns unfortunately drowned out by the cacophony of spin cycles by the political camps and their financial supporters.  Let's try to cut through the many layers of crap and try to make some sense of this.

First, we need to get out of the way the obvious but still ignored truism that this is politics, folks.  Had thousands of uncounted votes favoring Kloppenburg turned up in Dane, Milwaukee or some other county the Prosser supporters would be crying bloody murder.  One day your're the bug, next day the windshield.  Neither side can claim purity.  It's like having two madams arguing over which one is the bigger whore. Get over it.

Next, there are quite a few folks distressed that Kloppenburg is demanding a recount.  They point out that while she's within the .5% difference in vote totals entitling her to ask for a free recount, the chances that she'll find enough votes to change the results of the election.  Ordinarly this point is not without merit but this isn't an ordinary election and the catcalls about Kloppenburg exercising her right are myopic and misguided.

Yes, there is an expense to a recount and, yes, it's not likely to change the result.  But integrity does not operate on a balance sheet or a profit and loss statement.  What these folks -- including the editorial board of the Racine Journal-Times -- are saying is that we're wasting money on a recount.  While that has some plausibility it also begs the question of whether we should place a dollar value on the exercise of our rights and say to people, "It's your right to challenge __________________ but you shouldn't because it'll cost us money for you to exercise your rights."  That's a slippery slope.

In a micro perspective we conduct a recount to come up with an accurate tally of a close election.  The larger view, which apparently is overlooked by many here, is that we also do this to ensure the integrity of the election process and here, where there have been plausible concerns about the conduct of some election officials, it's not blatantly improper to seek a recount not just to ensure the accuracy of the outcome but also the integrity of the election itself.  That oversight is necessary, proper and priceless.  To suggest otherwise is to cheapen the respect for the election process.  It's important that the public have confidence in the process, including the conduct of election officials and equally important that oversight be exercised to prevent potential future abuses.

This brings us to Prosser's cheap shot labeling Kloppenburg's call for a recount as "frivolous."  He should know better, especially since he's caught flak -- appropriately -- for his vulgar and sexist description of Chief Justice Shirley Abrahamson as a "bitch." 

Allow me to illustrate why this latest manifestation of foot-in-mouth disease demonstrates legitimate concerns over Prosser's judicial temperment.

Several years ago I handled a case involving a fight between two Jewish businessmen which broke out after one called the other a "schmuck."  For most of us that term connotes someone who is somewhat like a blundering fool and/or just generally inept -- not the kind of stuff that should lead to fisticuffs.  An expert on Jewish culture, however, explained to me that in his culture the ostensibly benign epithet is actually much more offensive as it's the functional equivalent of calling someone a "cocksucker."

So, too, is the word "frivolous" in legal circles.  The general public may equate the term with "unnecessary" while in legal parlance it's a pretty significant slap when one attorney uses it against another.  Beyond the general implication of incompetence it's also used to slap up an attorney who claims either a nonexistent legal wrong or  legal right.

Here, Kloppenburg is well within her legal rights to demand a recount, even though the outcome of the election is not likely to change.  A recount may be costly and some may question its necessity but it's hardly "frivolous" and Prosser of all people should know better.  He owes Kloppenburg and the people of Wisconsin an apology. 

For those who decry the recount because it costs money and is unlikely to change the result, you need to chill out and remember it's not just about the "bottom line" of who won this election.  It's also to provide necessary oversight over a murky election.  You don't measure transparency and integrity in dollars and cents.

Many years ago a young reporter was lectured by Capt. John Weinandy of the Toledo Police who noted with approval the broad access local media enjoyed to the police station and adjacent city hall.  "One reason we don't have much corruption here," Capt. Weinandy explained, "Is that there are reporters everywhere and, unlike other cities where they try to hide things, we generally want the public to know what we're doing."

Capt. Weinandy is right.  The price of transparency is far cheaper than that of corruption.


Anonymous said...

If there were the least bit of murkiness to the official results I could agree, but there is none. The Brookfield results were available at city hall and online election night. Every other voting district (city, town, village) in the county similarly posted their election night results.

A simple error in county wide tabulation that has been both explained, investigated and reported on by the GAB does not make the results murky.

Anonymous said...

Such even handed reporting...not! First, Chief Justice Shirley Abrahamson is an activist jurist who acts in an obnoxious manner towards those with whom she disagrees politically (like Prosser). So Prosser's characterization of her is well deserved. You neglect to mention her repeated vulgarities directed at Prosser (like flipping him the middle finger while court was in session). Second, Kloppenburg's immediate call for Prosser to concede victory when she was up by a couple of votes is so obnoxious as to almost be beyond description. Except that Kloppenburg is as ugly on the outside as she is black of heart on the inside. When the recount is over, and Kloppenburg loses by over 7,000 votes, the good people of Wisconsin will be fortunate that this repulsive woman(?) Kloppenburg will have been relegated to the ash heap of history. Third, in addition to the joyous outcome for the "silent majority" of non-Leftists in Wisconsin, it's wonderful that the public service unions will have wasted millions of dollars of members' dues that will not be available for the next election cycle. Let's see how interested their members will be in voluntarily sending in dues once the state of Wisconsin halts the automatic collection process.