Wisconsin high court challenger declares victory

MADISON, Wis Wed Apr 6, 2011 7:12pm EDT

Demonstrators march around the State Capitol building as they protest against budget cuts from Wisconsin Governor Scott Walker, in Madison February 25, 2011. REUTERS/Darren Hauck

Demonstrators march around the State Capitol building as they protest against budget cuts from Wisconsin Governor Scott Walker, in Madison February 25, 2011.

Credit: Reuters/Darren Hauck

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MADISON, Wis (Reuters) - The union-backed challenger in the race for a seat on Wisconsin's state Supreme Court declared victory on Wednesday in a contest that became a referendum on a new restrictions on public sector unions.

But Wisconsin's first statewide recount in 20 years was virtually certain because just 204 votes separated the two candidates out of nearly 1.5 million cast. A recount could be a complicated, drawn-out affair, experts said.

"It may become ballot-by-ballot warfare in some places," said Richard Esenberg, a former partner at Foley & Lardner who now teaches at Marquette University Law School and an expert on Wisconsin law. A statewide recount has not happened in more than 20 years."

With 100 percent of the state's precincts reporting, JoAnne Kloppenburg had edged out sitting Justice David Prosser 740,090 votes to 739,886, according to the Milwaukee Journal-Sentinel newspaper and WTMJ-TV.

Kloppenburg, an assistant state attorney specializing in environmental affairs, wasted no time claiming the win. "We owe Justice Prosser our gratitude for his more than 30 years of public service," Kloppenburg said in statement.

"Wisconsin voters have spoken and I am grateful for, and humbled by, their confidence and trust. I will be independent and impartial and I will decide cases based on the facts and the law."

Prosser's campaign director Brian Nemoir did not immediately respond to a call seeking comment. He has already said the campaign is preparing for a recount.

If the razor-thin victory by Kloppenburg stands it will flip the state's highest court to a 4-3 liberal majority.

That could be important because Republican Governor Scott Walker's anti-union measure is now the target of several lawsuits that could be decided by the state's high court.

The suit that has gained the most traction so far alleges that Republican lawmakers violated the state's strict Open Meetings Law as they passed the measure.

The judge hearing that case has issued an injunction preventing the law from being enforced and the briefing schedule suggests she won't make a final ruling until late May or early June.

Legal challenges associated with any recount -- involving votes that are counted or excluded -- could add to the growing litigation the deeply divided state faces, experts said.

A victory by Kloppenburg would also represents a wider win for Democrats, who had hoped to channel their anger over Governor Scott Walker's anti-union plan into election victory.

Walker has defended the measure, which eliminates most bargaining rights for public sector workers and requires them to pay more for benefits, as a needed fiscal reform required to help the state close a budget gap.

Critics saw the bill, which eliminates automatic deduction of union dues, as a Republican attack on unions as the single biggest source of funding for the Democratic Party.

The measure sparked the biggest demonstrations in the state capital since the Vietnam War and triggered 16 recall campaigns, targeting legislators on both sides of the issue.

Under Wisconsin law, incumbent Prosser would have to request a recount of the vote, which he is expected to do.

The costs of a recount are covered by the state if the vote difference is less than one half of 1 percent. The results from the Kloppenburg-Prosser contest fall well within that range.

Even as Kloppenburg claimed victory, partisans for both sides claimed the virtual dead heat was a symbolic victory for their side.

Prosser, cast by Democrats and organized labor as a Walker ally who needed to be removed to send a signal to Republicans, called the campaign against him "the most difficult assault on a person's character in the whole history of the Wisconsin judicial system.

"I've weathered the nuclear blast and I'm still standing."

But Democrats and others saw the outcome as proof Walker had overreached and predicted moderate Republicans would see the result as a warning.

"It turns out that Walker's continuing claims of a great silent majority out there supporting him was only a great silent 50 percent," said Mordecai Lee, a former Democratic legislator who now teaches government at University of Wisconsin, Milwaukee.

(Additional reporting by David Bailey; Writing by James B. Kelleher; Editing by Greg McCune)

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