This article is excerpted from Richard L. Hasen’s book, The Voting Wars: From Florida 2000 to the Next Election Meltdown.
The tweets were full of rage. As officials began to tally the results of the tight ballots, many voters suspected fraud. After all, there had been allegations of election misconduct before, as well as lost-and-found votes. Trust in government officials didn’t run high. By late in the evening, one opposition party leader came forward, accusing a local election official of “tampering with the results.” Fears of a political backlash rose. Soon there were even suggestions of violence.
The scene wasn’t the site of some Arab Spring-inspired revolution. It was Wisconsin in August 2011. Wisconsin residents had just voted on whether to recall a number of state senators, with the potential to flip the legislative body from Republican to Democratic hands. The vote totals were rolling in from polling places across the state, and I was following the reaction of hundreds of political junkies tweeting about the results using the hashtag #wirecall.
That evening provides a window into what the world could look like should we be unlucky enough to have our next presidential election as close as the 2000 presidential election. Wisconsin could be our future, and it’s not a pretty picture.
In 2000, just a few hundred votes out of millions cast in the state of Florida separated Republican presidential candidate George W. Bush from his Democratic opponent, Al Gore. The outcome of the election rested on Florida’s 25 electoral votes, and legal wrangling continued for 36 days. Then, abruptly, one of the most controversial Supreme Court decisions in U.S. history, Bush v. Gore, cut short the battle. But partisans learned that it is worth fighting tooth-and-nail over election rules. Since the Florida debacle, we have witnessed an ideologically fueled war over election rules. Election litigation has skyrocketed, and election time brings out inevitable accusations of voter fraud and voter suppression. These allegations have shaken public confidence, as campaigns deploy “armies of lawyers” and the partisan press revs up when elections are close and the stakes are high. Wisconsin shows us that social media is bound to make things much, much worse than they were in 2000.
By 2010, Wisconsin’s politics had already become among the most polarized in the nation. The election of Republican Scott Walker as governor and some of his early legislative initiatives—in particular, a new law curtailing the power of public sector labor unions—had contributed to the ideological rancor. After Walker’s victory but before the Senate recall elections, Wisconsin voters voted in an expensive and ugly state Supreme Court race that would determine the ideological balance of the court. The court at the time was mired in a partisan spat unconnected to Walker. Someone had leaked an internal court email from a few years earlier in which incumbent Republican Justice David Prosser called Wisconsin Chief Justice Shirley Abrahamson, a well-respected Democratic jurist, “a total bitch,” a claim that repeated again and again in anti-Prosser television ads.
On April 6, 2011, the lead between Prosser and his Democratic opponent Joanne Kloppenburg seesawed all night as returns rolled in. In the middle of the night, when it appeared that all the returns were in aside from some uncounted absentee and questioned ballots, Kloppenburg had eked out a come-from-behind lead of about 200 votes. The Wall Street Journal’s John Fund led a parade of conservative bloggers and Twitter users charging that voter fraud was responsible for Kloppenburg’s late surge.
But then the waters got murky. The next morning, Kathy Nickolaus, a Republican election official from Waukesha County who used to work for Prosser in the state legislature, announced that she had been storing her county’s election results on her personal laptop computer, and when she reported votes on election night she had inadvertently failed to include 14,315 votes from the city of Brookfield. With those votes included, Prosser jumped to a 7,300-vote lead statewide.
Fund and Republicans quickly dropped their cries of voter fraud, but Democrats and their allies immediately suggested chicanery by Nickolaus, who had previously been chastised for lax security with her ballots. The influential liberal blog “Think Progress” said that “critics” suggested the result must be from foul play or incompetence. The URL for the blog post was a little more blunt. It read in part: “kathy-nickolaus-crook-or-idiot.”
Ramona Kitzinger, the Democrat on the Waukesha elections board, at first vouched for Nickolaus, but the next day she issued a statement posted on a local Democratic Party website: “I am 80 years old and I don’t understand anything about computers. I don’t know where the numbers Kathy was showing me ultimately came from, but they seemed to add up. I am still very, very confused. …” Kloppenburg demanded a recount and an investigation. Eventually, given the margin of Prosser’s victory and no evidence of intentional wrongdoing by Nickolaus, Kloppenburg conceded.
Prosser did what everyone expected: He cast the deciding vote on the state Supreme Court to uphold the Wisconsin law limiting the collective bargaining rights of public sector unions. The collective bargaining rights case was so contentious at the Wisconsin Supreme Court that during the drafting of the opinions, Prosser and Justice Ann Walsh Bradley got into a physical altercation at the courthouse, which remains under investigation.