Balance of Power, Future of Key Issues at Stake in Wisconsin Court Race

Wisconsin Supreme Court Justice Pat Roggensack, right, and opponent Ed Fallone debate earlier this month during their campaign for a seat on the court. Tuesday's election could have a significant impact on important state issues coming up. (AP Photo/Wisconsin State Journal, Amber Arnold)

Two years after a contentious and bruising Supreme Court election, Wisconsin voters return to the polls Tuesday to cast their votes in another judicial election. Although not as hotly contested as in 2011, this election could alter the state's future on key issues for years to come.

The candidates are current Supreme Court Justice Pat Roggensack, generally thought to be a member of the court's conservative wing, and Marquette University law professor Ed Fallone. While the election is technically nonpartisan, much of the political activity and debate surrounding the campaign has been anything but.

Conservative groups have thrown their weight behind Roggensack, who's benefited from Republican-backed campaign donors and advertising from outside groups like the conservative Club for Growth. Progressive and labor groups have remobilized to back Fallone in the wake of their failed effort to oust Republican Gov. Scott Walker in a recall election last year.

At stake is the ability to sway the outcome on Supreme Court decisions in the near future. The court now has a 4-3, conservative-liberal split. If Fallone wins, it could give liberals the upper-hand, or at least strip the court of its current conservative bent.

Dysfunction and Gridlock

A political cloud descended over the court two years ago during the debate over Walker's effort to end collective bargaining rights for most public workers in Wisconsin. Quickly, the justices found themselves adjudicating an issue that roiled most of the state's citizens, and forced the state to the forefront of a nationwide debate over labor unions, government spending and Republican policies in general.

Controversy surrounding the court wasn't limited to its decisions, either. As the justices considered the issues before them, reports emerged of personal disputes between members. Justice David Prosser was accused of choking another justice and disparaging Chief Justice Shirley Abrahamson during a discussion of the collective bargaining measure.

The court became embroiled in the same kind of political dysfunction and gridlock that gripped lawmakers at the state capitol. Various groups raised concerns over conflicts of interest and recusal rules, alleging that justices on the court are taking up issues that directly affect, and potentially benefit, the interests that helped them win their seats in the first place.

The campaign has unfolded under the perception of an impaired court. Fallone, for his part, has looked to cast his opponent as part of the reason for the court's dysfunction, in a sense running as much against the court's personal and political divisions as any specific position she's taken.

“Wisconsin is a state that traditionally is proud of the government,” Fallone said. “People in Wisconsin don't want to see that in their government, they certainly don't want to see that in the court.”

Roggensack, meanwhile, has downplayed the “dysfunction” criticism and instead focused on her own experience on the bench — and the notable inexperience of Fallone, who's never served as a judge, but has spent decades working in and teaching law.

“Ed Fallone doesn't actually understand what goes on in the court. He's an associate professor,” said Brandon Scholz, of the Roggensack campaign. “The court had an unfortunate incident, they're still dealing with it.”

“Is it dysfunctional?” he added. “No it's not.”

Three Issues at Stake

The eventual political split of the court could be of particular significance if three issues find their way before it, as is expected. First, two separate legal challenges have temporarily blocked the state's voter ID law from taking effect, but one or both could soon be on the Supreme Court's docket.

Second, while Walker's plan to strip collective bargaining rights for most public employees has taken effect, labor unions haven't given up the fight. If they manage to get the issue before the Supreme Court again, they hope to have a more sympathetic majority hearing their case than last time.

And finally, Wisconsin, like many other states around the country, is seeing a dispute play out between business and environmental interests over mining — in this case, controversial open-pit, iron ore mining. That, too, has been brought before lower courts and many believe it's a matter of time before the Supreme Court will weigh in.

All three issues have brought attention and a flood of money to the campaign, both on the airwaves and for the candidates themselves. The state Republican Party and business interests have given thousands of dollars to Roggensack, according to campaign records, while Fallone has drawn financial backing from labor unions that have directed thousands of dollars to his efforts.

Outside groups also have factored heavily when it comes to campaign spending, as more than $650,000 has been spent on the campaign, with about 40 percent of that coming since the February primary.

A state manufacturer's group has poured tens of thousands of dollars into pro-Roggensack efforts, according to a report from the Brennan Center for Justice. And ahead of the February primary, the center found that the conservative Club for Growth accounted for more than three-fourths of the total campaign spending, totaling more than $300,000.

Meanwhile, Fallone has seen labor unions mobilize their members and get-out-the-vote efforts to support his candidacy. Members have been called to staff phone banks, knock on doors, prepare mailers and advocate for Fallone in the workplace.

“People understand the importance of Supreme Court elections more than they ever have before,” said Stephanie Bloomingdale of the Wisconsin AFL-CIO. “We're working very hard to get the word out about this election. The game is really all about turnout.”

Uphill Battle

Throughout the campaign, liberals worried that Fallone was overmatched — both in resources and name recognition. Challenging a sitting justice in a relatively low profile, spring election is always difficult. And Roggensack, who received more than double Fallone's vote in the primary, was the only candidate with television ads before that election. Fallone only recently joined in the ad wars.

In raw fundraising, too, Roggensack has the advantage, having raised nearly $300,000 since the pre-primary filing period, and nearly $500,000 overall. Fallone, meanwhile, raised almost $234,000 since the primary and just $314,000 overall.

Political experts and legal observers in the state wonder whether there's enough of a fervor surrounding the campaign that Fallone can use to his advantage in his uphill fight.

“It's hard to see where Fallone is going to get traction,” said Barry Burden, a political science professor at the University of Wisconsin-Madison.

That seems to be the defining characteristic of this election. For all the outside interests at work, the 2013 race hasn't become a proxy election over Walker and his policies in the way the 2011 election did.

That has sapped both the attention the candidates have received and the drive behind the efforts to unseat the incumbent Roggensack, said David Helpap, a political science professor at the University of Wisconsin-Green Bay. In this kind of election, that can work to the advantage of the incumbent, even though similar issues are in play as two years ago.

“The 2011 race was so close to what was happening with the governor and the legislature that really put a spotlight on it,” Helpap said. “That has kind of subsided over the last several years — I'm just not sure (voters) make the connection.”