Wisconsin Recount: Nightmare Scenarios #1 and #2

Since the Wisconsin Supreme Court race will go to a recount, as always that recount will be litigated.  If it is litigated, it will be appealed.  And of course the final arbiter in the Wisconsin court system is — the Wisconsin Supreme Court.

Nightmare Scenario #1: The justices deadlock 3-3 on partisan grounds, leaving whatever intermediate appellate court decision to stand.

Nightmare Scenario #2: The Court votes 4-3 in favor of Prosser with Prosser voting for himself.  No, I don’t really believe it, either.  But if it is anything like the United States Supreme Court, the justices are their own judges on recusal (any reader who knows the rules please comment and link!).  And there is no indication — as in none — that Republicans have any kind of commitment to institutional rules that would led to any self-limiting action.  Besides, let’s say Prosser didn’t recuse himself: any challenge to it would go to — the Wisconsin Supreme Court, which would deadlock.

Just a thought.  Sweet dreams!

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

4 thoughts on “Wisconsin Recount: Nightmare Scenarios #1 and #2”

  1. Opinions vary, but according to the Journal-Sentinal website, the Supreme Court doesn’t rule on a Supreme Court recount. The appeals court would be final final.

  2. Nightmare scenario #3: while the recount and related litigation are pending, the appeal of the bill-passing makes its way to the Wis. Sup. Ct. before the Prosser/Kloppenburg issue is settled . . . .

  3. The election of Kloppenburg would just change the make-up to 3-1-3. The 1 generally votes with the conservative judges anyway.

  4. Kloppenburg isn’t due to take her seat until August 1st anyway. One way or the other the recount will be resolved by then.

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