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The Incumbency Advantage in Wisconsin Supreme Court Elections

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Only six Wisconsin Supreme Court incumbents have been defeated in state history across more than 120 contests; only two had previously won election to that office

While David Prosser appears to be on his way to being declared the winner of Wisconsin's Supreme Court election that was held last Tuesday, Joanne Kloppenburg came ever so close to pulling off a true rarity in Badger State elections - defeating an incumbent justice.

Although Supreme Court justices in Wisconsin have been voted on non-partisan ballots for nearly 100 years, the incumbency advantage that is usually so powerful in contests for partisan office has remained in full force across the 159 years since the first three justices were elected to the state's highest court in 1852.

A Smart Politics review of more than 120 Wisconsin Supreme Court elections since statehood finds that just six incumbents have been defeated at the ballot box, compared to 89 who were victorious - or a 94 percent election rate.

Moreover, of the six incumbent justices who did lose, just two had ever been previously elected to the Court, and only one had served as long as Prosser.

(An additional 26 elections to the Court were open seat races).

The first incumbent to lose their seat at the ballot box was one of the first three justices that formed the new court in the Election of 1852, Samuel Crawford.

For the four years Wisconsin was a state prior to 1852, its five circuit court judges convened once a year as a Supreme Court - even adjudicating cases they had decided at the lower court level.

In 1852, the Wisconsin Legislature created a stand-alone Supreme Court and Crawford, Abram Smith, and Edward Whiton were its first justices.

Crawford sat on the Supreme Court for three years until losing in 1855 to Orasmus Cole - who later served for 12 years as Chief Justice and amassed a 37-year tenure on the Court through 1892 that remains the longest in Badger State history.

Crawford is one of just two elected justices ever to be unseated at the ballot box in nearly 160 years of elections.

According to Portraits of Justice, a biography of the members of the Wisconsin Court, Crawford is believed to have lost the 1855 election due to his controversial 1854 opinion in the landmark fugitive slave case, Ableman v. Booth in which he wrote that Wisconsin should enforce the Fugitive Slave Act.

It would be another 53 years before a sitting justice would be defeated in an election to the Court in 1908 - with incumbents winning 27 consecutive races during this span.

In between, the Court had expanded from three to five justices in 1877, and from five to seven justices in 1903. The original six-year terms had also increased to 10 years in 1877.

In January 1908, Robert Bashford was appointed to the court by Republican Governor James Davidson to fill the vacancy left after the death of Chief Justice John Cassoday.

In an election held just six months later, Bashford lost to challenger John Barnes by a 21.3-point margin, 57.4 to 36.1 percent.

Another 39 years would pass, and 28 consecutive victories by incumbent justices, before the next incumbent fell - this time in 1947.

In April 1946, James Rector was appointed to the Court by Republican Governor Walter Goodland to fill the vacancy created by the death of Justice Joseph Martin.

In an election for the seat held one year later in 1947, Rector was defeated by Henry Hughes by 21.6 points, 60.8 to 39.2 percent.

(Hughes had been defeated in a bid for the Court in 1946, narrowly losing by 2.5 points to Justice Edward Fairchild).

Eleven years later, in 1958, Justice Emmert Wingert - who was appointed to the Court in 1956 by GOP Governor Walter Kohler, Jr. - was defeated by just 4.9 points by William Dietrich (52.4 to 47.6 percent).

But perhaps the biggest Supreme Court election upset came in 1967, when Chief Justice George Currie was upended by challenger Robert Hansen.

Currie had served for 16 years - six after being appointed by Governor Kohler in 1951, and 10 more after his 1957 victory in which he ran unopposed.

Currie had served as Chief Justice since 1964.

In the 1967 race, Hansen defeated Currie by 11.8 points - 55.9 to 44.1 percent.

Portraits of Justice accounted for his defeat thusly:

"(S)everal outside factors may have led to his defeat. The mandatory retirement age then in effect for judges would have only allowed Currie to serve only two years out of the 10-year term. The governor would have appointed his successor. In addition, a year earlier, the Supreme Court made an unpopular ruling that the state could not use its antitrust law to keep the Braves baseball team in Milwaukee. Although Currie did not write the opinion, he joined it."

Currie is the second and last justice to be defeated in Wisconsin who had previously won an election to the Court, and is the only Chief Justice to lose at the ballot box.

After Currie's defeat, incumbents would win 21 consecutive elections over the next 41 years until Justice Louis Butler lost his seat in 2008.

Butler - the first (and only) African-American to sit on the Court in Wisconsin history - was appointed to the bench by Democratic Governor Jim Doyle in August 2004, after Diane Sykes was appointed to the 7th Circuit of the U.S. Court of Appeals by President George W. Bush.

After serving four years, Butler narrowly lost by just 2.7 points to challenger Mike Gableman (51.2 to 48.5 percent).

In the Prosser-Kloppenburg election battle of 2011, as of Sunday evening, about a half-dozen counties had yet to certify their election results, with Prosser holding nearly a 7,000 vote advantage.

If that margin holds, Kloppenburg would legally be entitled to a recount at the state's expense.

Had Kloppenburg won the election, Prosser, who was appointed to the Court in 1998 and won an uncontested race in 2001, would have been the second longest-serving justice to be defeated in state history, having served 13 years.

Election Winners in Wisconsin Supreme Court Contests, 1852-2011

Year
Winner
Incumbent
Result
1852
Abram Smith
None
---
1852
Samuel Crawford
None
---
1852
Edward Whiton
None
---
1855
Orasmus Cole
Samuel Crawford
Lost
1859
Byron Paine
None*
---
1860
Luther Dixon
Luther Dixon
Won
1861
Orasmus Cole
Orasmus Cole
Won
1863
Luther Dixon
Luther Dixon
Won
1865
Jason Downer
Jason Downer
Won
1866
Luther Dixon
Luther Dixon
Won
1867
Orasmus Cole
Orasmus Cole
Won
1869
Luther Dixon
Luther Dixon
Won
1871
William Lyon
None
Won
1873
Orasmus Cole
Orasmus Cole
Won
1877
William Lyon
William Lyon
Won
1877
Harlow Orton
None
---
1878
David Taylor
None
---
1879
Orasmus Cole
Orasmus Cole
Won
1881
Orasmus Cole
Orasmus Cole
Won
1881
John Cassoday
John Cassoday
Won
1883
William Lyon
William Lyon
Won
1887
Harlow Orton
Harlow Orton
Won
1888
David Taylor
David Taylor
Won
1889
John Cassoday
John Cassoday
Won
1891
Silas Pinney
None
---
1892
John Winslow
John Winslow
Won
1893
Alfred Newman
None
---
1895
John Winslow
John Winslow
Won
1896
Roujet Marshall
Roujet Marshall
Won
1897
Roujet Marshall
Roujet Marshall
Won
1898
Charles Bardeen
Charles Bardeen
Won
1899
Joshua Dodge
Joshua Dodge
Won
1899
John Cassoday
John Cassoday
Won
1901
Joshua Dodge
Joshua Dodge
Won
1903
Robert Siebecker
None
---
1904
James Kerwin
None
---
1905
John Winslow
John Winslow
Won
1906
William Timlin
None
---
1907
Roujet Marshall
Roujet Marshall
Won
1908
John Barnes
Robert Bashford**
Lost
1909
John Barnes
John Barnes
Won
1911
Aad Vinje
Aad Vinje
Won
1913
Robert Siebecker
Robert Siebecker
Won
1914
James Kerwin
James Kerwin
Won
1915
John Winslow
John Winslow
Won
1916
Franz Eschweiler
Franz Eschweiler
Won
1917
Walter Owen
None
---
1918
Marvin Rosenberry
Marvin Rosenberry
Won
1919
Marvin Rosenberry
Marvin Rosenberry
Won
1921
Aad Vinje
Aad Vinje
Won
1922
Burr Jones
Burr Jones
Won
1923
Charles Crownhart
Charles Crownhart
Won
1924
Christian Doerfler
Christian Doerfler
Won
1925
E. Ray Stevens
None
---
1926
Franz Eschweiler
Franz Eschweiler
Won
1927
Walter Owen
Walter Owen
Won
1929
Marvin Rosenberry
Marvin Rosenberry
Won
1930
Chester Fowler
Chester Fowler
Won
1931
Chester Fowler
Chester Fowler
Won
1933
John Wickhem
John Wickhem
Won
1934
Oscar Fritz
Oscar Fritz
Won
1935
George Nelson
George Nelson
Won
1936
Edward Fairchild
Edward Fairchild
Won
1937
Joseph Martin
Joseph Martin
Won
1939
Marvin Rosenberry
Marvin Rosenberry
Won
1941
Chester Fowler
Chester Fowler
Won
1943
John Wickhem
John Wickhem
Won
1944
Oscar Fritz
Oscar Fritz
Won
1945
Elmer Barlow
Elmer Barlow
Won
1946
Edward Fairchild
Edward Fairchild
Won
1947
Henry Hughes
James Rector**
Lost
1949
Edward Gehl
None
---
1950
John Martin
John Martin
Won
1951
John Martin
John Martin
Won
1952
Grover Broadfoot
Grover Broadfoot
Won
1953
Timothy Brown
Timothy Brown
Won
1954
Roland Steinle
Roland Steinle
Won
1955
Grover Broadfoot
Grover Broadfoot
Won
1956
Thomas Fairchild
None
---
1957
George Currie
George Currie
Won
1958
William Dietrich
Emmert Wingert**
Lost
1959
E. Harold Hallows
E. Harold Hallows
Won
1961
Myron Gordon
None
---
1963
Bruce Beilfuss
None
---
1964
Horace Wilkie
Horace Wilkie
Won
1965
Nathan Heffernan
Nathan Heffernan
Won
1966
Thomas Fairchild
Thomas Fairchild
Won
1967
Robert Hansen
George Currie
Lost
1968
Leo Hanley
Leo Hanley
Won
1969
E. Harold Hallows
E. Harold Hallows
Won
1970
Connor Hansen
Connor Hansen
Won
1973
Bruce Beilfuss
Bruce Beilfuss
Won
1974
Horace Wilkie
Horace Wilkie
Won
1975
Nathan Heffernan
Nathan Heffernan
Won
1976
Roland Day
Roland Day
Won
1977
William Callow
None
---
1978
John Coffey
None
---
1979
Shirley Abrahamson
None
---
1980
Donald Steinmetz
None
---
1983
William Bablitch
None
---
1984
Louis Ceci
Louis Ceci
Won
1985
Nathan Heffernan
Nathan Heffernan
Won
1986
Roland Day
Roland Day
Won
1987
William Callow
William Callow
Won
1989
Shirley Abrahamson
Shirley Abrahamson
Won
1990
Donald Steinmetz
Donald Steinmetz
Won
1993
William Bablitch
William Bablitch
Won
1994
Janine Geske
Janine Geske
Won
1995
Ann Bradley
None
---
1996
Patrick Crooks
None
---
1997
Jon Wilcox
Jon Wilcox
Won
1999
Shirley Abrahamson
Shirley Abrahamson
Won
2000
Diane Sykes
Diane Sykes
Won
2001
David Prosser
David Prosser
Won
2003
Pat Roggensack
None
---
2005
Ann Bradley
Ann Bradley
Won
2006
Patrick Crooks
Patrick Crooks
Won
2007
Annette Ziegler
None
---
2008
Mike Gableman
Louis Butler**
Lost
2009
Shirley Abrahamson
Shirley Abrahamson
Won
2011
David Prosser***
David Prosser
Won
* Abram Smith failed to receive the nomination to the Supreme Court in 1859. ** Denotes justice that was never elected to the Court. *** Presumes Prosser holds onto his several thousand vote lead should after canvassing and a potential recount. Table compiled by Smart Politics with data from the Blue Books of Wisconsin, the Wisconsin Historical Society, the Wisconsin Court System, and the Wisconsin Government Accountability Board.

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