The Incumbency Advantage in Wisconsin Supreme Court Elections

Only seven Wisconsin Supreme Court incumbents have been defeated in state history across more than 120 contests; only three 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 seven incumbents have been defeated at the ballot box, compared to 90 who were victorious – or a 93 percent election rate.

Moreover, of the seven incumbent justices who did lose, just three had ever been previously elected to the Court, and two 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 nine years would pass, and six consecutive victories by incumbent justices, before the next incumbent fell – this time in 1917.

Long-serving Justice Roujet Marshall had been on the bench since his appointment in 1895 by Governor William Upham following the death of Chief Justice Harlow Orton. Marshall was won election in 1896 and was reelected in 1897 and 1907.

A few years prior to the 1917 election, however, Marshall’s opinion in the Forestry Case made him vulnerable at the ballot box. In 1915, Marshall ruled that a series of acts furthering conservation (collectively known as the Forestry Law) were unconstitutional.

Marshall’s opponent was state Attorney General Walter Owen who had defended the Forestry law on behalf of the state. Owen defeated Marshall by 3.4 points.

Following another long stretch of 30 years and 22 straight incumbent victories, the next justice to suffer defeat was James Rector in 1947.

In April 1946, 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.

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