Assistant Attorney General JoAnne Kloppenburg claims victory in the state Supreme Court race against incumbent Justice David Prosser on Wednesday at the Edgewater Hotel in Madison. Unofficial results Wednesday showed Kloppenburg with a paper-thin lead over Prosser after a race marked by massive voter turnout. Credit: Mark Hoffman

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Madison — A recount is all but certain in the race for state Supreme Court, which would pose a host of legal questions, raise the political stakes in efforts to recall state senators, ignite a new bout of political fundraising and further fuel Wisconsin's ongoing battle over union bargaining.

On Wednesday, nearly 20 hours after the polls closed, Assistant Attorney General JoAnne Kloppenburg claimed victory over Justice David Prosser after an unofficial tally showed her holding the thinnest of leads. According to an unofficial tally by The Associated Press, she was up 204 votes out of nearly 1.5 million cast - a margin of 1/100th of a percent.

"Wisconsin voters have spoken, and I am grateful for, and humbled by, their confidence and trust," she said in a statement.

Wisconsin is already a focus of national attention because of the fight over Gov. Scott Walker's collective bargaining measure, and now the state's election system will likely get unprecedented scrutiny under the first statewide recount in more than 20 years.

The future of Walker's union measure also hangs in the balance - the legislation has yet to go into effect because of court challenges, and its fate is ultimately expected to be decided by the Supreme Court.Prosser issued his own statement, which said: "The victor in this election won't be decided today, or even tomorrow, as counties conduct their canvasses which will better reconcile the reported results. . . . We have survived an epic campaign battle, and we will continue to fight for every vote cast."

Kloppenburg's lead could disappear or grow stronger once official tallies are sent by counties to the Government Accountability Board, which runs state elections.

"I'll stress to the public that those are unofficial results," board director Kevin Kennedy said of figures showing Kloppenburg ahead. "They're very good numbers, . . . but we have not completed our process."

Kennedy and political observers from both sides said they expected that whoever loses will ask for a recount, and that any recount could wind up in litigation. The last statewide recount was in 1989 over a referendum to change the state Constitution to allow officials to provide income tax credits on property taxes or sales taxes people paid.

The proposal lost by 650 votes in the first official count and by 1,098 in the recount, he said.

But there are no records of statewide recounts for races involving candidates since before 1913, Kennedy said.

There was a statewide recount in the governor's race in 1858, Kennedy said, but he said he did not know if there were any recounts between 1858 and 1913.

Unique situation

The campaigns of Kloppenburg and Prosser have talked to election officials about the process for recounts and what fundraising rules would be in place, Kennedy said.

Brian Nemoir, Prosser's campaign director, said he had been through about 10 recounts in his political career, but none involving a statewide race.

"There's no playbook for this," he said.

With a recount looming, the next step is to make sure "ballot integrity" is protected, Nemoir said.

Nemoir said the campaign was beginning the process of checking with vote counters in each of the state's 72 counties to make sure ballots are protected and no one tampers with them.

He said the campaign would work to make sure there is a reconciliation between the number of votes the media were reporting and what the counties were reporting.

At a news conference in Madison, Kloppenburg said she was "ecstatic" with the results and believed they would hold up when the official returns are certified or after a possible challenge by Prosser. She said it was premature to comment on whether she would challenge the results if they show she lost to Prosser.

The winner of Tuesday's election is to take office Aug. 1 for a 10-year term on the court. If Kloppenburg wins, it will be the second time in three years that an incumbent was defeated.

Michael Gableman beat then-Justice Louis Butler in 2008, but before that it had been 41 years since an incumbent lost a race for a high court seat. Just five Wisconsin Supreme Court justices have been unseated by challengers since the court was created in 1852.

Most votes were counted Tuesday and the early hours of Wednesday, but a few precincts were not tallied until later Wednesday. Kennedy said absentee and military ballots should have been included in all those counts, but in a news conference he stressed that discrepancies in totals are likely to arise.

"There will be changes because this is a very human process," he said.

Once official numbers are in, either candidate - but no one else - can request a recount once the votes officially have been canvassed. If the margin between the candidates is less than 0.5% the state charges nothing to conduct the recount. If the margin is between 0.5% and 2%, the candidate asking for the recount must pay $5 per ward.

The margin currently falls easily within the state's trigger for a recount at no cost.

The government's cost of a recount is likely well over $1 million, with those costs largely borne by counties that have to recount the ballots, said Kennedy.

Candidates can't yet formally request a recount from the Accountability Board because county officials haven't finished putting together their official vote totals. The earliest a recount could begin would be late next week, he said.

Process detailed

Here's how the process would work in the coming days:

By 4 p.m. Wednesday, municipal clerks were to have delivered all their materials to the offices of county clerks around the state.

By 9 a.m. Thursday, county boards of canvassers have to start meeting and making an official report on ward-by-ward vote totals. Those reports will be sent to the Accountability Board.

The Accountability Board technically has until May 15 to certify the results, but Kennedy said a recount could begin by next week.

Once official statewide results are in, the losing candidate has three business days to decide whether to request a recount.

If a recount is requested, the Accountability Board would issue an order that it start simultaneously in counties around the state. Workers would sort through all the voting materials, double-check that they have the proper number of voters in each area, and recount ballots.

Observers could challenge ballots, which would then be set aside for further review.

About 90% of ballots are counted by running a paper document filled out by a voter through an optical scanner, Kennedy said.

Once counties complete their work on a possible recount, the new official totals would be sent to the Accountability Board again.

After any possible recount, the issue could still go to the courts.

In one twist, state law calls for Chief Justice Shirley Abrahamson to appoint the state judge who would hear the case if the loser of a recount in a statewide election goes to court over the outcome. Abrahamson and Prosser have clashed on the court. Prosser's private remark calling Abrahamson a "total bitch" was the subject of a recent political ad attacking Prosser.

State law says the trial judge in the case should be a reserve judge if one is available.

"The chief justice picks the reserve judge, which of course would add controversy to what is already controversial," said Janine Geske, a former Supreme Court justice and now a professor at Marquette University Law School.

Once there is a ruling, it may be appealed to the Court of Appeals based in Madison, a court made up of five members: Margaret Vergeront, Brian Blanchard, Gary Sherman, Paul Higginbotham and Paul Lundsten.

None of the five judges on the appeals court endorsed either candidate. Blanchard and Kloppenburg shared the same campaign manager, Melissa Mulliken.

The statute says the appeals process outlined above is the "exclusive judicial remedy" in the case of a recount dispute. It does not explicitly say whether the finding of the Court of Appeals could then be appealed to the state Supreme Court.

But Kennedy of the Accountability Board said he understands the law to mean that a decision by the court of appeals on the race could be appealed to the state Supreme Court.

Under Supreme Court rules, Prosser alone would decide whether to hear a case if it came before the high court. If he steps aside, that would leave six justices to hear the case and raises the possibility of a 3-3 split. In that case, the ruling by the appeals court would stand.

Much of the court race has been a proxy fight over Walker, with conservatives saying they needed to preserve the current majority on the court and liberals saying they would have a better chance of overturning the collective bargaining measure with Kloppenburg on the court. The two candidates distanced themselves from that talk, saying they would rule impartially on all cases.

Outside spending was heavy in the race, with a record $3.6 million spent by special interest groups on TV ads, according to the Brennan Center for Justice at the New York University Law School.

The public heard less from the candidates themselves because of spending limits. Both candidates received $400,000 in taxpayer money for their campaigns and agreed to largely forego raising private campaign funds.

That public financing system was created in 2009 as a way to minimize instances in which justices have to hear cases involving campaign donors.

But in a recount, Prosser and Kloppenburg would be able to privately raise unlimited sums, according to Kennedy.

No campaign contribution limits would apply. Normally, candidates for Supreme Court who privately fund their campaigns can accept no more than $1,000 from any individual or political action committee.

While the costs of any actual recount will be borne by state and counties, the candidates would need money - and lots of it - to observe the vote counts around the state and do legal work.

Craig Gilbert, Don Walker and Larry Sandler of the Journal Sentinel staff contributed to this report.