Incumbency effects in low-information elections

Whatever the final outcome of the Wisconsin state Supreme Court election, the basic tenor of it is clear — an even split. There have been a number of articles suggesting that this is a surprise, and that conservative incumbent David Prosser should have been expected to cruise to victory. But should we really expect the kind of incumbency effects we see in other races to manifest in judicial elections?

It’s important to understand, first, that while every election has its quirks, this one was really atypical. Generally speaking, state supreme court elections don’t take place six weeks into massive protests against the state’s sitting governor and amid legal wrangling over a controversial new law likely to be reviewed by said court. Turnout in this election was much higher than a typical spring election in Wisconsin, and considering that inability to adequately model it, I don’t know that any outcome should’ve come as a surprise. Prosser took 55% of the vote in the open primary (before the protests started), and opposition to Gov. Scott Walker’s anti-union bill has been in the mid-50s, suggesting anything from 55-45 for Prosser to 55-45 for challenger JoAnne Kloppenburg would’ve been plausible. But polls aren’t elections, and in the primary a total of about 419,000 votes were cast (compared with almost 1,500,000 in the general), so even these boundaries are weak.

If there are incumbency effects at work here, what might they be? Political science typically focuses on legislators in the study of incumbency effects, and there isn’t much there that maps well to the judiciary. Justices don’t have the name-recognition of legislators for a number of reasons, including their much less frequent elections. Justices are also not protected by partisan systems that sometimes allow legislators to easily win general elections in “safe” districts, assuming they survive primary challenges, nor do they have the opportunity to win voters over through constituent service.

And yet, the history of Wisconsin’s supreme court elections includes just five losses by incumbents. The most recent occurred in 2008, when conservative Michael Gableman won a contentious election with strong backing from Wisconsin Manufacturers & Commerce, a year after WMC successfully supported Annette Ziegler’s re-election bid. The previous loss by an incumbent was in 1967, which suggests there is some effect of judicial incumbency. Prosser’s first election, in 2001, suggests it may be the absence of a party system to recruit and support challengers. After being appointed in 1998, Prosser ran unopposed for a full term. In a halfway-politicized judicial system — elections, but no parties — we probably shouldn’t expect to see the kind of challengers and challenging campaigns that we see in other races.

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