I am in D.C. today, but my thoughts right now are in Wisconsin. I haven't blogged on the Wisconsin Supreme Court's decision to defer any ction on Mark Green's ability to transfer federal contributions to his state account and, to be honest, I can't really address the merits. The idea that the record needs further development because the parties can't agree on the facts or on the need to resolve the applicability of federal law does not seem overwhelmingly right, but the Court is being asked to exercise its original jurisdiction (since it turns out the order wasn't) and that is a strange and rare animal. I'd have to do what they did, i.e., read the briefs and the record to have an opinion.
But there is a real shame is in the division between the Court's liberal and conservative wings. The State Elections Board actions - adopting an emergency rule the day after the transfer and splitting along party lines after an ex parte memo from the Governor's lawyer - look bad enough. Even if they got it right, it all seems like nothing more than an exercise of raw power.
The left-right division on the court, putting aside the merits, just adds to the impression that all of this turns on whose ox is gored. While I am not saying that the majority was driven by partisan concerns (I assume they were not), might it not have been better to just dismiss the petition, i.e., refuse to hear the case? (Justice Prosser suggests so in dissent.) The way things stand now if the Court takes the case and decides that the money could have been transferred (too late for Green)then it just looks like the SEB and courts set out to screw Mark Green. While I cannot believe that any of the justices would do that, the whole thing just undermines public confidence in the judiciary.
One of the things that won't happen, although Xoff apparently fears it, is Green seeking to set aside the election if he loses. I can't imagine any argument for doing so that he or his lawyers could make with a straight face. Once again, Bill, leave the legal stuff to professionals.