Yesterday, the Wisconsin Supreme Court dismissed the lawsuit brought by gubernatorial candidate Mark Green against the State Election Board. Although the Journal-Sentinel blurb on the case does not go into it, the dismissal was not a ruling on the merits. The parties stipulated to the dismissal.
As you may recall, the issue in the case was the Board's order that Green return $450,000 that had been raised through legal contributions to his federal campaign account. This money could not have, in the first instance, been raised for his state campaign but the Election Board had allowed such transfers in the past.
The day after he made the transfer, the Board met and decided (in an essentially partisan vote) that, now, it would not permit the transfer. Green asked the Supreme Court to review the Board's action. For procedural reasons, he needed to do it by filing an original action rather than by appeal from a lower court decision. This is a rare thing and the Supreme Court (by a 4-3 vote) said that it could not decide the matter before the election.
In the election, the issue was never Green's ability to use the money, but the Doyle campaign's allegation that this all meant that Green "broke the law" and was corrupt. This was critical to Doyle because of the perception that he does not exactly follow the Marquis of Queensbury rules when it comes to raising money. One of the two themes of his campaign was to neutralize this weakness by suggesting that Green was just as bad.
In that context, the court had no option that would not inject it into the campaign. Refusing to rule was, in effect, ruling against Green.
Nevertheless, the majority decided to punt and did so by a 4-3 vote in which the perceived conservatives all dissented.
Concurring in the decision to accept the parties' agreement to dismiss, Justice Prosser takes the court to task for refusing to hear the case back when it still meant something. He contrasts its decision last fall with a famous and historic decision, Bashford v. Barstow, in which the court took up the question as to who actually won the 1855 gubernatorial election in the face of the incumbent governor's threat to refuse to abide by its decision.
Justice Crooks takes Prosser to task, arguing that the court could not have heard the case last fall because there were factual disputes (the Supreme Court is not really equipped to deal with those) and the court did the best it could.
I have not studied the matter enough to express an opinion on who is right, but it appears that, by December, the Board had essentially stipulated to all the necessary facts. It is unclear what had changed during that time.
I do believe that what Doyle and the State Election Board did to Mark Green was atrocious. Perhaps the case was not in a posture for the court to hear it, but its failure (whether justified or not) to address the issue was extremely unfortunate.
This kind of controversy is great for a guy, like me, who is developing a law school course on the Wisconsin Supreme Court. My guess is that it makes it a bit frostier around the water cooler.