Former Supreme Court Justice Janine Geske said she saw little chance that a court challenge to the recount would succeed. "I think it's going to be a very, very difficult road for Ms. Kloppenburg to upset Justice Prosser, unless there are things we do not know about," said Geske, now a professor at the Marquette University Law School. Any evidence is "going to have to be extensive to overcome that number of votes."...It would seem that the only reason for taking this into the courts would be to delay in order to produce this vacancy. The vacancy has special value because of the hot controversy over the budget-repair bill:
Prosser attorney Dan Kelly said earlier this month he was concerned a legal challenge would take months and lead to a temporary vacancy on the court. The next 10-year term on the seven-member Supreme Court begins Aug. 1.
Unions rallied behind Kloppenburg in the hope that she would vote to overturn the law, while conservatives stepped up their support for Prosser in the hope that he would vote to uphold it. Now that bill has been passed by the Legislature but blocked from taking effect by a court challenge....So Kloppenburg failed to win a seat on the Wisconsin Supreme Court in an election that focused on the budget-repair bill, but she could try, by initiating a futile lawsuit about the election, to affect the way the Wisconsin Supreme Court decides the budget case and to affect it in a way that is contrary to what the voters voted for. And, if she does that, expect to hear her say lofty-sounding things about protecting the interests of the voters.
Ultimately, the issue could be decided by the Supreme Court - unless a temporary vacancy in Prosser's seat produces a 3-3 tie, in which case a lower court might have the last word.