In the wake of David Prosser’s surprise leap into a substantial lead in yesterday’s canvass of Wisconsin votes, the Department of Administration filed an emergency request at the state Supreme Court to vacate a temporary restraining order on the new law at the center of the election fight.  SDA Secretary Mike Huebsch also asked the court to pull the case entirely from Judge Maryann Sumi’s court, but Huebsch also pledged to obey the TRO until the Supreme Court acted:

Gov. Scott Walker’s administration went to the state Supreme Court late Thursday afternoon in a bid to implement its controversial collective bargaining measure.

State Department of Administration Secretary Mike Huebsch petitioned the Supreme Court to vacate a temporary restraining order issued by a Dane County judge that blocked the state from implementing the bill.

He asked for a stay of the temporary restraining order and any further proceedings by the circuit court while the Supreme Court reviews the case.

At the heart of this case is the intrusion of the judiciary into the legislative process.  In Wisconsin, precedent and law keeps the courts out of the way of publishing new law; courts only get to weigh in on new law after publication, and after the consequences of it give someone standing to challenge it.  In this case, the intrusion goes even further, as Sumi’s action puts the legislature subservient to the judiciary on its own internal rules, an unconstitutional arrogation of power that the Supreme Court needs to rebuke immediately and forcefully.

David Prosser’s apparent victory this week may make it easier for the court to consider the expedited challenge to the TRO and the law itself.  The unions rolled the dice hard in this off-year election, banking that their organizing skills and a general sense that Scott Walker had lost the public on this law would carry JoAnne Kloppenburg to an easy victory that would frighten off any further challenges to their power.  Instead, the unions only won significantly in Dane County, where the state capital of Madison is and where many state employees live and work.  The rest of the state turned out in force to support Prosser, a low-key justice who had yet to weigh in on this case at all, which sends a big signal to the legislature that the demonstrations in Madison didn’t represent Wisconsin mainstream thought at all.

Still, Prosser has not yet won.  His margin of victory at the moment appears to fall just outside of the 0.5% threshold that would allow Kloppenburg to get a free recount, but cost will be no object to the unions; expect the recount regardless of whether it’s free or not.  But if that 7500-vote margin holds up at the end of the canvass, a recount is almost assured to fail in changing the results.  It will be just another way that Wisconsin PEUs can waste what little funds they have left.