As noted at this space previously (and which is surely common knowledge by now), there is a Wisconsin statute that explicitly addresses the current situation, where the difference between Prosser's and Kloppenburg's vote totals is 0.488603046756558%:
If the difference between the votes cast for the leading candidate and those cast for the petitioner is not more than 0.5% of the total votes cast for the office, the petitioner is not required to pay a fee. — Wis. Stat. § 9.01(1)(ag)1.So how in the world could something expressly contemplated and authorized by State statute possibly be frivolous? Answer: It cannot.
Personally I believe a recount would be ultimately unavailing to Kloppenburg and moreover destructive to the general political cause, but one thing a recount most certainly would not be is frivolous (which is a legal term of art and as such I would expect its legal understanding to inhere when the term is uttered by a lawyer).
Furthermore the irony of Counselor Troupis's charge is explosive.
His lawsuit filed in Oconto County, which purported to seek a remedy that would stand in clear violation of separation of powers doctrine, in actuality sought obiter dicta from the court which counsel could then provide to Senate GOP leader Scott Fitzgerald as justifying the arrest by State law enforcement officials of 14 Democratic Senators, including one who was at the time six months pregnant.
Despite receiving neither the remedy nor the clear dicta, plaintiff's counsel then pretended that they did obtain the latter, and set to preparing and presenting to Fitzgerald the said legal memorandum — the advice in which even Fitz himself later described as "comical"* — on that questionable basis. All of which describes a situation that, for all practical purposes, is an example of frivolousness incarnate.
Compounding that irony is the fact that Marquette law professor Rick Esenberg, Troupis's co-counsel in the Oconto County matter, was recently featured on Wisconsin Public Radio crying about Dane County Circuit Judge Maryann Sumi's alleged violation of — wait for it — separation of powers doctrine. I have no idea why this is, but the only place I ever read about any of these things is on this here blog.
Joy Cardin never calls me (despite WPR's election website frequently linking here, for which I am grateful, as it generates loads of views).
P.S. Your humble scribe won't claim by his presence there to lend WPR in turn added cachet, but I gotta admit it's darnedly tempting.
* Proving even to this observer at least a tenuous grasp on reality.