(Updated) Republican frontrunner Tom Foley’s third attempt to deny Lt. Gov. Michael Fedele access to more than $2 million in public campaign funds failed late Friday afternoon when U.S. District Court Judge Stefan Underhill denied Foley’s request for an injunction.

In an unusual decision Underhill agreed with Foley’s position that the supplemental grant the state plans on giving to Fedele’s campaign is unconstitutional, a position Underhill held back in August 27, 2009 when he issued his landmark ruling in the initial challenge to the Citizens’ Election Program. The U.S. Second Circuit Court recently concluded the same earlier this week when it issued its decision.

However, Underhill concluded that Foley’s campaign waited too long to file the lawsuit and authorized the State Elections Enforcement Commission to release the additional $312,500 supplement grant to Fedele. The release of the additional funds brings Fedele’s campaign coffers up to $2.5 million in the primary.

“Although I acknowledge that failing to issue an injunction now may deprive the plaintiffs of a remedy – the SEEC may grant the final installment of matching funds to Fedele as soon as today – the plaintiffs’ decision to wait until the last minute, and until after close to $1 million in matching funds has already been granted, to sue the state defendants undermines the alleged seriousness of the harm that the plaintiffs stand to suffer,“ Underhill wrote.

Underhill also concluded it would be against the public’s interest to enter an injunction or temporary restraining order in favor of Foley’s campaign.

“Issuing a temporary restraining order will render voters in the Republican primary less informed about the gubernatorial candidates seeking the Party’s nomination because it will limit the speech of one candidate who followed and relied on the campaign finance rules as they existed,” Underhill wrote.

“Furthermore, the facts in this case indicate that the plaintiffs will not be significantly hamstrung by Fedele’s increased spending from the excess expenditure matching funds. Foley has raised more than $2.7 million, a total amount that exceeds what Fedele will be granted by the CEP; in other words, Foley will still be able to outspend and out-campaign Fedele, although perhaps not to the degree that he would prefer.”

But perhaps the bigger issue is that a decision in favor of Foley could upset the entire system and all the participating candidates.

Underhill touches briefly on the fact that “issuing an injunction in this case would likely affect the timing for the legislature to amend the CEP and keep it operational during the 2010 election season.”

The Second Circuit remanded its decision on the Campaign Finance Reform Act to Underhill’s court earlier this week. The provision the appeals court upheld governs the severability of the law.

Once Underhill writes language implementing the Second Circuit’s decision the General Assembly has 30 days to conform to the decision or make changes to it. If the General Assembly fails to act within the 30 day period the entire clean elections system will disappear.

But Fedele’s campaign wasn’t concerned with the long term implications of Friday’s court decision.

“Three times, in three courts, Tom Foley has attempted to obstruct the political process through merit-less and frivolous lawsuits – and three times he has failed,” Jim Conroy, Fedele’s campaign manager, said. “Tom Foley’s hat-trick of failed frivolous lawsuits, speaks volumes to his respect for taxpayers and the judicial system.”

The Foley campaign has a different take.

“Now, in multiple rulings, parts of the new financing scheme have been declared unconstitutional and still Mike Fedele and the SEEC insist on dipping into more than $1 million of taxpayer money as if it is theirs alone to spend,” Justin Clark, Foley’s campaign manager, said Monday.

Clark and the Foley campaign maintain that Fedele should return the close to $1 million it received in supplemental funds.

“As a candidate for governor, and as a public agency with a fiduciary responsibility to manage state resources, both Lt. Governor Fedele and the SEEC should immediately halt plans to give an additional $300,000 to the Fedele campaign, and Fedele should immediately return the nearly $1 million supplemental grant he received last week,” Clark said.

The state Supreme Court will hear arguments in Foley’s other case against the state Tuesday morning.