Could sleepy office nix Wisconsin’s pick for president?

GOP candidate for secretary of state says the job entails veto power over election certification.

June 15, 2022 6:15 am
Great Seal of the State of Wisconsin | Image courtesy Wisconsin State Historical Society

Great Seal of the State of Wisconsin | Image courtesy Wisconsin State Historical Society

After decades of having its powers chipped away by the Legislature, the Wisconsin secretary of state’s office has become largely irrelevant. The office holder’s most important remaining duty is to sit on the state Board of Commissioners of Public Lands, which oversees some state investment funds and land holdings.

But the office is also the official repository of the Great Seal of Wisconsin, which is affixed to various documents. And that, according to one of the three Republican candidates for secretary of state vying in the Aug. 9 primary for the right to run this fall, gives it absolute power to block the electorate’s choice for president. 

“The secretary of state has to sign a sheet of paper for the election,” GOP contender Jay Schroeder told a gathering of the Dane County Republican Party at a city park in Sun Prairie on June 7. “I wouldn’t have signed it. Period.” The audience applauded. “That means they wouldn’t have been awarded,” he said.

Schroeder is considered a serious contender in the Aug. 9 primary election, which also includes state Rep. Amy Loudenbeck, R-Clinton, and Justin Schmidtka, a former Marine from Green Bay. In the last secretary of state election in 2018, Schroeder ran against the office’s long-time Democratic incumbent, Doug La Follette, and nearly won, garnering 47% of the vote, or more than 1.2 million votes.

La Follette is also facing a primary opponent, Alexia Sabor, head of the Dane County Democratic Party, who argues that La Follette, given essentially nothing to do, has not done enough. On Sunday, La Follette left on a trip for Africa until early July, meaning he will not be present for three critical weeks of the primary election season.

The “sheet of paper” to which Shroeder is apparently referring is the Certificate of Ascertainment for President, Vice President and Presidential Electors. Wisconsin Election Commission spokesperson Riley Vetterkind, in response to an inquiry, identified the state statute governing Wisconsin’s certification process. It states:

“For presidential electors, the commission shall prepare a certificate showing the determination of the results of the canvass and the names of the persons elected, and the governor shall sign, affix the great seal of the state, and transmit the certificate by registered mail to the U.S. administrator of general services.”

In 2020, the actual certificate from Wisconsin awarding the election to Joe Biden was signed by both Gov. Tony Evers and La Follette, with La Follette’s signature appearing alongside the great seal.

The statute seems to say that the governor is the one who would affix the seal. But La Follette, in an email exchange on June 10, just before he left for Africa, said the statute’s wording regarding how the governor shall sign and affix the great seal is imprecise.

“The governor does not have the great seal,” La Follette noted. “The Secretary of State according to the constitution is the keeper of the great seal. . . . So it was my responsibility to fix the great seal and [sign] the documents the governor brought to the office.”

Had La Follete refused to sign, would the certification be invalid, as Schroeder contends? La Follette said he doesn’t know: “That is an interesting question. I’ve never asked the attorney general for an opinion. Might be a good project for you.”

Emails to the Department of Justice’s spokesperson Gillian Drummond and to the office’s communication team yielded no response. Rick Esenberg, president and general counsel of the conservative Wisconsin Institute of Law and Liberty, also did not respond to a question asking whether it would be “legally defensible to claim that the secretary of state’s refusal to affix the great seal makes the certificate invalid.”

GOP takeover

Wisconsin Republicans have made no secret of their desire to imbue the secretary of state’s office with new powers to oversee elections — that is, if a Republican manages to win in November.

Loudenbeck, who has the superior resume among the GOP contenders but may not be extreme enough to secure a potentially pivotal endorsement from former President Donald Trump, wants the secretary of state’s office to play a larger role in elections, as is the case in some other states. 

“I think there’s a lot of frustration from the public that there is no one directly accountable to the voters that is involved in the administration of elections,” she told Wisconsin Public Radio late last year, suggesting that the office could “serve as a check” in the Elections Commission, which many Republicans want to abolish. She said this could include “participating in some of the duties the [Wisconsin Elections Commission] conducts, or even just serving on the commission.”

Schroeder and fellow GOP primary contender Schmidtka have both made election integrity a central theme of their campaigns. Schroeder, in announcing his candidacy last November, called for returning oversight of state elections to the secretary of state’s office, declaring “The days of rigging elections for fraud are over.”

At the Dane County GOP event last week, Schroeder tore into Loudenbeck, saying “She voted to create WEC. She voted for the $10 million budget of WEC. She wants to be a check on WEC. For nine months now. I’ve been saying I want to fire WEC.” He said a “Trump advisor” had dubbed her “Amy Silentbeck,” for not doing more to fight make-believe fraud: “You want elections cleaned up? Vote for me. You want the same crap? Vote for my opponent.”

In April, La Follette told the Examiner that granting new powers to the secretary of state’s office was a risky proposition.

“In a lot of states a Republican governor and a Republican secretary of state could throw out the election and send their own people to Washington,” he warned. “If Evers is defeated and the legislators are willing, something like that could happen in Wisconsin.” Indeed, elections in Wisconsin were overseen by the secretary of state’s office until 1974, when La Follette was first elected. 

But while the scenario described by La Follette would require legislative action and be subject to the governor’s veto, the one envisioned by Schroeder would not. The secretary of state, acting alone, could refuse to affix the great seal and arguably block the certification. 

Any such move would certainly be contested in the courts, which could ultimately mean subjecting it to the judgment of the strict constructionists who comprise the majority on the Wisconsin and U.S. Supreme Courts. They would have to look at the statutory language that seems to say the certificate “shall” include the great seal and decide that it is just as valid if it does not.

Amending the secretary of state’s powers

The issue has come up in a different form before. In 2011 La Follette, at the direction of a Dane County judge, refused to publish the passed version of Act 10, the state law kneecapping public employee unions. The state Supreme Court, then as now dominated by conservatives, ruled that the judge had exceeded her jurisdiction in putting a hold on the law, meaning there was nothing to preclude La Follette from publishing the bill. Two years later, the Legislature passed a bill that stripped the secretary of state of the power to delay publication of new laws.

Loudenbeck’s campaign did not respond to an inquiry for this article asking whether she believes the statute cited by Schroeder gives the secretary of state legal authority to deny an election result by refusing to sign and whether she would have sought to use this authority to block the 2020 election result.

The third GOP contender for secretary of state on the Aug. 9 ballot, Justin Schmidtka, also did not respond to the same query. He declares on his website that the “mission” of his campaign is “abolishing the Wisconsin Election Commission and returning oversight and certification of elections to the Secretary of State.”

Dmitry Becker, an early GOP candidate for secretary of state who dropped out of the race in late April, throwing his support behind Loudenbeck, tells the Examiner that he disagrees with Schroeder’s interpretation of the statute, which he thinks is strategic. The statute, he says, makes no mention of the secretary of state’s office, only to the great seal, and, in his view, the person holding this office “doesn’t get to decide whether they want to affix the seal.” 

As Becker sees it, Schroeder is advancing these claims because he is “really trying to gun for the endorsement of Donald Trump — he knows he’s not going to win the primary without it.”

Would Trump prefer endorsing a candidate who wants to be a check on the Wisconsin Elections Commission or one who is calling for burning down the house and suggesting that he would use the powers of the office to throw an election Trump’s way?

Is that even a question that needs to be asked?


Update: After this story was published, Rick Esenberg of the Wisconsin Institute of Law and Liberty replied to say ​​that, as he reads it, the language for certification of presidential electors does not require the signature of the Secretary of State but it does require the governor to affix the Great Seal, which under Art. XIII, sec. 4 of the state Constitution is kept by the Secretary of State and used to authenticate all official acts of the governor.

“Without researching the matter, I would read this to mean that the Secretary’s duties with respect to the great seal are ministerial—i.e., he or she has no discretion,” Esenberg wrote in an email. “Thus, it seems to me, that if the Secretary of State refuses to yield the Great Seal to the Governor, he or she would be subject to a writ of mandamus directing that it be done. Unless the Governor was trying to perform an illegal act, that writ would be granted.”

Thus, Esenberg concludes, “So the Secretary of State would have no discretion to decide who won the election. He or she would have to perform his or her statutory prescribed duties based upon the determination of those who do conduct the canvas (subject, of course, to judicial review).”

Correction: This article has been corrected to reflect that the former Marine running in the GOP primary for secretary of state on the Aug. 9 ballot is named Justin Schmidtka.

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Bill Lueders
Bill Lueders

Bill Lueders, former editor of The Progressive magazine and current editor-at-large, is a Wisconsin writer who lives in Madison. He also serves as the elected president of the Wisconsin Freedom of Information Council, a statewide group that works to protect public access to government meetings and records.