Senate Majority Leader Devin LeMahieu (R-Oostburg). (Baylor Spears | Wisconsin Examiner)
Maneuvering over the future of the current state elections administrator has ratcheted up in the Capitol as the state Senate’s Republican leader is vowing to move ahead with confirmation hearings and a vote on a nomination that Democrats argue doesn’t exist.
On Tuesday, the three Republicans on the Wisconsin Elections Commission (WEC) voted to nominate Meagan Wolfe for another four-year term as the commission’s administrator, effective July 1. Without a majority of the six-member commission, however, the nomination failed.
The commission’s three Democrats abstained from voting, reasoning that the law didn’t allow the commission to make an appointment because there was not a vacancy. At the same time, they praised Wolfe and said they hoped she would continue in the job.
Wednesday night, at the tail end of a Senate floor session held to vote on the state budget, the Senate’s Republican majority passed a surprise resolution to treat the elections commission vote as a formal reappointment, despite the official outcome.
“Miss Wolfe’s reappointment will move through the normal process in the State Senate,” Senate Majority Leader Devin LeMahieu (R-Oostburg) said just before the vote. He said that would include a public hearing, a committee recommendation that goes to the full Senate, “and we’ll vote on her reappointment on the floor.”
The WEC Democrats abstained from voting to reappoint Wolfe Tuesday night, knowing that the Republican-led Senate would not confirm her. They argued that they could only make an appointment if there was a vacancy, which there isn’t because Wolfe has not stepped down.
They also declared that a 2022 state Supreme Court ruling entitled Wolfe to remain the elections administrator indefinitely as long as no successor is confirmed.
The 2022 ruling allowed Natural Resources Board member Frederick Prehn to remain in his seat after his term expired because the Senate had not confirmed his successor. The Wisconsin State Journal reported Thursday that in a private email message to conservatives two weeks ago LeMahieu said he thought that ruling could block the Senate from ousting Wolfe without WEC reappointing her.
LeMahieu’s resolution Wednesday was an attempted end-run around that outcome, however. He told reporters after the floor session that WEC’s 3-0 vote the night before, with three abstentions, fulfilled a requirement in state law that the administrator must be approved by a majority of the six-member commission.
State Senate Democrats, who all voted no on the resolution, rejected LeMahieu’s reasoning. Immediately after the session, Minority Leader Sen. Melissa Agard (D-Madison) in a tweet declared the GOP measure moot.
“The Wisconsin State Senate cannot legally entertain confirmation for a vacancy that does not exist, nor on an appointment that is not before them,” Agard tweeted. “WEC has not made an appointment, so there is no appointee before the Senate about which a confirmation vote can be conducted.”
Ann Jacobs, one of the Democratic elections commission members who had abstained in the commission’s vote, made the same argument in a series of short tweets: “Let’s make this clear – the Senate can’t vote on a nomination the WEC never made!!! No nomination = no nominee = nothing to confirm = nothing to vote on. This is just political posturing and nonsense.”
Dustin Brown, senior staff attorney at the University of Wisconsin Law School’s State Democracy Research Initiative, told the Wisconsin Examiner in an interview Thursday that the law creating WEC requires a clear majority of the six-member commission to appoint an administrator.
“Three people out of six voting in favor of reappointment is not a majority of the commission,” Brown said. “You need at least four of them.” As a result, “There is no nomination for the state Senate to act on.”
Wolfe was unanimously appointed by the commissioners and confirmed by the Republican-majority Senate four years ago. But she became a target of supporters of former President Donald Trump, who blamed both the elections commission and Wolfe for Trump’s Wisconsin reelection loss in 2020.
Over the weekend, Wolfe sent a letter to Wisconsin legislators “to set the record straight related to false claims that have been made about Wisconsin election administration and my tenure as administrator.”
In the letter, Wolfe stated that investigations, court rulings and other evidence documenting “the integrity of the 2020 election cycle,” but nonetheless, “the story of the election has been repeatedly mischaracterized.” A persistent claim, she added, “falsely attributes Commission decisions to me rather than the six voting Commissioners.”
The letter was accompanied by a separate document listing 11 points — some presented as questions with answers, others reporting critical claims about the election commission’s practices and presenting rebuttals to those claims.
During the Tuesday night WEC meeting, two of the Republican commissioners along with the Democrats praised Wolfe’s work during and after the 2020 election and condemned the attacks on her and the commission.
The Trump supporters’ criticism of Wolfe, however, has spread to a group of state Senate Republicans, who have said they would vote against confirming her for another term.
The WEC vote Tuesday night that failed to formally reappoint Wolfe, and the Republican Senate resolution Wednesday night that nonetheless declared her formally reappointed, have created a standoff — one that Brown of the UW Law School said could spark “a dispute over the status of the administrator position.”
“That’s a question that could and likely would be litigated if there is not a political resolution to it,” Brown said Thursday.
His review of the statutes and the 2022 Supreme Court ruling have led Brown to conclude that Wolfe, as a holdover appointee, “can remain in office unless and until she is lawfully replaced.”
The WEC law includes a provision for the Joint Committee on Legislative Organization to appoint an interim administrator. But “that would also be incorrect, because there is not a vacancy as long as Meagan Wolfe is holding over,” Brown added, and the law refers to such an action only in the event of a vacancy.
“At this point, there is no avenue for the Senate as a whole or the Joint Committee on Legislative Organization to do anything to replace Meagan Wolfe,” he said.
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