Wisconsin Elections Commissioner Meagan Wolfe speaks about election processes days before the 2022 midterm election. (Screenshot)
The legal limbo of Wisconsin Elections Commission Administrator Meagan Wolfe’s reappointment was put to the test Wednesday as the body considered whether or not she should attend a planned confirmation hearing.
Wolfe’s initial four-year term expired this summer. In late June, the commission held a meeting to nominate her for a second term in her position. But Senate Republicans had signaled they wouldn’t approve her nomination after years in which she was subject to partisan attacks involving conspiracy theories about the 2020 presidential election. In an effort to avoid a Republican-led Senate confirmation fight, the three Democratic members of the body undertook a legal maneuver in an attempt to keep her in her seat while not re-nominating her.
For most actions, the six-member commission must have four yes votes in order for the action to pass. The three members appointed by Democrats voted to abstain, preventing the body from reaching that fourth vote.
The idea behind the maneuver was to take advantage of the legal precedent set by the Wisconsin Supreme Court when it decided last summer that a Republican appointee to the state’s Natural Resources Board, Frederick Prehn, could stay in his seat indefinitely so long as his replacement wasn’t confirmed by the Senate. Prehn’s refusal to leave allowed Republicans to control the state’s environmental and conservation policies for 20 months longer than if he’d left when his term expired.
After the Democratic appointees to the WEC declined to join the vote to approve Wolfe’s nomination, the state Senate decided that the WEC had done so anyway with its 3-0 vote. In June, the body passed Senate Resolution 3, which states that Wolfe has been nominated to serve as administrator and the nomination has been referred to the Senate Committee on Shared Revenue, Elections and Consumer Protection.
This week, Sen. Dan Knodl (R-Germantown) has told the commission he plans to hold a hearing on Wolfe’s confirmation in the coming weeks. On Wednesday, the commission met to potentially decide whether or not Wolfe should attend that hearing.
While the dispute is most likely to be decided in court, the commission’s chair, Don Millis, said he wanted to have the commission meet to discuss what Wolfe should do because the situation is unique.
“I don’t consider anything we do here to be agreeing or disagreeing with the actions of the Senate or the provisions of Senate resolutions,” Millis, a Republican appointee, said. “All I’m trying to do is allow Meagan to tell her story and, and move on so that we can continue to operate as a commission and try to do the best we can to administer elections in the state of Wisconsin.”
Most of the commissioners agreed that it’s not within their authority to say which government officials Wolfe is and isn’t allowed to speak with, especially since she has frequently appeared before legislative committees to testify about the functions of the state’s elections.
“I don’t want to get in the business of having a meeting every time someone wants to order her to appear somewhere, ask her to appear somewhere or prohibit her from appearing somewhere,” Commissioner Ann Jacobs said. “I think that is just a terrible precedent to set and I think it diminishes the role that she serves in as our state elections official. I don’t want to do it. I don’t want to start doing it. She is a competent and capable person and she can decide.”
Jacobs added that voting to allow Wolfe to testify could be seen as agreeing with the Senate that it actually has her nomination before them.
“I think that it is unfortunate that we would be indulging the Legislature and their pretense that they have a nomination to rule on when we know they do not,” she said. “They do not have a nomination before them. I don’t care what they pretend. And why would we indulge that sort of anti-statutory — this bald faced lie that there’s a nomination before them when there is not a nomination before them. And they may not like the law as it stands; they may now suddenly regret the Prehn case. But it is the law as it exists right now. And Meagan is our administrator, she remains our administrator and she will remain our administrator unless or until this body removes her, she departs the position or heaven forbid she passes away. So I don’t have any interest in indulging the Legislature’s circus, which is based on a false reading of the law.”
Several of the commissioners said that if they were giving her advice, they would say Wolfe shouldn’t go, but that they trust her judgment and want to let her make a decision.
“I think it is up to Administrator Wolfe to decide whether or not she wishes to testify,” Commissioner Joseph Czarnezki said. “If she’s asking for my advice, I would say don’t.”
Despite most of the commissioners agreeing it’s not under the body’s authority to say whether or not Wolfe can attend a legislative hearing, Republican Commissioner Robert Spindell made a motion to authorize her attendance. A second to the motion from Commissioner Marge Bostlemann was withdrawn, so no action was taken.
Wolfe said she believes she’s in an impossible situation, but that she feels slightly more comfortable knowing the commissioners trust her judgment.
“I think it is a really difficult spot and you know if I’m being very frank with you all I feel like I am being put in an absolutely impossible, untenable spot either way,” she said. “Because there’s an opinion that the Legislature holds. There’s an opinion that some of the commissioners hold. And then there’s another opinion that the other half of the commission holds and so I don’t know that there’s a great answer here. But knowing that I have the clear backing from the commission is important to me. That I not be operating against your will because I serve at your will.”
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