Legislative attorneys disagree with Senate Republicans over status of WEC administrator

Attorneys for the state Legislature disagree with Senate Republican leaders over the status of the administrator of the Wisconsin Elections Commission as the Senate moves forward with proceedings to remove her from office. 

The four-year term of the administrator, Meagan Wolfe, expired at the end of June. Wolfe was initially confirmed to the position in 2019 with a unanimous vote by the Senate, but after four years in which she was often the subject of Republican conspiracy theories and complaints about the 2020 presidential election, senators signaled they would not confirm her to another term. 

The WEC met in late June to vote on her reappointment, but in a procedural move attempting to bypass the Senate, the three Democrats on the commission voted to abstain from approving her renomination. 

The move took advantage of a precedent set by the Wisconsin Supreme Court last year when it ruled that political appointees can remain in their seat as holdovers so long as their replacement is not confirmed by the Senate. In that case, the Court ruled that a Republican appointee to the state Natural Resources Board could not be forced out of his position even though his replacement had been named. The ruling allowed the appointee, Frederick Prehn, to remain on the board for nearly two years past the expiration of his term. 

The Democratic commissioners vote to abstain prevented the body from reaching the four votes traditionally required for a motion at the WEC to pass. Despite the move, Senate Republicans acted the next day as if Wolfe’s nomination had been forwarded to them with a 3-0 vote and started confirmation proceedings. 

Sen. Dan Knodl (R-Germantown), the chair of the Senate elections committee, has scheduled a public hearing on Wolfe’s confirmation for Tuesday at 10 a.m. Wolfe said she won’t attend after Democratic Attorney General Josh Kaul wrote in a memo that her nomination wasn’t valid. 

In a new legal memo, the Wisconsin Legislative Council said that the appointment or reappointment of the WEC administrator requires four yes votes from the commission. The Legislative Council provides nonpartisan legal analysis to state lawmakers. 

“State law requires a majority of WEC commissioners to appoint an administrator; currently, a majority constitutes at least four votes,” attorneys Katie Bender-Olson and Peggy Hurley wrote in the analysis. The memo was requested by Sen. Mark Spreitzer (D-Beloit), who sits on the Senate elections committee.

“Based on the statutory text and conventions of statutory interpretation in Wisconsin, the best interpretation of state law is that appointment of a WEC administrator requires four votes of the commission,” the attorneys wrote. “This is because the provision ‘relating directly to the appointment of an administrator refers to a ‘majority of the members of the commission,’ and not to a majority of those voting, and because actions of the commission generally require a two-thirds vote.”

The dispute is likely to be decided in court.