Democrat Abstentions Temporarily Block Reappointment of Wisconsin Elections Chief

Meagan Wolfe, the head of the Wisconsin Elections Commission, speaks during a virtual press conference on Nov. 4, 2020. Wisconsin Elections Commission via Reuters

The strategic abstentions of the three Democrats on the Wisconsin Elections Commission (WEC) resulted in the failure of a motion to reappoint embattled WEC Administrator Meagan Wolfe to a second four-year term.

Wolfe has been the highest-ranking state elections official since 2018. She has drawn criticism for her administering of the 2020 presidential and 2022 midterm elections.

All three Republicans on the Commission voted to reappoint Wolfe.

The votes of four of the Commission’s six members are required to reappoint Wolfe and forward her appointment to the state Senate for its advice and consent, so the motion died.

The special meeting was held on the afternoon of June 27, just three days before Wolfe’s term expires on July 1. The motion to reappoint was the only business on the agenda.

Wolfe’s Performance Praised

Before the vote, the Democrats were joined by all three Republicans in praising Wolfe’s performance, and all said they wanted her to have another term.

Democrat commissioner Ann Jacobs said of Wolfe, “She is the best person to lead the Commission going forward.”

The Wisconsin State Capitol in Madison, Wisconsin. Carol M. Highsmith via Wikimedia Commons/Public Domain

Jacobs also said that the Senate should “promise to appoint Meagan Wolfe.” Yet Jacobs told the Commission that she must abstain from voting to reappoint her.

Before his abstention, Democrat commissioner Joseph Czarnezki stated that Wolfe was “more than qualified and should remain in the position.”

Dilatory Tactics Explained

The Democrats’ parliamentary maneuver of abstention thwarted the Commission’s Republican members’ desire to reappoint Wolfe.

Fearful of the likelihood of the GOP supermajority in the Senate declining to confirm Wolfe’s reappointment, Democrat commissioner Mark Thomsen candidly explained the political reasoning behind the abstention tactic, saying, “We won’t let the Senate do what we wouldn’t do ourselves.”

Thomsen, Czarnezki, and Jacobs also offered a legal theory to justify their actions. They contended that because there was “no vacancy” at the moment in the position, the WEC had no authority to make an appointment.

Legal Precedent?

They said their position was based on Kaul v Prehn, a case decided by the Wisconsin Supreme Court on June 29, 2022.

Interior view of the Wisconsin Supreme Court courtroom, inside the Wisconsin State Capitol building, Madison, Wisconsin, on July 24, 2013. CCO 1.0 via Wikipedia

The decision held that the expiration of the term of an appointed official does not create a vacancy and that the incumbent may continue to serve as a “holdover” until confirmed by the state Senate.

However, that case dealt with positions filled by appointment of the governor with the consent of the Senate, while the WEC administrator is appointed by the Wisconsin Elections Commission with the consent of the Senate.

It appears it will be left up to the courts to determine if the Prehn decision is relevant to Wolfe’s situation.

Keeping Wolfe Around for 2024

The Democrats asserted that because there is no vacancy, there can be no appointment and, therefore, no submission to the Senate for confirmation, an argument that may prove to be nothing more than a tactic to keep Wolfe in office a little longer.

Wisconsin law states, “If a vacancy occurs in the administrator position, the commission shall appoint a new administrator, and submit the appointment for senate confirmation, no later than 45 days after the date of the vacancy.”

The question of whether the expiration of Wolfe’s term on July 1, 2023, creates a vacancy was not specifically addressed at the meeting.

Litigation Likely

WEC Chairman Don Mills, a Republican, said a lot depends on the definition of the word “vacancy” and that a lawsuit seemed “inevitable.”

Thomsen said he’d rather take his chances in court than in the Senate.

At a press conference following the brief meeting, Wolfe stated, “We are in unprecedented territory. I have a very clear intent here, and that is to make sure that our Commission…and our local elections officials have the stability they need as we move forward.”

Mills told reporters that a “holdover” administrator would decrease stability and draw questions about Wolfe’s authority during the 2024 election.

“It’s more than a bad look. It’s going to create problems for us and for election officials across the state,” he said.

Wisconsin statutes say that if the WEC fails to make an appointment within 45 days, it would fall to the Joint Committee on Legislative Organization to appoint someone to serve as an interim administrator until the Senate is able to confirm an appointee. The interim administrator would be allowed to serve no longer than one year.