The Wisconsin Supreme Court has ruled that the state’s top election official can remain in the post past her term, dealing a setback to Republican lawmakers’ efforts to remove her.
Chief Justice Annette Ziegler, writing for the court, said that while the WEC is required to appoint a new administrator when a vacancy arises, a holdover official does not create a vacancy.
“The legislators’ separation-of-powers argument relies on the conclusion that WEC has a duty to appoint a new administrator when an administrator’s term expires,” Zieler said in the opinion. “Because this court rejects that WEC has a duty to appoint a new administrator absent a vacancy in the position, the legislators’ argument necessarily fails.”
The ruling marks the latest chapter in a long-running dispute over whether Wolfe, a nonpartisan appointee who has led the WEC since 2019, can continue to serve despite her term having ended on July 1, 2023.
In September 2023, the Wisconsin Senate voted to remove Wolfe after the WEC’s three Democratic members abstained from a vote to reappoint her while Republican members voted in favor. That deadlock effectively kept Wolfe in office under her initial appointment.
The Senate vote, although symbolic, triggered a legal challenge from Democratic Attorney General Josh Kaul, who argued that appointed officials can legally remain in office after their terms expire if they do not step down.
Kaul based his argument on a 2022 ruling by the state Supreme Court, which held that Fredrick Prehn, a Republican appointee to the Wisconsin Natural Resources Board, could remain in office beyond his term because the Republican-controlled Senate never held a vote to confirm a replacement nominated by Democratic Gov. Tony Evers.
The court ruled in favor of Kaul to apply the 2022 ruling to Wolfe’s case.
“If Prehn’s pronouncement that holdovers do not create vacancies is nonsensical, then Wolfe holding over is too,” Ziegler, who penned the majority opinion in the Prehn case, wrote for the entire panel. “If the rule of law is to govern, the resolution of each case should not depend upon the individual occupying the office.
“Advocates are free to switch sides from one case to the next as their clients’ interests warrant, but justices are supposed to declare what the law is, regardless of the impact on their political benefactors or detractors.”
Wolfe has been at the center of controversy for her oversight of the 2020 presidential election, particularly after the WEC decided not to send special voting deputies to nursing homes due to the COVID-19 pandemic and instead directed clerks to mail absentee ballots to nursing home residents upon request. The decision drew criticism from President Donald Trump, who alleged that it had resulted in “thousands and thousands and thousands of crooked votes.”
The Trump campaign sought and paid for recounts in Wisconsin’s Dane and Milwaukee counties, but the results did not change the outcome. Trump then sued to invalidate the votes from those counties, only to have the state Supreme Court dismiss the challenge.
In the aftermath of the election, Wisconsin became one of several states where Trump allies launched investigations into alleged election fraud. A 14-month investigation led by former Wisconsin Supreme Court Justice Michael Gableman found that numerous ballots were cast by seemingly confused nursing home residents, noncitizens, and ineligible felons.
However, Wolfe defended the integrity of the election and dismissed the allegations.
