In September 2023, the GOP-controlled Wisconsin state senate voted to oust Meagan Wolfe as the head of the Wisconsin Elections Commission. Wolfe was the target of false conspiracy theories about illegal voting during the 2020 election, but she has refused to step down. (Henry Redman | Wisconsin Examiner)
In a unanimous decision, the Wisconsin Supreme Court ruled that Wisconsin Elections Commission Administrator Meagan Wolfe is allowed to stay in her job and that the six-member commission did not have a duty to replace her when her four-year term expired in July 2023.
After Wolfe’s term expired, three WEC commissioners abstained from a vote to re-appoint her as administrator. State law requires the appointment of a WEC administrator to be approved by a majority of the six members, so without those three votes, she was not actually nominated for a second term and was instead kept in the role as a holdover appointee.
Republicans in the state Senate, who had increasingly become hostile to Wolfe as false claims about the 2020 presidential election continued to hold sway among a number of senators, voted to fire Wolfe anyway. The commission immediately filed a lawsuit against the Senate, arguing that Wolfe could stay in her job.
Before the Wolfe lawsuit, Republican senators had played a crucial role in creating the precedent that allowed her to stay at WEC as a holdover. Senate Majority Leader Devin LeMahieu had worked with Frederick Prehn, a former appointee of Gov. Scott Walker to the state Natural Resources Board, who had remained in his role for more than a year past his term’s expiration in order to retain Republican control of the body and keep an appointee of Gov. Tony Evers from taking her seat.
Attorney General Josh Kaul sued, and a divided state Supreme Court found that Prehn was legally allowed to stay in his job as long as the Senate didn’t vote to confirm his replacement.
While the parties in the Wolfe lawsuit did not seek to overturn the Prehn decision, Republican lawmakers in their defense argued against the precedent they themselves had set.
On Friday, the Court ruled in an opinion authored by Chief Justice Annette Ziegler that under state statute and the Prehn precedent, “WEC does not have a duty to appoint a new administrator to replace Wolfe simply because her term has ended.”
“We’re pleased that the Supreme Court unanimously found in favor of the Commission’s position,” Wolfe said in a statement issued Friday. “And I’m excited to continue to work with elections officials around the state as we prepare for the Feb. 18 Spring Primary and the April 1 Spring Election.”
While the Court unanimously decided in favor of Wolfe, the justices continued to fight about the Prehn decision in dueling concurring opinions.
In a concurrence written by Justice Ann Walsh Bradley and joined by liberal Justices Rebecca Dallet and Jill Karofsky, Bradley wrote that Friday’s decision “should not be taken as an endorsement of the Prehn court’s reasoning.”
She added that the confusion over the Wolfe re-appointment is exactly what Dallet’s dissent in the Prehn decision predicted — chaos.
“As explained in Justice Dallet’s dissent in Prehn, that case rests on shaky ground,” Ann Walsh Bradley wrote. “The charge of this court is to interpret our statutes with a long view, encouraging stability and the functioning of government in a way that makes sense. At the very least, we should question an interpretation that perpetuates ‘disorder and chaos.’”
But in another concurrence that Ziegler joined, conservative Justice Rebecca Bradley wrote that the liberal justices complained about the Prehn precedent while agreeing to its application in the Wolfe case because Prehn was a Republican.
“If Prehn were as absurd or as dangerous as its dissenters profess, they would not wait for a party to advocate its overruling before stemming the ‘disorder and chaos’ they insisted Prehn would produce,” she wrote.
“Those justices cannot have it both ways,” Rebecca Bradley continued. “If Prehn’s pronouncement that holdovers do not create vacancies is ‘nonsensical,’ then Wolfe holding over is too. If the rule of law is to govern, the resolution of each case should not depend upon the individual occupying the office.”
She contrasted the role of judges with that of lawyers representing their clients.
“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,” she wrote. “It appears the Prehn dissenters once again ‘succumb to the temptation of results at the expense of [their] own legitimacy.’”
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