Surprise, Surprise: WEC Is Planning On Violating State Law Again

WEC Democrats are trying to unlawfully circumvent the State Legislature to get a partisan liberal reappointed as Wisconsin’s top elections official. Dan O’Donnell explains how.


June 28, 2023
Perspective by Dan O’Donnell


It just wouldn’t be election administration in Wisconsin without Democrats bending the rules, would it? On Tuesday, the three Democratic members of the Wisconsin Elections Commission (WEC) abstained from voting to reappoint administrator Meagan Wolfe to a second four-year term in to circumvent a Republican-controlled State Senate that would almost certainly refuse to confirm her.

Wolfe, who as administrator runs the day-to-day operations of WEC and is responsible for implementing commissioners’ decisions, has presided over one of the most shameful periods in Wisconsin’s sordid history of election mismanagement.

All of Wolfe’s decisions—every single one—provided a partisan advantage to Democrats, which is why they are now trying to game the system to keep her in power for the 2024 presidential election.

For the entire duration of her tenure, she has consistently ignored and wantonly violated state law in expanding the use of ballot drop boxes, removing special voting deputies from nursing homes, refusing to clean up the state’s voter rolls, and allowing clerks to “cure” defective ballots so that they may be counted instead of being sent back to the voter for correction.

All these decisions—every single one—provided a partisan advantage to Democrats, which is why they are now trying to game the system to keep her in power for the 2024 presidential election.  Ironically, though, the commissioners who have for years now squealed about preserving democracy are now doing their best to avoid the democratic process.

“Meagan Wolfe is the best person to run our agency, and that’s why I’m abstaining [from voting to reappoint her],” Democrat WEC commissioner Mark Thomsen said.  “I will take my shots with the court rather than at the Senate.”

Thomsen’s gambit presupposes that a recent Wisconsin Supreme Court decision allowing Frederick Prehn, a Governor Scott Walker appointee, to remain on the Department of Natural Resources (DNR) Board for years after Governor Tony Evers named his replacement.

It most definitely does not.  WEC’s Democrats are, unsurprisingly, misinterpreting both case law and the plain meaning of the Wisconsin statutes.  Prehn successfully argued that Wisconsin Statute § 17.03 allowed him to stay on the DNR Board until the Senate confirmed Governor Evers’ appointment of a replacement.

The statute is clear in that the expiration of Prehn’s term did not create a vacancy on the board; vacancies are only created when “the incumbent dies…resigns… is removed…[or] ceases to be a resident of this state” (among several other far less likely occurrences).  However, the statute also provides that a vacancy is created by “any other event occurs which is declared by any special provision of law to create a vacancy.”

WEC’s commissioners failing to reappoint Wolfe is just such an event.  Under Wisconsin Statute § 15.61(1)(b)1, once Wolfe’s term expires on Saturday, she must be replaced by an “interim administrator selected by a majority of the members of the commission.”

That appointee will serve until commissioners pick a new permanent administrator.  If they are unable to do so and “submit the appointment for senate confirmation, no later than 45 days after the date of the vacancy,” then “the joint committee on legislative organization shall appoint an interim administrator to serve until a new administrator has been confirmed by the senate but for a term of no longer than one year.”

The Wisconsin Legislature’s joint committee on legislative organization is comprised of Senate and Assembly leaders, and because Republicans hold majorities in both chambers, they have a 6-4 majority on the committee.  Should WEC’s commissioners be unable to present the Senate with a new or interim administrator within 45 days of Wolfe’s term expiring on Saturday, the Legislature’s Republican leaders would be empowered to make an interim selection who could serve for a maximum of one year (or until WEC commissioners select and the Senate approves a new permanent administrator).

WEC’s three Democrats, of course, can’t possibly abide by state law, so instead of voting for Wolfe and sending her nomination to the Senate, they are instead banking on the Wisconsin Supreme Court’s new liberal majority to ignore the law and side with them once Justice-elect Janet Protasiewicz is sworn in later this Summer.

This may be a winning proposition, as Protasiewicz will join three of the most nakedly partisan, legally illiterate justices in the country in Ann Walsh Bradley, Rebecca Dallet, and Jill Karofsky.  They will undoubtedly ignore Wisconsin Statute § 17.20(1), which holds that “vacancies in appointive state offices shall be filled by appointment by the appointing power and in the manner prescribed by law for making regular full-term appointments thereto.”

For WEC’s administrator, unlike a DNR Board member, the manner for making appointments is proscribed Wisconsin Statute § 15.61(b)(1).  Once her term expires, WEC has 45 days to appoint either a new full-time administrator or an interim one.  If it cannot do so by a majority vote, then Legislative Republicans appoint a new administrator.

This is the law, and it is crystal clear.  But because it doesn’t benefit Democrats, WEC will of course ignore it or blatantly and remorselessly violate it.  Just like they always do.

Sadly, Wisconsin has come to expect nothing less.