Dan O’Donnell wonders why everyone is ignoring a very clear provision of state law that requires the Wisconsin Legislature to replace Meagan Wolfe as administrator of the Wisconsin Elections Commission
Aug. 31, 2023
Perspective by Dan O’Donnell
Meagan Wolfe has got to go. That’s not an opinion, mind you, or an assessment of her performance as administrator of the Wisconsin Elections Commission (WEC). It’s a legal requirement. Regardless of whether she deserves to continue in her role, the plain, inescapable fact is that she is no longer legally allowed to serve.
The sound and fury surrounding Tuesday’s Senate confirmation hearing, therefore, signifies nothing, as Wolfe was never lawfully appointed to a new term after hers expired on July 1st. WEC’s three Democrat commissioners thought they ensured this when they tried to circumvent the renomination process by abstaining from a vote on Wolfe’s reappointment.
This move, they thought, would allow her to continue to serve after the expiration of her term without facing confirmation in the Senate, where she would almost certainly be rejected. Because a nomination requires a majority of commissioners to vote in favor of it, WEC was unable to nominate her even though all three Republican commissioners voted in favor of her in order to get her to the Senate where, again, she would almost certainly be rejected.
@DanODonnellShow Wolfe ceased being WEC's administrator on July 1st and on Aug 15th, Wisconsin law required the Republican-controlled Jt Comm on Legislative Organization (JCLO) to select an interim replacement. Click To Tweet
In a letter to Senators this week, Legislative Council attorneys gave their stamp of approval Democrats’ scheming, writing that “state law requires a majority of WEC commissioners to appoint an administrator; currently, a majority constitutes at least four votes.
“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.”
Though they are technically correct, their analysis is either ignorant of or intentionally overlooking the most relevant part of state law. The appointment of WEC’s administrator is governed by Wisconsin Statute § 15.61(1)(b)(1), which establishes that said position “shall be appointed by a majority of the members of the commission, with the advice and consent of the senate, to serve for a 4-year term expiring on July 1 of the odd-numbered year.”
If a majority of commissioners is unable to appoint an administrator—as it was in June when the three Democrats abstained—then the statute provides that “the elections commission shall be under the direction and supervision of an interim administrator selected by a majority of the members of the commission.”
Wolfe ceased being WEC’s administrator on July 1st and on August 15th, Wisconsin law required the Joint Committee on Legislative Organization to select an interim replacement, which is co-chaired by Senate President Chris Kapenga and Assembly Speaker Robin Vos.
Here, however, a majority of commissioners has not appointed Wolfe as an interim administrator. In fact, they have not appointed anyone to serve as interim administrator. This means that the position is vacant. Wolfe seems to believe that since former Department of Natural Resources Board Chairman Fred Prehn was able to stay in his role for years after his term expired (arguing successfully that a vacancy was only created and his term only ended when the Senate confirmed his successor), the Prehn precedent does not apply in her case.
Her position is governed by Wis. Stat. § 15.61(1)(b)(1) and Wis. Stat. § 15.61(1)(b)(1) only, and it is unambiguous: “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.
“If the commission has not appointed a new administrator at the end of the 45-day period, 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.”
In Wolfe’s case, a vacancy occurred when her term expired on July 1st and a majority of WEC commissioners failed to appoint her to a new one. 45 days later, on August 15th, the Wisconsin Legislature’s Joint Committee on Legislative Organization (JCLO) was empowered (and in fact statutorily required) to appoint an interim commissioner.
The JCLO, co-chaired by Senate President Chris Kapenga and Assembly Speaker Robin Vos, is controlled by Republicans (including Senate Majority Leader Devin LeMahieu) who could and legally must appoint a new interim WEC administrator of their choosing.
LeMahieu and Senate Elections Committee Chairman Dan Knodl instead moving forward with confirmation hearings for Wolfe is thus the height of stupidity. They are operating on the incorrect assumption that a majority of commissioners voting for Wolfe’s appointment (the three Republicans) is actually a majority of commissioners and will easily be defeated in court if Wolfe challenges the Senate’s inevitable rejection of her nomination.
Wolfe doesn’t actually have the legal standing to sue since she is not actually WEC’s administrator. She ceased being one on July 1st and on August 15th, Wisconsin law required the JCLO to select an interim replacement.
This is easy. The law says Meagan Wolfe has to go. Holding confirmation hearings is making this a whole lot harder than it needs to be. The JCLO must name an interim replacement and move on.