Wisconsin elections administrator won’t appear before Senate committee

Wisconsin’s top election official will not appear before a Senate committee hearing next week about her future in the job, following new guidance from the state Department of Justice.

It’s the latest twist in an ongoing dispute between the bipartisan Wisconsin Elections Commission and the GOP-led Legislature over the future of Administrator Meagan Wolfe, who has remained in her post as a holdover since her term expired earlier this summer.

A hearing of the Senate Committee on Shared Revenue, Elections and Consumer Protection scheduled for next week is set to discuss Wolfe’s post. If she were to appear there, it could open the door to official confirmation proceedings, during which she could essentially be fired. But Democratic Attorney General Josh Kaul said that state law would not allow for such proceedings, because Wolfe can remain in her post indefinitely.

“To the extent that there is any unfounded doubt, I am writing to make clear that WEC has not appointed a new administrator, and there is no WEC administrator appointment before the Senate. This is not a close question under state law,” Kaul wrote in a letter addressed to Wisconsin Legislative Council director Anne Sappenfield.

Kaul said the Senate committee doesn’t have the authority to take up the matter of Wolfe’s employment.

“Instead of creating unnecessary confusion about whether Meagan Wolfe remains the WEC administrator — there is no question that she does — the Senate should remove consideration of the WEC administrator from the committee hearing,” Kaul wrote.

Wolfe later told the Milwaukee Journal Sentinel in a statement that she would not participate in the hearing, following that letter.

“Given the position taken by the Department of Justice, which is representing the WEC, I won’t attend Tuesday’s Senate committee hearing. As the state’s chief election official, engaging with lawmakers is a critical part of my role, and I look forward to discussing the good work of the Commission with them in the future,” Wolfe said.

An ongoing saga

The state Legislature has been trying to push Wolfe toward confirmation proceedings since her term expired earlier this summer. The Wisconsin Elections Commission did not renominate her for a second term, which would have been the first step toward confirmation.

Instead, three members moved to nominate her and three abstained from voting. The agency requires four votes to approve a nomination. Kaul and other Democrats argue that deadlock means there is no nomination to be taken up for consideration by the Legislature.

They cite a 2022 ruling by the former conservative majority on the Wisconsin Supreme Court that an appointee of former Republican Gov. Scott Walker could remain in his job indefinitely because he did not step down when his term expired. The court case suggests that, if an appointee does not step down, there is no vacancy to be filled.

“The whole thing is unusual. It’s unusual that the elections commissioners themselves would divide, three to three, on whether to reappoint the administrator,” said Barry Burden, an elections expert at the University of Wisconsin-Madison. “So there’s a kind of a legal ambiguity now that didn’t exist before. But it seems to allow Megan Wolfe to stay in her position beyond her term, something that probably wouldn’t have been possible a year ago.”

After the commission declined to move Wolfe’s renomination forward, in late June, the GOP-led state Senate surprised observers by voting to hold a hearing over her confirmation anyway. Next week’s committee hearing would typically be the first step towards a formal confirmation hearing.

And Sen. Majority Leader Devin LeMahieu, R-Oostburg, has said Wolfe will not have the votes to survive such a hearing. That means she would be effectively fired from the post, just six months out from the first elections of Wisconsin’s 2024 cycle.

But that is all irrelevant, Kaul argued, because the Supreme Court ruling from last year — determined by a then 4-3 conservative majority — means that Wolfe can stay in a holdover position.

It’s unclear whether the Senate elections committee intends to take up the Wolfe question in her absence.

These unprecedented legal questions are likely to face court challenges, legal experts say. That could set the stage for a shaky few months as thousands of local clerks begin preparing for next year’s elections, Burden said.

“It is crucial that the election officials know this fall who their personnel will be and what the rules will be, what funding they have — all of that needs to get tightened down so the election administrators can do their jobs next year,” he said. “So I think clerks around the state would really appreciate having certainty about who will be the administrator and feel confident that person will be serving through the next presidential election.”

Wolfe, who was unanimously confirmed to her position in 2019, has received accolades for her nonpartisan administering of Wisconsin elections. But she has also been subject to attacks after former President Donald Trump’s false claims that he won the 2020 election in Wisconsin.