Wisconsin Supreme Court considers case affecting future of state's elections leader

MADISON, Wis. — The Wisconsin Supreme Court grappled Monday with a case affecting whether the swing state's nonpartisan top elections official, who has been targeted by Republican lawmakers over the 2020 presidential election, can remain in her post despite not being reappointed and confirmed by the state Senate.

Republicans who control the state Senate tried to fire Wisconsin Elections Commission Administrator Meagan Wolfe last year, leading the commission to sue in an effort to keep Wolfe on the job.

Wolfe is validly holding her position as a holdover and the commission is under no obligation to appoint someone while she holds the position, argued Charlotte Gibson, an assistant attorney general representing the commission. Gibson said the state Supreme Court should uphold a lower court's ruling in Wolfe's favor, which would allow her to remain in her position and not face a confirmation vote by the Senate.

But the attorney for Republican lawmakers argued the commission must appoint an administrator, either Wolfe or someone else, so the Senate can vote on confirming that person.

When Wolfe was up for reappointment in 2023, all six members of the commission voiced support for her. Three Republicans voted to reappoint, but the three Democrats abstained, resulting in a deadlocked vote. Had Wolfe gotten a fourth vote in support, her appointment would have been sent to the Senate, which then could have voted to fire her.

''Here the question is, can three commissioners essentially cut the Senate out entirely forever?'' Misha Tseytlin, attorney for the Republican-controlled Legislature, argued Monday.

Tseytlin said three non-elected ''bureaucrats'' on the commission were holding Wolfe's appointment hostage.

''You are trying to thread a needle here that has no eye,'' liberal Justice Janet Karofsky said, pointing to a 2022 ruling by the Wisconsin Supreme Court, then controlled by conservatives, that allowed Republican-appointee Fred Prehn to remain on the state Natural Resources Board past the end of his term.

''This is a case of careful what you wish for, isn't it?'' Karofsky said. ''It seems to me this has little to do with what the law actually says and far more to do with who is in these positions.''

Tseytlin argued that a key difference between the current lawsuit and the Prehn case is that the law requires the elections commission to appoint a successor when the administrator's term expires. Wolfe's term ended nearly 17 months ago.

The Legislature is not asking the court to overturn the Prehn decision, which Democrats, including Gov. Tony Evers, criticized and liberal Supreme Court Justice Rebecca Dallet said in a dissent had the ''absurd'' effect of allowing Prehn to remain in office indefinitely.

Even though Wolfe's appointment was not forwarded to the Senate, Republican senators voted in September 2023 to fire Wolfe. The commission sued to challenge that Senate vote. Republican legislative leaders changed course and claimed in court filings that their vote to fire Wolfe was merely ''symbolic'' and had no legal effect.

Dane County Circuit Court Judge Ann Peacock, in a 2023 ruling, said Wolfe is legally serving as administrator of the elections commission as a holdover given that the commission did not have a majority vote to appoint her.

Republican leaders of the Legislature appealed and the state Supreme Court will issue a decision weeks or months from now.

Wolfe was first appointed for the nonpartisan position in 2018 and confirmed to a four-year term by the GOP-controlled state Senate in 2019. The commission is overseen by a bipartisan board that is evenly split between Republicans and Democrats, and Wolfe is head of the nonpartisan staff.

Wolfe was targeted for removal by Republican lawmakers who were unhappy with the 2020 presidential election won by President Joe Biden. President-elect Donald Trump won Wisconsin this year, just as he did in 2016. Unlike after his loss in 2020, Trump backers are not alleging widespread fraud in this year's election.

Wolfe was the subject of conspiracy theories and targeted by threats from election skeptics who falsely claim she was part of a plot to rig the 2020 vote in favor of Biden. Biden's win by nearly 21,000 votes in Wisconsin withstood two partial recounts, a nonpartisan audit, a conservative law firm's review, and multiple state and federal lawsuits.

Wolfe, in a statement ahead of court arguments Monday, emphasized that all six commissioners voiced support for her last year when they deadlocked.

''While they disagreed on the mechanism for making my appointment, the Commissioners have always supported me staying in this role,'' Wolfe said. "If they didn't, they always had the ability to terminate my appointment and select someone new.''

Wolfe was asked about the case during a news conference the day after this month's election and whether she was committed to remaining in her position ''for the long haul.'' She made no promises.

''I'm completely committed to seeing through this election and making sure that this election is certified,'' Wolfe said.