Wisconsin Supreme Court Rules WEC Has No Duty to Appoint New Administrator

Meagan Wolfe will remain administrator of the Wisconsin Elections Commission following SCOW's unanimous decision.

It’s not often the Wisconsin Supreme Court speaks with a unanimous voice on a politically charged case—and it’s even less common when the Wisconsin Elections Commission (“WEC”) is involved. But that’s just what happened in the court’s recent decision in Wisconsin Elections Commission v. LeMahieu. The court unanimously held that WEC does not have a duty to appoint a new commissioner simply because the term of the current administrator, Meagan Wolfe, expired.

Over the past five years, Wolfe has become something of a controversial figure in Wisconsin politics. In 2019, she was unanimously confirmed as WEC administrator by the Republican-controlled Wisconsin State Senate. Since then, however, her handling of President Trump’s claims of election fraud in 2020 made her—by and large—a villain to the right and a hero to the left. When Wolfe’s four-year term expired in 2023, it was widely expected that the senate would quickly reject her nomination if given the chance.

The senate never got the chance. Instead, WEC’s three Democratic appointees abstained from the vote that would have sent Wolfe’s nomination to the senate, depriving WEC of the majority needed to reappoint her. A lawsuit followed, and the legislature sought a writ of mandamus directing WEC to appoint a new administrator.

In the nearly two years since those events, Wolfe has remained the WEC administrator in a holdover status long past the expiration of her term. How is that possible? A few years ago, in State ex rel. Kaul v. Prehn, the Wisconsin Supreme Court reaffirmed the longstanding rule that, unless a statute explicitly says otherwise, a state official may remain in office past the expiration of his or her term if a replacement has not yet been appointed and qualified.¹ In Prehn, that meant a member of Wisconsin’s Natural Resources Board appointed by Governor Walker could remain in his position past the expiration of his term until the senate confirmed Governor Evers’ pick to replace him (something the senate was unlikely to do).

Prehn was a controversial 4-3 decision when it was decided, but its application here was not. In this case, the legislature did not dispute that Wolfe is entitled to remain WEC administrator past the expiration of her term and until a replacement is appointed. Rather, the dispute focused on whether Wis. Stat. § 15.61(1)(b)1. creates an obligation for WEC to appoint Wolfe’s replacement. With some formatting tweaks for clarity, that provision says:

The elections commission shall be under the direction and supervision of an administrator, who 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 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 a clean and unanimous majority opinion by Chief Justice Ziegler, the supreme court held § 15.61(1)(b)1. does not impose a duty on WEC to appoint a new administrator unless the administrator position becomes vacant. Here, because Wolfe is holding over as administrator, the position is not vacant, and WEC does not have a duty to appoint a replacement. In reaching this conclusion, the court relied heavily on the different types of language used in the two portions of the statute that are bolded above. It explained:

Read naturally and in context, the first sentence of Wis. Stat. § 15.61(1)(b)1. does not impose a duty on WEC to appoint a new administrator when the current administrator’s term ends. Instead, the first sentence designates who has the authority to appoint an administrator and provides how an administrator is properly appointed. Who appoints the administrator? It must be WEC. No other person or entity is authorized to appoint an administrator under the statute. How is one appointed administrator of WEC? One may be appointed the administrator only if “a majority of the members of [WEC]” vote to appoint the person and that person is confirmed by the senate.

. . .

The third and fourth sentences of Wis. Stat. § 15.61(1)(b)1. are significant. They demonstrate that the legislature knows how to create a duty to appoint when it wishes to do so. . . . These sentences supply the condition triggering the duty, the deadline by which the duty must be accomplished, and the consequence for failing to comply with the duty. In light of § 15.61(1)(b)1.’s clear command that WEC has a duty to appoint a new administrator in the event of a vacancy, we decline to read a duty to appoint a new administrator at the expiration of an administrator’s term into the first setnence.

True to form, the court’s unanimity did not hold for the concurring opinions. Justice Ann Walsh Bradley penned a concurrence, joined by Justices Dallet and Karofsky, noting her continued disagreement with Prehn and that she would be happy to revisit it another day. Justice Rebecca Grassl Bradley wrote a disputatious concurrence, joined by Chief Justice Ziegler, chastising the justices who joined the first concurrence for relying on Prehn despite their noted disagreement with that case.

1. 2022 WI 50, 402 Wis. 2d 539, 976 N.W.2d 821.