Elections chief Meagan Wolfe won't testify before the Senate next week, citing AG Kaul legal opinion

MADISON - The state's top election official said she would not testify before a Senate committee next week after Attorney General Josh Kaul said Senate Republicans are acting illegally in their effort to take a vote on whether she should stay in her job.

In a letter sent Wednesday to Wisconsin Legislative Council director Anne Sappenfield, Kaul said he was representing the Wisconsin Elections Commission "in connection with the status of the WEC administrator," referring to Senate Republicans' decision to take up the question of reappointing Wolfe despite the lack of a vote by the bipartisan commission to reappoint her.

The Senate's elections committee is set to meet Aug. 29, moving forward with proceedings that could lead to a vote to fire elections commission administrator Meagan Wolfe.

"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 in a statement shared with the Milwaukee Journal Sentinel.

Kaul said a recent Supreme Court ruling allowing appointed officials to stay in their jobs beyond their terms makes clear the elections commission does not have a vacancy to fill and therefore the state Senate does not have grounds to act on confirming Wolfe or firing her.

"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," the Democratic attorney general wrote in the letter.

The letter comes after Kaul argued the opposite position in a lawsuit seeking to remove a Department of Natural Resources chairman who refused to leave his position despite his term having expired. The lawsuit ultimately led to the state Supreme Court ruling Kaul relies on in his analysis of Wolfe's situation.

"... the Wisconsin Supreme Court has squarely held that a holdover appointee may legally remain in office following the expiration of the appointee’s term, and the expiration of the term does not create a vacancy in office," he wrote in the Wednesday letter. "Administrator Wolfe is a lawful holdover in her position. The Senate therefore has no current authority to confirm or reject the appointment of a WEC administrator."

"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 scheduled for August 29."

Kaul's letter comes a week after members of the bipartisan elections commission decided not to give Wolfe direction on whether to appear in a hearing Tuesday held by the Senate's elections committee on Wolfe's reappointment.

WEC commission chairman Don Millis said he believed "the commission is getting unhelpful advice" in Kaul's letter.

Millis, who has advocated for Wolfe to testify, said whether Wolfe appears or not has no bearing on how the law treats Wolfe's situation.

Wolfe said last week she had been put in an "untenable" position after Republican lawmakers who control the state Senate indicated they are moving forward with her reappointment, a move that could result in a key battleground state losing its top election official ahead of the 2024 presidential election.

Wolfe has been under fire by portions of the Republican base since 2020 when former President Donald Trump began a baseless campaign to discredit Wisconsin's system of elections and after commissioners recommended practices to help voters navigate the coronavirus pandemic, some of which have since been deemed illegal by Wisconsin judges.

More: Meagan Wolfe finds herself back where she started as elections chief: In the middle of a firestorm

Democratic election commissioners and Republican lawmakers each deployed unexpected legal maneuvers in June in their fight over Wolfe's future, neither of which are certain to succeed in court.

First, Democratic commissioners abstained from voting on a motion to reappoint Wolfe to her job in an effort to protect her from Republican senators who had signaled they would fire her if the reappointment was forwarded to them. With just three of six commissioners not voting, the motion to reappoint Wolfe failed without a majority.

Democrats argued there was no need for a vote because of the Supreme Court ruling that sided with Frederick Prehn, a former Natural Resources Board chairman who decided to stay in his position nearly two years after his term expired.

The ruling's majority opinion said that the expiration of a term does not create a vacancy, meaning that holdovers in any position appointed by the governor can remain until a confirmation hearing is held by the state Senate. With commissioners failing to forward an appointment to the Senate, Democrats argued, Wolfe could remain in her job indefinitely.

Republican commission chairman Don Millis argued the commission should vote on Wolfe's reappointment because that is how the commission has operated since it was created.

The disagreement resulted in a deadlock in June when Wolfe's term expired, or no action on Wolfe's reappointment.

A day later, Senate Republicans moved forward anyway. Senate Majority Leader Devin LeMahieu contended the 3-0 commission vote that resulted in a failed motion to reappoint Wolfe was actually enough votes to reappoint Wolfe, even though state law says such votes require a majority of commissioners, or four votes.

As a result, all Republican state senators voted to pass a resolution to take up Wolfe's reappointment.

Sen. Dan Knodl, a Republican from Germantown who leads the Senate's elections committee, is holding a hearing on Aug. 29. The committee has also scheduled a hearing during the same meeting on a state audit of the 2020 election − a review that was released in 2021.

Wisconsin Elections Commission chairman Don Millis scheduled a discussion during last week's commission meeting over whether to authorize Wolfe to testify.

Democratic members of the commission said last week they did not want to micromanage Wolfe's public appearances and Wolfe could decide whether to go on her own. They also said the discussion was legitimizing an illegitimate proceeding.

But Millis said "testifying before the committee would be a good opportunity for her to tell the good story about what's going on over here."

Kaul's letter backs up the Democrats' position.

"The vote therefore fell short of the required majority to reappoint and did not effectuate a new appointment of the WEC administrator. There is no plausible legal argument to the contrary," Kaul wrote. "Absent a vacancy on the six-member commission, at least four members must agree for there to be a majority of the members of the commission — no matter how many members of the commission abstain or are not present for a vote."

Wolfe became administrator in 2018 and oversees the Wisconsin Elections Commission, which provides guidance to nearly 2,000 clerks in Wisconsin. That guidance is decided by six appointed commissioners, three from each major political party. Her job is to implement their decisions as rules governing how elections are administered.

Spokesmen for Senate Majority Leader Devin LeMahieu and Knodl did not immediately have a reaction to the letter.

Molly Beck can be reached at molly.beck@jrn.com.

Jessie Opoien of the Milwaukee Journal Sentinel contributed to this story.

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This article originally appeared on Milwaukee Journal Sentinel: Elections chief Meagan Wolfe won't testify before the Senate next week