Blame Democrats, not senate, for Meagan Wolfe's removal from Wisconsin Election Commission

The state Senate voted to remove Elections Commission Administrator Meagan Wolfe from her position Thursday. Attorney General Josh Kaul says the senate’s action is not valid and Wolfe continues to serve as administrator. One lawsuit has been filed; more to follow. Uncertainty reigns and will continue for the foreseeable future as the commission and 1,850 local clerks prepare for a monumental presidential election next year.

Many claim the fault lies with the senate, which is controlled by Republicans. To the contrary, we are in this mess due to the actions of the Democrats on the Elections Commission with an assist from Attorney General Josh Kaul, a Democrat.

Before Wolfe’s term was set to expire on July 1, the commission met and had the opportunity to reappoint her to another 4-year term. There were clearly four votes to re-appoint Wolfe. But rather than vote to re-appoint Wolfe, the commission’s three Democrat members argued the Supreme Court’s decision in Kaul v. Prehn means the commission can ignore the normal appointment process and have Wolfe continue to serve as a holdover administrator.  Consequently, the Democrats abstained from voting, preventing the commission from getting four votes for her appointment. This was a bad idea in so many ways. (Editor's note: Millis, a Republican, voted in favor of re-appointing Wolfe.)

Abstaining from vote on Meagan Wolfe's reappointment was error

First, there is no guarantee the Prehn decision will remain good law. That case was decided on a 4-3 vote and a conservative member of the majority has been replaced by self-avowed liberal Justice Protosawiecz. Folks on the left have been counting on the new majority to reverse a whole host of the court’s past decisions. Certainly, the Prehn case is on the list.

Second, what’s the problem with sending Wolfe’s appointment to the Senate?  If four members of the commission wanted Wolfe to continue as administrator, why not take the belt-and-suspenders approach? In the event the Supreme Court changes its mind on the Prehn case, Wolfe is the administrator by virtue of her appointment.

Third, by denying the senate a role in Wolfe’s reappointment, the Democrats unnecessarily picked a fight with one of the three branches of government. As someone who used to work in the state Senate, I know first-hand that senators take very seriously their constitutional role to advise and consent on executive appointments. I don’t doubt the Democrats on the commission genuinely believed the senate has no role in Wolfe’s appointment, but abstaining on the vote was too clever by half and has led to our current quandary.

The Democrats on the commission feared that if Wolfe were reappointed, the Senate would reject her. This fear is misplaced. If Wolfe keeps her position by virtue of the Prehn decision — as the Democrats claim — then the senate’s rejection means nothing.

But why do we think the senate would reject her appointment? The appointment of Wolfe’s predecessor did not reach the floor of the senate until near 2 years after his appointment and only then because certain revelations surfaced about activities prior to the creation of the commission. Had the Democrats not thumbed their nose at the senate, there is a good chance the senate would have sat on her appointment at least until after the 2024 elections.

Taking Josh Kaul's advice, not appearing at hearing another blunder

The bad decision-making did not stop there. When a senate committee sought to have a public hearing on Wolfe’s appointment, Kaul advised Wolfe against testifying. Again, bad idea. Kaul’s advice may have some merit as a legal strategy, although I doubt it. But it was a total disaster from a political and public relations standpoint.

The hearing provided an opportunity for Wolfe to explain that many of the complaints lodged against her, e.g., approving unstaffed absentee ballot boxes and permitted correcting of addresses on absentee voting certificates, were not her decisions, but rather actions approved unanimously by the commission in 2020 and before. Even Sen. Lena Taylor, a Democrat, during the floor debate on Wolfe’s appointment, claimed that some of the complaints lodged at the hearing were valid.

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It would have been far better had Wolfe been allowed to appear at the hearing and debate complaints about the commission, both legitimate and illegitimate. Unfortunately, heeding Kaul’s advice not only doomed Wolfe’s nomination, it made it easier for those opposing her appointment to avoid the real issues and base their decision on her failure to appear at the hearing.

The commission’s Democrats and Kaul are confident that Wisconsin’s courts will side with them. As a long-time litigator, I advise clients that a slam dunk in legal terms is at best 80% chance of victory. The commission’s Democrat members may be correct and perhaps in several months the Wisconsin Supreme Court will agree with Kaul.

Until such time, uncertainty and distractions caused by the commission’s Democrats and Kaul will undoubtedly distract from preparations for the 2024 elections. If the commission’s Democrats and Kaul are wrong, this slog could continue through 2024 general election.

Don Millis is chair of the Wisconsin Elections Commission.

This article originally appeared on Milwaukee Journal Sentinel: Wisconsin's top election official is out. Blame Democrats, not GOP