Despite public comments, Republicans concede in legal filing they lack grounds to oust Meagan Wolfe

MADISON — After voting last month to fire the nonpartisan leader of Wisconsin's elections agency, Senate Republicans are now saying they did not have the grounds to oust her nor the power to replace her despite claiming the opposite to the public.

Senate Majority Leader Devin LeMahieu, Assembly Speaker Robin Vos and Senate President Chris Kapenga in a new court filing admitted their effort so far to remove Wisconsin Elections Commission administrator Meagan Wolfe was "symbolic," that Wolfe is legally in her current position, and that lawmakers have no power to replace her, despite GOP leaders claiming the opposite in public statements as recently as Sunday.

The filing was made Monday by the Republican defendants of a lawsuit filed by Democratic Attorney General Josh Kaul and the Wisconsin Elections Commission asking a judge to bar the legislative leaders from taking further action to remove Wolfe.

Wolfe oversees a commission that has been under fire for three years because of false claims put forward by former President Donald Trump to persuade supporters he actually won an election he lost and because of policies commissioners approved during the 2020 presidential election to navigate hurdles presented by the coronavirus pandemic.

President Joe Biden defeated Trump in 2020 by about 21,000 votes in Wisconsin — a result that has been confirmed by two recounts paid by Trump, state audits, a partisan review, a conservative study and multiple lawsuits.

But Trump, who is leading the 2024 GOP presidential primary race, has continued to lie about the result of Wisconsin's last presidential election, bolstering the beliefs of those who do not believe Biden is a legitimate president, many of whom have made Wolfe the symbol of the false claims because of her position at the elections commission.

At the same time, some Republican lawmakers have also targeted Wolfe because of actions the bipartisan panel of six commissioners voted to take during the coronavirus pandemic at a time when health officials were advising people to avoid crowds, and for some voting practices that have since been deemed illegal through lawsuits.

In September, the state Senate in a party-line vote rejected the appointment of Wolfe. Minutes after the vote, Kaul filed a lawsuit asking a judge to block Republican legislative leaders from appointing a new administrator and to declare Wolfe administrator, arguing the Senate did not have the power to oust her. Meanwhile, Wolfe said she would not leave her job until a court told her to do so.

Separately, a week after the Senate vote to fire Wolfe five Republicans in the state Assembly proposed articles to remove Wolfe from office through impeachment, an effort that so far hasn't advanced in the Assembly.

More: PolitiFact: Impeachment articles against Meagan Wolfe riddled with false and misleading claims

Even though lawmakers voted Wolfe out, she stayed in her job because the vote to fire her isn't being recognized by Wolfe or many Democrats as legitimate because the Republican-controlled state Senate forced a vote on Wolfe's future even though the bipartisan elections commission charged with hiring her did not put forward a nomination of Wolfe to consider.

When Wolfe's term expired in June, the six members of the commission agreed Wolfe should stay in her job but failed to find consensus on how to respond to an effort by Senate Republicans to oust her.

Ultimately, the commission did not put forward the four votes required by law to reappoint Wolfe, with Democratic commissioners arguing a recent state Supreme Court ruling that allows such officials to stay in their positions beyond the expiration of their terms protects Wolfe's job.

Senate Republicans decided to move forward anyway. 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.

"They could have voted no. They didn’t vote no. That would have been a tie vote. But it was a unanimous vote," LeMahieu said after a floor session during which Republicans voted to move forward with Wolfe's nomination. "3-0 is a two-thirds vote."

But in Monday's filing, LeMahieu claimed the opposite — admitting the commission's 3-0 vote on "Wolfe "did not effectuate an appointment," that Wolfe is lawfully in her current position as a holdover, and that "the Senate has no power to act on an appointment where there is no pending appointment."

LeMahieu in a statement Monday maintained he had not contradicted his past comments.

"This situation has been complicated procedurally, and the situation has changed a number of times, but since June Senator LeMahieu has issued statements consistent with the filing," a spokesman for LeMahieu said.

The legislative leaders also said in the filing the Legislature's Joint Committee on Legislative Organization has "has "no power to appoint an interim administrator while Administrator Wolfe is holding over" even though Vos on Sunday said the committee should begin the process of replacing her.

"I certainly think the law in my mind is crystal clear — the position is vacant, she was not confirmed. We need to have a new person selected by WEC. If they refuse to do that, JCLO is the natural route," Vos said in an interview on WISN-TV.

The GOP leaders are asking the court to order the commission to appoint an administrator for a four-year term "irrespective of whether a vacancy exists" no later than Nov. 1.

In a statement, Kaul said he's "glad they have finally acknowledged these realities, though it’s a shame it took the filing of litigation to get to this point."

"Wisconsin DOJ will continue to pursue this matter in court to prevent any further unnecessary confusion about the WEC administrator and to protect the fair administration of elections in Wisconsin," he said.

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

This article originally appeared on Milwaukee Journal Sentinel: GOP legal filings concede they lack grounds to oust Meagan Wolfe