Republicans to appeal court ruling blocking ouster of elections chief Meagan Wolfe

MADISON – Republican legislative leaders have indicated they plan to appeal a January ruling allowing the state's top election official to stay in her job beyond the expiration of her term as supporters of Donald Trump push to oust her over the outcome of the 2020 election.

The GOP lawmakers, among other issues raised, plan to ask the court whether state law creates a "duty" for the Wisconsin Elections Commission to appoint a new administrator regardless of whether a vacancy exists, according to the court filing.

In January, Dane County Circuit Judge Ann Peacock said Senate Republicans do not have the authority to remove or replace Wisconsin Elections Commission administrator Meagan Wolfe.

Peacock ruled Wolfe is legally staying in her position beyond an expired term because of a previous ruling in a case involving a Republican chairman of the Natural Resources Board, which the same GOP lawmakers supported at the time.

Wolfe oversees a commission that has been under fire for three years because of false claims put forward by Trump to convince supporters he actually won an election that 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.

In September, the state Senate in a party-line vote rejected the appointment of Wolfe. Minutes after the vote, Democratic Attorney General Josh 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.

Even though lawmakers voted Wolfe out, she stayed in her job because the vote to fire her wasn't recognized by Wolfe or Democrats as legitimate. That's 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 the recent state Supreme Court ruling allowing such officials to stay in their positions beyond the expiration of their terms protects Wolfe's job.

Senate Republicans decided to move forward anyway. Senate Majority Leader Devin LeMahieu, R-Oostburg, 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 an Oct. 16 filing, LeMahieu's attorneys 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."

The legislative leaders also said in that filing that the Legislature's Joint Committee on Legislative Organization has "no power to appoint an interim administrator while Administrator Wolfe is holding over," despite public statements indicating they would pursue that approach.

The GOP leaders asked the court to order the elections commission to appoint an administrator for a four-year term "irrespective of whether a vacancy exists" no later than Nov. 1, which did not take place.

Peacock's ruling found that Wolfe is lawfully holding over in her position, the elections commission did not vote to appoint Wolfe to a new term and has no duty to appoint a replacement, and the Joint Committee on Legislative Organization has no power to appoint a replacement for a lawful holdover. Republican lawmakers are barred from "taking any official action contrary to these declarations," according to the decision.

"The Legislature has fanned the hyper-partisan flames by engaging in several high-profile unequivocal official acts to purportedly remove Administrator Wolfe without publicly disclosing for months that their acts were 'symbolic' rather than supported by the law," Peacock wrote in the January ruling. "That lack of transparency and their willingness to attempt actions contrary to the law are precisely the reasons why a permanent injunction is appropriate in this case."

GOP lawmakers filed the notice of appeal on Monday.

Among the issues the lawmakers plan to raise are whether state law "creates a duty" for the elections commission to appoint a new administrator regardless of whether a vacancy exists, and whether a ruling was appropriate given both parties agreed in the lawsuit that Wolfe was legally in her position.

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

This article originally appeared on Milwaukee Journal Sentinel: Republicans to appeal ruling blocking ouster of elections chief Wolfe