Wisconsin Supreme Court ambivalent on holdover of top elections official

MADISON, Wis. (CN) — As Meagan Wolfe’s four-year term as administrator of the Wisconsin Elections Commission drew to a close last year, members of the Republican-controlled state Senate said they would not confirm her if the commission appointed her to a second term.

Three of the six commissioners voted to reappoint Wolfe, while the other three abstained from voting.

Without a majority vote to appoint an administrator, Wolfe has been serving in the position as a holdover ever since. The Senate attempted to deny Wolfe’s nonappointment, leading to a suit by the commission and a lower-court decision to allow her to continue in the role.

On Monday, as Wolfe continues to serve, the Wisconsin Supreme Court weighed in on whether the Wisconsin Elections Commission is required to appoint an administrator regardless of vacancy.

The justices appeared skeptical of both sides, peppering an attorney for the Republican lawmakers with tough questions while also expressing concerns about Wolfe’s indefinite tenure.

The legality of Wolfe’s holdover is undisputed. Still, the petitioners — a group of Republican state lawmakers who oppose Wolfe’s tenure — argue that the word “shall” in the statute confers a mandate to appoint or reappoint.

Almost immediately, Justice Rebecca Frank Dallet scrutinized this argument.

“The Wisconsin constitution says there shall be seven members who shall be named justices of the Wisconsin Supreme Court," Dallet noted. “Is that a duty of someone to make sure there is only seven and, if there’s not, are we not a Supreme Court?”

Arguing for the Republican state senators, attorney Misha Tseytlin said that to preserve the separation of powers, the state Senate has a role in the confirmation process.

But the battle over the word “shall” did not end there.

Justice Jill Karofsky also grappled with Tseytlin’s reading of the law.

“Under your reasoning, are you also saying that the four-year term shall be served out, so that whoever is appointed to commissioner must serve for four years no matter what?" she said. “Because that is the only way to logically read this sentence the way you are telling us to.”

Tseytlin pointed to the third sentence of the statute, which discusses what shall (there’s that word again) happen in the case of a vacancy. He went on to suggest that the abstaining commissioners are holding the chief election officer appointment hostage, earning at least one eye roll and several laughs from the bench.

“Did you just say she is being held hostage?” Justice Rebecca Bradley asked.

“The appointment is being held hostage, and they’ve even given terms to release the hostage,” he said, raising his voice above the laughter from the gallery. “The terms are: Precommit to our choice for commissioner, or we aren’t playing the game of advice and consent."

In a statement after their abstaining vote, two commissioners said that they abstained because of the Senate’s predisposition against Wolfe based on conspiracy theories surrounding the 2020 presidential election.

“I want to be clear here: I am serving in this role at the will of the six bipartisan commissioners, who voiced unanimous support for me in June of last year,” Wolfe said in a statement of her own. “The commissioners have always supported me staying in this role. If they didn’t, they always had the ability to terminate my appointment and select someone new.”

Arguing before the high court on behalf of the commission, Charlotte Gibson, an assistant attorney general, hinged her argument on the commission’s discretion to make appointments.

Gibson reminded the court that neither party denies that Wolfe is lawfully holding over in her position. As an at-will employee, Gibson added, Wolfe could be replaced at any time.

Justice Janet Protasiewicz asked Gibson how long the holdover can go on.

“As long as she wants to take on this extremely difficult job,” Gibson replied.

Gibson argued relevant state law does not set a deadline for holding over. “Without a deadline, there is no duty," she said.

In the case of a vacancy, the statute explicitly gives the commission 45 days to appoint a new administrator. That was evidence, Gibson argued, that lawmakers did not intend to set a deadline in cases of no vacancy.

To further support her argument, Gibson pointed to Pasko v. City of Milwaukee . In that case, the state Supreme Court decided that the word “shall” did not mandate the Milwaukee Police Department to fill vacancies immediately.

In short, Gibson said, no one was taking away the Senate’s power because the law only says the Senate must act after the commission appoints.

In his final arguments, Tseytlin described Wolfe’s continued tenure as a “forever appointment” and an affront to the democratic process.

Unmoved, multiple justices told him that perhaps he should have asked them to overturn Kaul v. Prahn , which allowed indefinite holdovers.

“Why aren’t you asking us to overturn Prahn ?” Justice Karofsky said near the end of Tseytlin’s time.

“You’ve read the dissent. It’s very convincing," said Justice Dallet, who filed the dissenting opinion in that case.

“No, it’s not,” said Justice Brian Hagedorn, who joined that dissent. Laughing, he craned his neck to see her from the opposite side of the bench.

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