Feb. 12, 2025 – All the members of the Wisconsin Supreme Court agreed Friday in Wisconsin Elections Commission (WEC) v. LeMahieu, 2025 WI 4 (Feb. 7, 2025), that WEC Administrator Meagan Wolfe may continue in that position past the expiration of her term because the position is not vacant.

The court then disagreed in concurrences written by Justices Ann Walsh Bradley and Rebecca Grassl Bradley on whether the Supreme Court properly decided the case governing this decision, State ex rel. Kaul v. Prehn, 2022 WI 50 (June 29, 2022).

Attempts to Appoint Successor

The WEC, created in 2016, administers election law in Wisconsin, including “the power to investigate and prosecute violations of election laws,” issue guidance, and conduct voter education programs.

An administrator serving a four-year term leads the WEC and “serve[s] as the chief election officer of this state.” As established in Wis. Stat. section 15.61(1)(b)1., the administrator “shall be appointed by a majority of the members of [WEC], with the advice and consent of the senate.”

Shortly before Wolfe’s term expired July 1, 2023, the WEC members attempted to re-appoint Wolfe. Three members voted in support, and three members abstained. The reappointment failed for lack of a majority.

On Sept. 14, 2023, the Wisconsin Senate voted on the issue of appointment. The parties differ on what the vote meant, the Supreme Court explained. The WEC described the vote as rejecting Wolfe for reappointment. The legislators called it “a vote of no confidence.”

On the same day as the Senate vote, the WEC sought injunctive and declaratory relief in Dane County Circuit Court against Senate Majority Leader Devin LeMahieu and Sens. Robin Voss and Chris Kapenga as co-chairs of the Joint Committee on Legislative Organization (JCLO). The relief sought would name Wolfe as lawfully holding over and the Senate could not act without an appointment for them to consider.

The legislators responded to the complaint that the WEC has a duty “to appoint a new administrator at the end of the administrator’s term – regardless of whether a vacancy in the position exists.” They sought a writ of mandamus compelling the WEC to appoint a new administrator.

Both parties filed motions for judgment on the pleadings. The circuit court denied the legislator’s motion and granted WEC’s motion based on the statutory language that the “WEC ‘shall appoint a new administrator’ if a vacancy occurs.”

The legislators appealed. The Supreme Court granted WEC’s motion to bypass the Wisconsin Court of Appeals.

Duty to Appoint Administrator?

The issue before the Supreme Court was whether statute compels the WEC to appoint a new administrator after the administrator’s term ended – and whether a writ of mandamus must issue to compel that duty, Chief Justice Ziegler explained in the opinion of the court.

The Supreme Court reviews motions on the pleadings as a matter of law, but whether the circuit court should grant the writ is a matter of that court’s discretion.

Whether a duty exists requires interpreting Wis. Stat. section 15.61(1)(b)1., which establishes the means of appointing an administrator, the Supreme Court explained.

In addition to the appointment “by a majority of members of [WEC], with the advice and consent of the senate,” the section allows for an interim administrator until Senate confirmation of an administrator.

“If a vacancy occurs in the administrator position,” the statute continues, the WEC “shall appoint a new administrator” for Senate confirmation. If the WEC fails to do so within 45 days, the JCLO “shall appoint an interim administrator.”

The legislators contended that the first sentence of the statute gave WEC the duty to appoint a new administrator after the administrator’s term expired, “even though there is no vacancy in the position.” The Supreme Court disagreed.

“Read naturally and in context, the first sentence of Wis. Stat. § 15.61(1)(b)1. does not impose a duty on WEC to appoint a new administrator when the current administrator’s term ends,” the Supreme Court said. “Instead, the first sentence designates who has the authority to appoint an administrator and provides how an administrator is properly appointed.”

Subsequent terms of the statute reinforce that interpretation. Upon a vacancy, the WEC is required to appoint a new administrator, and if it doesn’t, the JCLO is required to make an interim appointment.

These terms “demonstrate that the legislature knows how to create a duty to appoint when it wishes to do so,” the decision explained. It just didn’t do so in addressing Wolfe’s situation as a present holdover.

Among the legislators’ other arguments, they claimed “that the bipartisan design of WEC will be thwarted if WEC does not have a duty to appoint a new administrator when an administrator’s term expires.”

The Supreme Court disagreed. A majority of the WEC is necessary to replace a holdover administrator and is possible only by a bipartisan decision. “If bipartisan agreement cannot be found, the status quo continues” with the holdover administrator remaining in the position.

Because statute did not require the WEC to replace the holdover administrator, the Supreme Court affirmed the circuit court’s denial of mandamus.

‘Shaky Ground’ versus ‘Stare Decisis’

“I disagreed with the Prehn decision when it was made, and I disagree with it today,” Justice A.W. Bradley said in her concurrence, joined by Justices Rebecca Frank Dallet and Jill J. Karofsky.

“In a circumstance where the parties have presented the issue, it may behoove us to give Prehn a second look,” wrote Justice A.W. Bradley in her concurrence. The problem here is that no one argued reversal of Prehn.

Her desire to reconsider Prehn, however, didn’t happen here because both the WEC and Devin LeMahieu “confirmed that they were not seeking to revisit Prehn” – the issue wasn’t presented to the court, Justice A.W. Bradley explained.

Quoting from Justice Dallet’s dissent in Prehn, Justice A.W. Bradley wrote that the “majority’s absurd holding allows [Frederick] Prehn’s six-year term on the Board of Natural Resources – which expired over a year ago – to last for as long as Prehn wants it to, so long as he refuses to leave and the senate doesn’t confirm a successor nominated by the governor.”

“As explained in Justice Dallet’s dissent in Prehn, that case rests on shaky ground,” Justice A.W. Bradley concluded. “The charge of this court is to interpret our statutes with a long view, encouraging stability and the functioning of government in a way that makes sense. At the very least, we should question an interpretation that perpetuates ‘disorder and chaos.’”

Justice R.G. Bradley affirmed her support of Prehn and of stare decisis.

“If Prehn were as absurd or as dangerous as its dissenters profess, they would not wait for a party to advocate its overruling before stemming the ‘disorder and chaos’ they insisted Prehn would produce,” Justice R.G. Bradley wrote in her concurrence joined by Chief Justice Annette Kingsland Ziegler.

Justice R.G. Bradley, who voted in the Prehn majority, claimed the case resulted from consistently applied principles for which “[n]one of the Prehn dissenters” countered on a “principled basis.”

“Perhaps for Prehn’s dissenting justices, the distinction between Prehn and this case is not actually rooted in the statutory language or principles of stare decisis,” which Justice R.G. Bradley claimed has not governed the opinions of “the Prehn dissenters, joined by the court’s newest justice” in four recent cases including Prehn.

“This case required the court to do what it did in Prehn: interpret the law as enacted and render a decision accordingly. Inconsistency suggests results-oriented decision making. Reserving the option to overrule Prehn (and by extension, this case too) confirms it,” Justice R.G. Bradley concluded.

This article was originally published on the State Bar of Wisconsin’s Wisbar Court Review blog, which covers case decisions and other developments in the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit. To contribute to this blog, contact Joe Forward.