Waukesha judge orders Wisconsin Elections Commission to cease ‘unlawful delegation of power’

Waukesha County Circuit Court Judge Michael P. Maxwell sided with the Wisconsin Institute for Law & Liberty (WILL) on Thursday, against the Wisconsin Elections Commission (WEC).

WILL alleged WEC Commissioners unlawfully delegated their duty to review and decide complaints against local election officials to Megan Wolfe, WEC‘s administrator, a power statutorily reserved exclusively for the bipartisan group of WEC Commissioners.

“WEC’s abdication of its statutory duty to vote on complaints was inexcusable and illegal. This ruling takes that unlawful delegation of power away from WEC’s administrator and ensures it will be wielded by the appointed WEC commissioners themselves – as state law requires. This will help establish a more transparent and fair administration of Wisconsin elections,” said WILL Associate Counsel Nathalie Burmeister.

WILL’s lawsuit challenged the WEC’s ability to delegate its powers and duties under Wis. Stat. § 5.06. A WEC Administrator dismissed Robert Pellegrini’s complaint without indicating that the WEC Commissioners voted on or approved the decision.

According to a copy of Pellegrini’s complaint, obtained by the Wisconsin Law Journal, the village of Hartland’s clerk allowed residents to cast absentee ballots by placing them in outdoor, unstaffed drop boxes.

According to counsel for WILL, the challenge occurred based on a WEC policy wherein the commissioners delegated their authority to review and resolve all Wis. Stat. § 5.06 complaints to their administrator and, in some cases, their chairperson. This policy was deemed invalid as state law does not authorize the commission to transfer this quasi-judicial role to the administrator, staff or anyone else.

“The effort to overturn this unlawful delegation of power is through WILL’s Preserving Democracy Project, which aims to strengthen liberty and serve as a protection against government abuse,” counsel for WILL said.

Milwaukee Attorney Ann Jacobs, who serves as chair of the bi-partisan Wisconsin Elections Commission, took issue with WILL’s statements.

WILL “overly glorifies their attempt to undermine efficient government work,” said Jacobs during an interview with the Wisconsin Law Journal on Friday. “We’ve had this delegation as long as the commission has existed,” Jacobs said.

According to Jacobs, the evenly split set of Republicans and Democrats who sit on Wisconsin’s Election Commission are only paid a small stipend and all work other full-time jobs.

The commission is made up of non state-employees and is “a practical solution to the nature of the commission itself,” Jacobs said.

“The commission chose this structure. We reviewed it, and it works well,” Jacobs said, noting that it’s not practical for the commission to meet weekly as suggested by WILL.

Jacobs also noted that any time commissioners ask for a meeting over a complaint, a meeting is held.

“That has happens very rarely,” said Jacobs, who noted the commission can always take the authority over any complaint. “But that just hasn’t happened,” she said.

In response to Jacobs’ comments, Burmeister said, “Securing and administering Wisconsin elections is an important job and we expect WEC to follow the law.”

According to the Judge Maxwell’s decision obtained by the Wisconsin Law Journal, “The WEC’s argument fails as it reads the middle (second) sentence of Wis. Stat. § 15.02(4) in isolation. See Sojenhomer LLC, 7 N.W.3d 455, ¶15 (“[S]tatutes must be interpreted in their entirety, and in context.”). It is a single statute. It is not broken into three different parts with each sentence comprising 15.02(4)(a) or any similarly clear separation. As such the statute is read in its entirety. The first and third sentence highlight the requisite role of the governor in approval (“[t]he head of each department or independent agency shall, subject to the approval of the governor, establish . . .”) and his capacity to grant delegation approval authority (“[t]he governor may delegate the authority to approve selected organizational change”). Wis. Stat. § 15.02(4).”

According to WILL, under this project, WILL has won cases against the WEC regarding wrongful absentee voting depositing practices and improper use of the National Mail Voter Registration Form. WILL is dedicated to protecting individual liberty by fighting against government officials who fail to act within the confines of their structural limitations.

According to Jacobs, the Waukesha Circuit Court decision is under discussion by the commission for appeal to the Wisconsin Court of Appeals.