Wisconsin Court Validates a Republican Strategy to Preserve Power
The Wisconsin Supreme Court on Wednesday effectively handed the Republican-controlled State Senate broad authority over the composition of state boards and commissions, three and a half years into the term of a Democratic governor whose duties include naming board members.
The ruling allows a Republican member of the state Natural Resources Board whose term expired in May 2021, Frederick Prehn, to keep his position. Dr. Prehn had refused to step down, arguing that a replacement to his post has not been confirmed.
The court’s 4-3 opinion, which fell along ideological lines, turned on a technical question of when the seat on the board would be legally vacant. But its practical effect was to affirm a strategy devised by the State Senate to keep Republican board members in office simply by refusing to confirm replacements nominated by Gov. Tony Evers, a Democrat.
A similar move by the Senate has allowed Republicans who refused to resign to remain on the board that oversees the state’s 16 public technical colleges, which enroll 250,000 students annually. The Senate also has refused to confirm Mr. Evers’s appointees to the Board of Regents that governs the public university system. He appointed regents to replace ones who resigned when their terms expired. But the Senate could remove them should a Republican win the governor’s race in November.
The decision marked the continuation of a political environment in which Republicans have found a way to dominate, even without control of the governor’s office, through their entrenched control of the State Legislature.
Although Wisconsin is almost evenly split politically, Republicans have dominated the State Legislature through gerrymanders enacted in 2011 and, with the State Supreme Court’s assent, again in 2021. They also voted to strip some powers from Mr. Evers and the Democratic attorney general, Josh Kaul, weeks before they took office in January 2019.
“These are really hardball tactics,” said Barry C. Burden, a political scientist at the University of Wisconsin-Madison who studies elections and democracy issues. “It’s not unlike the United States Senate refusing to confirm Merrick Garland to the Supreme Court to hold open a seat for Republicans.
“It’s a different level of government,” he said. “But both of them are attempts to kneecap the executive.”
Mr. Evers denounced the ruling in a statement, calling it “politics at its most dangerous.”
“We do still live in a democracy, a very basic function of which is the peaceful and respectful transfer of power, even — and most especially — when you lose,” the governor said. “Today’s decision continues to underscore the erosion of democratic institutions at the hands of Republicans in this state.”
The Republican majority leader of the State Senate, Devin LeMahieu, called the lawsuit seeking to oust Dr. Prehn, who is also a dentist, a waste of time and state money.
“If Tony Evers had all his appointees, all his emergency orders and all his budgets there is no doubt the State of Wisconsin would be much worse off than we are,” he said.
Mr. Kaul, the attorney general, sought Dr. Prehn’s removal in a lawsuit he filed in August in a county court in Madison, the state capital. After the court found that state law offered no way to do so, Mr. Kaul appealed directly to the State Supreme Court.
The 33-page opinion of the court’s majority reached the same conclusion, saying the “plain language” of state law said that a board member remained in office until the member’s successor was named by the governor and confirmed by the State Senate. Under state law, the justices said, Dr. Prehn could be removed only for cause, and his seat would otherwise become vacant only if he died or resigned.
The state law at issue said explicitly that elected offices become vacant at the end of an official’s term, they noted, but made no similar provision for appointed posts.
The three liberal justices called the ruling nonsensical, noting that the State Senate had refused for more than a year to confirm or reject Mr. Evers’s replacement.
“Allowing Prehn to continue serving in office indefinitely makes him the final authority on whether he remains in office — not the Legislature, which specified by statute that his term expired over 13 months ago, and not the governor, who the Legislature gave the authority to nominate a replacement,” they wrote. “One unelected official should not be able to dictate his term in office over the will of the people’s elected representatives.”
They argued that the state law governing board members, which was enacted in the 1800s, allowed holdovers to remain in office to keep the government running because at the time the State Senate met only briefly each year. But that makes no sense today, they said, when the Legislature is effectively a full-time enterprise.
While the list of Republican appointees who have refused to leave their posts is small, the court’s ruling all but invites the remaining appointees to cling to their jobs, said Jeff Mandell, the president of Law Forward, a progressive public-interest law firm in the state.
“What this opinion means in reality, and the court undoubtedly knows this, is that officials appointed by a Democratic governor serve exact terms and no longer, and officials appointed by Republican governors serve indefinitely,” he said.
“The only way to fix this would be for the legislature to change the law,” he added. “This Legislature is not going to do that, and because of partisan gerrymanders, there’s no prospect for another Legislature to do that.”