State Supreme Court Ruling Reinforces Gerrymandering

Wednesday morning, the Wisconsin Supreme Court ruled that Frederick Prehn remains on the DNR Board, even though his term expired on May 1, 2021.

Prehn, who was appointed by Scott Walker and who schemed with Republican officials to stay on after his term expired because he feared what Gov. Tony Evers’s appointee might do, claimed that he can remain there until the Wisconsin Senate confirms his replacement.

The four conservatives on the Wisconsin Supreme Court agreed.

Chief Justice Annette Ziegler, writing for the majority, said that under Wisconsin statutes, “the expiration of Prehn’s term on the DNR Board does not create a vacancy. Prehn lawfully retains his position on the DNR Board as a holdover. Therefore, the Governor cannot make a provisional appointment to replace Prehn … Until his successor is nominated by the Governor and confirmed by the senate … Prehn may be removed by the Governor only for cause.”

This is an “absurd” ruling, as Justice Rebecca Dallet wrote in an opinion joined by Justice Jill Karofsky and Justice Ann Walsh Bradley.

She noted that the “holdover” provision was a throwback to the early part of the twentieth century and was intended to prevent “disorder and chaos” when the state senate might be in recess and the means of communication and transportation were so slow that a vacancy might not be able to be filled promptly.

That’s not the case anymore, she wrote.

And she underlined the crucial separation of powers problem with the decision, writing that it “steers our state’s government directly into disorder and chaos, threatening the fragile separation of powers central to its functions.”

After all, the people of Wisconsin voted for Gov. Evers and bestowed upon him all the powers of his office, including the power to fill vacancies when an appointee’s term has expired. This decision takes that power out of Evers’s hands, and negates the voices of the voters who chose him.

What’s more, it reinforces the power that the gerrymandered maps give to the Republicans who drafted them. They can now have any Walker “holdover” appointees stay on indefinitely because the entrenched Republicans in the Legislature can just sit on their hands and never confirm Evers’s nominees.

As Dallet explained, “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. One unelected official should not be able to dictate his term in office over the will of the people’s elected representatives.”

This is yet another example of Republicans trashing the norms of our democracy.

Prehn did so when he schemed to stay on more than a year after his expiration date, and now refuses to budge.

And the Wisconsin Supreme Court did so, by blessing this absurd and profoundly anti-democratic maneuver.

Matthew Rothschild, Executive Director of the Wisconsin Democracy Campaign.