Former Wisconsin Supreme Court Justice Michael Gableman presented his 136-page interim report in a public Assembly Campaigns and Elections Committee hearing Tuesday, arguing for taking a “hard look” at decertifying the presidential election in Wisconsin — an unheard-of act that both Republican leadership and nonpartisan legislature attorneys consider legally impossible.
Gableman’s claims directly contradicted an analysis conducted by the Legislature back in November that found no legal basis for decertifying an election.
The contentions set forth by Gableman quickly divided the Republican party, alienating many who are keen to move on from the controversy and focus on the next election. Even still, the report sent ripples through the majority of Republicans who do not vest their confidence in the 2020 election.
Assembly majority leader Jim Steineke (R-Kaukauna) issued a public statement via Twitter, calling the project a “fool's errand” and urging politicians to “Focus on the future.” He added, “[decertifying the election] would have no practical impact b/c there is no Constitutional way to remove a sitting president other than through impeachment or incapacity.”
Assembly Speaker Robin Vos (R-Racine) commissioned the $676,000 taxpayer-funded report in spite of the numerous lawsuits and other reviews legitimizing the outcome of the election. Vos has also admitted the impossibility of decertification in the past but did not comment on Gableman’s claims beyond thanking him for his service.
The attempt to decertify has become the central platform for Rep. Timothy Ramthun (R-Kewaskum), who recently announced a gubernatorial campaign with the support of election conspiracy theorist Mike Lindell. Ramthun hopes that if the Wisconsin Legislature decertifies the election, it could potentially spark a movement to oust President Joe Biden.
Gableman postulated in an appendix to the report that simply because Wisconsin election law neither authorizes nor prohibits decertification, it was legally possible — despite the total lack of precedent for such a liberal interpretation of powers. In his testimony, he deferred the decision to challenge the election to “the elected representatives of the people” in contrast to the “whim of the courts,” arguing for a political rather than bipartisan judicial body to certify Wisconsin electors.
“In the event of widespread contest, the thumb should be on the scale in favor of withholding certification of electors,” he wrote.
“This is a shocking recommendation,” Wisconsin Elections Commission Chair Ann Jacobs tweeted. “Phrased another way — it recommends that the popular vote in Wisconsin be merely advisory. And could/would be overridden by a partisan legislature.”
In another tweet, Steineke declared he would work for the last ten months of his term towards preventing any attempt at partisan control of elections, cautioning that “In a world where partisan divides are deep & seemingly anything can be justified as long as it results in retaining power, handing authority to partisan politicians to determine if election fraud exists would be the end of our republic as we know it.”
Gableman extended recommendations for Wisconsin’s legislators far beyond the potential for decertification, seeking to change how people vote in Wisconsin on a broad scale. He said in his report that they should increase barriers to certifying presidential elections; provide a method for private citizens to challenge the state’s voter rolls; defer the power to certify elections to a “politically accountable body” rather than the bipartisan elections commission; create a way for presidential candidates to “assemble alternative slates of electors”; and allow post-certification challenges to election results.
He further alleged that “Get Out The Vote” activities meant to increase voter turnout were partisan in nature, that “non-citizens” compromised the polls in Wisconsin, that Mark Zuckerberg “bought the 2020 election for Biden” and that nursing homes contributed to fraudulent voting practices.
He particularly focused on nursing homes in his testimony, playing several videos of him and his team interviewing elderly people and opining that he saw them as too mentally incompetent to vote. Republicans have recurrently brought up the point of voting in nursing homes since the 2020 election when pandemic rules and safety concerns prevented special voting deputies from being sent into residences.
A similar competence-based argument for voting qualification has historically been used to disenfranchise groups for political purposes. “It’s really important to note on this issue around people in nursing homes that people retain the constitutional right to vote until and unless a court takes it away,” Elections Committee member Rep. Mark Spreitzer (D-Beloit) said.
Gableman also pushed for the dismantling of the Wisconsin Elections Commission, which was established in 2015 by the Republican-led legislature.
Much of Gableman’s testimony centered on talking points and theories about the Wisconsin election that have been addressed and debunked in the past. The sources used by Gableman include references to the Gateway Pundit, a right-wing news site that has been found to broadcast disinformation.
The Wisconsin Elections Commission issued a response statement Tuesday maintaining that there was little new information that hadn’t already been litigated, remarking that “Special Counsel Gableman’s report is based upon mischaracterizations of Wisconsin election statutes and administration, and therefore, the utility of his report is minimal.”
The Vos-Gableman display has not only reopened a great schism in Republican politics but also attracted the scorn of officials all over Wisconsin. In a press release Tuesday, Gov. Tony Evers described the election fiasco as a “circus” that “has long surpassed being a mere embarrassment for our state … a colossal waste of taxpayer dollars.”
“This effort has spread disinformation about our election processes, it has attacked the integrity of our clerks, election administrators and poll workers, and it has emboldened individuals to harass and demean dedicated public servants,” Evers said.
Wisconsin Attorney General Josh Kaul also characterized the report as “shameful, deeply embarrassing” and “a full-throated attack on our democracy and a truly shocking example of the authoritarian mindset at work.”
“The report provides a roadmap for attempting to overturn the will of the voters based on a fringe legal theory. It includes recommendations that would restrict access to voting and make it harder to detect fraud. And it disparages due process and public records requests because they are inconvenient to certain individuals with power,” Kaul warned.
Many who spoke out about the issue called on Republican leadership to take conclusive action on burying the dead horse for good. “Any mere condemnation of this effort rings hollow … Enough is enough,” Evers proclaimed. “Republicans in the Legislature have always had the ability to end this effort, and I call on them to do so today.”
Sen. Melissa Agard (D-Madison) also implored her legislative colleagues to vocally denounce “this shitshow that has damaged our democracy and wasted hard-earned taxpayer dollars.”
“The last eight months of this investigation have been a waste of time and money for the people of Wisconsin, appealing to right-wing conspiracy theorists and our deranged former president,” she said in a press release.
“This investigation accomplished exactly nothing. We already know there was no widespread voter fraud,” Sen. Tim Carpenter (D-Milwaukee) said in a press release “Speaker Vos wasted $676,000 of taxpayer money and he should pay that money back … The legislature should audit the Office of Special Counsel to find out once and for all how exactly the money was wasted and what kind of corruption was done. I’m renewing my call to the Joint Legislative Audit Committee to authorize that audit.”
Beyond the Contract
After his testimony, Gableman said his Office of Special Counsel would continue investigating the elections, despite his active contract ending in December 2021, with the report due February 2022.
“I believe that I do have a legally enforceable contract. Others would say that it ran out at the end of December,” Gableman said.
Gableman has issued 76 subpoenas seeking to force election officials, staffers and other public officials to testify in secret. Lawsuits are still ongoing for some, with many public officials insisting that they would only testify in public.
Gableman echoed a suggestion by Republican Sen. Ron Johnson in November that Republicans in the legislature may have the authority to bypass the Governor and unilaterally assert control over federal elections in the state.
Alex Tan is a staff writer for the Daily Cardinal specializing in state politics coverage. Follow him on Twitter at @dxvilsavocado.