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2020 ELECTION | PROBLEMS, BUT NO FRAUD

Conservative law firm's review of 2020 election: No 'big steal,' but plenty of problems

From the The 2020 election is over. Here’s what happened (and what didn’t) series
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A 10-month review of Wisconsin’s 2020 elections conducted by a conservative Milwaukee law firm concluded President Joe Biden won the state and found no evidence of the kind of fraud being alleged by allies of former President Donald Trump who falsely contend last year’s presidential election was “stolen.”

At the same time, the Wisconsin Institute for Law and Liberty found “it is almost certain” that “the number of votes that did not comply with existing legal requirements exceeded Joe Biden’s margin of victory.”

With the country’s two major political parties sharply at odds over whether the 2020 presidential election was legitimate, the review, released Tuesday, walks a fine line in asserting there were serious problems with the way elections were run in Wisconsin in 2020, but that it’s very unlikely those problems denied a Trump a second term.

“The purpose of the report is not to say that the outcome of the 2020 election is wrong,” WILL president and general counsel Rick Esenberg said. The report says it was “shameful” and “embarrassing” for Trump to call on Congress to at least delay counting electoral votes and for some of his supporters to breach the Capitol on Jan. 6, although the report disputes that it was “a serious ‘insurrection.’”

Rick Esenberg

Esenberg

Biden won Wisconsin by about 21,000 votes out of 3.2 million cast, and state and federal courts, recounts, and elections officials from both parties have repeatedly found that last year’s election was accurate and overwhelmingly secure. Esenberg denied that continuing to question how the election was carried out only serves to keep alive the myth of what’s become known as the “big lie.”

“I don’t think that you instill confidence in a process by kind of blindly assuming there’s nothing to see here,” he said.

The report also says questioning an election’s legitimacy is not a one-party affair, pointing specifically to questions raised by some on the left about the legitimacy of George W. Bush’s election in 2000 and Trump’s in 2016, as well as voting rights advocate Stacey Abrams’ refusal to accept her loss in the 2018 Georgia’s governor’s race.

A small percentage of voters and witnesses made mistakes on their absentee ballot certificates in 2020. Here are some examples of the kinds of errors that were either allowed or corrected by the clerk in order to permit the ballot to be counted.

Among the report’s findings:

  • There were “limited” instances in which people not eligible to vote cast ballots, or tried to, including 129 votes cast in which voters listed a post office or mailing center as their address, and 130 instances in which felons may have voted. In its own audit earlier this year, the Wisconsin Elections Commission identified 147 potential felons voting, and the report notes that, “This appears to occur every election” although prosecutors rarely pursue such cases.
  • While the authors of the report were unable to access voting machines, their efforts to “model” the machines turned up no problems in their performance, including those made by Dominion. Trump allies have falsely contended the machines changed votes from Trump to Biden or deleted Trump votes.
  • The Wisconsin Elections Commission and local clerks didn’t immediately remove voters flagged as having possibly moved from the active voter list, something WILL sued over last year. A state appeals court ruled in February 2020 that local clerks, not WEC, were responsible for removing voters from the registration list and the state Supreme Court had done nothing to change that decision prior to the election. Ultimately, more than 205,000 voters were removed from the rolls because they hadn’t cast a ballot in four years and may have moved and didn’t respond to a mailing, elections officials said in August.
  • Elections procedures were not uniform across the state, and in some cases, may have broken the law. The firm points in particular to differing approaches clerks took to “curing” absentee ballot certificates submitted with incorrect or missing information, and to varying opportunities to cast in-person absentee ballots depending on where one lives.
  • Election grants from the Mark Zuckerberg-funded Center for Tech and Civic Life disproportionately benefited Democratic-leaning areas, which the report contends increased turnout for Joe Biden. Esenberg said that if private money is to be used to help secure and run elections, a public entity should be responsible for distributing it fairly.
  • The election’s results were not “anomalous,” meaning, for example, voting patterns aligned with long-term state and national trends of Democrats winning more in the cities and suburbs and Republicans winning more in rural areas.
  • A review of roughly 20,000 ballots from 30 wards, including some in Madison, found “a significant number of voters who voted for Biden and a Republican for Congress, while far fewer voters split the other way. This is consistent with the explanation that a key driver of Trump’s loss was a segment of traditional Republican voters choosing not to support him.”

Election rules

The Republican-controlled Legislature did not pass legislation in 2020 to address questions about how to conduct elections during the COVID-19 pandemic, meaning that WEC and election clerks were often faced with how to follow election laws while public health measures advised or mandated limits to public gatherings, such as at polling places, and kept people outside of health care facilities, such as nursing homes.

Esenberg called WEC’s decision not to send special voting deputies into nursing homes to help people vote absentee, as required by law, a “perfect example” of this conundrum and one the commission botched.

“Rules need to be set in advance and not made on the fly,” he said, and if the bipartisan WEC and its staff had questions about what to do in such situations, they should have appealed to the Legislature and said “provide us with some relief.”

WEC spokesperson Riley Vetterkind said he didn’t know if the commission asked the Legislature for such help but said all the decisions about special voting deputies were made in public, widely reported and repeatedly reviewed.

Riley Vetterkind

Vetterkind

“Without action from the commission, many residents in Wisconsin care facilities could have and would have been disenfranchised and not able to vote in the 2020 elections,” he said.

The commission also pushed back against other assertions in the WILL report, noting that the report itself indicated that felons who voted might have re-registered legally after completing parole.

As for ballot curing, the commission in 2016 voted to tell clerks “they could fix missing witness address components based on ‘reliable information,’” according to an existing statement on the WEC website. “The motion to approve the guidance was made and seconded by Republican members of the Commission and it passed unanimously.”

‘New baseline’

The expansion of in-person absentee, or early, voting before the pandemic and of traditional absentee voting during the pandemic means that 2020 can’t be seen as a one-off, Esenberg said.

“It becomes the new baseline,” he said of the new voting practices, with any attempt to return to pre-pandemic election practices characterized by the left as “voter suppression.”

WILL has been a powerful player in state debates over pandemic-related restrictions and voting procedures, filing suits to overturn public health orders that required masks and limited in-person school, to remove people who may have moved from the voter rolls and stop the use of ballot drop boxes.

The group says its interests do not always align with the state’s Republican legislative majority, and Esenberg said Monday he doesn’t back calls by some Republicans to charge members of the Elections Commission with crimes for decisions they made, either on 6-0 or 5-1 votes, to loosen election rules due to the pandemic.

A resolution introduced Monday by Rep. Joe Sanfelippo, R-New Berlin, urges Elections Commission administrator Meagan Wolfe and assistant administrator Richard Rydecki, along with five members of the commission — Democratic appointees Ann Jacobs, Julie Glancey and Mark Thomsen and Republican appointees Dean Knudson and Marge Bostelmann — to resign immediately.

“Failing such resignations, the Wisconsin Legislature should undertake all actions available to it under the law that are necessary to effect the above-named individuals’ removal from the Elections Commission,” the resolution states.

Republican Assembly Speaker Robin Vos, who has hired conservative former state Supreme Court Justice Michael Gableman to conduct a one-party investigation of the 2020 election in Wisconsin, thanked WILL for its work in a statement.

“The review confirms there were issues the Legislature can and should address,” he said. “Our reforms must come forward and be signed into law. The governor cannot turn a blind eye when procedures and even laws are not being followed.”

An October report from the nonpartisan Legislative Audit Bureau did not find any evidence of widespread fraud or abuse in the state’s 2020 election, but did make 48 recommendations to the Legislature and WEC for improvements to how elections are run. WEC has begun the process of implementing many of those recommendations.


Year in review: The top Madison-area stories of 2020

It started out well enough. The Badgers were making a late-in-coming run at the Final Four. Hometown insurance behemoth American Family announced it was boosting its starting minimum wage to $20 an hour. Madison East Siders welcomed a new Pinney branch library.

The first two and a half months of the year feel like a different era, when news of a strange new virus infecting people in China was safely tucked away in the back pages of the newspaper and the heart-breaking images of a white Minneapolis police officer kneeling on the neck of a 46-year-old Black man had yet to go viral.

Then came March and successive waves of closures, cancellations, lockdowns, furloughs, layoffs, infections and deaths. If the subsequent uprisings over the killing of George Floyd weren't enough to remind America that it has plenty of work to do to overcome racism, the shooting of Jacob Blake in Kenosha tragically emphasized the point. And a divisive presidential election carried the tone of the year at the end.

While it may not be a year to look back on with particular fondness, 2020 no doubt is one to remember. Here's a look back at some of the top stories in the Madison area as they occurred.

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It marked the fourth consecutive loss in the Rose Bowl for UW, and the first time since 2013 that the program lost its final two games of the year.

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Madison police spokesman Joel DeSpain said Sunday the victim who officers found in an apartment at 1905 McKenna Blvd. shortly after 2:30 p.m. Saturday was a 20-year-old African American male.

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With the Green Bay defense failing to lay a hand on 49ers running back Raheem Mostert for much of the first half and the Aaron Rodgers-led offense committing two turnovers and failing to convert a third down yet again during a scoreless first 30 minutes, the Packers dug themselves a 27-0 halftime deficit on their way to a demoralizing 37-20 loss.

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Gutierrez, superintendent of the school district in Seguin, Texas, was announced Friday as the Madison School Board's pick to lead the district.

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The person returned to Dane County Regional Airport after a trip to Beijing Jan. 30 and went directly to UW Hospital's emergency room, officials said.

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This weekend's performances at the Alliant Energy Center will be the last with elephants in Dane County as a contract between the circus and the venue expires. 

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Tony Evers said he vetoed the legislation, which uses surplus revenue, because it doesn't invest in the state's schools. 

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Despite no Wisconsin cheeses finishing in the final top three, state producers dominated the competition, earning 45 gold medals out of 132 categories.

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This decision is unprecedented for Wisconsin's largest university and taken to slow the spread of COVID-19 coronavirus.

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The closure order, to take effect no later than 5 p.m. on March 18, affects nearly 1 million Wisconsin children in grades K-12 in public and private schools.

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One was a man in his 50s from Fond du Lac County; the other was a man in his 90s from Ozaukee County.

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David A. Kahl, 53, is charged with first-degree intentional homicide.

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Tony Evers’ “safer at home” order represents a shift from the governor's position last week, when he said he did not plan on issuing such an order.

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Most voting locations saw few lines and smooth operations. But other places, notably Milwaukee, experienced significant delays, chaos and conditions that made it impossible for some voters to cast a ballot.

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Jill Karofsky's win over Dan Kelly cuts the court's conservative majority to 4-3, giving liberals a chance to take back control in 2023.

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The U.S. Air Force announced the final selection of the Wisconsin Air National Guard’s 115th Fighter Wing, capping more than three years of study and deep community division over the planes, which come with the promise of jobs and new construction but also noise and pollution.

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While applauded as a good first step, Democratic members, as well as public safety and health officials, have criticized the bill for not allocating more state funding to respond to the pandemic.

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For 30 years, "Ms. Milele" was the publisher of UMOJA magazine and a prominent leader in Madison's black community. She was "short in stature but mighty in force." 

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Free community testing for COVID-19 started at the Alliant Energy Center in Madison on Monday morning.

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Gov. Tony Evers and legislative Republicans will need to work quickly to come up with a replacement plan.

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The Vilas Zoo, Goodman Pool, beaches and movie theaters are among the places not opening yet.

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There were signs early Sunday that the violence was spreading into other parts of the city.

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"It’s clear they have important process issues to work out," the candidate said.

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School Board President Gloria Reyes said the decision to pull police from Madison's four main high schools is effective immediately. 

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The Madison School Board chose Carlton Jenkins, a superintendent of a suburban Twin Cities school district, over another finalist for the job. He starts Aug. 4.

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As a Dane County public health order requiring face coverings in all indoor spaces outside the home took effect Monday, businesses offered mixed views on mandates, though for many retailers it was business as (the new) usual.

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There was no update on the second victim from the shooting at Schroeder Road and Chapel Hill Road Saturday night. 

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Travis M. Christianson, 44, is tentatively charged with first-degree intentional homicide.

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Republican President Donald Trump also has caused controversy for saying he might deliver acceptance speech at White House.

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The girl was in a car that was struck by gunfire late Tuesday morning on East Washington Avenue.

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The conference decided — after meetings between presidents and athletic directors, and outcry from players, coaches, politicians and fans — to cancel the fall sports season and will attempt to move football to the spring semester.

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"The video that came out of Kenosha is absolutely horrific. I don’t understand how people can watch it and not be here," one Madison protester said. 

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The fifth-seeded Heat finished off an upset of the NBA’s best regular-season team Tuesday, topping the Milwaukee Bucks 103-94 in Game 5 of their East semifinal series — while Giannis Antetokounmpo, the league’s reigning MVP, couldn’t play because of a sprained right ankle.

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UW-Madison is pausing in-person instruction for at least two weeks and quarantining more than 2,200 students living in two dorms.

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Police are not recommending charges against Althea Bernstein, saying there is a difference between someone trying to deceive law enforcement and not being able to corroborate a report of a crime.

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The alternate care facility at State Fair Park in West Allis may begin taking patients Thursday.

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A small crowd Downtown Saturday morning before the race was called turned into hundreds of people honking horns, cheering and waving signs after Biden was declared the winner, while some Trump supporters turned out in protest.

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"We understand the eyes of the world will be on these Wisconsin counties over the next few weeks,"  Wisconsin Elections Commission administrator Meagan Wolfe said.

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St. Mary's and Meriter expect to get vaccine soon.

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The flurry of activity caps off a tumultuous post-election saga in Wisconsin that has now concluded.

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A look back at the year 2020 through the lens of Wisconsin State Journal photographers John Hart, Amber Arnold and Steve Apps

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