Gableman report suggests 2020 election can be decertified, calls for dismantling elections commission

Claiming some nursing home residents cast ballots without knowing what they were doing, and repeating complaints about grants from a liberal organization to help administer the 2020 election, the former state Supreme Court justice leading a GOP review of the 2020 election said Tuesday the Legislature “ought to take a very hard look” at decertifying the state’s presidential election — something experts say is a legal and constitutional impossibility.

In a sweeping critique of current election rules, Michael Gableman also called for the “elimination and dismantling” of the bipartisan Wisconsin Elections Commission after it instructed clerks in 2020 that they did not need to send poll workers into nursing homes to assist with absentee voting after many were turned away due to the COVID-19 pandemic.

“At best, WEC is hopelessly derelict of duty,” Gableman told the Assembly elections committee in a three-hour presentation of his 136-page “interim report” from his ongoing one-party review. The report reiterates past GOP criticisms of the state’s presidential election, including that millions of dollars of private grants allocated to cities to help administer the election amid the pandemic constituted bribery — a claim courts have rejected.

The commission’s nonpartisan administrator, Meagan Wolfe, denounced the report, saying it was based on mischaracterizations and that almost every item flagged by the review has already been litigated or addressed.

“The opinions in the Special Counsel’s latest interim report were fixated on topics that have been thoroughly addressed,” Wolfe said. “The integrity of the November 2020 election, and of the WEC, has been shown time and time again through court cases and previous investigations.”

A recount and court decisions have affirmed that President Joe Biden defeated former President Donald Trump in Wisconsin by almost 21,000 votes. Reviews by the nonpartisan Legislative Audit Bureau and the conservative Wisconsin Institute for Law and Liberty found no evidence of widespread fraud. Multiple court rulings have also found no evidence of irregularities.

Further, the results of the 2020 election have been confirmed by county canvassing boards, recounts in Dane and Milwaukee counties, post-election audits by local and state election authorities and a voting equipment audit by the elections commission.

Gableman indicated that his review, for which Assembly Speaker Robin Vos, R-Rochester, has allocated $676,000 in taxpayer money, is far from complete. He said he continues to speak with Vos about extending the contract, which expired at the end of December. The eight-month review has been plagued by legal challenges against multiple subpoenas issued by Gableman.

The former justice’s lengthy, meandering and at times openly partisan attacks on elections commission staff and Democratic appointees underscored to critics the one-sided nature of the investigation.

“This circus has long surpassed being a mere embarrassment for our state,” Democratic Gov. Tony Evers said in a statement. “From the beginning, it has never been a serious or functioning effort, it has lacked public accountability and transparency, and it has been a colossal waste of taxpayer dollars.”

Decertification

Republican lawmakers and legislative attorneys have repeatedly said overturning the election after it was certified by the state and Congress would be illegal and impossible. And in his report, Gableman makes clear that his purpose is not to challenge the state’s certification. But an appendix does “sketch how that might be done,” he said.

“It is clear that the Wisconsin Legislature could lawfully take steps to decertify electors in any presidential election, for example in light of violations of state election law that did or likely could have affected the outcome of the election,” according to the report.

UW-Madison political science professor and elections administration expert Kenneth Mayer said the claim is meaningless.

“Even if the Legislature did pass some sort of ‘decertification’ now it would have no legal effect,” he said. “Once the electors have cast their ballots, and they have been counted in Congress, that’s the end of it.”

Assembly Majority Leader Jim Steineke, R-Kaukauna, has repeatedly rejected efforts to overturn the 2020 election.

“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,” Steineke tweeted.

Following the hearing, committee chair Rep. Janel Brandtjen, R-Menomonee Falls, and member Rep. David Murphy, R-Greenville, did not rule out the possibility of pursuing decertification, though Murphy said “that bar needs to be extremely high.”

“To undo an election would be extremely detrimental to our republic. This is a very destabilizing act,” Murphy said. “On the other hand, elections that are stolen, that’s also destabilizing for the republic so we have to look at this with an open mind from both directions.”

Gableman’s report comes weeks after Rep. Timothy Ramthun, R-Campbellsport, launched a campaign for governor focused largely on claims of widespread fraud and a desire to take back the state’s 10 electoral college votes already certified for Biden. Other Republicans in the race — former Lt. Gov. Rebecca Kleefisch and anti-establishment candidate Kevin Nicholson — have also lobbed criticism at the 2020 election’s administration, but have not openly called for decertifying the results.

Voting deputies

Gableman took special aim at the elections commission’s decision to exempt clerks from the requirement that they send poll workers, known as special voting deputies, into care facilities in 2020, showing several videos of attorney Erick Kaardal questioning nursing homes residents who evidently voted but seemed to have trouble understanding questions he was asking them about the election.

The commission’s guidance was issued in March 2020 shortly after the COVID-19 pandemic was declared. The directive remained in place for the November 2020 presidential election and the February 2021 primary.

John Sauer, CEO of LeadingAge Wisconsin, which represents nursing homes, said there are “instances in the report that, if true, would certainly warrant further investigation.” But, he said, “even if a few of the examples cited turn out to be factual, we have to remember this was a very unusual circumstance, where the pandemic forced a suspension of the use of special voting deputies.”

Sauer noted the Gableman report said investigators vetted 24 nursing homes in Dane County, but the county has only 18, according to the state Department of Health Services.

The videos Gableman showed appeared to call into question whether the people interviewed, in some cases appearing confused or uninformed, should have been allowed to vote. But under election law, only a judge — not an elections clerk or a special voting deputy — can reject a person’s right to register to vote after finding the person is incompetent.

“Simply being forgetful or appearing to be confused doesn’t mean that person can’t formulate their opinion on who they choose to vote for,” Sauer said. “If there’s not a determination, then the assumption is that person is competent and able to cast a ballot.”

Dane County Clerk Scott McDonell criticized the videos, which he described as “using seniors as political props,” adding that families concerned a relative may be incompetent should have a judge make that finding.

“You wouldn’t want special voting deputies to be determining that on their own,” he said.

Private grants

Gableman also contends that the private grants by the Mark Zuckerberg-funded Center for Tech and Civic Life, which were distributed around the state but went primarily to the state’s five largest cities, were aimed at boosting turnout in areas more likely to go for Biden.

In taking the money, Gableman said, Milwaukee, Madison, Racine, Kenosha and Green Bay engaged in what he called “election bribery,” defined in state law as accepting “anything of value,” such as money, to “induce any elector” to “go to or refrain from going to the polls” or “vote or refrain from voting.”

His report also points to provisions in the CTCL and the cities’ “Wisconsin Safe Voting Plan” that, among other things, encourage the use of ballot drop boxes and reaching out to “historically disenfranchised” voters such as racial minorities and the poor, “which not-coincidentally, matched that of the Biden-voter profile.”

A Wisconsin State Journal review of the CTCL grants found that the money was spread around to about 214 municipalities, while the five largest cities received two to four times more money, per capita, than smaller cities.

At the same time, no community that asked for money from the group was denied, with communities in 39 of the state’s 72 counties receiving grants, including ones won by Trump.

A state Legislative Audit Bureau survey also found that drop boxes were common across Wisconsin, appearing in 24 to 54 municipalities in each of seven different regions of the state, including in the northeast and northwest where Trump won the vast majority of counties.

The state’s anti-election bribery law also specifies other things that also cost money that are aimed at helping people vote but don’t constitute bribery, such as giving employees paid time off to vote, and driving people to the polls.

The conservative Thomas More Society on Tuesday released its own private review of the 2020 election, which also alleges the CTCL grants constitute bribery and raises questions surrounding special voting deputies at nursing homes.

The separate review was conducted on behalf of the Wisconsin Voter Alliance, one of a handful of groups that unsuccessfully sued to overturn the results of the state’s 2020 presidential election. The organization shares office space in Brookfield with Gableman, according to lease documents, and the group’s president, Ron Heuer, as well as Kaardal, are members of Gableman’s team.

State Journal reporters Chris Rickert, Alexander Shur and David Wahlberg contributed to this report.

Editor's note: This story has been updated to reflect a correction. A previous version misstated the reason why Skaalen Retirement Services in Stoughton shredded four absentee ballots in the 2020 election. It was because the residents decided they didn’t want to vote. None of the residents at the nursing home at the time had been found by a judge to be incompetent.