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Michael Gableman faces new lawsuit for deleting public records

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Michael Gableman


The former state Supreme Court justice leading the GOP-ordered review of Wisconsin’s 2020 election faces a new lawsuit following recent comments he made indicating that he deletes records he deems irrelevant to the taxpayer-funded probe.

Liberal watchdog group American Oversight on Tuesday filed a lawsuit and emergency motion seeking to stop the the deletion of public records related to the inquiry by Michael Gableman. Two Dane County judges have already ordered Gableman’s Office of Special Counsel to halt the deletion of any records responsive to American Oversight’s requests.

The lawsuit, filed in Dane County Circuit Court, points to comments Gableman made in recent testimony that he has deleted emails from his government email account. Gableman also said last week he had a staffer delete the personal email account he used in the early months of his review last year, making those records inaccessible.

“With respect to any given missing record, either the (Office of Special Counsel) has failed to conduct the required search of existing records — in which case it has violated the Open Records law — or the OSC has conducted the required search, but come up empty-handed because the OSC had already deleted those texts or e-mails — in which case it has violated the Public Records Retention Law,” American Oversight attorneys wrote in the lawsuit.

While testifying last week in a separate open records case focused on the first few months of his review, Gableman said, “did I delete documents? Yes, I did.”

“If I had to keep every scrap of paper, I would do nothing else,” Gableman told reporters on June 10 while in court for another case. “I would need a warehouse.”

In April, an attorney representing Gableman indicated in court filings that the office routinely deletes documents, including emails and text messages, that are deemed “irrelevant or useless to the investigation.” Attorneys have claimed Gableman is exempt from state record retention laws.

An October memo prepared by Legislative Council deputy director Dan Schmidt indicated that the state’s public records law “generally applies to records created or maintained” by Gableman’s office.

State lawmakers are exempt from Wisconsin’s record retention law, allowing them to regularly delete records, though requested documents must be retained if they exist at the time of a formal request. Schmidt wrote in the memo that such an exemption does not apply to Gableman.

“The OSC has deleted public records that don’t suit the faux election-fraud narrative, unabashedly flouting Wisconsin law,” American Oversight senior adviser Melanie Sloan said in a statement. “Citizens should have the opportunity to evaluate the OSC’s report for themselves based on the entire record, not just on the documents Gableman wants people to see.”

Multiple lawsuits

The lawsuit is the fourth filed by American Oversight related to the GOP-ordered review of the 2020 election and the second filed against Gableman. Assembly Speaker Robin Vos, R-Rochester, who hired Gableman last year, and the state Assembly, have also been sued by American Oversight over requests for public records. American Oversight is represented by Democracy Forward and Madison firm Pines Bach in the case filed Tuesday.

Gableman’s office and attorneys who have represented him in another American Oversight lawsuit related to public records did not immediately respond to a request for comment Tuesday.

In an affidavit filed by Gableman in a separate case Tuesday, the former justice said he has searched for and provided all documents relevant to American Oversight’s requests.

Gableman was hired by Vos under pressure from Donald Trump to review the election the former president lost to President Joe Biden by about 21,000 votes in Wisconsin. While the probe was originally allocated $676,000 in taxpayer funds, invoices have shown that ongoing court battles surrounding the review have pushed the cost to nearly $900,000.

A recount, court decisions and multiple reviews have affirmed that Biden defeated Trump in Wisconsin. Only 24 people out of nearly 3.3 million who cast ballots have been charged with election fraud in Wisconsin.

Vos earlier this year paused Gableman’s probe to allow time for pending lawsuits related to the review to play out in court and halved Gableman’s monthly salary from $11,000 to $5,500.

In the courtroom

Dane County Circuit Judge Frank Remington earlier this month held Gableman’s office in contempt, offering a scathing rebuke of the former justice’s behavior in court a week earlier, when Gableman accused the judge of being a partisan “advocate.”

Remington ultimately held Gableman’s office in contempt for failing to adequately respond to the requests and ordered Gableman be fined $2,000 a day until he complies. He also directed Gableman’s “sneering” conduct in Remington’s courtroom to the office that regulates attorneys and judges in Wisconsin to take possible action against his license to practice law.

Gableman has appealed the ruling and is seeking a review by a three-judge panel in Wisconsin’s District 2 Court of Appeals in Waukesha.

In a separate case, Dane County Circuit Judge Valerie Bailey-Rihn last week ruled that Vos will not be penalized for a previous contempt order related to the case, but said she will decide later if Vos should face penalties related to how his office handled requests for records related to Gableman’s review. A hearing has been scheduled for July 28 in the matter.

The 2020 election is over. Here’s what happened (and what didn’t)

The 2020 election was “the most secure in American history,” according to the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, which coordinates the nation’s election infrastructure.

While a handful of voters risked going to prison by attempting to vote twice or in the name of a dead relative, as happens in any election, no evidence of widespread fraud has ever been produced in Wisconsin or elsewhere.

Yet, many continue to question some of the practices clerks relied on to encourage eligible voters to cast ballots and make sure their votes were counted amid the first election in more than 100 years held during a pandemic.

The Wisconsin State Journal has covered every twist and turn of this debate in scores of stories. But here are a few that offered some broader context about what happened, and didn't happen, in the election of 2020.

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The state has multiple, overlapping safeguards aimed at preventing ineligible voters from casting ballots, tampering with the ballots or altering vote totals.

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Nothing in the emails suggests there were problems with the election that contributed in any meaningful way to Trump's 20,682-vote loss to Joe Biden.

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"Despite concerns with statewide elections procedures, this audit showed us that the election was largely safe and secure," Sen. Rob Cowles said Friday.

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The grants were provided to every Wisconsin municipality that asked for them, and in the amounts they asked for. 

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"Application of the U.S. Department of Justice guidance among the clerks in Wisconsin is not uniform," the memo says.

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YORKVILLE — The Racine County Sheriff’s Office announced in a Thursday morning news conference that it has identified eight cases of what it believes to be election fraud at a Mount Pleasant nursing home.

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The memo states that state law gives the Audit Bureau complete access to all records during an audit investigation and federal law and guidance does not prohibit an election official from handing over election records.

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Drop boxes were used throughout Wisconsin, including in areas where Trump won the vast majority of counties.

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"I don't think that you instill confidence in a process by kind of blindly assuming there's nothing to see here," WILL president and general counsel Rick Esenberg said.

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The report is the latest to show that there was not widespread fraud in Wisconsin.

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The clear insinuation was that someone not qualified to conduct an election improperly influenced these vulnerable voters. But the Wisconsin State Journal could not confirm the data. 

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The turnout at nursing homes in Brown, Kenosha, Milwaukee and Racine counties in 2020 was not much different from the turnout in 2016.


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