On Tuesday, the investigator leading the Wisconsin Assembly’s review of the 2020 presidential election released a “second interim investigative report.” During more than three hours of testimony before the Assembly’s Committee on Campaigns and Elections on Tuesday, attorney Michael Gableman outlined his findings and set forth a number of assertions and recommendations regarding the conduct of Wisconsin’s elections.
American Oversight has been investigating efforts to undermine democracy in Wisconsin, and we have uncovered hundreds of pages of public records that shine a light on the partisan influences behind the Assembly’s election investigation. We currently have three open lawsuits against the Wisconsin Assembly, Speaker Robin Vos, and Gableman’s Office of Special Counsel seeking the release of documents that could provide the public with further information about the probe.
American Oversight’s team reviewed the text of Gableman’s report as well as the testimony given at the Tuesday hearing and has identified a number of key questions about the investigation that remain unanswered.
While there had been suggestions that Tuesday’s report would be the final word from Gableman and the Office of Special Counsel, Gableman made it clear that the work of his office was far from over. It was less clear what exactly that work would entail, but the report and accompanying testimony included suggestions of potential next steps for the office and its backers in the Assembly.
In the report and at the hearing, Gableman appeared to endorse the idea that the Wisconsin legislature could “decertify” the state’s 2020 electoral votes. During his testimony, Gableman said, “I think the legislature ought to take a very hard look at the decertification of the 2020 election.” Independent legal scholars and election experts have said that decertification is not a legal possibility, and during the hearing, the legislative counsel for the elections committee said that the “door is closed” on elections once votes are cast and sealed.
Calls for the decertification of Wisconsin’s 2020 electoral votes have increased in recent weeks, spurred in part by Wisconsin Rep. Timothy Ramthun’s efforts to introduce resolutions that would allow the Legislature to retroactively alter the votes of the state’s electors.
Gableman also called for the state’s legislature to establish “processes for standardizing challenges both pre- and post-certification.” In the report, Gableman said that such an act — which would seemingly validate the false assertion that elections can be revisionally “decertified” — could “establish opportunities to raise or expedite decertification procedures on the floor of the Assembly or Senate.”
Gableman also floated a suggestion that could potentially normalize the formation of “alternate slates” of electors, like those in Wisconsin and six other states who convened and submitted fraudulent electoral votes for Donald Trump in December 2020. The report stated, “The Legislature might also consider formalizing the ability of candidates to assemble alternative slates of electors, to ratify an already lawful process.”
Another recommendation in the report suggested that “a politically accountable body, such [as] an association of elected county clerks,” should be responsible for the certification of Wisconsin’s presidential electors, taking oversight away from the bipartisan Wisconsin Elections Commission. If enacted, such a measure could allow partisan officials to reject valid election results or certify invalid results, undermining the will of Wisconsin voters based on the same baseless conspiracy theories that pervade all of the Big Lie attacks on the 2020 election, including Gableman’s work.
Additionally, Gableman recommended that the Wisconsin Legislature cut ties with the Electronic Registration Information Center, a nonprofit that assists with election administration in 31 states and the District of Columbia. Documents previously uncovered by American Oversight suggest that some conservative lawmakers in Wisconsin have raised questions about ERIC’s role in state elections in recent months.
Several elements of Gableman’s report and testimony discussed election audits, including a recommendation to establish a new office — separate from the already-existing Legislative Audit Bureau — to “engage in auditing and oversight of elections.” Gableman also stated that his office plans to continue investigating certain aspects of the 2020 election, such as voting in nursing homes, “with an eye towards completing that audit.”
The report noted that Gableman and the OSC have not completed a “full audit” of Wisconsin’s 2020 election, and suggested that such a probe would “take a comprehensive look at election processes, contracts, and machines, to stress test and run other technical reviews.” The conclusion of the report raised the possibility of OSC overseeing such a review, revealing that the office “has engaged with outside contractors and entered preliminary steps in the government procurement process.”
American Oversight’s outstanding public records requests with the OSC should compel the release of documents detailing any of those discussions with auditors or contractors. We are currently fighting in court to force the public release of those and other documents. On March 2, a judge ruled that the OSC, the Assembly, and Vos had all violated Wisconsin’s open records laws and ordered the release of relevant records.
Should Wisconsin officials seek to pursue an Arizona-style “audit,” American Oversight has extensive experience uncovering records of such undertakings, having already obtained and published tens of thousands of pages of public records from the Maricopa County election review conducted by Cyber Ninjas last year.
Gableman has issued a number of subpoenas to local mayors and election officials, and on Tuesday, he suggested that he would continue pressing for their closed-door testimony. During his testimony, Gableman claimed that “not one person” he had subpoenaed had volunteered to be interviewed, stating instead that they had “retained expensive, out-of-state firms.” Several of the mayors Gableman has subpoenaed have stated that they would sit for interviews in public, but will not privately testify before Gableman.
Gableman’s original contract with the Assembly expired on Oct. 31, 2021, but a draft of an extension signed only by Vos offers to extend the contract through December 2021. Regarding that apparently unsigned extension offer, a judge ruled in one of our lawsuits on March 2 that the “OSC fails to demonstrate the existence of any enforceable contract, or any other grant of power, between itself and the assembly.”
We also obtained an unsigned draft amendment to the contract that removed its end date and did not specify a new deadline following Vos’ December 2021 announcement that the investigation would extend into the new year. During the hearing on Tuesday, Gableman claimed to have signed a contract amendment “within the last two weeks,” but added that he “shouldn’t go too far into detail.” It is unclear whether the amendment Gableman referred to is the same amendment previously obtained by American Oversight. After his presentation on Tuesday, Gableman said that he believes he still has a legally binding contract with the Assembly, but that others do not believe so.
The status of Gableman’s contract is of critical importance for two reasons. First, the extent of Gableman’s authority to conduct this work is unclear absent an enforceable contract or other grant of power. Second, Gableman’s investigation has already cost Wisconsin taxpayers at least $376,000, according to his own testimony. Under the contract, Gableman himself is paid $11,000 per month. American Oversight has uncovered records showing that staff costs for the Office of Special Counsel increased dramatically during the final three months of 2021 — from a salary budget of $28,250 in September to more than $63,500 in December.
In the hearing on Tuesday, Gableman reported that his office has about $300,000 of its original $676,000 investigation budget remaining.
Tuesday’s hearing took place before the Wisconsin Assembly’s Campaigns and Elections Committee, which is chaired by state Rep. Janel Brandtjen. Brandtjen is a vocal proponent of election conspiracies who has previously criticized Gableman’s investigation for not going far enough.
The hearing featured one other witness in addition to Gableman: Erick Kaardal, a conservative lawyer who has been involved in efforts to overturn the 2020 presidential election. Kaardal was also featured in a video shown by Gableman as part of his presentation and spoke separately about alleged vulnerabilities in the state’s elections system.
Documents previously obtained by American Oversight show that Kaardal has been in touch with both Gableman and Brandtjen about efforts to investigate the 2020 election. Lease agreements obtained by American Oversight in November 2021 show that the 60 percent of the rent of Gableman’s investigation office space is subsidized by subleases with Kaardal’s law firm and the Thomas More Society, a conservative legal group of which Kaardal is a member. We have also obtained communications Kaardal sent to Brandtjen in which he alleged vulnerabilities in the state’s election system.
In his testimony to the committee, Kaardal spoke about the possibility of “decertifying” elections and claimed that other states are given the legal option to do so based on alleged irregularities.
After the hearing, Kaardal and Brandtjen both spoke at a Thomas More Society press conference where they alleged that Wisconsin election officials had broken the law while administrating the 2020 election, and Brandtjen once again raised the (legally impossible) possibility of issuing an “administrative correction” to the state’s 2020 electoral votes. That press conference was led by Ron Heuer, the president of the Wisconsin Voters Alliance, which previously sued Mike Pence and others in efforts to overturn the results of the 2020 election in five states. Adding to the web of connections, Kaardal represented the Wisconsin Voters Alliance in that lawsuit, and Heuer was employed by Gableman’s investigation for under three months in 2021.
American Oversight has already uncovered hundreds of documents revealing new information about the costs of the inquiry, the people involved, and the partisan influences at work — but Vos and the OSC are continuing to withhold additional records from public release.
American Oversight is continuing to seek the release of documents in court, and multiple judges have ruled that responsive records must be turned over. Gableman has argued repeatedly that he believes that Wisconsin’s open records statute does not require him to produce such documents, and at Tuesday’s hearing, he again suggested that he believes he is exempt from “normal” public records requests.
The courts have thus far rejected that argument and American Oversight’s cases are ongoing. We will continue to post updates — and new documents — as they become available.
Read our most recent updates here.
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