Republicans running partisan reviews of the 2020 election results and Democrats trying to stop them are barreling toward court showdowns in two key swing states in the coming weeks.
Nearly a year after President Joe Biden's inauguration, Republican-led legislative chambers in Pennsylvania and Wisconsin are still forging ahead with investigations similar to earlier efforts in states such as Arizona — which were sharply criticized by election experts — looking for evidence of fraud or other malfeasance in the 2020 vote.
Now, an initial round of rulings and new court dates in lawsuits challenging the reviews is coming up, with Democrats and election experts hoping they will halt the drive by Republican lawmakers to revisit the results. Investigations in other states, most recently Texas, have failed to turn up evidence of serious issues.
And election experts have long warned that the reviews — which supporters often call “audits,” a term professional election administrators and experts have rejected — are a political vehicle for former President Donald Trump and his followers to launder their conspiratorial beliefs about his 2020 loss into the mainstream under the guise of government investigation.
"This is corrosive to our democracy," said Wisconsin Attorney General Josh Kaul, a Democrat who is in litigation to quash a review in his state. "We've continued to see lies being made about the integrity of our elections."
In Wisconsin, the effort is being led by former state Supreme Court Justice Michael Gableman with the support of state Assembly Speaker Robin Vos, the most powerful Republican in the state.
Gableman — who said before being put in charge of the investigation that “unelected bureaucrats” at the state election commission “steal our vote” and later said he does not “have a comprehensive understanding” of “how elections work" — has cast a wide net in his probe. He has attempted to subpoena the Wisconsin Elections Commission for an expansive set of data, and has fired off a wave of subpoenas to individual cities in the state seeking a range of election-related records.
Madison Mayor Satya Rhodes-Conway, when asked how many times Gableman has subpoenaed her city, said it was "a good question” before reeling off a list of city officials.
“It’s very, very broad. To me, it just looks like a fishing expedition,” the Democratic mayor continued. Her office on Monday made public two new subpoenas issued to city employees at the end of 2021.
Neither Gableman’s nor Vos’ office responded to interview requests from POLITICO.
Kaul’s office is currently embroiled in litigation seeking to kill a subpoena from Gableman to interview Meagan Wolfe, the administrator of the Wisconsin Elections Commission. Kaul’s lawsuit argues that the subpoena against Wolfe should be tossed for a handful of reasons, including that the subpoena is overly broad and that it seeks to conduct a private interview rather than a public one.
A Dane County judge said after a late December hearing that she will decide whether Gableman’s subpoena is valid by Jan. 10. That decision could have a cascading effect on other lawsuits in the country. A separate court case — about Gableman seeking to compel testimony from Rhodes-Conway and the mayor of Green Bay by threatening jail time — has its next hearing scheduled for Jan. 21.
“Gableman has asked for private depositions in connection with many of the other subpoenas,” Kaul said. “And the same legal principles that apply in connection with our challenge would apply in other depositions he’s seeking as well.”
On Tuesday, an attorney for Green Bay filed a motion with the court seeking sanctions against Gableman for his actions in the case.
Another case in Wisconsin could also shed more light on Gableman’s probe: In a lawsuit brought by the liberal-leaning research group American Oversight, a Dane County judge on Tuesday ordered that Vos and a staffer sit for depositions on Jan. 12 relating to compliance with public records requests about the investigation.
A similar battle in Pennsylvania, between the state’s Democratic attorney general and Republican legislators supporting their own election probe, is ongoing.
The Republican state Senate is pushing a probe there, all amid an intraparty battle between two rivals with designs on higher office. State Sen. Cris Dush, the chair of the chamber's Intergovernmental Operations Committee, was tapped by state Senate President Jake Corman to lead the effort, with Corman shouldering aside state Sen. Doug Mastriano, a Trump ally who had loudly called for an election review.
Corman is running for governor, and Mastriano is expected to launch his own bid sometime in the coming weeks.
State Attorney General Josh Shapiro — who is the Democratic Party’s likely gubernatorial nominee — has sued to kill the main subpoena in Pennsylvania, issued by Dush’s committee, which seeks to compel the state’s elections department to turn over a slew of data about Pennsylvania’s 9 million voters, some of which is not publicly available.
Shapiro’s suit, which was consolidated with an effort by state Senate Democrats to challenge the subpoena, argued that the subpoena does not have any “legitimate legislative purpose,” that Dush’s committee does not have jurisdiction over elections and that it would violate the privacy rights of Pennsylvania voters.
Dush's office said, in response to written questions from POLITICO, that “we believe the Senate’s statutory and constitutional authority to conduct this investigation is clear in this case,” and that the “investigation is intended to restore the public’s faith in how our elections are run.”
A state court heard arguments in the case in mid-December, and an aide to Dush said a ruling is expected within “weeks, not months.” That is, however, likely to be just the opening salvo in the legal fight. Regardless of which side prevails, the ruling will likely be appealed to the state Supreme Court.
During the court challenges to the probe, the investigation has inched along. Dush announced in November that the committee hired a company called Envoy Sage to conduct the investigation, which he called “highly competent, impartial and experienced.” But in a court filing in December, attorneys in Shapiro’s office noted that Envoy Sage had “no documented experience in election matters” and was not a suitable choice to handle sensitive information.
Even as the legal fights continue in Pennsylvania and Wisconsin, Republican-led efforts to investigate the 2020 election elsewhere have not validated Trump’s lies about the election. The Texas secretary of state’s office launched a probe in September, just hours after Trump publicly pressured top Republicans in the state to do so. The results of the first phase, which were buried on New Year’s Eve, found no significant issues.
The same is true for the Arizona probe, the original review that spawned copycat efforts across the country — both Dush and Gableman, for example, had traveled to Arizona to observe the proceedings. Election experts had ripped the partisan review in Arizona, which Trump heavily promoted as being run by conspiracy-fueled and inexperienced investigators.
The final vote tally from that review closely matched official results, but experts say that does not change the fact the report should be dismissed wholesale.
And on Wednesday, a rebuttal report from Maricopa County, the state’s largest county that was the focus of the Arizona review, slammed the state Senate-led effort for what it called “faulty analysis, inaccurate claims, misleading conclusions, and a lack of understanding of federal and state election laws.”
"The events of last January 6 were inspired and motivated by the persistent lie that a free and fair election had been rigged," Maricopa Board of Supervisors Chair Bill Gates and County Recorder Stephen Richer, both Republicans, said in a statement released at the conclusion of a four-hour presentation. "We will not allow those lies to go unchecked."