Michael Gableman backs away from talk of election decertification, Republican leaders say

MADISON – Former state Supreme Court Justice Michael Gableman urged Wisconsin lawmakers in March to strongly consider rescinding the state’s electoral votes for President Joe Biden — an idea that scholars call legally preposterous.

On Tuesday, he presented a different view to Republicans who run the Assembly, while claiming he had not reversed himself, according to those who met with him.

Asked if he had heard Gableman say that the state Legislature could not decertify the 2020 election, Assembly Speaker Robin Vos of Rochester said: "We just talked about it in front of our entire leadership team where he basically said that."

Assembly Majority Leader Jim Steineke of Kaukauna concurred with Vos’ account.

Assembly Republicans hired Gableman at taxpayer expense last summer to look into Biden’s victory over Donald Trump. Recounts and court rulings have confirmed Biden’s win and independent reviews have found no signs of significant fraud, but Gableman has argued the election was flawed.

In March, Gableman drew national attention when he presented a report to the Assembly Elections Committee and declared, "I believe the Legislature ought to take a very hard look at the option of decertification."

He argued there were "significant grounds" for doing so, even as Vos, Steineke and experts on the left and right said the notion was legally impossible.

In his report, Gableman wrote that "it is clear that the Wisconsin Legislature could lawfully take steps to decertify electors in any Presidential election." Elections that are deemed to have violated state laws are "both void and voidable," he wrote.

Nonpartisan lawyers for the Legislature had previously determined elections can't be decertified. Gableman called their logic "defective" in his report.

Decertifying the election would require a majority vote in the Assembly and state Senate but would not need the approval of Democratic Gov. Tony Evers, he argued.

"However, this action would not, on its own, have any other legal consequence under state or federal law,” Gableman wrote. “It would not, for example, change who the current President is.”

He did not say in his report whether he believed having other states take the same step could result in unseating Biden.

In his meeting Tuesday with Republican Assembly leaders, Gableman maintained he has held the same stance over the last two and a half months, according to Vos and Steineke.

"I think what he's saying is that he's been consistent all along in saying decertification would not result in the desired outcome of many of the people on the far right,” Steineke said. “My understanding of his position is you could do it, but it wouldn’t have any practical effect.”

Vos said he didn’t believe Gableman would again make the case for decertification and tried to contend Gableman has never backed the idea.

“I think if you go back and ask him, he said you can't decertify,” Vos said, even though Gableman called on lawmakers to consider doing so and his report included a six-page appendix explaining how he believed they could do it.

"He just said it's a question that hasn't been tested," Vos argued. "But neither has me jumping out the window and landing on two feet, right? I mean, there's a lot of things that are untested that can just never happen."

Gableman gave a copy of his report to Vos before he released it publicly, but the version he gave Vos didn’t include the section on decertification. Vos said he was frustrated by that part of Gableman’s report.

"I think that including that took away from the overall message, which was that there were major problems in the 2020 election," Vos said. "And instead of focusing on reforms and going forward, which is what we need to do, we unfortunately got bogged down in this idea that we can go back and undo the past, which we can’t.”

Gableman declined to answer questions about his views on decertification. After a Journal Sentinel reporter emailed him questions, Gableman sent a response Wednesday saying he had blocked the reporter’s email address to prevent future communications.

Vos described Gableman’s most recent comments on decertification after the two signed a new contract that will allow Gableman to receive $5,500 a month from taxpayers while he works on lawsuits related to the election review. The review itself is paused for now, according to Vos.

Democratic state Rep. Lisa Subeck of Madison called the review a waste of taxpayer money that never should have been initiated. She said Vos' pause of the review does not go far enough.

"As long as he's keeping Gableman on the payroll, this is an ongoing thing," she said. "It has not been closed. ... (It's) a farce to begin with and continuing the farce does nothing to build confidence in our elections."

Two weeks ago — when Gableman’s future working for the Assembly was unclear — Gableman appeared at a rally at the state Capitol with Vos’ primary opponent, Adam Steen. Gableman took the stage just after Steen called Vos a “treasonous traitor.”

Gableman was slated to again appear with Steen at an event Wednesday in Union Grove. He canceled hours after he and Vos reached a new contract.

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.

This article originally appeared on Milwaukee Journal Sentinel: Gableman backs away from talk of decertification, Republicans say