Wisconsin GOP's 2020 report embraces fringe election decertification theory

A draft report for a GOP-run investigation of the 2020 election in Wisconsin, authored by a former state Supreme Court justice, embraces the fringe theory that election results could be decertified after the fact — advancing former President Donald Trump’s calls to overturn an election he lost well over a year ago.

Former state Supreme Court Justice Michael Gableman for months has been conducting a probe of the 2020 election, authorized by state Assembly Speaker Robin Vos, one of the most powerful Republicans in the state.

Gableman’s interim report, released at the start of a hearing on Tuesday in front of the state Assembly committee on campaigns and elections, attacks Wisconsin election administrators and argues for dismantling the state’s bipartisan election board and limiting mail voting.

But perhaps most astoundingly, given that election experts and legal scholars say such a step is not possible, Gableman argued that the 2020 election results could be decertified — something that Trump has advocated since his loss.

“I believe the Legislature ought to take a very hard look at the option of decertification” of the 2020 election, Gableman said at the hearing.

During the hearing, a nonpartisan attorney for the Legislature said that she didn’t believe the election could be decertified.

“Our position is that once the electoral votes have been received by the Congress, that closes the door. The election is then done,” the attorney said after a question from one of the Democrats on the panel. (She was not identified when she spoke.)

Democratic Gov. Tony Evers was sharply critical of Gableman's report, saying that it has "long surpassed being a mere embarrassment for our state" that he said must be brought to an end.

"This effort has spread disinformation about our election processes, it has attacked the integrity of our clerks, election administrators, and poll workers, and it has emboldened individuals to harass and demean dedicated public servants," Evers said in a statement. "Enough is enough. Republicans in the Legislature have always had the ability to end this effort, and I call on them to do so today."

Gableman said he went into his report without any preconceived notions. But prior to his appointment, he said that he believed that the 2020 election was stolen.

"Our elected leaders — your elected leaders — have allowed unelected bureaucrats at the Wisconsin Elections Commission to steal our vote,” he said during a November 2020 rally.

Gableman’s report attacked the administration and results of Wisconsin's 2020 election on multiple fronts. He went after the state board for a decision on how to send absentee ballots to nursing homes and handle their return during the pandemic — a decision approved at the time by five of the six commissioners on the bipartisan board, but which Republicans have since argued was illegal.

“WOW - Gableman goes full in crazy conspiracy theory and demands that Wisconsin ‘Decertify’ the election,” Ann Jacobs, the Democratic chair of the Wisconsin Elections Commission tweeted during Tuesday’s hearing.

The retired judge also attacked private grants from the Center for Tech and Civic Life, an elections-focused nonprofit organization to which Facebook founder Mark Zuckerberg donated hundreds of millions of dollars in the run-up to the 2020 election. That money was redistributed as grants to local election officials across the country to deal with the complications of running an election during the pandemic.

Gableman referred to five large cities in Wisconsin — Milwaukee, Madison, Racine, Kenosha and Green Bay — that received grants from the CTCL as the “Zuckerberg Five.” Those cities received the majority of the grant money awarded to Wisconsin jurisdictions, but election officials in 39 of the state’s 72 counties received grants, part of a larger group of 2,500 election offices in 49 states that received a grant from the CTCL.

Nevertheless, Gableman alleged a partisan conspiracy from CTCL to boost Democrats, dismissing the grants elsewhere as “insubstantial.” Federal and state courts have previously rejected lawsuits challenging the legality of the grants.

Gableman's report argues that the Legislature could “decertify the certified electors in the 2020 presidential election” by the state Legislature first voting to conclude that the election was held in violation of state law, then claiming that “the level that fraud or other illegality under Wisconsin law could have affected the outcome,” and then exercising "its plenary power to designate the slate of electors it thought best accorded with the outcome of the election.”

The report concludes that a theoretical Wisconsin decertification “would not, on its own, have any other legal consequence under state or federal law” — like “chang[ing] who the current president is."

Gableman previously traveled to the partisan election review in Arizona that was conducted last year, along with attending a “symposium” hosted by Mike Lindell, the founder of MyPillow who is one of the most prominent election conspiracy theorists in the country and an advocate for decertification.

Bipartisan election officials in Arizona said that review was unsalvageably tainted by its embrace of conspiracy theories and the inexperience of the people conducting the probe.

Trump has been supportive of Gableman’s work. In a statement shortly after the start of the hearing, the former president said that “everyone who loves America should be closely following today’s vital hearing.”

Yet some Republican leaders in Wisconsin downplayed Gableman’s suggestions about decertifying the election, even as his presentation was ongoing.

"I still maintain that the Legislature's attorneys are correct on this," Assembly Majority Leader Jim Steineke, a Republican, said in an interview with the Milwaukee Journal Sentinel on Tuesday. (Attorneys for the Legislature previously said decertification was not possible.)

“We are going to continue to look through the windshield instead of the rearview mirror and focus on the future,” he told the newspaper. “I think the Legislature is largely united on this issue.”

In his recommendations, Gableman continued to advocate for making it easier to stop the certification of elections in the future — a main goal of Trump and his allies ahead of the 2024 election.

“In the event of widespread contest, the thumb should be on the scale in favor of withholding certification of electors,” he wrote in his report, arguing that certification of the election should rest not with the governor but with “a politically accountable body.” (Evers is up for reelection later this year.)

He also argued that Wisconsin’s voting rolls were not up to date, while advocating that Wisconsin should exit the Electronic Registration Information Center, an interstate compact of roughly 30 states that bipartisan election officials argue is critical to maintaining voter rolls. He cited, in part, writing from a far-right website called Gateway Pundit to attack ERIC.

Gableman repeatedly called for the dismissal of Meagan Wolfe, the administrator of the WEC who is also serving as the chair of ERIC’s board, which is comprised of election officials from member states.

Gableman also appeared to compare his probe to the Jan. 6 investigation being conducted by Congress, downplaying the attack on the Capitol — saying it was “one discrete incident that happened on one day that resulted in some damage” to the Capitol — while saying he should have broad authority in his investigation.

During his presentation, Gableman said that his work would continue beyond Tuesday. He said Vos has indicated his full support for his “investigation” to continue, but spoke of uncertainties around the contract blessing his work that he said needs to be resolved.

But he pledged to continue: “I’m going to keep going, whether anyone signs a contract or not.”