Investigator hired by Wisconsin's GOP-led legislature advises considering decertifying state's 2020 election results

The former conservative Wisconsin Supreme Court Justice hired by the Republican speaker of the state Assembly to review the 2020 election is suggesting that state lawmakers should look at decertifying the 2020 election, even though state attorneys have said that is not legal.

Investigator Michael Gableman made the recommendation as he released his 136-page "interim report" looking into the 2020 election and presented findings to the Wisconsin Assembly Committee on Campaigns and Elections. 

"I believe the legislature ought to take a very hard look at the option of decertification of the 2020 Wisconsin presidential election," Gableman told lawmakers. He later softened the language and said that he wasn't, in fact, recommending decertification — he just wanted to "raise it as a possibility and suggest that if such an avenue were to be pursued, I believe that the conclusions in this report would support such a process."

Nonpartisan legislative attorneys previously told lawmakers in November that "there is no mechanism in state or federal law for the Legislature to reverse certified votes cast by the Electoral College and counted by Congress." 

An attorney with the committee on Tuesday reiterated that point, saying, "Our position is that once the electoral votes have been received by the Congress, that closes the door. The election is then done."

While the report argues Gableman's case for the ability of Wisconsin's legislature to undo its certification of the 2020 election, it also concluded that doing so "would not, for example, change who the current President is."

Gableman's report dredged up many of the arguments that conservatives made about the 2020 election. It largely focused on grants that the Center for Tech and Civic Life made to five large cities and revisited how voting was conducted in nursing homes. 

The decertification suggestion was met by swift criticism from members of both parties. Republican Assembly Majority Leader Jim Steineke shot it down, saying it is "still not legal under Wisconsin law."

"Beyond that, it would have no practical impact because there is no Constitutional way to remove a sitting president other than through impeachment or incapacity," Steineke tweeted. "Fools errand. Focus on the future."

Gableman was appointed by Wisconsin Assembly Speaker Robin Vos to oversee the review of the election in June 2021. Gableman's appointment came a day after former President Donald Trump issued a statement saying that Vos and other Wisconsin Republican leaders were "working hard to cover up election corruption." 

"I'd like to thank the Office of Special Counsel for their tireless efforts in finding the truth," Vos said in a statement. "They've done a good job at showing there were issues in 2020, and the report is intended to help correct these processes for future elections."

Gableman has been sharply criticized by Democrats, election officials and some Republicans. He spoke at an event shortly after the 2020 election expressing a lack of confidence in the way the election  was administered and told the committee on Tuesday that he voted for Trump in the 2020 election. The election results were certified in Madison on December 14, 2020 after the Wisconsin Supreme Court rejected the Trump campaign's lawsuit to toss out tens of thousands of votes. 

President Biden won Wisconsin by more than 20,600 votes. His victory was affirmed by Trump campaign-ordered recounts in Milwaukee and Dane counties. Several courts rejected legal challenges seeking to overturn the election results. 

A previous review of the 2020 election by the nonpartisan Legislative Audit Bureau and a separate review by the conservative group Wisconsin Institute for Law and Liberty found no evidence of widespread fraud. Those reports, like Gableman's, made recommendations for changes to Wisconsin election laws. 

Wisconsin Democratic Governor Tony Evers called Gableman's review a "circus" and a "colossal waste of taxpayer dollars."

"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.

In a statement, the Wisconsin Elections Commission said, "Special Counsel Gableman's report is based upon mischaracterizations of Wisconsin election statutes and administration, and therefore, the utility of his report is minimal."

Gableman suggested that $8.8 million that the Center for Tech and Civic Life gave to Miluwakee, Madison, Racine, Kenosha and Green Bay for assistance running the 2020 election was akin to "election bribery" and that the grants were essentially partisan get-out-the-vote efforts. 

Courts have previously rejected challenges to those grants, including a federal judge in October 2020 who wrote that "the Court finds nothing in the statutes Plaintiffs cite, either directly or indirectly, that can be fairly construed as prohibiting the defendant Cities from accepting funds from CTCL." Over 200 municipalities in Wisconsin received money from the organization, but Gableman's report focused on those five cities, all of which voted for Mr. Biden. 

According to a report from the Center for Tech and Civic Life, grant money was used to pay for drop boxes, PPE, poll workers, temporary staff, cleaning and other election-related items.

Gableman's report also criticized the way that voting was conducted in nursing homes and Gableman showed several videos of people with an elderly family member who they believed should not have been voting. 

A sheriff in Racine County previously issued a report accusing Wisconsin elections commissioners of breaking the law by telling clerks not to use special voting deputies in nursing homes during 2020. The county attorney said that she didn't have the authority to charge election commissioners, according to a letter posted on WisPolitics. 

"People in nursing homes are not required to complete push-polls to exercise their constitutional right to vote," Ann Jacobs, the Democratic chair of the Wisconsin Elections Commission, tweeted in response to the videos. Only a judge can prohibit someone from voting in Wisconsin. 

Gableman also attacked the use of drop boxes. A recent Wisconsin Supreme Court decision put the use of drop boxes on hold during the upcoming spring election while the court considers a challenge to their use. 

Among Gableman's recommendations were shortening the early voting period and dismantling the bipartisan Wisconsin Elections Commission, which some Republicans have also embraced. GOP lawmakers created the bipartisan agency in 2015 to replace the previous election agency. 

Gableman suggested that his work would continue and said that he has about $300,000 left in his $676,000 budget. His subpoenas have been met with fierce opposition, but he maintained "I'm not in this for anything other than the truth."

Wisconsin GOP lawmakers last week passed several election related bills based on recommendations from other election reviews, but Evers is expected to veto them.