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Memo shows Wis. GOP lawyer privately opposed decertifying Biden’s 2020 win

The Washington Post logo The Washington Post 8/2/2022 Patrick Marley
Former Wisconsin Supreme Court justice Michael Gableman, who was hired by Republicans to look into Donald Trump's 2020 loss in the battleground state, takes the stand and refuses to answer questions in Madison, Wis., on June 10. © Amber Arnold/Wisconsin State Journal/AP Former Wisconsin Supreme Court justice Michael Gableman, who was hired by Republicans to look into Donald Trump's 2020 loss in the battleground state, takes the stand and refuses to answer questions in Madison, Wis., on June 10.

MADISON, Wis. — It was an extraordinary public statement from a former state Supreme Court justice hired by Republican lawmakers to probe the 2020 election: Wisconsin should take a “hard look” at canceling Joe Biden’s victory and revoking the state’s 10 electoral college votes.

The comment in March drew applause from a packed hearing room in the state Capitol and praise from former president Donald Trump, whose allies have called for throwing out the results in Wisconsin and other battleground states even though constitutional scholars have scoffed at the notion as absurd.

But a newly unearthed memo shows that the former justice, Michael Gableman, soon afterward offered a far different analysis in private.

“While decertification of the 2020 presidential election is theoretically possible, it is unprecedented and raises numerous substantial constitutional issues that would be difficult to resolve. Thus, the legal obstacles to its accomplishment render such an outcome a practical impossibility,” Gableman wrote to Assembly Speaker Robin Vos.

The contrasting public and private messages offer a glimpse into the dueling pressures facing Republicans in Wisconsin as they struggle to balance Trump’s baseless demands for reversing the election with the legal and political realities on the ground. With competitive races this year for governor and U.S. Senate, the party is seeking to excite Trump’s base, which is largely supportive of calls to revoke Biden’s win, while not alienating centrist voters turned off by the inability of some to let go of 2020.

Gableman and a spokeswoman for Vos offered no comment on the memo.

The move for decertification is not quieting in Wisconsin and in some ways has picked up steam, even as legal experts treat the notion with scorn.

State Rep. Tim Ramthun (R) is running for governor on a decertification platform, and last month he persuaded two other lawmakers to sign on to his plan after the state Supreme Court ruled ballot drop boxes can’t be used in future elections. One of them was Rep. Janel Brandtjen (R), the chairwoman of the Wisconsin Assembly’s elections committee.

Gableman’s memo was released under the state’s open records law to the liberal watchdog group American Oversight, which shared it with The Washington Post.

Heather Sawyer, the group’s executive director, in a statement called decertification “a fiction designed to advance conspiracy theories and undermine confidence in our democracy.”

Recounts and court rulings upheld Biden’s victory in Wisconsin, and independent reviews found no widespread fraud. Nonetheless, some Republicans contended the election was flawed because of changes election officials made during the coronavirus pandemic. They greatly expanded the use of ballot drop boxes, changed voting rules in nursing homes, and accepted donations from the nonprofit Center for Tech and Civic Life.

Facing pressure from Trump and grass-roots Republicans, Vos last year hired Gableman to conduct a review of the election. He made the announcement at the state Republican Party’s annual convention a day after Trump issued a statement claiming Vos and other GOP leaders were “working hard to cover up election corruption.”

Gableman, who claimed without evidence before he was hired that the election had been stolen, uncovered few new details about how the election was conducted. Instead, he incorporated the work of others to contend the results were questionable.

On March 1, Gableman issued a report and appeared before the Assembly’s elections committee to urge them to consider decertifying the election.

Vos was blindsided by Gableman telling lawmakers there were “very significant grounds” for decertification. Gableman had given Vos a draft of his report before he released it publicly, but the version he provided him didn’t include the section on decertification.

The report electrified election skeptics, who pressed Vos to take up decertification.

Their push led to Vos meeting privately two weeks later with John Eastman, the constitutional lawyer who advised Trump that Vice President Mike Pence could delay Biden’s certification on Jan. 6, 2021.

After his meeting with Eastman, Vos held fast to his view that decertification would be impossible and called for defeating Gov. Tony Evers (D) in this year’s election. Evers has vetoed legislation to overhaul how elections are run. The three Republicans seeking to replace him — Ramthun, former lieutenant governor Rebecca Kleefisch and businessman Tim Michels — have promised to sign those bills if elected.

Some Republicans have not abided Vos’s stance on decertification. Vos faces a challenge in the Aug. 9 primary from Adam Steen, a candidate whom Trump said Sunday he might endorse.

“Robin Vos is sooo bad for the Great State of Wisconsin that I am seriously thinking of Supporting and ENDORSING his Opponent. Anyone would be better! STAY TUNED!!!” Trump wrote on his Truth Social platform.

The same day Vos met with Eastman, Gableman sent him his follow-up memo on decertification. In it, Gableman continued to maintain lawmakers have the legal authority to decertify elections but now argued they should abandon the idea because they don’t have the time or resources to pursue it.

Inevitable legal challenges would not be resolved by courts until after the 2024 presidential election, rendering any attempt to decertify the 2020 results “practically irrelevant,” Gableman wrote.

“The absence of precedent would require the legislature to ‘make it up as it goes along,’ as it considers the substantive question,” he wrote. “This will be tied up in court for years and will virtually paralyze the Legislature in terms of all other business and there is no possibility that anything will be achieved other than a de facto full employment program for election law lawyers.”

Vos and another legislative leader said Gableman had walked away from trying to decertify the election in a private meeting with them in May. The memo shows Gableman tossed aside the notion even earlier and for the first time spells out his rationale for giving up on it.

“My best advice to anyone whose paramount concern is ensuring fair, honest, and transparent elections in Wisconsin is to set aside any impulse to waste finite time, effort, and energy in pursuit of an end that, like Macbeth’s ruminations are, ‘full of sound and fury, signifying’ at best a symbolic result,” Gableman wrote.

Gableman’s review has moved slowly, in part because Attorney General Josh Kaul (D) sued him after he tried to interview public officials in secret. Gableman has brought his own lawsuit to try to jail election officials and three mayors who he argues have not complied with his demands. Those officials say they have cooperated with Gableman but believe any testimony they give should be made in public before a legislative committee.

Vos put Gableman’s review on hold in May while those two lawsuits, as well as four public records lawsuits brought by American Oversight, play out. Gableman’s probe has cost Wisconsin taxpayers more than $1 million.

The records lawsuits have gone poorly for Vos. In a pair of rulings on Friday and Monday, two judges ordered the state to pay about $260,000 in legal fees to American Oversight because the Assembly had not produced records it should have.

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