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Dane County judge rejects request to block Gableman election subpoena

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A Dane County judge Monday rejected a request by Wisconsin’s Democratic attorney general to block former state Supreme Court Justice Michael Gableman’s demand to interview the state’s top elections administrator as part of his GOP-ordered review of the 2020 election.

Dane County Circuit Court Judge Rhonda Lanford’s decision marks a win for Gableman, who was hired last year by legislative Republicans to review the election, an effort that has become bogged down in multiple court battles. Lanford also denied Gableman’s request to dismiss the case entirely, a decision that leaves the door open for Attorney General Josh Kaul, who is representing the Wisconsin Elections Commission’s nonpartisan administrator Meagan Wolfe, if he decides to continue to fight Gableman’s subpoena.

A small percentage of voters and witnesses made mistakes on their absentee ballot certificates in 2020. Here are some examples of the kinds of errors that were either allowed or corrected by the clerk in order to permit the ballot to be counted.

“Should Defendants seek to enforce the subpoenas before this case is decided on the merits through contempt, imprisonment or other means similar to the action pending in Waukesha County … plaintiffs can certainly file another motion for temporary injunction that the Court will schedule as soon as its calendar permits,” Lanford wrote.

The reference was to another case challenging a separate request by Gableman for the Waukesha County sheriff to compel the mayors of Madison and Green Bay to meet with him or else face jail time. A Waukesha County judge has scheduled a hearing for Jan. 21 on the matter.

Lanford’s decision stems from Kaul’s October request for a restraining order against a subpoena issued by Gableman seeking election-related documents and the interview with Wolfe.

In her decision, Lanford wrote that attorneys for Wolfe failed to show she would face contempt charges for refusing to comply with Gableman’s subpoena.

In his initial lawsuit, Kaul contended that Gableman issued “numerous subpoenas to state and local election officials in furtherance of an unlawful investigation focused on debunked theories” about the November 2020 election.

Officials have said Wolfe is willing to meet with Gableman or his team, but only in a public setting. An attorney for Wolfe said last month state statutes require that any meeting with Gableman occur in a public setting before a legislative committee, while attorneys for Gableman have contended that the former justice is operating under the authority of the Legislature’s Assembly Committee on Campaigns and Elections.

“A primary issue with the subpoenas from the outset was the part about meeting in secret,” Wolfe said in a statement. “We continue to have a strong preference for providing testimony in public rather than behind closed doors. We’ve already provided Special Counsel Gableman with documents and data, and conversations are ongoing regarding additional document production.”

Gableman was hired by Assembly Speaker Robin Vos, R-Rochester, to investigate the election at a cost of $676,000 to taxpayers. His contract expired at the close of December, but Vos has said he hopes to have the review finished by the end of February.

“It is my hope that former Justice Gableman will withdraw these unnecessary subpoenas rather than continuing to litigate over them,” Kaul said.

Court battles mount

In late December, Gableman subpoenaed the elections commission’s Democratic chair Ann Jacobs and Madison officials, demanding in-person testimony and a wide swath of election-related records including emails, internet logs and individual voter information. Gableman has also demanded records related to Dominion Voting Systems machines, though the city of Madison does not use those machines.

The subpoenas also request any records of payments from several nonprofit groups, including the Chicago-based Center for Tech and Civic Life (CTCL), which is funded by Facebook CEO Mark Zuckerberg. Republicans, including Gableman, have targeted CTCL funds as unfairly increasing turnout in the Democratic strongholds of Milwaukee, Madison, Green Bay, Kenosha and Racine.

In a separate case, the Wisconsin Court of Appeals on Monday denied a recent request from Vos seeking a stay to appeal Circuit Judge Valerie Bailey-Rihn’s order last week that Vos and his attorney need to sit for depositions on Wednesday as part of a liberal watchdog group’s lawsuit seeking public records related to Gableman’s review.

Vos requested the stay on Friday, a move that attorneys for American Oversight called a “last-ditch attempt to avoid discovery” in court filings Monday.

“As it stands now, the depositions are still scheduled for Wednesday morning, and unless a court says otherwise, we expect Speaker Vos to appear and answer questions,” American Oversight spokesperson Clark Pettig said in an email. “This could have been avoided if Speaker Vos had released the records of his election investigation to the public as required by Wisconsin law, and it’s disappointing that he’s now going to even greater lengths to conceal the facts from the public.”

The case is one of three ongoing lawsuits brought by American Oversight following requests for records filed last year pertaining to Gableman’s review. Attorneys for American Oversight have asked that Vos be held in contempt for not releasing the records sooner.

Attorneys for Vos have said all available documents have been provided, while attorneys for American Oversight have questioned whether additional documents exist.

“If (American Oversight) believes that a particular document has been withheld it can move the Circuit Court for relief, but it has not even raised such an allegation,” Vos’ attorney Ronald Stadler wrote in a Friday court filing.

In yet another case, Erick Kaardal, a Republican attorney for the conservative Thomas More Society and former secretary and treasurer for the Republican Party of Minnesota, last week filed an appeal in Dane County Circuit Court challenging the Elections Commission’s decision in early December to throw out a complaint filed against CTCL grants provided to the state’s five largest cities to help administer last year’s election during the COVID-19 pandemic.

Court rulings have found nothing illegal about the more than $10 million in grants CTCL distributed to about 214 municipalities in 39 of Wisconsin’s 72 counties, including many in areas solidly won by Trump. Nor did CTCL turn down grant requests from any of the Wisconsin municipalities that made them.

A recount and court decisions have affirmed that President Joe Biden defeated former President Donald Trump in Wisconsin by almost 21,000 votes.

An analysis by The Associated Press found only 31 potential cases of voter fraud in Wisconsin’s 2020 election, which represents less than 0.15% of Biden’s margin of victory.

Sen. Tim Carpenter, D-Milwaukee, on Monday requested that the nonpartisan Legislative Audit Bureau conduct an audit of Gableman’s ongoing review. Carpenter, who is a member of the Joint Legislative Audit Committee, made the request to the committee’s co-chairs Sen. Robert Cowles, R-Green Bay, and Rep. Samantha Kerman, R-Salem.

A spokesperson for Cowles said the office had just received Carpenter’s request Monday afternoon and will give it a review. The committee would have to vote to request a formal audit from the Audit Bureau.

Reviews of the election by the Audit Bureau and the conservative Wisconsin Institute for Law and Liberty found no evidence of widespread fraud but did offer recommendations on how to improve elections.

The 2020 election is over. Here’s what happened (and what didn’t)

The 2020 election was “the most secure in American history,” according to the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, which coordinates the nation’s election infrastructure.

While some voters risked going to prison by attempting to vote twice or in the name of a dead relative, as happens in any election, no evidence of widespread fraud has ever been produced in Wisconsin or elsewhere.

Yet, many continue to question some of the practices clerks relied on to encourage eligible voters to cast ballots and make sure their votes were counted amid the first election in more than 100 years held during a pandemic.

The Wisconsin State Journal has covered every twist and turn of this debate in scores of stories. But here are a few that offered some broader context about what happened, and didn't happen, in the election of 2020.

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The state has multiple, overlapping safeguards aimed at preventing ineligible voters from casting ballots, tampering with the ballots or altering vote totals.

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Nothing in the emails suggests there were problems with the election that contributed in any meaningful way to Trump's 20,682-vote loss to Joe Biden.

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"Despite concerns with statewide elections procedures, this audit showed us that the election was largely safe and secure," Sen. Rob Cowles said Friday.

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The grants were provided to every Wisconsin municipality that asked for them, and in the amounts they asked for. 

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"Application of the U.S. Department of Justice guidance among the clerks in Wisconsin is not uniform," the memo says.

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“To put it simply, we did not break the law,” the chair of the Elections Commission said.

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The memo states that state law gives the Audit Bureau complete access to all records during an audit investigation and federal law and guidance does not prohibit an election official from handing over election records.

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Drop boxes were used throughout Wisconsin, including in areas where Trump won the vast majority of counties.

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Thousands of ballot certifications examined from Madison are a window onto how elections officials handled a pandemic and a divided and unhelpful state government.

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"I don't think that you instill confidence in a process by kind of blindly assuming there's nothing to see here," WILL president and general counsel Rick Esenberg said.

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