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Here's why the 2020 election will never be 'decertified'

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A candidate for Wisconsin governor and the chair of the state Assembly's elections commission are among those calling for "decertifying" the state's Nov. 3, 2020, presidential election results that gave the state's 10 electoral votes to Joe Biden.

But decertifying the election is a fantasy, and it will not happen.

There is no provision under state and federal law or the Wisconsin and U.S. constitutions by which the government can wipe out millions of citizens' votes and act as if an election didn't happen. Candidates can challenge election results, but every legal challenge related to the 2020 election has already failed. Even if new objections could be found, the deadlines to make such claims have long since passed.

"'Decertifying' (or any variant, such as 'voiding') a presidential election after the fact is simply not a thing," UW-Madison political science professor Ken Mayer said.

Under state law, which governs the manner in which federal elections are held:

  • County boards of canvassers were required to meet no later than Nov. 10, 2020, to canvas results and declare them official.
  • County clerks had to deliver the results to the state Elections Commission by Nov. 17.
  • The deadline for requesting a recount of the presidential election results was Nov. 18. The campaign of then-President Donald Trump did file such a request, in Dane and Milwaukee counties, which resulted in Biden picking up 74 additional votes. 
  • Candidates had until five business days after the end of a recount to challenge its results in court.
  • The chair of the Elections Commission was required to certify election results by Dec. 1.

Under federal law:

  • After Dec. 8, Congress must accept election results from states where those results were challenged but upheld as accurate under state law. This is known as the "safe harbor" deadline.
  • On Dec. 14, the electors corresponding to the party that won the elections for president and vice president met at the state Capitol to cast their votes for their candidates.
  • Dec. 23 was the deadline for the vice president to receive election results from the states. 
  • The newly elected Congress counted electoral votes on Jan. 6, 2021. Congressional Republicans made objections to counting some electoral votes and 147 of them — including Rep. Scott Fitzgerald, R-Juneau, and Tom Tiffany, R-Minocqua — voted to uphold objections to Pennsylvania's electoral votes, Arizona's or both. Those electoral votes could only have been excluded if both the full House and Senate voted to accept the objections. That did not occur. 

Under the U.S. Constitution:

  • The new president and vice president were inaugurated on Jan. 20.

"There are processes under state law for determining the winner of an election, and though it can potentially be litigated if there is actual uncertainty about the result (which there was not in 2020), once the Electors have voted, it's over," Mayer said. "The certification is a one-way door."

"The complete absence of any decertification mechanism in either the constitution or federal statutory law is a fundamental point," UW-Madison law school associate professor Robert Yablon said. "That legal silence is glaring given that other aspects of the presidential election process are set out in detail, including in Article II Section 1, the 12th Amendment, and the Electoral Count Act."

Even former state Supreme Court Justice Michael Gableman, who is leading a Republican-backed probe of the 2020 election and once suggested decertification was possible, echoed that point.

After declaring on March 1 that state lawmakers  "take a very hard look" at decertifying the results of the 2020 presidential election, Gableman wrote in a memo two weeks later that it is a "practical impossibility."

First, there's the "absence of any statutory process or procedure for its accomplishment," he said. Second, there is the "absence of precedent for the completion of the decertification process in a presidential election.

"And just as the absence of any statutory process or procedure for the act of decertification would — of necessity — require their construction while the proceeding is underway," he said, "similarly, the absence of precedent would require the legislature to 'make it up as it goes along,' as it considers the substantive question."

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 a handful of 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 clear insinuation was that someone not qualified to conduct an election improperly influenced these vulnerable voters. But the Wisconsin State Journal could not confirm the data. 

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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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YORKVILLE — The Racine County Sheriff’s Office announced in a Thursday morning news conference that it has identified eight cases of what it believes to be election fraud at a Mount Pleasant nursing home.

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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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"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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The report is the latest to show that there was not widespread fraud in Wisconsin.

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The turnout at nursing homes in Brown, Kenosha, Milwaukee and Racine counties in 2020 was not much different from the turnout in 2016.


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