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Gableman pushes “hard look” at decertifying 2020 election; report offers how-to

The final page of the entire report lays out the two steps, Gableman’s office argues lawmakers would need to take to decertify the 2020 election.
Published: Mar. 1, 2022 at 11:54 AM CST|Updated: Mar. 1, 2022 at 6:11 PM CST
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MADISON, Wis. (WMTV) - The newly released report on a Republican-ordered investigation into the 2020 election in Wisconsin provides an outline for how the Special Counsel’s Office claims state lawmakers could decertify President Joe Biden’s win.

In presenting his report to the Assembly on Tuesday, lead investigator Michael Gableman argued that the GOP-dominated legislature should seriously consider doing so. ”At this point, I believe the legislature ought to take a very hard look at the option of decertification of the 2020 Wisconsin presidential election,” the former state Supreme Court Justice told the committee.

Kenneth Mayer, an expert on election administration from UW-Madison, said withdrawing the certification of the electoral college vote is not possible.

“It’s just flatly untrue that there is any meaningful legal path to do this,” he said. “It’s just absolute nonsense.”

The last six pages of the 136-page document, listed as Appendix II, argues the U.S. Constitution and precedent both allow for such decertification to happen. Early on, it also states that Wisconsin state law has nothing to prevent lawmakers from making such a move.

“Wisconsin election law does not explicitly authorize the decertification of electors. But neither does it prevent it,” the report’s authors write in the section’s second sentence. The authors claim that the violations of Wisconsin election law they allege earlier in the document “did or likely could have affected the outcome of the election.”

Citing the U.S. Constitution’s delegation of the duty to select electors exclusively to state legislatures, the report’s authors contend that, while states have been entrusting that responsibility to popular votes, lawmakers can always reclaim it.

“An election of presidential electors that violates Wisconsin (or any other state legislature’s relevant laws) is both void and voidable,” it reads.

The constitution endowment for the state lawmakers, themselves or to those who have been delegated to make the decision (i.e. popular results) to pick the time that electors are selected trump both the federal law which lays out the timeline for selecting the president, which calls for electoral votes to be counted on Jan. 6. Also, states are not even bound to pick their electors by Jan. 20, the date the U.S. Constitution sets for the Presidential Inauguration.

The appendix appears to attempt to address concerns that state lawmakers could change election laws retroactively and then decertify an election based on the ex post facto regulations by contending that a populace would not be supported by voters.

The final page of the entire report lays out the two steps, Gableman’s office argues lawmakers would need to take to decertify the 2020 election:

First, it states, both houses of the legislature would have to pass bills determining that the election was held in violation of state law in any respect and that the violation was severe enough that it could have affected the outcome. Secondly, lawmakers would need to use the power afforded by the U.S. Constitution to select a slate of electors that it believes represents the outcome of the election.

“This would lead to decertifying the relevant electors, if the Legislature concluded that they were not the slate of electors that best accorded with the election if run consistent with all relevant Wisconsin laws in effect on election day,” the authors write.

Gableman’s report concludes by doing so would not have any consequences under state or federal law, “it would not, for example, change who the current President is.” The authors do not handle what would happen if a slate change would disrupt the electoral count to the degree that another candidate would have more votes, based on the new math.

Earlier sections of the report allege that funding provided by the Center for Tech and Civic Life grants to Wisconsin’s five largest cities, including Madison, amounted to bribery because it used private money in an attempt to help people vote either in-person or absentee. The report tied many of its claims against the agency to Meta founder Mark Zuckerberg, whose name appears thrice in the table of contents, with the cities that were awarded grants being identified as the Zuckerberg 5.

In a statement by the agency at the time the grants were announced, CTCL Executive Director Tiana Epps-Johnson explained the grants were meant to help “election departments… facing an unprecedented challenge of administering safe and secure elections.” The agency has not responded to NBC15 News’ request for further comment.

Madison Mayor Satya Rhodes-Conway told NBC15, “To accuse them [in the clerk’s office] of somehow having a partisan bent or being involved with bribery is just patently ridiculous. It’s a complete misunderstanding of the law and a complete misunderstanding of how elections work in Wisconsin.”

“It’s just irresponsible to accuse cities, mayors and election officials of committing bribery,” Mayer said, adding, “It’s not true.”

The report also pointed to claims by Racine Co. Sheriff Christopher Schmaling that the Wisconsin Elections Commission did not follow the law when it did not stop poll workers from going into nursing homes. In February, the county’s district attorney stated she would not bring the election charges against WEC members or nursing home workers accused by Schmaling, a Republican who backed former President Donald Trump in the 2020 campaign.

Racine County District Attorney Patricia Hanson said in a letter dated Thursday that she would not file charges against members of the bipartisan Wisconsin Elections Commission because none of them live in her county and she doesn’t have jurisdiction.

Tied to that are allegations that individuals who were under guardianship order and are prohibited from voting as well as non-citizens who had obtained driver’s licenses may have voted. The report states that the elections officials did not distribute lists of such individuals, saying that doing so is required by law. The report, however, does not provide any indication that it found evidence that votes by either sets of individuals were counted.

The report also cited the controversial use of absentee ballot drop boxes that were used to allow people to vote while COVID-19 cases climbed in Wisconsin and fears about the spread of the virus were rising.

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