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Wis’ lawyer.  GOP Michael Gableman privately opposed decertification of Biden’s 2020 win

MADISON, Wis. – This was an extraordinary public statement from a former state Supreme Court justice hired by Republican lawmakers to probe the 2020 election: Wisconsin should carefully consider overturning Joe Biden’s victory and revoking the state’s 10 Electoral College votes.

The March comment drew applause from a packed courtroom in the state Capitol and praise from former President Donald Trump, whose allies have called for the results to be thrown out in Wisconsin and others. battleground states, even though constitutional scholars have derided the notion as absurd.

But a newly unearthed memo shows former judge Michael Gableman offered a much different analysis in private soon after.

“While the decertification of the 2020 presidential election is theoretically possible, it is unprecedented and raises many substantive constitutional issues that would be difficult to resolve. Thus, the legal hurdles to achieving it make such an outcome virtually impossible,” Gableman wrote to Assembly Speaker Robin Vos.

The contrasting public and private messages offer insight into the dueling pressures Republicans in Wisconsin face as they struggle to balance Trump’s baseless demands to void the election with the legal and political realities on the ground. With competitive races this year for governor and U.S. Senate, the party seeks to excite Trump’s base, which broadly supports calls to revoke Biden’s victory, while not alienating centrist voters discouraged by the inability of some to give up 2020.

Gableman and a spokeswoman for Vos did not comment on the memo.

The decertification movement is not abating in Wisconsin and in some ways has gained momentum, even as legal experts treat the notion with contempt.

State Rep. Tim Ramthun (R) is running for governor on a decertification platform, and last month persuaded two other lawmakers to sign his plan after the state Supreme Court ruled that the ballot boxes could not be used in future elections. One of them was Rep. Janel Brandtjen (R), the chairwoman of the state Assembly Elections Committee.

Gableman’s memo was released under the state’s Open Archives Act 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 the decertification “a fiction designed to advance conspiracy theories and undermine faith in our democracy.”

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

Facing pressure from Trump and grassroots Republicans, Vos last year hired Gableman to conduct a review of the election. He made the announcement at the state’s annual Republican Party convention a day after Trump released a statement saying 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 was stolen, discovered few new details about how the election was conducted. Instead, he incorporated the work of others to claim the results were questionable.

On March 1, Gableman released a report and appeared before the Assembly Elections Committee to urge it to consider decertifying the election.

Vos was blindsided by Gableman telling lawmakers there were “very important grounds” for decertification. Gableman had given Vos a draft of his report before making it public, but the version he provided to Vos did not include the section on decertification.

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

Their push led Vos to meet privately two weeks later with John Eastman, the constitutional lawyer who advised Trump that Vice President Mike Pence might delay certifying Biden on Jan. 6, 2021.

After meeting with Eastman, Vos stuck to his view that decertification is impossible and called for defeating Gov. Tony Evers (D) in this year’s election. Evers vetoed legislation to overhaul the conduct of elections. The three Republicans seeking to replace him — Ramthun, former Lt. Governor Rebecca Kleefisch and businessman Tim Michels — have promised to sign those bills into law if elected.

Some Republicans did not respect Vos’ position on decertification. Vos faces a challenge in the Aug. 9 primary from Adam Steen, a candidate Trump said on Sunday he could endorse.

“Robin Vos is so bad for the great state of Wisconsin that I am seriously considering supporting and APPROVING his opponent. Anyone would be better off! STAY TUNED!!!” Trump wrote on his Truth Social platform.

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

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

“The lack of precedent would force the legislature to ‘make it up as it goes,’ as it considers the substantive issue,” he wrote. “This will be stuck in court for years and virtually paralyze the Legislative Assembly in terms of all other business and there is no possibility of anything being achieved other than a de facto full employment program for election lawyers.

Vos and another legislative leader said Gableman backed down from trying to decertify the election during a private meeting with them in May. The memo shows that Gableman rejected the idea even earlier and explains for the first time his reason for giving it up.

“My best advice to anyone whose primary concern is ensuring fair, honest, and transparent elections in Wisconsin is to set aside any impulse to waste time, effort, and energy in pursuit of a ending which, as Macbeth’s ruminations are, ‘full of sound and fury, meaning “a token outcome at best”, wrote Gableman.

Gableman’s review moved slowly, in part because Attorney General Josh Kaul (D) sued him after he attempted to interview officials in secret. Gableman has filed his own lawsuit to try to jail election officials and three mayors who he says failed to meet his demands. These officials say they cooperated with Gableman but think any testimony they give should be made public before a legislative committee.

Vos suspended the Gableman review in May while those two lawsuits, as well as four public records lawsuits filed by American Oversight, proceed. Gableman’s investigation cost Wisconsin taxpayers more than a million dollars.

The lawsuits went wrong 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 failed to produce documents it should have had.

washingtonpost

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