In his rehashing of long-debunked theories about a long-settled election in hours of testimony and a 136-page report released Tuesday, former Supreme Court Justice Michael Gableman is providing the “vibes and feelings” that will allow Wisconsin Republicans to erode the state’s democratic norms, according to political scientists and election watchers.
Gableman, who has been tasked with digging into the 2020 election by Assembly Speaker Robin Vos (R-Burlington), released his report on Tuesday as he promised that his work will continue, even without a contract and after the Assembly has adjourned for the year.
The report, which includes recommendations that the Legislature disband the Wisconsin Elections Commission and lays out a process by which Gableman says the state’s election results be decertified, provides no new information yet packages known facts in a way that seems nefarious. The report also contains sections lashing out at Gableman’s political opponents for their demands that he produce documents and adhere to state law.
Despite his complaints about obstruction from watchdog groups and Democratic officials including Attorney General Josh Kaul, which were bolstered in a statement by Assembly Speaker Robin Vos deriding Democratic lawsuits, Gableman has been unable to dodge calls for accountability.
On Wednesday, Dane County Circuit Court Judge Frank Remington ordered Gableman’s Office of Special Counsel and Vos to release records related to the review, writing that they had violated both the spirit and letter of Wisconsin’s public records law.
“The Assembly Office of Special Counsel (OSC) summarily declared in a misspelled email that their records must be kept secret on account of ‘strategic information to our investigation,’” Remington wrote. “OSC had no rational basis to withhold records … Even assuming that OSC’s decision at the time of denial was, as it now argues, based on a sort of broad investigatory immunity, such a decision would still have been an ‘unconsidered, willful and irrational choice of conduct.’”
The goal of all of this, according to Philip Rocco, a political science professor at Marquette University, isn’t to uncover some shocking new evidence of fraud, but to continue to inflame the most right-wing voters in the state.
“The report, in my view, should really be regarded as, on the one hand, a kind of political theater,” Rocco says. “The point of the report and the testimony yesterday was not to inform anyone of anything. The point was a performance and a lens through which Republican voters can feel validated in believing that the election in 2020 was illegitimate. It didn’t inform anything, all of the claims have been litigated or researched. There’s nothing in it that actually reveals any shred of truth in the Big Lie but what it does is create a set of talking points for Republicans going forward that will allow them to justify future changes to Wisconsin’s election system in a way that makes it even harder for people to vote and harder to have a legitimate election in this state.”
In his testimony on Tuesday and in multiple chapters of the report, Gableman focuses on voting by residents of nursing homes and residential care facilities, which Republicans have continually alleged was a source of election fraud due to measures taken by the WEC to prevent the spread of COVID-19 to help residents cast absentee ballots. Last year, Racine County Sheriff Christopher Schmaling accused five election commissioners of felony election fraud for their decision.
In the report, Gableman offers scant details about how exactly the law was broken, saying “in violation of its federal and state legal duties, Wisconsin election officials failed to prevent wards and incapacitated persons from voting in the 2020 Presidential election — casting doubt on the election result.”
But in his testimony, he presented a number of video interviews with senior citizens and their families, who were subjected to questions that apparently test if someone has the mental capacity to cast a ballot.
The videos, which were not presented with evidence that these nursing home residents had been declared incompetent by a judge and therefore had their voting rights revoked, are only supposed to give Republican voters and legislators the “feeling” that something bad happened.
“Look no further than what Gableman does on the nursing home residents,” Rocco says. “These people are being asked questions in an absurd situation and they’re being asked questions that millions of voters in the United States might have trouble answering, and then this is evidence these people are not qualified to vote.”
“Leave aside the fact that this is not a decision that Gableman is allowed to make,” he continues. “Declaration of mental incompetence can only be made by a court after a thorough review of evidence, and he knows that, he’s a judge. And he knows the committee knows it and he knows they know he knows it. The only thing you can conclude from that is that this is intended to be a spectacle that, while there’s no credibility to the evidence that’s presented, creates the feeling that there’s some evidence there.”
The sense, no matter how vague or evidence-free, shared by many Republican voters that the 2020 election was stolen is only strengthened by reports such as Gableman’s, Milwaukee Elections Commission Director Claire Woodall-Vogg said in an online press conference on the Gableman report Wednesday.
“I think what’s even more frightening is not necessarily this higher level of people who have actually read the report and might try to decertify an election, but just at a local level we see all the time,” she said. “Now this is continuing the notion that the 2020 election was stolen, and it’s also going to continue to empower people, when the election isn’t the way they want it, to go to say it was stolen and say that ‘you know the people administering it didn’t do it correctly.’ I think that’s where it’s more of the soundbites of this report and continuing the idea that Joe Biden isn’t the correct president right now. That’s going to really have an impact as we look to 2022 and 2024.”
But, Rocco says, a feeling is all Republicans need to restrict Wisconsin voting laws under a potential future Republican governor.
“When it comes to justifying significant election law changes, a feeling is all Republicans have needed in the past, they’ve never needed evidence, so why would they need more than a feeling now?” he says. “He’s the vibes judge.”
In his recommendations, aside from eliminating the Republican-created WEC, Gableman suggests Wisconsin “minimize pre-voting” and exit the Electronic Registration Information Center (ERIC) — an organization of 30 states that helps track voters who have moved or died that Wisconsin joined due to Republican-authored legislation. He also recommends formalizing a method by which alternate slates of electors could be chosen — an action taken by a number of prominent Republican officials in 2020 that has attracted accusations of fraud and the attention of the congressional commission investigating the Jan. 6, 2020 attack on the U.S. Capitol.
“There are policy implications and they are dark,” Rocco says of Gableman’s recommendations.
One of the report’s chapter titles alludes to five cities Gableman focused on that received grant money to help run pandemic elections. “This Collusion and Entanglement Also Caused a Host of Questionable Actions by the Zuckerberg Five,” the chapter title states, highlighting the fact that the nonprofit Center for Tech and Civic Life (CTCL) was partially funded by Facebook founder Mark Zuckerberg — an issue Republicans have been calling bribery for months, though federal courts have said otherwise.
Even though more than 200 municipalities received grant money from the Center for Tech and Civic Life, Republicans have focused on the money that went to the five cities that are usually won by Democrats. Republicans have raised concerns about provisions in the grants that were meant to help people register to vote and access absentee ballots, especially among historically disenfranchised groups such as people of color.
Villainizing efforts to increase turnout is a departure from 200 years of American political tradition, according to Rocco.
“Any anodyne effort at turnout mobilization will now be painted as inherently suspect and suspicious,” he says.
While many of the threats posed by Gableman’s work may only materialize under future Republican administrations, there are severe threats for the next year of Wisconsin politics, according to Rocco.
Gableman’s report and testimony could further convince Wisconsin Republicans that no election is valid. Even now, far right gubernatorial candidate Tim Ramthun is calling for an “independent full forensic physical cyber audit” of the 2022 gubernatorial election.
By slowly dripping out allegations in “interim reports” and teasing breakthroughs, Gableman is making sure these issues remain relevant in Wisconsin politics, UW-Madison political science professor Barry Burden said in an online event Wednesday.
“Sadly, I think one of the consequences of the report is it keeps controversies over elections in the center of the campaign,” Burden said. “I am really concerned when our elections become about elections instead of other issues like education, transportation, crime — other things that may be on voters’ minds. We can’t really have a system where the candidates are debating the very rules of the election continuously, but by offering these interim reports in stages and doing hearings and testimony — it looks like from now through Election Day, potentially — it keeps this front and center. There’s real pressure, I think, on candidates running for statewide office to address it. Some of them spoke out yesterday in favor or opposed. It’s just, I think, an unnecessary and really damaging contribution to the campaign discourse.”
Additionally, if Democratic Gov. Tony Evers wins reelection, Republicans might yet again be unwilling to accept that they lost, says Rocco.
“Should [Republicans] lose, it provides them with a cognitive framework for interpreting that loss,” Rocco says. “It can’t be because they failed to persuade a majority of Wisconsin voters to vote for their candidate, but must be because the election was illegitimate. Because what did Judge Gableman say?”
“Elections could be judged to be a success not only when a lot of people turn out and vote but also because the winners and losers both accept the results,” he continues. “What Gableman is doing here is making that second piece really hard and creating the possibility that if Evers is reelected there could be another sort of refusal to accept the results.”
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