Background
On May 26, 2021, more than six months after the 2020 presidential election, Wisconsin’s top Republican lawmaker announced that he would be hiring investigators to conduct a new review of the election results.
The results of the 2020 presidential election are not in doubt and there have been no credible allegations of fraud or misconduct that could have affected the outcome in any state. Dozens of lawsuits filed by Trump and his supporters failed to show evidence of widespread fraud and have been rejected by judges across the country. But the announcement by Assembly Speaker Robin Vos made Wisconsin yet another state in which Trump allies undertook baseless reviews of the 2020 election results.
In June 2021, one day after facing criticism from former President Trump for not having launched an Arizona-style “audit” of Wisconsin’s election results, Vos announced that he had appointed Michael Gableman, a conservative attorney and former state Supreme Court justice who the previous November had called the election stolen, to lead the “investigation.” Gableman’s first request, directed to county clerks, was an email sent from a personal Gmail account, which landed in some spam folders and raised security concerns. In December, Vos announced that Gableman’s investigation would extend past its original end date into 2022 and could require additional funding beyond the $676,000 already allocated.
On March 1, 2022, Gableman released a “second interim investigative report” of findings from the probe. The report was presented before the Assembly’s elections committee and included legally impossible recommendations to retroactively “decertify” the state’s 2020 electoral votes. The report also called for the elimination of the bipartisan Wisconsin Elections Commission. Records obtained by American Oversight revealed that just two weeks later, Gableman had privately sent a memo to Vos advising against pursuing decertification.
But calls among conservative election deniers — including by candidates for elected office — to undue the results of the election continued, and were a major feature of the 2022 primary. Vos remained opposed to the push for decertification, leading to a growing rift between him and Gableman into that August, when Vos narrowly defeated a primary challenger whom Gableman had endorsed. On the Friday after the primary election, Vos fired Gableman, telling the Associated Press that it was “beyond clear to me that we only have one choice in this matter, and that’s to close the Office of Special Counsel.”
American Oversight’s Investigation
American Oversight filed several lawsuits to compel the release of records that could shine a light on Gableman’s work. On Oct. 8, the same day American Oversight filed its first lawsuit against the Assembly and Vos for failing to release records held by investigation contractors, the court ordered the Assembly and Vos to “immediately” release the documents or show cause for withholding them. Later that month, American Oversight filed a second lawsuit, this one against Vos for his failure to release other documents in his custody, and in December filed a third lawsuit naming Gableman’s Office of Special Counsel (OSC) as a defendant, along with Vos and the Assembly.
American Oversight’s investigation has resulted in the release of thousands of pages of public records related to efforts to investigate the 2020 election in Wisconsin. In November, we obtained documents that revealed taxpayers had paid for Gableman and investigators to visit the Arizona Senate’s “audit” in August 2021, leading a spokesperson for Vos to tell the Milwaukee Journal Sentinel that the Assembly would attempt to recover the money.
Expense records American Oversight uncovered through litigation show that Wisconsin taxpayers also footed the bill for Gableman’s hotels on his August trip to South Dakota to attend a “cyber symposium” on election fraud hosted by My Pillow CEO Mike Lindell. In December, we obtained communication records that indicate Gableman has been in contact with Lindell throughout the review.
We have also obtained records that showed the growth of Gableman’s investigation over several months. In December 2021, the investigation spent more than $63,510 and employed 11 people, up from $28,250 and five employees in September 2021. Documents obtained in March 2022 showed Gableman’s investigation had already spent at least $519,000 of its $676,000 budget. Days before, Gableman had told the Assembly’s elections committee that he had about $300,000 of that budget remaining.
Other records include communications Gableman had with Erick Kaardal, a conservative lawyer who in 2020 sued Vice President Mike Pence in an attempt to prevent the certification of Joe Biden’s win. Gableman is also subleasing office space to Kaardal’s law firm as well as to the conservative Thomas More Society, both of which were involved in challenges to Wisconsin election administration.
Through our litigation, we also learned that OSC was routinely deleting documents it deemed “not of use to the investigation.” In April, the judge in our third lawsuit ordered OSC not to delete or destroy any record potentially responsive to our requests, and the following month, the judge in our first lawsuit ordered the Wisconsin Assembly and Vos not to destroy documents from the early stages of the investigation. In late June, American Oversight, represented by Democracy Forward and Pines Bach LLP, sued OSC, seeking an emergency order to stop the office from destroying any records in violation of the state’s public records retention law.
American Oversight is also looking into the efforts of state Rep. Janel Brandtjen — who chairs the Assembly’s Committee on Campaigns and Elections and falsely claimed that Trump won Wisconsin in 2020 — to initiate an Arizona-style review of Wisconsin’s elections. In January, we obtained records from Brandtjen’s office that show she has also been in touch with Kaardal about alleged insecurities in the state’s voting system. Additional documents showed Kaardal’s continued communications with Brandtjen through January 2022.
Brandtjen has also voiced her desire to hire an outside firm to review every voter registration in the state, which involved a request for information that Wisconsin Elections Commission (WEC) Chair Ann Jacobs said included “millions of data points”. Records obtained by American Oversight show that state Rep. Joe Sanfelippo’s office had asked the state’s Legislative Reference Bureau about the legal ability to remove WEC members even before the 2020 election, and in November 2021 asked about removing the WEC’s nonpartisan administrator.
In addition to perpetuating the Big Lie, one of the main objectives of such partisan election investigations is to create a pretext for enacting new restrictions on voting rights. The Journal Sentinel reported that Vos intended to use the results of his investigation to take legislative action, and Republican lawmakers in more than three dozen states have cited false claims of voter fraud as justification for pushing anti-voting measures.
Litigation
In American Oversight’s first lawsuit against the Wisconsin Assembly, the clerk of the Assembly, and Speaker Vos, we are seeking the release of records, including communications and contractor documents, related to the investigation.
- On Oct. 8, 2021, American Oversight sued the Wisconsin Assembly and Speaker Robin Vos for failing to release requested public records related to the Assembly-ordered investigation.
- Just hours after the lawsuit was filed, the Dane County Circuit Court ordered Vos and the Assembly to produce the requested records within 30 days or to show cause for failing to do so.
- In court hearings, Vos and the Assembly argued that they should not be required to produce records held by the Assembly’s recently created Office of Special Counsel.
- On Nov. 5, the court once again ordered Vos and the Assembly to release the records and set a deadline of 10 days.
- In December, American Oversight filed a motion asking the court to hold Vos and the Wisconsin Assembly in contempt for failing to comply with court orders.
- On March 30, 2022, Dane County Circuit Court Judge Valerie Bailey-Rihn issued a ruling holding Vos and the Wisconsin Assembly in contempt of court for their continuing failure to turn over public records.
In the second lawsuit, filed by American Oversight on Oct. 19, 2021, we are seeking the release of records related to the election inquiry that are in the custody of Speaker Vos, including documents detailing the investigation’s management as well as Vos’ related communications.
- On Jan. 4, 2022, the Dane County Circuit Court ordered Vos and his aide, Steve Fawcett, to sit for depositions regarding their failure to produce public documents. Vos filed a motion to stay the ruling with the Wisconsin Court of Appeals and petitioned the state’s Supreme Court. Both efforts to avoid deposition were rejected, and in January and February American Oversight deposed Vos and Fawcett.
- On March 23, Judge Bailey-Rihn set a “drop dead date” of April 7 for Vos to produce requested public records or to provide expert testimony explaining why deleted records cannot be recovered.
- On April 8, two days after releasing more than 20,000 pages of previously deleted records, Vos’ attorneys filed a motion asking the court to keep those records confidential. American Oversight filed an opposing brief on April 12.
In American Oversight’s third lawsuit, filed Dec. 21, 2021, we are seeking the release of records and communications held by the Wisconsin Assembly’s Office of Special Counsel (OSC).
- On Dec. 22, Dane County Circuit Court Judge Frank D. Remington ordered Vos and the OSC to “immediately” release the records or show cause for continuing to withhold them at a hearing on Jan. 21.
- On Jan. 21, Judge Remington ordered Gableman to turn over sealed copies of the requested records to the court within 10 days for private review.
- On March 8, Judge Remington ordered the immediate release of over 700 pages of public records related to the OSC’s investigation.
- On April 8, OSC released additional records to American Oversight, claiming they had been “inadvertently” left out of earlier productions. In a letter, OSC’s counsel also admitted that OSC “routinely deletes” records in its custody, which prompted American Oversight to file a motion asking the court to bar OSC from deleting records on April 20. The next day, Judge Remington ordered OSC to stop deleting records that could be responsive to our public records requests.
- On June 10, following a hearing in which Michael Gableman refused to answer questions, Judge Remington held OSC in contempt for failing to comply with the court order to turn over public records. On June 15, Remington issued the written decision finding OSC in contempt and outlining requirements for Gableman to prove that OSC has adequately searched for and produced records responsive to requests.
American Oversight v. Wisconsin Office of Special Counsel
On June 28, 2022, American Oversight filed suit against the Office of Special Counsel seeking an emergency order to stop the election investigators’ destruction of public records.
