Here & Now

Election Probe Impacts, Electoral Vote Artifice

Frederica Freyberg:

At the Capitol, the State Supreme Court heard arguments this week in a suit to decide the next voting maps for Wisconsin. The court previously announced it would try to make as few changes as possible to the current maps, which some argue lock in Republican majorities in the legislature. The court must also consider changes to the state’s minority communities. Under the federal Voting Rights Act, minority communities cannot be gerrymandered out of political voice. Here’s Justice Pat Roggensack on that point.

Pat Roggensack:

I’m looking at what’s happened in the Milwaukee community and I go back and I look at how African-Americans have fared in elections there. And I have some very specific questions, particularly, you know, the fact that Lieutenant Governor Mandela Barnes was elected to be the candidate to run with the governor with 67.86% of the vote in the primary defeating a white candidate. So to me that appears in a statewide contest you have — you have African-American candidates being supported by white voters which one would think we should. But that certainly doesn’t show a block voting, okay, by white voters to knock out an African-American candidate.

Frederica Freyberg:

The redistricting process in Wisconsin is going about as expected, landing before the State Supreme Court. What might be considered unexpected, infighting among legislative Republicans over allegations of fraud in the 2020 elections. Infighting that caused Speaker Robin Vos to strip a member of his caucus of his staff.

Robin Vos:

There are some who believe – one who believes – that we somehow have the right, even though every lawyer that we have worked with in Wisconsin says we cannot undo the 2020 elections. You know, Representative Ramthun has that belief. That’s his right.

Frederica Freyberg:

All of what is happening in this state with elections is what our next guest calls “exceptional and dangerous.” UW-Madison Professor Barry Burden is the director of the Elections Research Center and thanks very much for being here.

Barry Burden:

Glad to be here.

Frederica Freyberg:

Specify why you call how the last election is being treated right now in Wisconsin “exceptional and dangerous”?

Barry Burden:

The exceptional part is probably more obvious. We’ve seen a series of things happen since the election we’ve never seen before in modern history. Not only did we have the normal audits and canvass that happen after the election, but there was a recount in the state’s two biggest counties, Dane and Milwaukee. And then a series of investigations, audits, hearings that were based not in fact and not drawing on the expertise of people who actually run elections or know how these things work and seem to have a kind of open-ended quality to them, with no clear resolution in sight. All of these efforts, particularly the Gableman investigation, are not likely to resolve people’s questions or build confidence. They’re likely to further undermine it and keep those suspicions on the table. And I say that’s dangerous because support for the outcome of elections is an essential part of a democracy. Voters have to be willing to accept the results once the courts have done their business and decided they are finalized and move on and try to win the next election. Instead, these efforts I think are keeping those suspicions alive and relitigating the 2020 election.

Frederica Freyberg:

These efforts seem to have hit a fevered pitch with subpoenas flying and threats of jailing big city mayors and on and on. But does the Gableman investigation stand out even among other states’ efforts in this way?

Barry Burden:

Absolutely. I think the only parallel would be the Cyber Ninjas investigation that took place in Arizona. That was funded mostly by private dollars rather than state dollars the way the Gableman investigation is. But both of them were run by people with no expertise in the field, staffed mostly by either Trump supporters, Trump loyalists or people who were election skeptics and deniers and have no endpoint, no limitation of scope, no clear questions defined. Both the Cyber Ninjas project and the Gableman investigation have kind of hopped from one topic to another. Sometimes it’s voting machines. Sometimes it’s purging of voters. Sometimes it’s private contracts. Sometimes it’s drop boxes. So it’s unclear how a project like that ever reaches something convincing at the end of the work.

Frederica Freyberg:

So the slate of Republican electors in Wisconsin called “fraudulent electors” who sent their votes for Trump to Washington are described as part of a national coordinated campaign that the January 6 committee is now investigating. What is your response to the ten Republican false electors in this state?

Barry Burden:

It’s bizarre. You know, those fake electors signed the certificates after all of the legal challenges had been concluded. It was not as though there was still a question about who had won the state and the courts were working their way through the system. It was time for the electors to vote in the state Capitol. It was more than a month since Election Day and the final decision from the State Supreme Court had been rendered just a couple hours, I think, before those electors met at the state Capitol. It wasn’t based on facts on the ground in Wisconsin. A real specific knowledge of things that had gone wrong here because it was the same effort in Arizona and other competitive battleground states. It was a national campaign, as we’re learning, led by folks inside the Trump operation to try to set the stage for overturning the election on January 6.

Frederica Freyberg:

In fact, one of those Republican electors who signed that paperwork that was sent along to Washington is actually a commissioner on the Wisconsin Elections Commission. What’s your response to that?

Barry Burden:

It seems unconscionable to me that someone who is responsible for overseeing elections at the statewide level is also so closely attached to one of the national campaigns and so committed to it that the person would sign a fake electoral certificate. I don’t know how that’s possible. It’s certainly not ethical and not helpful.

Frederica Freyberg:

You say that you would welcome an actual review of the 2020 pandemic election, but you call this one and I’m quoting, “secretive, bumbling and lacking credibility.” But what would you want to learn in an actual review?

Barry Burden:

I think there are good questions to be raised about areas of state law that should be clarified after the election, particularly around absentee voting with so many people voting by mail or voting early for the first time. What should be done about nursing homes and drop boxes and all of the issues that became a part of the election infrastructure in a way they had not been before? Some of those are just not well specified in the law because they weren’t anticipated for good reasons. You can imagine state legislators were not anticipating a public health crisis that would cause the system to have to change as radically as it did. So I think some serious consideration for how to tweak the laws is warranted.

Frederica Freyberg:

Does it suggest in tweaking the laws that there was anything going on that was wrong or fraudulent?

Barry Burden:

I think the courts have already concluded that there was nothing wrong or fraudulent that had gone on. The Legislative Audit Bureau’s report indicated that there were areas of state law that should be clarified. And there were some practices that were a little sloppy or uneven across the state but that’s true in every election. It’s a human process. It’s an imperfect one and I think trying to perfect it ought to be the job of the state legislature.

Frederica Freyberg:

Barry Burden, thanks very much for joining us with your perspective on this.

Barry Burden:

Glad to be here.