Here & Now

The Integrity of Electoral Voters

Frederica Freyberg:

At the state Capitol this week, tempers flared as former Supreme Court justice Michael Gableman provided another update on his election investigation.

Michael Gableman:

I never said anything about overturning any election. Stop making things up, Mark.

Frederica Freyberg:

Democrats criticized Gableman for new hires on his staff which include a lawyer who worked to overturn the state’s election results.

Mark Spreitzer:

If you are serious about this, shouldn’t we bring in somebody who is above partisanship, above reproach and have them get to the bottom on this?

Frederica Freyberg:

During the hearing, Gableman also announced he is seeking a court order to compel testimony from the mayors of Madison and Green Bay.

Michael Gableman:

Of all the clerks and of all the mayors, those two simply failed without reason or excuse to appear for their depositions.

Frederica Freyberg:

Madison city attorney said the city has been working since October under an agreement that would prevent city officials from testifying. He says the city has not received an updated formal request for anyone to testify. A court will hear the issue December 22. Former justice Gableman’s latest filings threatened to jail the mayors of Madison and Green Bay if they don’t appear to testify before him. More on that in a moment, but first, as the Gableman investigation was getting a hearing in the Capitol, the state Elections Commission was meeting to review the Legislative Audit Bureau Report on the 2020 election. Commissioners unanimously approved several recommendations made in the audit for conducting elections, including promulgating rules on ballot drop boxes and what information clerks can fill in on absentee ballot envelopes. But the commission again expressed anger that the audit bureau went public with its report before inaccuracies in it could be corrected.

Dean Knudson:

I think they fell into the trap of succumbing to political pressure that they would not allow a review, and a simple review like they always do helps prevent this kind of inaccuracy seeping into the final report.

Frederica Freyberg:

Republican commissioner Dean Knudson said the audit bureau acted in an unprofessional manner.

Also related to the 2020 election, there’s a longstanding complaint alleging criminal wrongdoing on the part of ten Republicans in Wisconsin who, following Joe Biden’s victory, convened as presidential electors for Donald Trump. Attorneys with Law Forward called these people fraudulent electors who cast their votes for Trump and mailed certificates of votes to Congress for Wisconsin’s electoral votes to be counted on January 6 for the losing candidate. The complaint over the erroneous electors is sitting with the Wisconsin Elections Commission, one of whose Republican commissioners was among the ten. Attorney Jeff Mandell is lead counsel at Law Forward and brought this complaint. He’s also representing the city of Green Bay in the Gableman probe. And that’s where we start. Thanks very much for being here.

Jeff Mandell:

Thanks for having me.

Frederica Freyberg:

So former justice Gableman’s investigation into the Wisconsin 2020 election has a key focus on the nearly $9 million in grants the Center for Tech and Civic Life gave to the state’s largest and Democratic-leaning cities, including Green Bay and Madison. You represent Green Bay as outside counsel. Now justice Gableman is going to court and threatening jail to compel testimony from those mayors as he alleges a cover-up. What is your response to this?

Jeff Mandell:

The latest gambit is that Mr. Gableman has filed papers in Waukesha County trying to have the mayors of Green Bay and Madison arrested for failing to provide testimony. But this is completely crazy. This is the latest example of Mr. Gableman throwing around big legal words but not following Wisconsin law. This is not a remedy that is available, and the facts are simply not with him. No one has refused to give testimony. The city of Green Bay provided 20,000 pages of documents to the special counsel’s office, and the special counsel’s office expressly agreed that because we provided those documents, there was no need for testimony at this point and they would let the city know if there was going to be a request later. We never heard from them until on Wednesday Mr. Gableman, in a public hearing before the Assembly Committee on Campaigns and Elections, said that he was having these people arrested and that he had filed court papers to do so. He never even notified the city or had us served with those court papers.

Frederica Freyberg:

There’s a lot to unpack there and the reporting on that continues, including by us. But I want to get back to the Republican electors. Why address this so long after the certification of the election with parenthetically the insurrection that it caused on January 6?

Jeff Mandell:

Well, to be fair, the delay here is entirely on the part of the elections commission. We filed our complaint in February. It’s been pending for nearly ten months. We filed it in mid-February on president’s day. But regardless, what is so important is that this does get resolved. We can’t allow the delay in adjudicating this to make people dismiss it as ancient history. Because as you have explained, what happened here was a deliberate effort to defraud the people of the choice that they made through their vote here in Wisconsin and to defraud the Congress by fooling them. And that — it is exactly that effort, these fraudulent papers that were submitted to Congress that fueled the January 6 insurrection. There would have been no insurrection if people did not believe that there is a basis for asking Vice President Pence to choose one slate of electors over the other. These papers and this fraud, that’s what created that possibility.

Frederica Freyberg:

As we mentioned, one of the Republicans on the Wisconsin Elections Commission, Bob Spindell, was among those electors. At the commission’s meeting last month, Spindell defended himself for his and others’ actions. Let’s take a listen.

Bob Spindell:

This was mandatory and necessary according to the Trump and RPW legal opinions to preserve Trump’s record and the RPW position in these many federal and state cases that were swirling around Wisconsin at the time, at this time. And so should a case or two be found in favor of Trump, it was necessary to not have forfeited his rights for an appeal or whatever. I would have thought and I’m sure it would have been malpractice on the part of any attorney not to have the Trump campaign and RPW take all steps to preserve its records and options.

Frederica Freyberg:

Commissioner Spindell says they were only trying to protect their options should Donald Trump prevail in any challenge to election results. What about that?

Jeff Mandell:

That’s just not true and that’s true for several reasons, Frederica. First, there were not, as Mr. Spindell says, many federal and state lawsuits swirling around. The courts had taken great pains to make sure before the Electoral College met on December 14th that those cases were resolved. The recount, partial recount here in Wisconsin had been resolved all the way through the Wisconsin Supreme Court. The cases in federal court had been resolved. There was no further litigation that was necessary. Number two, and perhaps even more importantly, what the fraudulent electors here in Wisconsin did differs in kind from what happened in other states. In some other states, the electors met and they put at the beginning of their papers words that said in the event that a court decides that there was something wrong with the election, this is how our state would cast its electoral votes. But that’s not what happened here in Wisconsin. There was no such in case of emergency break glass clause at the beginning of these papers. These papers were deliberately designed to be identical in every respect to the actual papers casting the actual electoral votes that reflected the will of the voters in Wisconsin. They were designed to defraud the people, to confuse the Congress and to create exactly the situation that led to the January 6 insurrection. That’s what’s wrong with them.

Frederica Freyberg:

We will watch where this goes. We appreciate you describing it for us. Jeff Mandell, thanks very much.

Jeff Mandell:

Thank you, Frederica.