AP FACT CHECK: Wisconsin election probe ignores some facts

A former Wisconsin Supreme Court justice examining the 2020 election in battleground Wisconsin laid out his interim findings this week and recommended that legislators should consider decertifying the state's presidential result — a move attorneys have said is illegal.

But many of Michael Gableman's claims have already been dismissed by courts or rejected by the state’s bipartisan election commission. Gableman, who was hired by the Assembly’s top Republican, acknowledged that he had voted for Donald Trump and had called the election stolen before he was ever appointed to look into it.

Here’s a look at some of the claims from his presentation to lawmakers on Tuesday and in the report:

GABLEMAN: “Wisconsin election officials' widespread use of absentee ballot drop boxes violated Wisconsin law.”

THE FACTS: Wisconsin law is silent on absentee ballot boxes. The bipartisan Wisconsin Elections Commission before the 2020 election provided guidance to local election clerks who run elections, telling them that ballot boxes can be put wherever they want. Wisconsin’s top elections official testified last year that at least 528 drop boxes were used by more than 430 communities in the 2020 presidential election.

Both Republicans and Democrats supported the widespread use of ballot boxes in the past. However, after Trump’s loss in Wisconsin, his supporters questioned the legality of the elections commission’s guidance.

A judge in January said ballot boxes located outside of election clerks’ offices are illegal because nothing in state law allowed the elections commission to issue that guidance to clerks. The case is currently pending before the Wisconsin Supreme Court. The elections commission last month rescinded its guidance, in keeping with the lower court’s ruling.

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GABLEMAN, claiming that the Wisconsin Elections Commission broke the law by directing municipal clerks not to dispatch voting assistants to nursing homes, which led to mentally unfit residents casting ballots: “The Wisconsin Elections Commission unlawfully directed clerks to violate rules which are in place to protect nursing home residents.”

THE FACTS: It's more complicated than that.

State law does require local election clerks to send so-called special voting deputies to nursing homes to give residents an opportunity to vote. After trying to make two visits, the deputies can mail absentee ballots to the residents instead.

But early in the COVID-19 pandemic, when the Wisconsin Elections Commission made its decision, the state was under a safer-at-home order and nursing homes were severely limiting who could come into their facilities, often not even allowing immediate family members inside.

The elections commission, split evenly among Republicans and Democrats, in March 2020 voted 5-1 that poll workers could not be sent into nursing homes. Instead, the commission directed clerks to mail absentee ballots to nursing home residents who had requested them.

State election commissioners have defended their move, saying they were trying to ensure nursing home residents could vote by sending absentee ballots instead of voting assistants who may not have been allowed to enter.

The nonpartisan Legislative Audit Bureau determined that the commission broke the law by not sending in the voting assistants.

A Racine County sheriff last year argued that the election commission members who voted not to send in the helpers should be charged with felonies, but the district attorney declined to bring charges, saying she did not have jurisdiction. Attorney General Josh Kaul — a Democrat — has also declined to pursue charges.

Gableman's claim that mentally unfit nursing home residents voted is also questionable. Under Wisconsin law, only a judge can declare someone as incompetent to vote. Nursing home residents retain their right to vote even if they are under the guardianship of a relative.

Gableman played videos of attorney Erick Kardaal interviewing several people who he said had voted but who struggled to respond to basic questions.

Ann Jacobs, the Democratic chairwoman of the Elections Commission, said the videos were misleading because people don’t have to answer questions in order to vote.

Gableman claimed to have “vetted” 64 nursing homes in three counties and determined that 100% of registered voters there voted, but his report provided no documentation to back up the allegation. The elections commission was reviewing claims made in the report, said spokesman Riley Vetterkind.

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GABLEMAN: The Mark Zuckerberg-funded Center for Tech and Civic Life's gift of $8.8 million to the cities of Milwaukee, Madison, Racine, Kenosha and Green Bay to help run elections “violates the Wisconsin law prohibiting election bribery.”

THE FACTS: Three lawsuits arguing that the grant funding was illegal under state law have been rejected and a law firm hired by the state elections commission also determined there was no wrongdoing.

U.S. District Judge William Griesbach, who was appointed by President George W. Bush, refused to block the grant money in October 2020 under a lawsuit filed by Kaardal on behalf of the Wisconsin Voters Alliance, in conjunction with the conservative Thomas Moore Society.

The judge said then that there was nothing in state law “that can be fairly construed as prohibiting the defendant Cities from accepting funds from CTCL.”

The 7th Circuit Court of Appeals ruled on an appeal of that case that those who brought the lawsuit failed to identify any laws that would prohibit the grants.

Kaardal again raised the issue in a federal lawsuit he filed in Washington, D.C., on behalf of the Wisconsin Voters Alliance, two Wisconsin Republican state lawmakers and others. That lawsuit sought to let state lawmakers in Wisconsin and other states allocate their Electoral College votes.

U.S. District Judge James Boasberg, appointed by President Barack Obama, dismissed the lawsuit and referred Kaardal to a court committee for discipline just for bringing the case. Kaardal has appealed that.

In a third case, the Wisconsin Voters Alliance represented by Kaardal asked the Wisconsin Supreme Court to overturn the election results for several reasons, including the grants. The court refused to take the case.

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GABLEMAN, citing alleged voting irregularities and election administration grants awarded to Democratic-majority cities: “The Legislature ought to take a very hard look at the option of decertification of the 2020 Wisconsin presidential election.”

THE FACTS: Attorneys say that’s illegal, and lawmakers say they won’t do it.

Nonpartisan attorneys who work for the Legislature told lawmakers in both November 2020 after Trump’s loss and again a year later that decertification was not legal. Republican legislative leaders have repeatedly cited those memos as reasons why they will not pursue any attempt to reverse awarding the state’s 10 electoral votes to Biden, who won the state by just under 21,000 votes.

The Assembly has also repeatedly rejected a resolution from Republican Rep. Timothy Ramthun, a candidate for governor, to decertify the vote. Even as Gableman was making his presentation, Republican Assembly Majority Leader Jim Steineke tweeted that the move was unconstitutional and would not be considered by lawmakers. Republican Assembly Speaker Robin Vos, who hired Gableman, has also previously rejected calls to decertify the election. And even Gableman, in his own report, said the move would not remove Biden from office.

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EDITOR'S NOTE — A look at the veracity of claims by political figures.

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