On Monday afternoon, Wisconsin Elections Commission Chair Ann Jacobs, a Democrat, determined Joe Biden had won the state’s presidential election and Gov. Tony Evers certified that determination.
These two steps — procedural matters that have always occurred under commission chairs and governors of both parties — incensed the Republican members of the commission so much that on Tuesday they requested Jacobs’ resignation and nearly ended the entire meeting.
“I cannot express strongly enough my disappointment in your actions yesterday,” Republican member Dean Knudson said. “The law is very clear and you have violated the law as our chair. As a consequence, I believe that I’ve lost all confidence in you as the chair. I can’t see that we can go forward as a group. I don’t think you realize even at this moment how much you have destroyed the bipartisan nature of what has gone on.”
Knudson, a former chair of the commission, completed and certified the state canvass of several elections. He also, as a former member of the Wisconsin State Assembly, was an instrumental player in the effort to dismantle the elections commission’s nonpartisan predecessor, the Government Accountability Board. The WEC is bipartisan, with three Democratic and three Republican members — a setup which often produces failed 3-3 votes on consequential issues.
“If you wanted to create mistrust from one side, we’re in a minority position here, where you have a certain amount of power, you’ve done it,” continued Knudson, a Republican, whose party that holds a majority in Wisconsin’s Senate and Assembly as well as benefiting from a friendly conservative majority on the state supreme court. “The law can’t be any clearer about what needs to go on here. The chair has certain duties and responsibilities. They are spelled out. You violated the law and it was a pretty clear violation.”
Wisconsin’s election law gives the power to complete the canvass and certify the election to the chair or the commission or the chair’s designee. Knudson and the other Republican members of the commission nonetheless held that they need to be involved when the state drafts the certificate after Jacobs determines the result.
Elections lawyer Jeffrey Mandell says the Republicans are misinterpreting the law.
“I believe they are misreading the statute in two separate ways,” he says. “First, they are insisting (in conflict with the statutory text and historical practice) that the full commission needs to review the state canvass and approve the preparation of any certificates. This ignores that preparation of the certificates is a purely ministerial duty that involves no discretion and therefore does not require discussion among or a vote by the commissioners.”
The text of the statement of canvass, signed by Jacobs, is two paragraphs long. All it says is that after the election was held and the boards of canvass were completed at the municipal and county level, Joe Biden and Kamala Harris received the most votes.
There’s nothing for the Republicans to discuss or dispute there, Mandell says, so Knudson’s interpretation that the commission must vote on the certificate or Jacobs violated the law is incorrect.
Mandell adds that the Republicans are combining two sections of the statutes that have nothing to do with each other, arguing that certificates of election can’t be issued when there is a recount or a post-recount appeal. But the language of that section of the statute — 7.70(5)(a) — has to do with certificates of ascertainment, not certifying the election itself.
The canvasses have already been completed in every municipality and county in the state; two counties even tallied the votes twice. The remaining avenue for Republicans to attempt to overturn the results is in the courts, not in forcing — against precedent — a vote of the commission.
President Donald Trump couldn’t file his appeal of the election results until Jacobs completed the canvass, giving the Trump campaign something to challenge.
After Knudson said Jacobs had clearly violated the law — again, not true — in her “dog and pony show” he called for her resignation as chair and said that until Jacobs resigns or a vote to remove her is held, the commission shouldn’t take any further action on any item.
Then Knudson made a motion to table every agenda item set for Tuesday’s meeting, which included an update on the post-election audit, the ballot design for the spring 2021 election and the certification of all non-presidential races — a motion that failed on a 3-3 party line vote.
Jacobs declined to resign as chair.
“What I did was not illegal,” she said. “You are misinformed about what took place and absolutely incorrect … you can shake your head but you got to spout off and now it’s my turn.”
Before getting on to the rest of the meeting’s agenda, Republican commissioner Robert Spindell said he had a few comments to make and accused the state’s Democrats of plotting together to make the primetime news shows.
“[Your] apparently democratic publicity ploy to rush this certification — without any organization from the commissioners — for Biden and Harris, to the governor,” Spindell said. “So he signs it, and announces it in time for the three TV national network shows to cover the certification along with Arizona and has a top story less than two hours after the signing.”
Eventually the meeting got back on track with the post-election audit. The statewide audit occurs after every election and tests voting machines across the state to make sure there were no defects — a safeguard especially important in the face of Republican attacks, including from the president, on certain brands of voting machines.
The audit found no issues of vote-flipping in Wisconsin voting machines and Knudson said there were no credible claims of fraud in Wisconsin’s election.
“I would like to stay officially on the record that I have complete confidence in the voting equipment in use in Wisconsin, that I think there is no evidence of systemic problems of software problems programming problems hacking, there’s no evidence of switched votes,” he said. “I think that we as a commission all want to see that be the message that goes out today from this meeting that we have confidence in the election equipment in the voting machines, and our audits have and will show that.”
Before going into closed session, Jacobs completed the canvass and certified the results for every other race in the 2020 general election with no objection from Republican members.