Gableman review ‘disruptive’ and ‘problematic for our democracy’

The partisan review of the 2020 presidential election by former Wisconsin Supreme Court Justice Michael Gableman — which is based on unfounded claims of election fraud — is straining local election administrators and damaging the state’s political process, according to Dane County Clerk Scott McDonell. 

For weeks, Gableman has flipped back and forth over whether or not he will require clerks across the state to testify, in private, in front of him and his staff. He’s also flipped back and forth over his ability to provide immunity to those who testify or even if he has the power to prosecute people as an appointed special counsel. He has also requested thousands upon thousands of records that don’t exist, have already been turned over to the Assembly elections committee or would damage election security in the state if clerks complied with Gableman’s requests, McDonell says. 

Gableman has taken trips to Arizona to watch the widely derided audit of the election in Maricopa County and to a conference in South Dakota with MyPillow CEO and election conspiracist Mike Lindell. 

Recently, both Gableman and an attorney working for him, former Trump lawyer Andrew Kloster, have said they have no real understanding of how election laws work. Both of the men have also said, without proof, that the election was stolen.

“It’s been a lot of work to keep up with everything and how it may affect us or anyone in the county,” McDonell says. “It feels like your head’s on a swivel, the constant contradictions and changing of directions. This is problematic for our democracy to continue to fan the Big Lie and try to promote this idea that there was something wrong with the November election. Trump’s own appointee said it was the most secure, safe, accurate election. Unfortunately people here are lapping it up.” 

The flip-flopping, confusion and conspiracy-laden investigation is “surreal,” McDonell says. One of Gableman’s requests copied a request made by a citizen who is attempting to conduct his own review of the election, highlighting the amateur nature of Gableman’s work. 

“The bigger issue is the constant conversations with our legal team; some of these requests — inappropriate isn’t the right word,” McDonell says. “Some of the requests we’ve gotten would make it so foreign adversaries could hack our elections. That is the method by which it would happen. It’s surreal.”

“He hasn’t read the documents already turned over to the Assembly election committee which he supposedly works for,” McDonell says of Gableman. 

Thus far, the only look the public has gotten into what Gableman is doing has been through three videos posted to a YouTube channel in which Gableman defends his investigation, but offers little information.

“The problem is you can’t talk to him,” says McDonell. 

Gableman has also made recent comments that contradict normal legal processes, saying local officials shouldn’t work with government lawyers to respond to subpoenas or requests for documents. 

“There is no need to lawyer up and there should not be lawyers between the people of Wisconsin and their elected and appointed government officials,” Gableman said. 

But McDonell says this isn’t how subpoenas work. In fact, if a government office receives a subpoena for any reason, the first step should be to go to the attorneys on staff. And even in regular open records requests filed with a government agency, that agency’s staff attorneys are involved in responding. 

“Anyone knows if you get contacted by a lawyer with a subpoena, that’s the first thing you do,” McDonell says about getting staff attorneys involved in responding to subpoenas. “That’s not even controversial; you’d get in trouble if you didn’t do that.”

Even as Republican members of the Assembly refuse to back down — despite considerable public pressure — from the review they’ve charged Gableman with conducting, McDonell says he’s concerned about what it means for elections moving forward. 

“The bigger problem from a work point of view,” he says, “is this is going to cause this to go on and on and on. Constant open records requests as a vehicle for attempts to recount as opposed to the normal mechanisms is going to cause people to be disruptive at polling locations around the state. We’re going to have to prepare for all of that. None of that happened in 2016 when Donald Trump won. … The vote is accurate. Same thing in 2020. Now those norms are being destroyed.”