But perhaps most astoundingly, given that election experts and legal scholars say such a step is not possible, Gableman argued that the 2020 election results could be decertified — something that Trump has advocated since his loss.
“I believe the legislature ought to take a very hard look at the option of decertification” of the 2020 election, Gableman said at the hearing.
Gableman went into his investigation already believing that the election was “stolen,” having publicly said so before his appointment to lead the legislative probe.
“Our elected leaders — your elected leaders — have allowed unelected bureaucrats at the Wisconsin Elections Commission to steal our vote,” he said during a November 2020 rally.
Gableman’s report attacked the administration and results of Wisconsin’s 2020 election on multiple fronts. He went after the state board for a decision on how to send absentee ballots to nursing homes and handle their return during the pandemic — a decision approved at the time by five of the six commissioners on the bipartisan board, but which Republicans have since argued was illegal.
“WOW – Gableman goes full in crazy conspiracy theory and demands that Wisconsin ‘Decertify’ the election,” Ann Jacobs, the Democratic chair of the Wisconsin Elections Commission tweeted during Tuesday’s hearing.
The retired judge also attacked private grants from the Center for Tech and Civic Life, an elections-focused nonprofit organization to which Facebook founder Mark Zuckerberg donated hundreds of millions of dollars in the run-up to the 2020 election. That money was redistributed as grants to local election officials across the country to deal with the complications of running an election during the pandemic.
Gableman referred to five large cities in Wisconsin — Milwaukee, Madison, Racine, Kenosha and Green Bay — that received grants from the CTCL as the “Zuckerberg Five.” Those cities received the majority of the grant money awarded to Wisconsin jurisdictions, but election officials in 39 of the state’s 72 counties received grants, part of a larger group of 2,500 election offices in 49 states that received a grant from the CTCL.
Nevertheless, Gableman alleged a partisan conspiracy from CTCL to boost Democrats. Federal and state courts have previously rejected lawsuits challenging the legality of the grants.
Gableman’s report argues that the legislature could “decertify the certified electors in the 2020 presidential election” by the state legislature first voting to conclude that the election was held in violation of state law, then claiming that “the level that fraud or other illegality under Wisconsin law could have affected the outcome,” and then exercising “its plenary power to designate the slate of electors it thought best accorded with the outcome of the election.”
The report concludes that a theoretical Wisconsin decertification “would not, on its own, have any other legal consequence under state or federal law” — like “chang[ing] who the current president is.”
During his presentation, Gableman said that his work would continue beyond Tuesday. He said Vos has indicated his full support for the process.
Some Republican leaders in the state downplayed Gableman’s suggestions about decertifying the election, even as his presentation was ongoing.
“I still maintain that the Legislature’s attorneys are correct on this,” Assembly Majority Leader Jim Steineke, a Republican, said in an interview with the Milwaukee Journal Sentinel on Tuesday. (Attorneys for the legislature previously said decertification was not possible.)
“We are going to continue to look through the windshield instead of the rearview mirror and focus on the future,” he told the newspaper. “I think the Legislature is largely united on this issue.”
In his recommendations, Gableman continued to advocate for making it easier to stop the certification of elections in the future — a main goal of Trump and his allies ahead of the 2024 election.
“In the event of widespread contest, the thumb should be on the scale in favor of withholding certification of electors,” he wrote in his report, arguing that certification of the election should rest not with the governor but with “a politically accountable body.” (Democratic Gov. Tony Evers is up for reelection later this year.)
Gableman also appeared to compare his probe to the Jan. 6 investigation being conducted by Congress, downplaying the attack on the Capitol — saying it was “one discrete incident that happened on one day that resulted in some damage” to the Capitol — while saying he should have broad authority in his investigation.
This is a developing story that will be updated.