Hold Wisconsin’s Fraudulent Electors Accountable

I remember last Jan. 6 distinctly. It dawned as a day of optimism. I had spent the past two months, as special counsel for Gov. Tony Evers, working around the clock with a phenomenal team to protect the results of Wisconsin’s presidential election. We fought off nearly a dozen lawsuits, in state and federal courts, and administrative complaints before the Wisconsin Elections Commission. Those litigation challenges to the will of the voters were unprecedented and outrageous; indeed, as Wisconsin Supreme Court Justice Brian Hagedorn put it, they sought nothing short of “court-ordered disenfranchisement” of 3.3 million Wisconsin voters. But they had uniformly failed. All that remained was for Congress to certify the Electoral College results. Then the election would truly be over. While it was clear that symbolic objections would be raised in Congress, the outcome was certain: America’s tradition of transferring power peacefully would prevail. This was grounds for celebration.

The preservation of our democratic traditions was not to be taken for granted; 2020 had been a marathon year of election litigation in Wisconsin. There were the myriad difficulties attendant to the nation’s first pandemic election on April 7, when Milwaukee opened only five of 180 voting sites and lines to cast ballots stretched for blocks. The summer was dominated by disputes over whether Kanye West (The Birthday Party) and Howie Hawkins (Green Party USA) could get on the Wisconsin ballot without following the rules, as well as ultimately unsuccessful federal litigation attempting to ensure that voters would not have to choose between their health and their right to vote. And then there was the bevy of post-election lawsuits, from various interest groups, Sidney Powell’s “kraken” suit, and repeated litigation by President Trump himself.

After thousands of hours working remotely at a folding table in my bedroom, I’d slipped a lumbar disc and could hardly sit straight. Mid-morning on Jan. 6, I had a physical therapy appointment in a medical pool, and then the therapist sent me upstairs for imaging. Wet, cold, and in pain, I had to wait, and, since I was unable to sit, I leaned against a wall. While I waited, I checked my phone, which had been buzzing incessantly. The messages didn’t make any sense; how could an armed mob be storming the Capitol? I called my wife, and the tone of her “hello” immediately conveyed the gravity of the situation. She was watching live coverage. She had already seen enough to shoo our young kids away from the TV. When my X-rays were complete, I drove home, aghast at what I was hearing on the radio.

Deep into the night — even after Congress reconvened and resumed counting the votes — we were glued to the TV. I fell asleep in the wee hours, before the vote on accepting Wisconsin’s electoral votes. But I knew that Congress had two competing sets of paperwork purporting to represent Wisconsin’s electoral votes. This was true because 10 individuals had deliberately attempted to defraud the 3.3 million Wisconsinites who had voted — in a concerted campaign to usurp the voters’ will. On Jan. 6, the focus was on those members of Congress willing to debase themselves by contesting the vote counts in a handful of states, Wisconsin among them. But that wouldn’t have been possible without the efforts of fraudulent electors who had sent false papers to Congress.

Weeks earlier, when the Electoral College met in each state, 10 Wisconsinites chose to commit fraud. While the electors chosen by the people met in public and cast Wisconsin’s votes in accordance with the election results, they skulked in the shadows and met in secrecy. These 10 Wisconsinites — including then-Chair of the state Republican Party Andrew Hitt and Wisconsin Elections Commissioner Robert Spindell — met somewhere in the Wisconsin Capitol and signed papers purporting to cast Wisconsin’s 10 electoral votes for the losing candidate. In doing so, they broke the law. Wisconsin, like every other state, statutorily pledges to cast its electoral votes for the candidate who wins the popular vote statewide. These fraudulent electors disregarded that fundamental principle of our democracy and of Wisconsin law. They also seem to have violated Wisconsin laws prohibiting forgery, falsely assuming to act as public officers, misconduct in public office, and conspiracy to commit criminal acts, possibly among others. They may well have also violated federal law.

By the time the fraudulent electors met, after Wisconsin’s election results had been certified and all state and federal litigation had been resolved, there was no reasonable question about who the state’s rightful presidential electors were. Any suggestion to the contrary is spurious. Nevertheless, the fraudulent electors met, improperly presuming to act as public officers and purporting to cast Wisconsin’s electoral votes for candidates the people had not chosen. Those 10 fraudulent electors tried to elevate their personal preferences over the will of 3.3 million voters:

• They first filled a purported vacancy in the Electoral College that they deemed to have arisen when one of the designated GOP electors failed to attend their sham meeting.
• They falsely claimed to be “the duly elected and qualified Electors for President and Vice President of the United States of America from the State of Wisconsin.”
• They declared that they had met “to perform the duties enjoined upon us,” even though the only obligation they had under the Wisconsin statutes was not to meet given that the candidate to whom they were pledged had not won Wisconsin’s election.
• They each signed their names to “certify” that Wisconsin’s 10 electoral votes were cast for Donald J. Trump and Michael R. Pence, though they knew that was not true.
• And they sent these sham documents, based on false pretenses, to several federal and state officials as “Wisconsin’s Electoral Votes for President and Vice President.”

In every possible respect, the fraudulent electors fashioned their documents to be indistinguishable from the authentic documents submitted by Wisconsin’s duly elected members of the Electoral College.

No legal authority suggested the fraudulent electors could properly convene and act as they did, purporting to cast Wisconsin’s 10 Electoral College votes for candidates who were not chosen by Wisconsin voters and not entitled to the state’s electoral votes under law. To the contrary, by impersonating Wisconsin’s legally selected and authorized presidential electors, the fraudulent electors flouted the people’s will expressed at the ballot box and attempted to misappropriate Wisconsin’s participation in selecting the next U.S. president. Even worse, the fraudulent electors created the conditions necessary for the Jan. 6 insurrection. No one could have urged Congress to adopt alternate slates of electors if Congress did not already have fraudulent papers offering those alternate slates. The fraudulent electors played a key role in the insurrection, even if they were sitting at home in Wisconsin that day. But for their wrongful actions (and similar actions in other states), neither the rioters nor those pols who cynically egged them on would have had anything to rally around.

This desecration of our democracy cries out for accountability. That is why, last Presidents’ Day, Law Forward, the nonprofit law firm I helped establish, acting on behalf of the SEIU Wisconsin Council and Paul Sickel, asked Wisconsin authorities to hold the fraudulent electors accountable. We asked Milwaukee County District Attorney John Chisholm to investigate violations of state criminal law. We filed a complaint with the Wisconsin Elections Commission over civil violations. And we asked the Office of Lawyer Regulation to determine if Andrew Hitt’s role violated the ethical rules that lawyers must follow. To my knowledge, there is no similar effort in any other state to hold fraudulent electors to account; Law Forward and SEIU stand alone in demanding consequences as an essential step in ensuring that American democracy shall not perish from the Earth.

It’s now been a year since the insurrection, almost 13 months since the fraudulent electors met in the shadows to disenfranchise Wisconsin voters, and nearly 11 months since we sought accountability. To date, no Wisconsin authority has yet followed through. Without accountability, those who would subvert democracy in Wisconsin have grown bolder and bolder. Efforts to disenfranchise voters, to make voting harder, and to cast doubt on election results have all metastasized over the past year. This is a clear pattern, as carefully explained a couple of weeks ago by Rachel Maddow.

Though I expected last Jan. 6 to mark the end of disputes over the 2020 election, the past year has seen those disputes multiply. Nonsense lawsuits and administrative complaints continue to be filed, rehashing the same discredited conspiracy theories without any factual basis. And Assembly Speaker Robin Vos used hundreds of thousands of dollars in taxpayer money to hire Michael Gableman and deputized him (along with a band of heavily biased out-of-state lawyers) as a roving Special Counsel to conduct a sham investigation into an election that was free, fair and secure. Multiple checks, recounts, lawsuits, reviews and investigations into Wisconsin’s election have confirmed that same conclusion.

Now there is a concerted campaign to dismantle the Wisconsin Elections Commission. And U.S. Sen. Ron Johnson has urged the Wisconsin Legislature to assert unilateral control over elections and authority to declare the results — without regard for Wisconsin law, the Constitution or democracy. These attacks on government of the people, by the people, for the people will not stop without accountability for those who undermine our democracy. Some of that accountability must be in the political sphere. But some can and should be in our legal system; that is rule of law. We must rise to this occasion and repel this sustained attack on the axiomatic principles of American democracy. For better and for worse, Wisconsin is the epicenter of the struggle to preserve American democracy. The anniversary of the Jan. 6 insurrection is a reminder of the stakes and an opportunity to rededicate ourselves to this existential fight.

We must hold Wisconsin’s fraudulent electors accountable was originally published by the Wisconsin Examiner.

Jeff Mandell is a partner at Stafford Rosenbaum LLP, and co-chair of the firm’s Election and Political Law group, as well as its Appellate groups. Jeff is also the President and Lead Counsel of Law Forward, a nonprofit, nonpartisan impact-litigation organization focused on protecting and advancing democracy in Wisconsin. The views expressed here are his own and don’t represent those of his firm or its clients.