A year in, legal fight over Gableman election investigation keeps growing

More than a year after Wisconsin Republicans tapped former Supreme Court Justice Michael Gableman to lead a wide-ranging election investigation, the number of court cases connected to the probe continues to grow with no end in sight.

This week, the liberal watchdog group American Oversight filed its fourth lawsuit connected to the investigation, this one against Gableman’s Office of Special Counsel after he admitted to deleting some documents connected to the probe.

Lawyers for Gableman have also filed an appeal of a judge’s ruling that found him in contempt of court in another case where American Oversight is seeking open records.

“The investigation has become a morass of competing lawsuits back and forth between different parties in the state and outside the state,” said Barry Burden, a political science professor and director of the Elections Research Center at the University of Wisconsin-Madison. “And those legal debates have sort of overtaken the substance of the investigation itself.”

Assembly Speaker Robin Vos, R-Rochester, announced that he was hiring Gableman to lead the investigation on June 26, 2021 at the annual Republican Party of Wisconsin Convention. The announcement came on the heels of intense scrutiny from former President Donald Trump, who has falsely asserted that he won the 2020 election in Wisconsin and other battleground states. A statewide canvas, a partial recount and multiple state and federal court decisions confirmed that he lost, and a review of the election by the nonpartisan Legislative Audit Bureau found no evidence of widespread fraud.

Gableman’s initial contract was set to expire at the end of October, but it has since been renewed multiple times. Gableman’s current contract with the Wisconsin Assembly has no firm expiration date and calls for taxpayers to pay any legal bills connected to his investigation.

While Gableman and Vos have accused Democrats of using the courts to impede the election investigation, Gableman’s office filed one of the most potentially consequential lawsuits. That case, filed in Waukesha County, asks a judge to jail mayors and election officials if they don’t comply with subpoenas directing them to sit for private interviews. There’s no hearing scheduled in the case until Aug. 30.

“Gableman’s work is certainly going to continue through the summer and the fall,” Burden said. “There’s still hearings scheduled in court and subpoenas that he’s issued that he wants to act on. He’s still on the payroll. So it’s not going to wrap up any time soon.”

The list of cases connected to Gableman’s investigation includes:

• An open records lawsuit before Dane County Circuit Court Judge Frank Remington brought by American Oversight against Gableman’s Office of Special Counsel, Vos, the Assembly Chief Clerk and the Wisconsin Assembly. Earlier this year, Remington ordered Gableman to produce a copy of his contract and ordered some records immediately released. More recently he found Gableman in contempt of court, fining him $2,000 per day. Remington also referred Gableman to Wisconsin’s Office of Lawyer Regulation.
• An appeal, filed by lawyers for Gableman, of Remington’s contempt ruling. Gableman’s lawyers have also appealed a Remington ruling from earlier this year.
• An open records lawsuit filed by American Oversight against Vos before Dane County Circuit Court Judge Valerie Bailey-Rihn. Earlier this year, Bailey-Rihn found Vos in contempt of court but gave the speaker a chance to “purge” that contempt by complying with court orders. This month, Bailey-Rihn lifted her contempt order against Vos. She scheduled an oral ruling in the case for July 21.
• Another open records lawsuit before Judge Bailey-Rihn, this one filed by American Oversight against Vos, Assembly Chief Clerk Ted Blazel and the Wisconsin Assembly. Oral arguments in that case are scheduled for July 28.
• Gableman’s big subpoena case against the mayors of Madison, Green Bay and Racine, as well as Democratic Elections Commissioner Ann Jacobs and several election workers. That case, which is before Waukesha County Judge Ralph Ramirez, was delayed after Gableman’s office expanded his subpoenas to include more people and threaten them with jail time.
• A case challenging Gableman’s subpoena power, this one filed by Attorney General Josh Kaul in Dane County Circuit Court against the Wisconsin Assembly, Vos and Gableman among others. Kaul asked Judge Rhonda Lanford to block Gableman’s subpoenas, and while she’s yet to take that step, she indicated that she could if he tried to enforce them. Vos also tried to get state appeals courts to intervene in the case and was denied. The Wisconsin Supreme Court also denied a “petition for supervisory writ” filed by Vos.
• American Oversight’s most recent lawsuit filed against Gableman’s Office of Special Counsel.

While most of the cases remain in circuit court, they could eventually be appealed to the Wisconsin Supreme Court, where Gableman once served. Conservative swing Justice Brian Hagedorn once clerked for Gableman on the court.

UW-Madison’s Burden said the final resolution of Gableman’s investigation could depend on the outcome of the 2022 election.

“If Republicans gain full control of state government by defeating Gov. Evers, they will then be able to enact all of the election bills that they sent to Evers and were vetoed this year. And that may satisfy a lot of Republicans,” Burden said. “But if Evers keeps the governor’s office, and we have more divided government, then I think that probably keeps lawsuits and investigations going.”