Wisconsin judge denies bid to block election review subpoenas

MADISON, Wis. (CN) — A Wisconsin circuit court judge on Monday rejected an attempt from state election officials to block subpoenas for closed-door interviews with a retired state supreme court justice spearheading a controversial review of the 2020 election on behalf of Republicans who control the state legislature.

Former Wisconsin Supreme Court Justice Michael Gableman was hired by state Assembly Speaker Robin Vos, R-Rochester, over the summer for one of several probes into alleged irregularities and lawbreaking during the 2020 general election. Gableman has issued multiple subpoenas in his investigation, including to the bipartisan Wisconsin Elections Commission and WEC Administrator Meagan Wolfe, requesting documents and depositions to be conducted at his office in the Milwaukee suburb of Brookfield and leveraging the threat of contempt or imprisonment if they are not obeyed.

Wisconsin Attorney General Josh Kaul, a Democrat, in October sued Vos, Gableman and others on behalf of Wolfe and the WEC to block the subpoenas. As reiterated by an assistant attorney general during arguments last month, the plaintiffs mainly oppose that the subpoenas, which they say are overbroad and invalid, require interviews in private rather than publicly.

Monday’s ruling from Dane County Circuit Court Judge Rhonda Lanford denied Wolfe and the WEC’s plea to temporarily enjoin the subpoenas and allowed them to proceed, a win for Gableman and his investigation. But the judge also declined to dismiss the election officials' complaint as attorneys for Gableman and legislative Republicans asked, paving the way for further challenges to the subpoenas.

Contrary to arguments from four attorneys representing Gableman and Republicans that Wolfe has no statutory right to sue over the subpoenas, Lanford said “there is nothing in [the statute] that suggests that plaintiffs, especially Wolfe, would be precluded from bringing an action to protect herself or the agency from the enforcement of an alleged unconstitutional subpoena where there is threat of contempt and imprisonment.”

“As a practical matter, it would be nonsensical for this court to limit authority to bring an action on the claims set forth in the complaint, because to do so would grant unfettered power to the defendants to proceed with the investigation in any manner they wished despite constitutional violations,” Lanford continued.

In denying Wolfe and the WEC’s motion for a temporary injunction, Lanford found they had not met the factors for such a remedy in part because there is currently no tangible threat of contempt or proof of irreparable harm, but the judge said she would be ready to hear another injunction motion if Gableman tries to enforce the subpoenas through contempt, imprisonment or similar means before the case is decided on the merits.

Kaul particularly reacted to this last nuance in Lanford’s ruling in a statement from a DOJ spokesperson on Monday.

“While today’s decision doesn’t preliminarily block the subpoenas, it does make clear that the court will reconsider doing so if there’s any attempt to enforce the subpoenas before the challenge to the subpoenas is fully litigated,” the spokesperson said, adding that Kaul hopes a time crunch for results from Gableman’s investigation will lead him to drop the subpoenas rather than continue to fight over them.

Attorneys for Gableman and Republicans could not be immediately reached for comment.

In the 2020 election, President Joe Biden won Wisconsin by more than 20,000 votes. His victory was confirmed by a recount demanded by former President Donald Trump and multiple lawsuits challenging the result failed in both state and federal courts.

Two audits of the election—one by Wisconsin’s nonpartisan Legislative Audit Bureau and another by a conservative advocacy group—have found no widespread, outcome-affecting fraud but made dozens of recommendations to the WEC and state lawmakers on how to clean up election procedures.

Still, Republicans in control of both chambers of the Wisconsin Legislature have sown doubt that Biden’s win was legitimate in tandem with die-hard Trump supporters and have for more than a year tried to rewrite election laws to restrict voting, part of what some say is a power-grab based on politically motivated lies. Those efforts have met vetoes from Democratic Governor Tony Evers, who is up for reelection in November.

Gableman’s probe, with an approved budget of nearly $680,000 in taxpayer money, was supposed to end last year but has stalled, partially due to legal fights over his subpoenas. Some information has been provided by Gableman regarding activities and personnel involved with the probe, which has prompted the former justice to visit Arizona’s widely condemned “cyber-forensic” election audit and an election fraud symposium in South Dakota hosted by MyPillow CEO Mike Lindell, one of a handful of conspiracy theorists and Trump-aligned election truthers he has courted.

In a lawsuit he filed in Waukesha, Gableman has asked sheriff’s deputies to jail the Democratic mayors of Madison and Green Bay for refusing to adequately cooperate with his investigation. A hearing for that action is scheduled for Jan. 21.

Vos recently said he wants Gableman’s audit finished by the end of February, ahead of when Republicans plan to vote on election bills in March before the current legislative session ends.  

Another Madison-based judge last Tuesday ordered Vos to sit for a deposition in one of three lawsuits from a liberal watchdog group claiming he, Gableman and others have refused to turn over public records germane to Gableman’s probe, but he appealed and asked for a stay of the ruling late last week.

Follow @cnsjkelly

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