NEW: States United Democracy Center, Law Forward Outline Legal Risks and Concerns Created by Third-Party Election Reviews in Wisconsin

9.24.2021

Letter to County and Municipal Election Officials Details Potential State and Federal Election Security and Voter Protection Law Violations and the Unreasonable Cost to Wisconsin Taxpayers Created by Bad Faith Election Reviews

Washington, D.C. — The States United Democracy Center and Law Forward released a detailed analysis today outlining the numerous security risks and legal violations implicated by third-party election reviews like the one currently under way in Wisconsin. The analysis comes as Speaker Vos continues his push to review paper ballots, voting machines, and other 2020 election records in Wisconsin. Other efforts, including follow-up to the invalid subpoenas previously issued by Representative Brandtjen, remain possible as well. 

The report details top areas of concern: election security & integrity, improper exercise of authority, good governance & transparency, due process protections, voter protection, invalid legislative purpose, overbreadth, burdensomeness & vagueness, and unreasonable costs to taxpayers. In an open letter to county and municipal election officials sharing the analysis, the two leading election protection and democracy groups urge officials to consider the relevant state and federal laws outlined before formulating any response to requests tied to third-party reviews. 

“As in other states across the country, the third-party investigations into the 2020 election in Wisconsin led by Speaker Vos and Representative Brandtjen implicate state and federal election security and voter protection laws,” said Aaron Scherzer, Senior Counsel at States United Democracy Center. “The 2020 election was free, fair, and secure thanks to the hard work of dedicated local officials in Wisconsin and around the country. As these same officials navigate the post-2020 election landscape—which includes an unprecedented wave of third-party, partisan reviews—it’s critical they understand the legal and security issues at play and remain able to administer elections without partisan interference.”

“The fact is the 2020 election in Wisconsin was fair and accurate. The results reflect the will of Wisconsin voters,” said Jeff Mandell, Lead Counsel and President of Law Forward. “As our analysis suggests, any attempts to undermine those official results via these third-party reviews will likely conflict with established state and federal protections for voters, election officials, and election materials. The blatant waste of taxpayer dollars only adds to the reasons local officials should proceed with caution if asked to turn over election materials or otherwise participate in these bad faith efforts.”

The analysis concludes:

Even now, more than ten months later, legislators in Wisconsin have indicated their intent to conduct vague and murky investigations into the November 2020 election. The lack of clarity and transparency makes it difficult for municipal election officials and Wisconsin taxpayers to have any idea what to expect. At this point, what is clear is that one or more of these investigations could include unprecedented legislative subpoenas that raise novel questions of Wisconsin law. Additionally, the anticipated scope of those subpoenas—if recent political rhetoric and document preservation letters evidently sent by former Justice Gableman are to be believed—may run afoul of established protections that state and federal law provide for voters, election officials, and election materials.

In sum, election officials would be wise to proceed with caution upon receiving any subpoena in connection with investigations of the 2020 General Election. Such subpoenas are almost certain to face significant questions about their validity, both procedurally and substantively. Election officials will also need to weigh their existing legal duties before responding to requests for records or information. 

The bad faith election reviews in Wisconsin are part of a larger trend in states across the country sparked by the conspiracy theory-fueled work of the Cyber Ninjas in Maricopa County, Arizona. States United and Law Forward are national leaders in tracking these 2020 election reviews and convening bipartisan election experts to expose the legal, procedural, and cultural risks to states attempting these operations. Earlier this month, States United released an interested parties memo outlining the key ways in which the election reviews in Wisconsin mirror the problematic Cyber Ninjas effort in Arizona, including the lack of credibility, lack of transparency, cost to taxpayers, the bipartisan opposition, security risks and legal concerns, and lack of public support. 

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About the States United Democracy Center

The States United Democracy Center is a nonpartisan organization advancing free, fair, and secure elections. We focus on connecting state officials, law enforcement leaders, and pro-democracy partners across America with the tools and expertise they need to safeguard our democracy. For more information, visit www.statesuniteddemocracy.org

About Law Forward

Law Forward is a nonprofit law firm focused on protecting and advancing democracy in Wisconsin. We use impact litigation, the administrative process, and public education to protect Wisconsin’s fundamental democratic principles, and revive Wisconsin’s traditional commitment to clean and open government. For more information, visit www.lawforward.org.