Office of the Special Counsel

First Interim Report

Delivered to the Wisconsin State Assembly November 10, 2021

“I am writing this, as I feel my mother was taken advantage of in her mental state. Parents
and loved ones should be protected, not exploited, for an ink mark on a piece of paper
and questionable agenda.” Judy Weshphal-Mitchell, discussing how actions of the Wisconsin
Election Commission affected her family

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Elections in the United States are the bedrock of our constitutional republic. They are
subject to the law, including the fundamental laws found in the Constitutions of the
United States and the State of Wisconsin. But fair elections are not a mere checkbox
exercise. To secure republican government it is important not just that the law is
followed, but that the citizens have confidence the law is followed. In the run up to the
election of November 3, 2020, polling showed a majority of Americans did not have
confidence their vote would count. In a democracy, this is as untenable as it is
unacceptable.

To help address these concerns, the state Assembly established a new office, the Office of
the Special Counsel, to investigate the recent elections in our state. As head of this new
office, I am authorized by law to take all reasonable steps to investigate what happened
in regard to the November 2020 election, what should have happened, why there was a
difference between the two, and to recommend steps to enhance the transparency of our
elections as well as restore public confidence in elections going forward.

This interim report is a first step in discharging that mission.

While this report does not definitively answer all questions that might be asked about the
November 2020 election, it takes an important step in collating those questions and
presenting them in a structured manner.

Over the approximately sixty days since my office was created and has been funded, we
have spoken with, and listened to, everyone who has wanted to talk. This open-door
policy will remain throughout the entirety of this investigation, and any future
investigation with which this office is charged. We have drawn some criticism from those
in the media who would suggest my discussions with various individuals or groups
implies an endorsement of their views. This is not the case. I do not apologize for this
open-door policy: the views of all Wisconsinites matter and sidelining or even laughing

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at serious concerns of any citizen of this state would call into question whatever may be
discovered by my investigation.

In the short time the Office of the Special Counsel has been funded, we have not only met
with many individuals and groups, but we have collected, and in some cases compelled
by law, the production of relevant information. Further, our investigation has gone
beyond, and will continue to go beyond, the investigation recently conducted by the
Legislative Audit Bureau (LAB). One purpose of this interim report is to lay out for the
public how my Office’s investigation differs significantly from the LAB investigation.

Notwithstanding lawsuits and threats of more lawsuits supported by high-priced, out-

of-state lawyers, my office expects to depose government officials, under oath, to
determine whether state and federal law were followed in our elections, whether good
management held, and if not, who might have been responsible. If necessary, we stand
prepared to refer all relevant information to appropriate state and federal law
enforcement authorities. The wagon-circling by government entities in our state is
concerning and is not limited to my investigation: the City of Madison, the City of
Milwaukee, and the town of Little Suamico all refused to fully cooperate even with the
LAB investigation, cooperation to which our legislature and the people are entitled by
our State Constitution.

Make no mistake: I sincerely hope the law was followed in Wisconsin. It would give me
the greatest satisfaction to deliver to the speaker of the Assembly and the public a final
report which analyzes the November 2020 election in a complete and thorough manner,
concludes no major overhaul of our laws or practice are necessary, and the election was
administered in a legal and appropriate manner. And yet, as the following interim report
demonstrates, many important questions remain unanswered. These questions include:
were all lawful votes, and only lawful votes, counted? Did the machines work as
advertised and expected? Were all election processes followed to the letter? Did clerks
and other election officials have all the tools they needed to deal with the unprecedented

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challenge posed by the COVID lockdowns and historic levels of absentee voting? Did
outside corporate money unduly influence the election and/or the administration of the
election? Above all, what changes can the state of Wisconsin make to ensure our future
elections are not only secure, but as important, widely known to be secure?

In the coming weeks, my Office will continue to collect and analyze information about
the November 2020 election, because the public has a right to know what happened. I
have no partisan agenda: I am not running for office, and I do not know of any lawful
remedy in the state of Wisconsin to change the certification of its electors from our current
President Joe Biden to former President Donald Trump. Furthermore, I do not come with
preconceived answers to any questions. Why were so many voter registrations at a single
address? Why were so many voter registrations given under a single phone number?
Why was there a “blip” at 4:00 a.m. in the reported statewide returns the morning after
the election? All of these questions may have innocent explanations. My investigation
intends to discover facts which will allow the legislature and the people of Wisconsin to
draw their own conclusions about the integrity of the November 2020 election.

Many of these answers might have already been obtained were it not for unjustified
obstruction of this investigation. Specifically, I requested information from the
Wisconsin Elections Commission (WEC) and certain clerks about election procedures and
information they possessed. With a large degree of political theater, some of this
information has been withheld. I issued subpoenas, as I am lawfully authorized to do as
part of my Office’s investigation as a function of legislative oversight. Rather than simply
provide the information, WEC has filed a lawsuit in an attempt to quash the subpoenas
and avoid providing governmental data and information to my office. I am aggressively
defending the subpoenas in our state courts—courts which I once helped to oversee in
my capacity as a Justice—but WEC’s actions beg the question: What are WEC and the
recalcitrant city clerks hiding from the public and our legislature?

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Nevertheless, I have had many productive conversations with government officials. In
fact, in the many discussions my Office has had with the fine public servants in the state
of Wisconsin, I have learned that complicated questions may have simple answers. But
many complicated questions deserve honest answers that take time to process and report.
I ask each reader of this interim report to take this as a jumping-off point for learning
about the administration of elections in Wisconsin. And again, please reach out to my
office if you have any information of relevance. Your voice matters.

Michael J. Gableman

Special Counsel

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What is the OSC Investigation?

November 3, 2020, was election day nationwide, and was, in our State of Wisconsin, the
culmination of months of work by dedicated election workers and volunteers. It was a
monumental and expensive undertaking which is critical to our representative
democracy. However, it is beyond debate that questions remain about the integrity of
that election. In discharging its duty under both the Federal and State Constitutions, the
Wisconsin State Assembly saw fit, on June 26, 2021, to appoint a Special Counsel,
establish the Office of the Special Counsel to investigate the election, make findings, and
report those findings and recommendations to the Assembly. This report is a first step
in fulfilling that duty.

The Office of the Special Counsel is an authorized agency of the State of Wisconsin. Its
staff, including and especially the Special Counsel himself, take care to abide by all
applicable state and federal laws, including open records laws and regulations relating
to the practice of law. My Office will abide by the highest ethical standards to maintain a
commitment to transparency, inclusion, and accountability. As such, the Office has
established various internal policies, continues to maintain records, and commits to full
disclosure of all public records upon the conclusion of the present investigation.

To-date, my Office has already collected and reviewed thousands of governmental and
other documents. My Office has interviewed numerous witnesses and will continue to
do so until the conclusion of the present investigation. The Office has been allocated a
comparatively modest budget and has relied heavily upon volunteers and input by
citizens’ groups: the vast majority of the Office’s budget, while allocated, has not been
spent.

The Office may be reached at (262) 202-8722 or online at www.wifraud.com. As noted

below, testimony compelled by this Office bears with it the promise, mandated by
Wisconsin law, that any information so compelled may not be used in a criminal

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proceeding against the individual from whom it was provided. See Wis. Stat. § 13.35.
This Office has already been in contact with certain whistleblowers and commits to taking
all steps to protect their interests and those of future whistleblowers.

Constitutional Authority

Pursuant to the federal Constitution, Article I, Section 4, it is state legislatures who are
authorized to set “The Times, Places and Manner of holding Elections for Senators and
Representatives…” The Supreme Court of the United States has clarified that this means
the Wisconsin legislature bears primary responsibility for establishing rules regarding
things like voter registration, poll watching, penalties, ballot counting, and certification.
This primacy of the state legislature is ratified by the Wisconsin Constitution, which in
Article IV, Section 1 declares “The legislative power shall be vested in a senate and
assembly.” Whether this means the state Assembly and Senate may, by joint resolution
and without gubernatorial signature, tighten up or loosen election security for federal
elections, and whether there are limits on how much of this constitutional responsibility
can and should be delegated to other state actors (such as the Wisconsin Elections
Commission), is an open question in state law.

There is some debate that the Elections Clause of the United States Constitution
authorizes states to regulate legislatures alone to dictate the time, places, and manner of
elections. While the word “legislature,” is used several times in the federal constitution,
its meaning differs according to the context in which it appears, dependent upon the
character of the function which the legislature is called upon in each respective instance
to exercise. Ariz. State Legislature v. Ariz. Indep. Redistricting Comm'n, 576 U.S. 787, 808
(2015) (citing Atlantic Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 434 (1932)). Even
if the constitution authorizes the Assembly and Senate to jointly amend parts of our
election code without gubernatorial signature, the Wisconsin constitution provides that
the legislature should create bills of law which become effective only when signed by the
governor. Wis. Const. Art. 4, Section 17; Article 5, Section 10. It may be the case that the

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Senate and Assembly can change election regulations in the absence of a statute on the
books, indeed Wisconsin law appears silent on this question, but it would be another
matter for the Senate and Assembly to seek to repeal an extant portion of the election
code.

This brings up a second, equally important issue—certification of the vote. There are
serious and legitimate questions that the certification of Wisconsin’s election results may
have been undertaken in an unlawful and unconstitutional manner. While the Wisconsin
legislature has specified how presidential electors are selected, that statute does not
empower the governor or WEC to certify the results of the election. The acceptance of
electors by the governor while recount challenges were pending deprived the legislature
of the right to certify the vote pursuant to Article II of the United States Constitution.
Hasty certification of electors in a tightly contested election may disenfranchise voters to
the same extent as missing a deadline and failing to certify electors at all. While hasty
certification may violate the state constitutional duties of the legislature, delaying
certification of electors until resolution of relevant issues does no such violence to our
legal system.

Statutory Authority

The authority of the Legislature brings with it the legislative prerogative to gather
information, debate bills, and pass laws. In discharging these duties, the legislature bears
the constitutional obligation and has the authority to conduct oversight, including the
ability to compel production of documents and testimony. Under Wis. Stat. § 13.31, the
legislature has the authority to subpoena information from individuals. Because this
legislative subpoena is a part of common law legislative authority which holds that
without access to all available information a legislature cannot properly legislate—and
because this subpoena does not directly relate to or contemplate criminal proceedings,
criminal due process rights are not implicated. See Wis. Stat. § 13.35. To this end, § 13.35
expressly provides that documents and testimony provided by a witness pursuant to a

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legislative subpoena cannot “be used in any trial or criminal proceeding against such
person in court.” This does not preclude this Office from turning over information to
relevant law enforcement agencies, or by talking with this Office any given individual is
somehow immune from criminal prosecution.

This office has, to-date, issued seventeen subpoenas for documents as well as testimony
for governmental information from sitting government officials and has obtained some
voluntary compliance. These subpoenas, properly issued pursuant to and in furtherance
of the legislature’s core oversight function, have nevertheless been attacked by the media,
are subject to pending litigation, threats of more litigation, and have involved nationwide
attention and the work of out-of-state partisan attorneys. Given the substantial recent
history of municipal non-compliance with the LAB investigation and the plenary
authority of the legislature, the Assembly and this Office are defending these subpoenas.
The legislature, and the public, have a right to all available information and the testimony
of election officials about elections administration in Wisconsin.

A. How This Investigation Differs from the LAB’s Investigation.

The LAB, established in 1971, is authorized by Wisconsin statutes to “conduct...audits of

the accounts and other financial records of departments to assure all financial transactions
have been made in a legal and proper manner.” Wis. Stat. § 13.94(1) (emphasis added).
LAB has a large staff and a laudable history of working with all state instrumentalities,
but its relatively narrow mission is to ensure taxpayer money is well-spent. Its report
issued October 22, 2021, notes up-front that it is concerned with “audits and evaluations
of public finances and the management of public programs.” As such, its interest is
neither in addressing policy concerns nor the concerns of the full legislature, but of
responding to directed audits of the “records of each department” of the state of
Wisconsin. Further, as the recommendations in the LAB report suggest, its ability to
make recommendations is statutorily limited to the four corners of current Wisconsin law
and it does not generally make recommendations to improve the law. When it does, as

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in the case of the current report, these changes are extraordinarily modest, perhaps
recognizing its limited authorization. Finally, its sole product is a “detailed report” to
the legislature, which includes discussion of any “illegal or improper expenditures.” To
the extent illegal or improper conduct does not implicate the state fisc, that conduct is
beyond the purview of LAB inquiry.

By contrast, my Office’s investigation has a wide mandate to investigate elections in

Wisconsin, beyond mere “waste, fraud, and abuse,” as well as the authority to gain access
to necessary testimony and documents, even when recalcitrant individuals or
municipalities are not otherwise inclined to “cooperate.”

Can Private Groups be Involved in Running Wisconsin Elections?: Delegation and

Undue Corporate Influence

While this Office draws no conclusions yet, initial interviews and discussions with clerks
suggest there is widespread and substantial confusion about the appropriate role of
outside money in the administration of Wisconsin elections. Evidence is already in this
Office’s possession indicates undue influence by well-funded private groups, who
leveraged large grants to certain Wisconsin cities in order to co-opt our election apparatus
to their benefit. The recent LAB investigation did not comprehensively investigate or
address these concerns by clerks and the public, concerns which led to frustration and
untimely resignation of at least one long-serving clerk and numerous unanswered
complaints to WEC. Indeed, contracts made between outside groups and certain
municipalities led directly to actions contrary to Wisconsin state law, which some clerks
noted harmed both election security and the physical safety of voters. The public has a
right to know if there was a quid pro quo arrangement between outside groups and cities,
and if so, what the terms of that agreement were.

How much authority can clerks contract away to private organizations? As the LAB
report contends: “Statutes do not specify the actions and responsibilities that consultants

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are allowed to take at polling places and central count locations on Election Day.”
Nevertheless, for the purposes of legislative inquiry, this is not, and cannot, be the end of
the story. Whether certain organizations and individuals operated within a grey area in
state law does not preclude obtaining all relevant facts and attempting to draw fine
distinctions to facilitate legislative oversight, dialogue with the public, present legislative
recommendations, and restore confidence in Wisconsin’s system of elections. We need to
gather all facts so the legislature can address any problems.

Oblique reference to at least one major issue is made in the LAB report which bears
mentioning. Specifically, the LAB report notes the following:

“We asked the clerks of all thirty-nine municipalities [that used central count locations]
whether consultants worked at central count locations during the November 2020
General Election. Clerks indicated consultants associated with private organizations
worked at the central count locations in two of the thirty-nine municipalities. Specifically:

● One municipality indicated a consultant attended the August 2020 primary as an

observer, helped to modify the municipality’s election training materials from
August 2020 until October 2020, and was at the central count location on Election
Day in November 2020 to provide technical assistance for electronic voting
equipment. The municipality indicated at least five poll workers monitored such
assistance at all times.

● A second municipality indicated a consultant provided logistical support and

offered elections administration recommendations but did not have the authority
to make decisions and did not count ballots. The municipality indicated the
consultant initially wore a city employee identification badge at the central count
location on Election Day in November 2020 but subsequently became an observer
after the deputy clerk spoke with WEC’s administrator about this individual.”

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This cursory reporting is concerning, because it substantially waters down already-public
information relating to the involvement by a number of private groups in election
administration, and it suggests problems were raised and adequately resolved by clerks
and WEC.

In fact, in both instances, evidence is already available to this Office that is inconsistent
with the LAB’s report, and which indicates a more widespread and deeper issue. For
example, one private organization referred to in the LAB report was directly involved in
all aspects of management of election officials, was entrusted with the only sets of
physical keys to the city’s central count location, managed the transportation of ballots,
and instructed the counting of unlawful ballots that had arrived at the central count
location beyond the lawful time window.

Furthermore, under Wis. Statutes § 7.41, there are express rules for “members of the
public” to exercise their right to observe Wisconsin elections, which include limitations
on the ability of observers to obtain confidential voter information or to communicate
with election officials. Individuals are, under Wisconsin law, either election officials or
members of the public, and do not “become” observers, as the LAB report suggests.
Finally, issues involving possible unauthorized access to election materials or
impersonation of a municipal employee cannot be remedied by ex parte discussion with
a single bureaucrat at WEC. None of these issues are directly addressed by the LAB
report.

The LAB report also fails to address to what degree state instrumentalities may properly
contract with private groups for purposes of administering public elections. Clerks have
already raised concerns to this Office that there are certain election administration
functions which they are simply unable to perform. Clerks and the public have raised
concerns about the ability of outside contractors to legally bind election officials with
onerous contractual terms.

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Contracts with private groups for election administration and management.

This Office is reviewing contracts between municipalities and private groups which gave
preferential access to voter data to those private groups and prohibited contracting
municipalities from exercising their legal right to change election procedures, lest they be
on the hook for paying substantial sums of money back to those groups. Clerks have also
raised concerns about technical contracts which limit their ability to review the inner
workings of equipment and software related to voter registration and vote tabulation.

A major concern raised by numerous members of the public is whether outside

contractors abided by all applicable state and federal antidiscrimination laws, a question
not addressed in the LAB report.

This Office has also already uncovered evidence of selective targeting of voters by these
private groups, raising questions as to what extent nonpartisan government agencies
were turned into partisan get-out-the-vote operations, or whether this targeting was
performed on any other unlawful basis. Some of this targeting was apparently in the
context of recommending ballot “drop boxes” in certain locations, but not others, a
violation of Wisconsin Stat. § 6.855 (see below). Each of these facts, if true, are concerning,
and this Office continues to investigate the extent of this entanglement. Furthermore,
without statutorily mandated training for clerks, the possibility of undue outside
influence in our elections increases. In the vacuum created by WEC, understaffed and
overworked clerks can find it all-too-easy to take money and personnel from private
groups that might not have compliance with the law as their top priority.

Some clerks have noted to this office the complexity and scope of Wisconsin elections will
always and necessarily require delegation of at least some election functions to private
companies. But clerks have suggested a line must be drawn somewhere and many
express concern over the 2020 election. Indeed, one current clerk specifically
recommended to this Office that private money be prohibited. This Office continues to

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investigate precisely how much authority was ceded to private entities and whether that
subservience hindered the fair administration of elections and/or diminished public
confidence in that fairness.

Who Runs Wisconsin Elections? Finger-Pointing and the Wisconsin Elections

Commission

Clerk Authority

The core of the constitutional and statutory responsibility for election administration in
Wisconsin resides with county and municipal clerks. Under Wisconsin Statute § 7.15(1),
the municipal clerk has “charge and supervision” of not only state, but also federal
elections within a municipality. In turn, these municipal clerks report electoral results to
the county clerk and provide county clerks with all materials the county clerks need to
discharge their lawful duty to administer elections in their county. While municipal
clerks are appointed by political officials such as mayors, county clerks in our state are
directly elected.

Government Accountability Board Scandal and Creation of Wisconsin Elections Commission

To assist with developing best practices, the Wisconsin Elections Commission (WEC) was
established in 2016. Prior to 2016, a large, opaque, politically partisan, and unaccountable
agency, the Government Accountability Board (GAB), was charged with administering
vast swaths of statewide ethics and election law. In the wake of a major statewide scandal
that drew national attention, the John Doe investigations, the legislature and Governor
took the unprecedented step of abolishing that agency and amending state election laws.
However, rather than returning the state to a system of clear delegations of authority and
broad clerk autonomy, those amendments created WEC, drawing criticism from many
quarters, including Kevin Kennedy, the outgoing Director of GAB, who remarked that

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the new system would have essentially no changes, and that the new system would be
“no more transparent” than the old one.

One example of Kennedy’s fulfilled prophecy is the abundance of inconsistent

information relating to voter data in the registration database. In its waning days of 2015,
the GAB was confronted with 28,906 voters whose information about their name and
address as reported to the DMV was inconsistent with information for the same voter in
the voter registration database. The GAB dismissed those concerns. However, as of 2021,
those same numbers not only continue to exist and have never been adequately explained
but increased in number under WEC’s tenure.

Pursuant to Wisconsin law, WEC is tasked with certain portions of “the administration
of...laws relating to elections.” Wisconsin Statutes § 5.05(1). Precisely how far this
delegation goes is an open question. WEC authority as expressly laid out in that section
contemplates public rulemaking, investigation, and enforcement. However, the election
code sections over which WEC has regulatory authority include numerous provisions
which expressly delegate authority to individual actors, such as county and municipal
clerks. In fact, Wisconsin law delegates to the “board” the duty to certify the state’s
electors in a presidential election, a job fulfilled in 2020 solely by the Chairperson of WEC,
without board vote. Compare Wis. Stat. § 7.70(5). The LAB report does not make an effort
to systematically review these delegations but does note in several places the “shared”
election administration responsibilities.

Confusion about WEC Authority

While this Office draws no conclusions yet, initial interviews with clerks suggest there is
widespread confusion about the lawful role of WEC in the state, and concern that WEC
has acted outside its lawful purview. There is evidence numerous complaints by clerks
to WEC were ignored. This problem is exacerbated by a lack of clarity as to the legal
status of WEC guidance: some clerks are convinced compliance with WEC guidance

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provides them with a legal “safe harbor” in the event the Clerk’s directives consistent
with the guidance are challenged in court. In a recent statement, WEC expressly
disavowed that its actions could provide a basis for a defense but instead opined that it
is the clerks who bear all the responsibility for election related litigation.

Additionally, WEC guidance, such as online FAQs, are apparently issued without a full
Commission vote. Other documents, as the LAB report notes in the case of the March
2020 Commission-approved guidance regarding Special Voting Deputies are flatly
contrary to law. As noted above, much authority is delegated to the WEC administrator.
Importantly, under Wisconsin law, there is slight legal recourse other than a petition to
WEC to challenge such unlawful behavior. When WEC implicitly or explicitly authorizes
actions contrary to Wisconsin law, such as enabling poor security for access to statewide
voter registration data systems or authorizing “shortcuts” such as issuing absentee
ballots without applications or enabling widespread ballot curing, voters and candidates
are left with no choice but to file expensive and time-consuming lawsuits. The LAB
report, consistent with the LAB mission discussed above, did not investigate these issues,
which this Office continues to investigate and collate.

Lack of Legal Remedies

Furthermore, the LAB did not investigate various decisions WEC and others made in the
run-up to the 2020 election, some of which appear designed to prevent the Wisconsin
courts, including the Wisconsin Supreme Court, from weighing in. Specifically, the
decision by WEC to quickly issue ballots without a Green Party candidate was the
determining factor in the Wisconsin Supreme Court declining to address the merits of
that exclusion. WEC’s action was of dubious legality. In the 2020 case of Hawkins v.
Wisconsin Elections Commission, the 4-3 majority held that because WEC had claimed it
had already issued an unknown number of ballots, there was no time to properly address
the claims of the excluded Green Party candidate. In other words, WEC’s own actions
operated to neuter the ability of our state’s highest court to address whether WEC’s

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actions were lawful and to provide a remedy if they were not. Then Chief Justice Patience
D. Roggensack wrote a forthright dissent, noting “The court's silence not only affirms
lawless conduct by the Commission, but also provides no directive for the required
treatment of nomination papers in the future.” This Office continues to formulate
legislative options to ensure this remedial gap in Wisconsin law is repaired.

Absentee Balloting

A second action has evaded both LAB and state judicial review andinvolves the issue of
absentee balloting. Precisely what rules govern the requirements for mail-in and in-
person absentee voting in the state of Wisconsin? It is clear in some instances the
safeguards mandated for the protection of honest absentee ballots were ignored by WEC.

Many of these safeguards were apparently abrogated by WEC and municipalities in 2020,
with COVID-19 as a proffered excuse. One issue involved the illegal mass self-
certification of individuals as “indefinitely confined” under the statute, a category which
enables a voter to evade state voter ID requirements, but which is intended to apply to
physically or physiologically immobile residents confined to their home because of their
condition. Presented to the Wisconsin Supreme Court, again the majority ducked a ruling
on the merits, prompting then Chief Justice Roggensack to note that it appears the Court
“cannot be bothered with addressing what the statutes require to assure absentee ballots
are lawfully cast.” It is up to the state legislature to investigate if, how, and why state
law was not followed and take legislative action.

One major issue identified involves “Democracy in the Park,” which were citywide
events in Madison before the election exclusively related to absentee ballots. The LAB
report mentions this issue in passing as a “Special Event” occurring in a “specified
outdoor setting.” Without explaining the issue, the report recommends the Legislature
“clarify” statutes so individuals know whether or not they can engage in absentee ballot
activities contrary to the procedures laid down in Wis. Stat. § 6.855. In other words, the

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LAB report implicitly notes the statutes were violated by Democracy in the Park and
recommends the law be changed.

What was Democracy in the Park, and why has it been the subject of numerous citizen
complaints, lawsuits, and legislative inquiries apart from this Office’s investigation?

While this Office draws no conclusions, we possess evidence that the events, which
occurred on September 26 and October 3, 2020, involved numerous possible violations of
state law, calling into question the validity of over 17,000 absentee ballots. Specifically,
these involved large outdoor gatherings where purported designees of the City Clerk’s
office assisted with absentee ballots that yielded over 17,000 votes. Furthermore, it is not
clear that all of the workers at those events were properly deputized and trained, swore
and filed the mandatory oath of office, or documents related to absentee ballots were
properly handled. Finally, this Office also seeks to review the processing of those ballots.
Each of these fact-intensive avenues of inquiry are crucial for determining what was
improper and how to prevent future impropriety in absentee voting.

Clerk Training

In addition, this office has obtained evidence that WEC failed to complete its statutorily
mandated training duties. As the LAB report notes, Wisconsin Statutes § 12.01 et seq.,
lays out training protocols for clerks. But county clerks are politically accountable to their
voters, and WEC certification or lack of certification does not affect a clerk’s legal rights.
However, if a clerk is not certificated by WEC, such as for failing to be properly trained,
WEC is required by law to notify the “governing body” of that clerk’s county or
municipality. In other words, WEC is mandated by law to train clerks, and clerks who
fail to complete training are reported by letter to the mayor or county board. Yet, as the
LAB found, at least 17.5% of clerks were not properly trained, and no letters from WEC
went out notifying cities and boards about the failure to complete training. This Office
continues to review the issue. Moreover, this Office already has ample evidence that in

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the absence of this legally mandated training, certain private groups filled the vacuum,
perhaps for their own, self-interested purposes, providing some municipalities with
incorrect and even unlawful advice. In a statement, at least one clerk has noted outside
advice negatively impacted the security of the vote and the physical safety of voters.

Exploitation of Elders

This Office continues to review the issues involving WEC more generally, as well as other
plain rules that are apparently without remedy in Wisconsin law, such as the editing of
ballot applications by clerks and voting procedures at nursing homes. A recent
investigation and report by the Racine County Sheriff’s Office highlighted the
exploitation of some of our most vulnerable citizens. Furthermore, complaints were
apparently made to WEC and ignored, in a system which the sheriff described as leading
to our election system being “not just broken, but shattered.” I believe many
Wisconsinites share the Sheriff’s sentiment. It is my hope a continued investigation and
final report from this Office will help change those perspectives and sentiments.

In the run-up to the November 3, 2020, election, clerks and WEC took numerous steps to
alleviate public fears about COVID-19. But in this perceived crisis there was the
opportunity for electoral partisan advantage. For example, Wisconsin law mandates
individuals in various types of communal living facilities may have special access to
absentee voting in person, but only subject to the rules of § 6.875. These rules govern the
“Special Voting Deputies” that a municipality may, in turn, train and authorize to collect
absentee votes in person: this is the only lawful method for collecting absentee ballots
outside normal procedures, as Special Voting Deputies swear an oath and become duly
authorized “election officials.” Without the availability of Special Voting Deputies under
the statute, it would be much more difficult for many senior citizens or those in assisted
living facilities to vote. Yet in 2020, at the recommendation of its top administrator, WEC
voted to unilaterally prohibit the use of Special Voting Deputies, explaining that COVID-
19 made it too dangerous to allow for Special Voting Deputies to enter these facilities.

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This Office has evidence that WEC and some clerks instructed residential care employees
to act in a manner prohibited by law, collecting and assisting in completing ballots for
individuals in these group facilities, including those with dementia. This led to record-
high voting by individuals who had not voted for nearly a decade and may have lacked
the cognitive ability to vote.

On its face, this type of activity could lead to criminal referral for the residential care
employees, as the Chairperson of WEC has suggested. But residential care staff represent
the “little fish” in this alleged criminal enterprise. This Office is reviewing the relevant
Wisconsin statutes to facilitate the criminal referral process and make legislative
recommendations. This includes reviewing legal methods for ensuring our senior
citizens are not bullied or taken advantage of, and neither nursing homes nor their
residents are used for any unlawful election activity, merely because these citizens are
vulnerable, easy targets for partisan predators.

WEC: Self-Policing and Self-Serving

Numerous members of the public, as well as the clerks, have questioned the independent
authority clerks have to administer an election consistent with state law in light of WEC’s
guidance, which in several instances was contrary to those voting laws. Some clerks feel
WEC may legally bind the clerks in granular decisions about their local needs. Other
clerks are concerned about repercussions for not following WEC guidance. Many clerks
have expressed disagreement with WEC conclusions, and some have done so publicly.
Numerous members of the public have raised concerns about WEC’s ability to police
itself: the discretionary nature of WEC intake, review, and response to complaints, and
the fact that complaints about WEC are handled—or not handled, as the case may be—
by WEC itself.

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This Office continues to interview clerks and expects to discuss with WEC staff precise
nature of WEC’s role in future Wisconsin elections.

How can the Public be Confident in Our Elections? The Black Box

As former GAB Director Kevin Kennedy noted, the new WEC system is, apparently, “no
more transparent” than the old one which he ran. Without robust legislative oversight,
many Wisconsinites are at risk of feeling their vote does not count, or that there is
widespread election fraud in the state. Worse, their fears may be well-grounded. Two
major areas of inquiry are being looked at by my Office, both dealing with the appropriate
level of transparency for our election systems. First, my Office is reviewing the laws and
procedures relating to the use of technological tools in administering elections: the
“voting machines” and the various election databases used by WEC. Second, my Office
is reviewing barriers to public access to information, such as excessive charges for public
access to public registration data.

While this Office draws no conclusions, interviews with clerks, citizens, and other groups
suggest there is widespread concern about the inability of an average citizen to track how
elections are run. This inability has huge downstream consequences, as citizens are often
presented with snippets of information reminiscent of the “confusopoly” in health
insurance. Presented with outdated data sets of dubious accuracy, citizens seeking to use
public information to confirm election results are unable to do so, while those with money
and access (or preferential contracts, as noted above) can access better data, more quickly.
Further, the precise operations of voting machines are not readily accessible or
understood by the public, or by commissioners on WEC itself. As with health insurance,
the system operates on autopilot, with the insured praying their bill is accurate, and with
voters praying the system is working as it is supposed to.

Election systems in Wisconsin are governed by state and federal law. Specifically, the
federal Election Assistance Commission (EAC) created under the Help America Vote Act

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of 2002 (HAVA) is tasked with approving all voting systems used in federal elections,
and with approving all modifications of voting systems used in federal elections. 52
U.S.C. § 20971. As a part of this, voting systems vendors submit their proposed systems
to the EAC for approval. Typically, once a system is tested and approved by the EAC,
the vendor will make a similar application to WEC, which may approve the system for
sale and use within the state of Wisconsin. However, beginning in 2015 the state of
Wisconsin allowed GAB (and now WEC) to approve systems for use in the state which
are not approved by the EAC. Wis. Stat. § 5.591. While there is thus wide discretion
vested in WEC to approve changes to voting systems, federal law mandates that “all
records and papers... relating to any application, registration, payment of poll tax, or
other act requisite to voting in such election” be preserved by the State for twenty-two
months following the election. 52 U.S.C. § 20701.

But as was made eminently clear in a recent WEC meeting held after a preservation
request issued by this Office, WEC officials and staff are not at all clear as to what
“modifications” to voting machines require WEC approval, which modifications can
lawfully be made, or what certain software updates actually entail. Further, WEC
approval of actions that might violate federal record keeping laws are no guarantee of
legal immunity for clerks with final say over what happens to voting machines in their
locales. In fact, as one machine vendor noted during that open meeting, in order to install
a software update, that company would be obliged to entirely “wipe” a machine. That is,
to delete all information from election hardware. Whether this technical process destroys
election records in contravention of federal law is a question that WEC has yet been
unable to answer.

In order to address this and related questions, this Office has been allocated a budget to
engage neutral, certificated data security experts, and has already taken steps to initiate
an open and full technical audit of various voting systems to understand and report on
the security of these systems. Whatever the results, various clerks have already
suggested they themselves do not know precisely how the voting machines work and

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rely entirely upon private contractors to assure them of system integrity. This in and of
itself may be a problem. The problem is further exacerbated in that WEC, who is
responsible for training the clerks on the machines, may not itself know how the
machines work.

Prior to the establishment of this Office, the Special Counsel did personally engage with
various outside individuals relating to various voting machine concerns. This Office
neither endorses the views of any particular outside individual nor has this Office yet
uncovered any evidence of foreign hacking of elections in the state of Wisconsin.
Nevertheless, the opacity of elections systems has given rise to numerous theories and
concerns about the 2020 election.

A second issue related to the transparency of our election system in the state is the public
availability of voter data. While this Office as yet draws no conclusions, there is already
evidence that security surrounding the WisVote (SVRS) system is lax. This statewide
system enables clerks to track absentee ballot requests and includes highly sensitive
personal information. As such, it is supposed to be subject to a high level of security laid
out in WEC guidance. Nevertheless, there is already some evidence of unauthorized
access to this database. Further, several clerks have complained that they were provided
by WEC with numerous, unrequested access keys, leading to a security headache and
concerns that the statewide system was not secure.

In addition to concerns about too much access, concerns have been raised about not
enough access, or about unequal access, to voter registration information. This is
important because access to this data is necessary for tracking the accuracy of reported
election results. WEC does provide statewide voter registration data for a fee up to, and
usually, $12,500. This fee is set by WEC administrative rule, and it is mandated by statute
that the fee be set “at an amount estimated to cover both the cost of reproduction and the
cost of maintaining the list at the state and local level.” Wis. Stat. § 6.36(6). Nevertheless,
it is apparently the case that the fee is charged for each reproduction, no matter the actual

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cost, and that subsequent individuals requesting a list that has already been produced
are charged the same rack-rate. Further, there is some evidence that outside groups were
provided privileged access to this data without fee, and on an expedited basis. This Office
continues to investigate this matter, and again, this issue is not addressed in the LAB
report.

Conclusion

The people of the state of Wisconsin have a right to know how our elections are run. The
legislature has the common law and constitutional right and obligation to investigate
how our state laws are being administered. Without adequate information and oversight,
citizens in a democracy justifiably lose confidence that their vote counts and their system
of government is working properly.

This Interim Report seeks to build upon the good work of many citizens and government
officials including the vast majority of county and municipal clerks, and to shine a light
on issues and concerns of interest. It is a healthy exercise in good government, not an
attempt to overturn any election. As this investigation continues, my Office will
vigorously seek out and obtain all available truthful information, so that it can present
this information to the public and to the Assembly.

If, in the course of this investigation, the Office obtains information that could be used in
a criminal prosecution, this Office will cooperate fully with all appropriate law
enforcement entities.

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