Clerks hold tight to ballots, machines
Subpoena deemed invalid by nonpartisan attorneys
MADISON — The top election officials in Milwaukee and Brown counties refused Friday to turn over ballots, voting machines and other material to a Republican state lawmaker because subpoenas she issued last month have been deemed invalid by nonpartisan legislative attorneys.
“Milwaukee County’s elections are transparent and fair. We have proven this fact on numerous occasions,” said a statement from George Christenson, a Democrat serving in his second term as Milwaukee County clerk.
Hours after Christenson issued his statement, an attorney for Brown County Clerk Patrick Moynihan released a letter saying he was taking the same stance. Moynihan is a Republican who was elected to his first term less than a year ago.
While officials from the two counties said they would not comply with Rep. Janel Brandtjen’s subpoenas, they could soon face new demands for documents — ones with far more legitimacy. Assembly Speaker Robin Vos of Rochester last week said he will sign subpoenas as part of an investigation of the 2020 election if the attorney overseeing the probe believes they are necessary.
Subpoenas signed by Vos could lead to a legal standoff. Some Democrats and election officials have said clerks should not turn over their material as part of an investigation into an election that multiple courts have found to be valid. Further, the U.S. Department of Justice has warned officials they could violate federal laws if they don’t maintain custody of their election records.
Brandtjen, the chairwoman of the
Assembly Elections Committee, in August issued 47-point subpoenas to Milwaukee and Brown counties that were nearly verbatim to a request made by a Republican lawmaker in Pennsylvania.
Nonpartisan attorneys for the Wisconsin Legislature deemed Brandtjen’s subpoenas invalid because they were not signed by Vos and Assembly Chief Clerk Ted Blazel.
Among the items Brandtjen sought was signature-matching software, something clerks in Wisconsin don’t use because state law doesn’t require them to check voters’ signatures.
Brandtjen last month told WKOW-TV in Madison she put the flawed subpoenas together.
“I’ll take responsibility for it,” said Brandtjen, of Menomonee Falls. “I’m not an attorney. I never claimed to be one.”
In her subpoenas, Brandtjen told Christenson and Moynihan to appear before her committee at noon Tuesday “at a county facility of your choosing.” The two clerks indicated they would not show up.
In response, Brandtjen issued a statement arguing a review of the election was essential, but she did not press further for making them come before her committee.
“With the overwhelming amount of questionable election activity in Green Bay and Milwaukee, it is clear that a thorough investigation of the physical ballots, equipment and other election materials is warranted,” she said in her statement.
In a letter to Brandtjen, Milwaukee County’s top lawyer argued her subpoena had no legal effect and had not been properly served.
“Because your subpoena was not cosigned by both the presiding officer and the chief clerk of the Assembly, we respectfully submit that it is legally invalid and void,” Corporation Counsel Margaret Daun wrote.
She noted that courts had repeatedly found the election was conducted properly and that Republican U.S. Sen. Ron Johnson this week said “there’s nothing obviously skewed about the results“in Wisconsin.
Brown County Corporation Counsel David Hemery told Brandtjen in his own letter that Moynihan wasn’t turning over ballots and voting machines because her subpoena is “invalid and unenforceable.”
“In addition,” Hemery wrote, “Brown County has received no contact whatsoever from your office regarding how you propose that Clerk Moynihan pay for the significant unbudgeted costs that would be incurred if he were to comply with your Subpoena as written, nor has any procedure been put forth by your office that would allow Clerk Moynihan to comply with said Subpoena, while at the same time complying with his duty to preserve the integrity of the election by retaining custody and control over ballots, machines and other ... materials located in Brown County that you have requested.”
Multiple rulings uphold Biden victory
Joe Biden won Wisconsin by about 21,000 votes, or 0.6 percentage points. Recounts in Dane and Milwaukee counties upheld that victory, and state and federal courts handed down a string of rulings against Donald Trump and his allies over how the election was conducted. Among those ruling against Trump’s side were the U.S. Supreme Court, the state Supreme Court and two federal judges, including one nominated by Trump.
Vos has hired former state Supreme Court Justice Michael Gableman to oversee a review of the election and has given him a taxpayer-funded budget of $676,000. Gableman, who claimed last year without evidence that the election was stolen, is supposed to complete his work by October.
Vos declined to sign Brandtjen’s subpoenas but said last week he would sign ones Gableman might seek “without hesitation.” Wisconsin lawmakers have not issued valid subpoenas in decades. Researchers for the Legislature have found the last time they used their subpoena power was in the 1960s or possibly the 1970s.
Gableman has said he wants to look into voting machines, guidance the bipartisan Wisconsin Elections Commission gave to clerks, and private donations municipalities received last year to help run their elections.
Christenson said he would respond to any “lawful requests” Gableman makes of him.
“If former Justice Gableman would like us to participate in his investigation, my office is happy to sit down with him to educate him on how elections work,” he said in his statement.
Republican lawmakers have also launched a separate review of the election that is being conducted by the nonpartisan Legislative Audit Bureau. Christenson said the county has participated in that review, which is ongoing.