Introduction
The Office of the Special Counsel files this Investigative Report on Wisconsin’s
administration of the 2020 elections as a first step to begin restoring faith in America’s
elections. This effort is undertaken because Americans’ faith in its election system was
shaken by events both before and after the November 2020 Presidential election. For
example, a January 2022 ABC/Ipsos poll revealed that only 20% of the public is very
confident about the integrity of our national election system. This 20% number is a
significant drop from 37% from a similar ABC poll conducted one year earlier. America’s
doubts about its election system crosses partisan lines. Among Democrats, only 30% say
they are “very confident” in the U.S. election systems overall. Among independents, only
20% consider themselves “very confident” in the nation’s elections. Among Republicans,
only 13% are “very confident” with America’s elections.
This shaken faith is not a result of legitimate legislative inquiries into election
administration, nor is it a result of lawful contests lodged by any candidate or party. Rather,
it is largely a function of opaque, confusing, and often botched election processes that could
have been corrected, and still can be corrected, with concerted effort on the part of
lawmakers and conscientious civil servants who work for Wisconsin State government.
Helping correct these processes for future elections is the major purpose of this Report.
On November 10, 2021, the Office of the Special Counsel (OSC) outlined the
preliminary steps it had taken to undertake a fully comprehensive review of the 2020
elections in the State of Wisconsin. That document outlined the constitutional authority of
the people of the State of Wisconsin, through their Legislature, to investigate their own government.
That Interim Report also outlined the initial roadblocks to a full investigation,
and expressed the expectation that the information necessary to provide democratic
accountability for and oversight of Wisconsin election proceedings was forthcoming. As
outlined in Appendix I, OSC and the Assembly continue to be blocked from investigating
portions of the Wisconsin government. Not only has the Wisconsin Attorney General
intervened (and lost) in court to block certain subpoenas, and not only have left-wing
groups provided support adverse to Wisconsin taxpayers—for instance by providing legal
support to government employees seeking to keep their work secret, filing dilatory open
records requests, and advancing frivolous complaints before various boards—but the
Administrator of the Wisconsin Elections Commission (WEC) has explicitly stated to the
Chairwoman of the Assembly Committee on Campaigns and Elections that she is
prohibited by law and by private contract from turning over certain public records. Until
these lawsuits are resolved, there appears to be no way to fully vindicate the right of the
people of the State of Wisconsin to know how their government is run. Such lawsuits have
proved a costly and time-wasting exercise.
Nevertheless, the OSC has continued to investigate available records, interview
witnesses, and make substantial headway on several issues contained in this report.
Further, good work by citizens’ groups has provided the Assembly and the OSC with useful
leads on how best to cure various systemic problems in the State.
While WEC and the State Attorney General have refused to cooperate with the
Legislature’s investigation and actively obstructed it, this Report is final in the sense that it provides a list of recommendations with enough time for the Legislature to act before the
close of its session in March. However, the Assembly continues to authorize the OSC to
operate past the final adjudication, on the merits, of the various legal challenges to the valid
legislative subpoenas we have issued. Following any favorable adjudication, the OSC will
manage and process the voluminous responsive records, and will facilitate any available
audits.
Despite this cover-up, or perhaps because of it, the OSC can still reach certain
conclusions about the integrity of election administration in the State of Wisconsin, and we
can still make baseline recommendations. While we cannot, for example, recommend
certain server protocols because we have been unable to obtain government records
detailing precisely what the numerous electronic systems entail (Wisconsin uses numerous
machine and system vendors) or precisely how the existing systems were used in 2020, we
do have information relating to how confusing and opaque the system is. It is beyond doubt
that no single governmental person or entity in the State of Wisconsin has a handle on these
systems—that is a damning indictment on its own. Elections systems must be readily
understandable by voters and newly elected county clerks—confusing systems harm voter
confidence and tend to facilitate fraud.
The facts contained in this report are substantiated by records the OSC has made
available to the Assembly and other public information. To the extent that any of these
facts are disputable, the OSC encourages any individual named in this Report, any subject of validly issued legislative subpoenas, or any other fact witness to make themselves
available to the OSC for interview.
Accordingly, at this stage, the recommendations included in this Report largely fall
within the umbrella of enabling oversight and transparency of our election systems. It
draws no conclusions about specific, unauthorized outside interference or insider threats to
machine voting, but it does provide numerous examples of security gaps that tend to enable
bad actors to operate in the shadows. Absent access to these systems, it would not be unfair
for any citizens to conclude the worst, however. It is a commonplace in the law for it to
assume the worst about the nature and impact of hidden or destroyed evidence, and it is up
to government to justify its actions to the people, not the other way around.
A few additional recommendations in this Report fall within the second umbrella—
maintaining political accountability. While it is clear that the outside groups and the
bureaucrats in Madison who run our elections have not been accountable to the voters or
the state government, there are some measures that can help return our State to a functional
democracy.
This Report has another purpose: to catalog the numerous questionable and unlawful
actions of various actors in the 2020 election.
Some unlawful conduct and irregularities outlined in this Report include:
1. Election officials’ use of absentee ballot drop boxes in violation of
Wis. Stat. § 6.87(4)(b)1 and § 6.855;
2. The Center for Tech and Civic Life’s $8,800,000 Zuckerberg Plan
Grants being run in the Cities of Milwaukee, Madison, Racine, Kenosha and Green Bay constituting Election Bribery Under Wis. Stat. § 12.11;
3. WEC’s failing to maintain a sufficiently accurate WisVote voter
database, as determined by the Legislative Audit Bureau;
4. The Cities of Milwaukee, Madison, Racine, Kenosha and Green Bay
engaging private companies in election administration in
unprecedented ways, including tolerating unauthorized users and
unauthorized uses of WisVote private voter data under Wisconsin
Elections Commission (WEC) policies, such as sharing voter data for
free that would have cost the public $12,500;
5. As the Racine County Sheriff’s Office has concluded, WEC
unlawfully directed the municipal clerks not to send out the legally
required special voting deputies to nursing homes, resulting in many
nursing homes’ registered residents voting at 100% rates and many
ineligible residents voting, despite a guardianship order or incapacity;
6. Unlawful voting by wards-under-guardianship left unchecked by
Wisconsin election officials, where WEC failed to record that
information in the State’s WisVote voter database, despite its
availability through the circuit courts—all in violation of the federal
Help America Vote Act.
7. WEC’s failure to record non-citizens in the WisVote voter database,
thereby permitting non-citizens to vote, even though Wisconsin law
requires citizenship to vote—all in violation of the Help America Vote
Act. Unlawful voting by non-citizens left unchecked by Wisconsin
election officials, with WEC failing to record that information in the
State’s WisVote voter database; and
8. Wisconsin election officials’ and WEC’s violation of Federal and
Wisconsin Equal Protection Clauses by failing to treat all voters the
same in the same election.
It is important to state what this Report is not. This Report is not intended to re-
analyze the re-count that occurred in late 2020. And the purpose of this Report is not to
challenge certification of the Presidential election, though in Appendix II we do sketch
how that might be done. Any decisions in that vein must be made by the elected
representatives of the people, that is, the Wisconsin Legislature. Yet it is clear that
Wisconsin election officials’ unlawful conduct in the 2020 Presidential election casts grave
doubt on Wisconsin’s 2020 Presidential election certification. This Report thus does
surface very big questions: how should Presidential election certification occur in
Wisconsin going forward and would the Legislature have any remedies to decertify if it
wanted to do so?
In 2020 in Wisconsin, the certification of its Presidential election spanned two steps
and to a large extent operated in a legal vacuum. First, on November 30, 2020, Wisconsin
Elections Commission (WEC) Chairperson Ann Jacobs, on her own and without a full
Commission vote, signed the “determination of the recount and the presidential contest.”
This unilateral action led one of the sidelined Commissioners to call for Jacobs’
resignation. Second, a few hours later, Governor Tony Evers certified the results of the
state’s November 3 election by signing the Certificate of Ascertainment that approved the
slate of electors for President-elect Joe Biden and Vice President-elect Kamala Harris.
Neither the WEC Chairperson nor the Governor had an incentive to proceed with
greater deliberation and address the serious concerns of citizens and other Commissioners.
This is a serious gap in the legal structure governing elections that should be corrected as
far in advance of the 2024 presidential election as possible. In the meantime, many of the
doubts relating to large categories of ballots are continuing to be both broadened and
deepened. Recently, a Wisconsin court invalidated the use of drop boxes. Additionally, this Report flags systematic problems with voting in elder care facilities, an issue that was also recently blown wide open by the Racine County Sheriff.
There are other issues outlined in this Report, many of which could justify post-
election administrative correction by WEC under Wis. Stat. § 5.06, which authorizes
exactly such a post-certification process to correct mistakes made by election officials.
Administrative corrections under Wis. Stat. § 5.06 would flush out election officials’
unlawful conduct. Such a post-certification administrative correction will not de-certify
the election on a self-executing basis, but these challenges, which can be filed by any voter
in an election (or by district attorneys or the Attorney General of the State), are a
worthwhile step to take. However, as noted, these complaints are directed to WEC. But
complaints about WEC cannot fairly be adjudicated by this body—another legal gap.
It is the duty of all citizens of our State and our nation to work hard to secure our
democracy for this generation and the next. This Report is one small step towards fulfilling
that duty we all share. And without the tireless work of concerned citizens, and dedicated
public servants such as the Sheriff of Racine County, much of what is made public in this
Report would not have been exposed to the light. In our own way, we can each do our
part, whether by voting, or by volunteering, or by leading campaigns to improve the
integrity of our elections. The true story of the 2020 elections in Wisconsin might never
be fully known—as noted, the constitutional duty of the Legislature is still imperiled in the state courts–but the recommendations in this Report constitute a good beginning…