May 26, 2024

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‘Blurring of lines’: Private lawyer plays starring role in taxpayer-funded election probe | Local Government

Attorney Erick Kaardal asks a nursing home resident who voted absentee in November 2020 about the election in this video played for the Assembly elections committee. The video suggested the resident must have had help filling out her ballot.

A private attorney with a deeply partisan history has emerged as a lead investigator in a Wisconsin taxpayer-funded investigation of the 2020 election.

Attorney Erick Kaardal of the Thomas More Society has collaborated with former Wisconsin Supreme Court Justice Michael Gableman on the $676,000 investigation into alleged election fraud launched by Assembly Speaker Robin Vos, R-Rochester.

Although he lacks a contract or official role in Gableman’s taxpayer-funded probe, Kaardal has become a de facto lead investigator.

A Wisconsin Watch analysis shows roughly half of the chapters in Gableman’s 136-page interim report are based on Kaardal’s work.

Since September, the Minnesota attorney and the conservative Chicago law firm for which he works have subleased office space for about $3,000 a month directly from a company owned by Gableman.

Erick Kaardal

Erick Kaardal, an attorney for the Thomas More Society, delivers remarks to members of the Wisconsin Assembly elections committee on March 1.

Kaardal’s and Thomas More Society’s connections to — and potential influence on — Gableman’s investigation stretch beyond 2,100 square feet of office space. As a private attorney, Kaardal also represents people featured in Gableman’s investigation — clients he charges are victims of “voter abuse.”

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Rep. Mark Spreitzer, D-Beloit, a member of the Assembly Committee on Campaigns and Elections, said he “absolutely” has concerns about the relationship between Kaardal, the Thomas More Society and Gableman.

Spreitzer also criticized the quality of the information Gableman has released so far, such as the suspiciously high voter turnout rates for nursing homes — claims that media organizations have debunked — calling it “cherry-picked (data) at best, and simply wrong at worst.”

Gableman’s office did not return a message seeking comment, and neither did representatives for Vos or Democratic Attorney General Josh Kaul, who is suing Gableman and Vos, arguing they lack authority to force officials to participate in the investigation.

Gableman’s original contract expired at the end of last year, but was extended through the end of this month. It now appears to be nearing a close. Gableman has said recently Vos intends to halt his investigation before the end of April.

‘Pro-family’ group shifts to elections

For nearly 25 years, the Thomas More Society was best known for filing anti-abortion and “pro-family” litigation, including representing a California baker who refused to make a cake for a same-sex couple’s wedding.

But in recent years, Kaardal and the Thomas More Society have become central figures in questioning the validity of the 2020 election — pushing theories that judges, audits and other reviews have rejected.

The society’s funding has ballooned as it added election-related litigation to its focus areas. Its financial statement for the 2020 fiscal year, the most recent available, showed $17.4 million in revenue, up from $9.6 million the previous year.

That money has helped Thomas More file lawsuits in multiple states challenging how the 2020 election was administered, with a particular interest in the grant money to local municipalities from the Center for Tech and Civic Life, a Mark Zuckerberg-funded charity.

Among Kaardal’s other election-related lawsuits is a 2020 case against then-Vice President Mike Pence, Congress and others seeking to stop the Electoral College count that was so filled with “baseless fraud allegations and tenuous legal claims” that the judge filed an ethics referral against him. Kaardal declined to comment on the matter, which is still pending.

Last month, as Gableman presented the findings in his interim report to the Assembly Committee on Campaigns and Elections, he complimented Kaardal and the Thomas More Society, saying they had done “very substantial and very wonderful work on behalf of the people of this state.”

‘Unseemly’ relationship?

Much of what Gableman released last month repackaged previous work from Kaardal and the Thomas More Society, including video interviews with seven of Kaardal’s own clients.

Tom Brejcha, Thomas More’s president, said in an interview that he saw no conflicts of interest with the connections and communications between himself, his law firm and Gableman.

Gableman had shared information with them, he said, but nothing that was confidential.

At one point, Brejcha accused Wisconsin Watch of launching an “attack” on Gableman. “I don’t care to continue this anymore,” he said, and eventually hung up.

Jeff Mandell, a Madison attorney who specializes in election law, said it’s an “unseemly” relationship between entities with different goals.

“There’s certainly a blurring of lines,” he said, “between what’s supposed to be an independent government investigation and private, partisan actors.”

‘Protect people from government’

Kaardal has been a lawyer since the early 1990s and, in his own words, has made a career of suing “to protect the people from the government.”

As the 2020 election neared, Kaardal filed a flurry of lawsuits in multiple states.

He sued over masks mandated for in-person voting in Minnesota, which he lost. He represented Kanye West in his attempts to get on the presidential ballot in Wisconsin, and lost.

And in December 2020 he filed a lawsuit on behalf of plaintiffs including the Wisconsin Voters Alliance — part of a multistate “election integrity watchdog” alliance — to prevent Pence and Congress from counting the electoral votes on Jan. 6, arguing that only state legislatures had the authority to certify the election. It was that lawsuit, which Kaardal withdrew the day after the election was certified, that prompted the ethics referral.

Election grants at heart of probe

In his March presentation to the committee, Gableman adopted the Thomas More Society’s oft-repeated claim that officials in five Democratic-leaning cities — Green Bay, Kenosha, Milwaukee, Madison and Racine — committed “election bribery” by accepting $8.8 million in grants.

Gableman charges that officials in those “Zuckerberg 5” cities used illegal grant money from the Center for Tech and Civic Life — which went to more than 200 Wisconsin municipalities — to facilitate voting. The money went toward training additional election workers, adding secure ballot drop boxes, conducting voter education campaigns and other tasks.

The state election bribery law bans anyone from giving money, employment or anything else of value to entice someone to vote or not vote, or to vote a particular way. Gableman devotes nearly half of his 136-page interim report to these grants.

Prior to the election, Kaardal filed a federal lawsuit in Wisconsin over the CTCL money, which a judge dismissed. After the election, he filed complaints with the Wisconsin Elections Commission, which were also thrown out.

“We can’t have third parties using private money to influence cities to do an illegal … election administration,” Kaardal said. “And so that’s why we’re gonna win.”

But so far, that hasn’t happened.

He has filed state and federal lawsuits over the CTCL grant money in at least five states: Wisconsin, Michigan, Pennsylvania, Iowa and Georgia. Kaardal lost all the lawsuits filed before the election. Some suits he filed after the election remain pending.

Atiba Ellis, a Marquette University Law School professor who specializes in election law, said grants to help municipalities run elections are accepted practice across the country.

“Short of voters getting paid directly out of these grants, it seems difficult for me to make a connection between what the folks who are getting these grants are doing and credible claims of bribery,” Ellis said.

He said labeling the grants as election bribery is “a dangerous road to go down” because local governments rely on grant money to carry out all sorts of basic functions.

Spreitzer said he asked the Legislative Council for any case law supporting Gableman’s bribery claim. He said there was none.

Kaardal’s competency tests

A second major claim by Kaardal and the Thomas More Society that landed in Gableman’s report: that nursing home residents who lacked mental capacity to vote had cast absentee votes — a practice they call “voter abuse.”

In four cases, Gableman alleged that residents who had been found legally incompetent to vote had cast ballots, which raises questions about the validity of those votes.

But in other cases, Gableman relied on Kaardal’s personal assessment to question a voter’s competence.

That is not how Wisconsin law works, however. Only a judge in the context of a guardianship proceeding can determine whether a person has the mental capacity to cast a ballot, according to the Wisconsin Elections Commission.

Gableman included videos of Kaardal interviewing nursing home residents along with their guardians — who are also Kaardal’s clients — in his presentation to the Assembly committee.

The befuddled residents often stumbled over their answers to Kaardal’s sometimes long-winded questions.

Gableman described Kaardal’s test as “questions that are put out by the elections boards to help determine whether someone has the acuity to be able to make a knowing choice for voting. He’s not making these questions up. They’re standardized questions to determine if a potential voter has the mental capacity to vote.”

But Kaardal described them much differently. He told Wisconsin Watch he found the questions online in a law review or medical journal article. While on the phone with a reporter, Kaardal searched for the article and its questions online, but could not find them. He said he searched under “competency assessment test for voting.”

Barbara Beckert, of the advocacy group Disability Rights Wisconsin, criticized Kaardal’s competency exam.

“Wisconsin does not require or allow voting tests that people must pass in order to vote — nor should they,” Beckert said. “No voter in Wisconsin has ever (been) asked this type of question, and voters are never asked to explain why they vote for a particular candidate.”

After Gableman showed the videos during the March 1 hearing, Spreitzer said he submitted an open records request for the full, unedited version of the interviews. He was told Gableman didn’t have them — raising yet more questions, Spreitzer said, about the role of Kaardal and the Thomas More Society in the investigation.

The nonprofit Wisconsin Watch ( collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.

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