Despite empty booths at Washington High School in Milwaukee's Sherman Park neighborhood on the city's north side, poll workers say they saw light, but steady turnout, but no lines by mid-afternoon on Election Day 2020. Photo by David Wise, Nov. 3, 2020.

The state Elections Commission voted unanimously to reject a complaint against 10 Republican electors who submitted documents to the federal government claiming they were casting Wisconsin’s votes for Donald Trump even though Joe Biden won the state.

Commissioner Bob Spindell participated in the unanimous commission vote despite being one of the 10 electors who was accused of breaking the law.

With Spindell a target of the complaint, the agency went to the state Department of Justice for outside counsel, and Assistant Attorney General Mike Murphy found the 10 electors didn’t violate Wisconsin election laws. He found they were trying to keep their legal options open as Trump challenged Biden’s win by just under 21,000 votes. He also found their efforts were similar to what electors did in Hawaii 60 years earlier.

Former state GOP Chair Andrew Hitt, one of the 10 electors and a target of the complaint, said he hoped now “those ascribing greater meaning to a simple effort to preserve legal strategy can now recognize there was no intent to do anything but ensure paperwork was in place in case of a favorable court decision.”

But Jeffrey Mandell, an attorney involved in the complaint, said the finding was wrong on the substance and called it “procedurally shocking” that Spindell was allowed to participate in the vote.

“It’s fundamental to American jurisprudence that no one gets to be both the accused and the just, and that is exactly what they allowed to happen here,” Mandell said.

Spindell didn’t immediately return a call seeking comment.

The complaint was one of several legal inquiries launched into the activities of the 10 electors. A U.S. House committee subpoenaed Hitt and a second elector about their actions as part of its look at the Jan. 6 violent protest at the U.S. Capitol.

Trump challenged Wisconsin’s election results both through the state and federal courts after a recount in heavily Dem Dane and Milwaukee counties upheld Biden’s victory. The state Supreme Court issued its ruling rejecting Trump’s lawsuit to overturn the results hours before Wisconsin’s electors were to officially meet Dec. 14 and cast their votes for Biden and Kamala Harris.

Two days earlier, a federal judge in Milwaukee had rejected a similar lawsuit.

Trump would later appeal both rulings with the effort continuing until the U.S. Supreme Court refused to hear the cases in February and March 2021.

While Dem electors met in the guv’s conference room of the state Capitol, the alternate slate of GOP electors met elsewhere in the building. It wasn’t publicly noticed other than a footnote in a court filing in one of the Trump lawsuits challenging the results. The GOP electors signed documents and submitted them to the U.S. Senate, the Wisconsin secretary of state, the archivist of the United States and the chief judge for the Western District of Wisconsin.

Murphy cited a social media post from Bill Feehan, another of the alternate electors, that they were keeping their options open and a statement from Hitt they were seeking to preserve their “role in the electoral process with the final outcome still pending in the courts.”.

Murphy found state law doesn’t bar an alternate set of electors from meeting. Still, he wrote in a memo to the commission it was a “valid criticism” that the GOP electors could’ve been more clear in the materials they submitted that they were keeping open legal options because it would’ve been “more accurate, and may have prevented confusion or concern.”

He also drew a parallel to 1960, when Hawaii was still conducting a recount of its presidential results at the deadline for states to cast their electoral votes. Then, electors for both parties met to cast their votes. Nine days later, the recount found John Kennedy had won by 115 votes after he was initially down by 141. A court certified the results in Kennedy’s favor, and his electoral votes were counted by Congress.

Murphy made clear in his memo to the commission that he was only addressing the allegation that the GOP alternate electors violated state elections laws and not other issues surrounding their actions.

There has been a complaint filed with the Office of Lawyer Regulation over Hitt’s actions, as well as requests for the Dane County DA and Wisconsin Department of Justice to investigate the matter. The Milwaukee County DA’s office declined to pursue a complaint filed with that office, saying it didn’t have jurisdiction.

The commission dismissed the complaint during the closed session portion of last week’s meeting. The ruling was made public Tuesday.

See the notice of the decision:
https://www.wispolitics.com/wp-content/uploads/2022/03/220315Ruling.pdf

See Murphy’s memo:
https://www.wispolitics.com/wp-content/uploads/2022/03/220315Memo.pdf

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