Milwaukee County DA becomes 2nd prosecutor declining to charge state election commissioners over nursing home votes
MADISON - A second county prosecutor has declined to charge state election commissioners with felony crimes recommended by the Racine County sheriff over guidance the officials issued to help nursing home residents vote during the most threatening months of the coronavirus pandemic.
A prosecutor in Milwaukee County District Attorney John Chisholm's office cited a lack of evidence and jurisdiction in a letter he sent Monday to Racine County Sheriff Christopher Schmaling, who asked Chisholm to prosecute Wisconsin Election Commission members and county residents Ann Jacobs and Mark Thomsen.
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"These public servants acted in good faith to protect our most vulnerable elderly citizens at the height of pre-vaccine COVID outbreak while protecting their the right to vote,” Craig Mastantuono, an attorney representing Jacobs and Thomsen, said in a statement.
Schmaling recommended the charges after investigating how voting was conducted in a Racine County nursing home and concluded some residents should not have voted based on his interviews with the residents' family members and staff at the facility.
In his analysis, Milwaukee County Assistant District Attorney Matthew Westphal said the office's review did not find evidence to support Schmaling's conclusions.
"Several claims have been raised surrounding potential fraud in the balloting process. There does not appear to be any support for such propositions," Westphal wrote.
"Claims have been made that residents who did not request a ballot voted because someone requested a ballot on their behalf and voted on their behalf. There has been no evidence submitted that any of the individuals who received ballots did not request them."
Racine County Lt. Michael Luell said in October one resident of the Ridgewood Care Facility in Mount Pleasant likely voted illegally in the November 2020 election against a court order declaring the resident incompetent to vote. Commissioners said at the time if the allegations were true, the local district attorney should bring charges.
Luell said another seven residents with serious cognitive problems were "victimized" because trained poll workers were not allowed on site, leading to nursing home workers allegedly filling out information on ballots and ballot envelopes for the residents who he said were not able to make sound decisions.
Westphal said Monday "absent such a court adjudication, a family's concerns about an individual's ability to vote would not disqualify that person from requesting a ballot and voting."
"Further, none of the individual electors were interviewed to determine whether they did request a ballot or request someone do so on their behalf. Regardless, the WEC had no role in requesting ballots or voting on behalf of residents.... There is no evidence they conspired or encouraged anyone to improperly request or submit a ballot."
Schmaling first referred the charges to the Racine County District Attorney Patricia Hanson, who declined in February because the commissioners did not live in Racine County. Schmaling then referred the same charges to prosecutors in four counties where five of the six commissioners live.
"It is appalling to me that an appointed, unelected group of volunteers, has enough authority to change how some of our most vulnerable citizens access voting," Hanson wrote in a letter explaining her decision. "If even one person’s right to freely choose to vote or not to vote was diminished, then a travesty of justice has occurred."
State law requires election clerks to send poll workers known as special voting deputies to nursing homes to assist residents with voting. The six-member commission unanimously voted in March 2020 to advise clerks not to follow that law because nursing homes weren't allowing visitors as the coronavirus spread.
Instead, the commission told clerks to immediately mail absentee ballots to nursing home residents who requested them.
The commission, which consists of three Republicans and three Democrats, set the same policy for other elections in 2020 and early 2021. Those votes were 5-1, with Republican Commissioner Bob Spindell in dissent.
Few criticized the policy at the time, but Republican lawmakers turned against it after the November 2020 election.
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Contact Molly Beck at molly.beck@jrn.com. Follow her on Twitter at @MollyBeck.
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This article originally appeared on Milwaukee Journal Sentinel: Milwaukee County DA declines to charge state election commissioners
