How nursing home voting in Wisconsin became a focus of Republicans scrutinizing the 2020 election

How residents of nursing homes voted during the 2020 election in Wisconsin has become a central focus of Republicans questioning the outcome of the presidential contest, even though recounts, an independent audit and a report from a conservative group all verify the result that Joe Biden defeated Donald Trump by more than 20,000 votes in the state.

The attention on care facilities results from a pandemic-driven decision by the Wisconsin Elections Commission to advise clerks to ignore a state law requiring poll workers known as special voting deputies to try to visit the facilities twice to assist with voting before sending the residents absentee ballots.

The commissioners said adhering to the law during the early months of the pandemic would have wasted precious time because most, if not all, facilities were barring visitors at the time. Instead, commissioners advised mailing absentee ballots to the facilities to protect a population vulnerable to the coronavirus and to ensure the ballots got to the voters in enough time to cast them.

The decision prompted an investigation by the Racine County Sheriff's Office into voting in one nursing home after a family member of one of the residents reported their mother had voted despite having little cognitive ability to make such a decision. Similar instances of voting were cited by former Supreme Court Justice Michael Gableman as evidence of fraud in the 2020 election when he delivered a report last month to Republicans in the state Assembly.

Here is a look at the issue of nursing home voting in Wisconsin:

The Racine County Sheriff's Office recommended criminal charges over nursing home voting

Racine County sheriff's investigators say that as a result of guidance from the Wisconsin Elections Commission to ignore a state law that says special voting deputies should be dispatched to nursing homes to assist with voting, 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.

Racine County Sgt. Michael 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 whom he said were not able to make sound decisions.

As a result, Racine County Sheriff Christopher Schmaling recommended criminal charges be filed against five of the six elections commissioners over their advice to local election clerks.

How is voting supposed to be conducted in nursing homes and how did elections in 2020 deviate from that?

State law requires municipal clerks to dispatch poll workers known as special voting deputies to nursing homes to assist residents with filling out ballots.

For the 2020 elections, starting with the April general election and presidential primary, the Wisconsin Elections Commission told clerks to ignore that law and, instead, mail absentee ballots to nursing home residents because the facilities were not accepting visitors during the coronavirus pandemic. In the fall of 2020, more than 100 nursing home residents in Wisconsin were dying per week of COVID-19.

The vote by the commission — made up of three Democrats and three Republicans — in March 2020 was 6-0. In subsequent votes on continuing the guidance for later elections, Republican commission member Bob Spindell split with the rest of the commission, resulting in 5-1 votes.

Former Supreme Court Justice Michael Gableman's report questioned voting in nursing homes

Gableman's report says his team investigating the 2020 election at the behest of Republicans in the Assembly found some facilities where all registered voters cast ballots. Gableman played videos for the committee of nursing home residents who he said weren't mentally fit to vote. Gableman's team studied nursing home voting in Dane, Milwaukee and Racine counties.

Was there 100% voter turnout in nursing homes, and is high turnout in such facilities unusual?

Probably not and no.

Voting data from the largest city casts doubt on Gableman's conclusions.

Data provided to the Journal Sentinel by Milwaukee Election Commission Director Claire Woodall-Vogg show no nursing homes in the largest city included in Gableman's review experienced 100% turnout.

Overall, turnout in nursing homes in Milwaukee was 79%, according to data provided by Woodall-Vogg. And a smaller number of Milwaukee residents voted in such facilities in 2020 than in 2016, according to the Wisconsin Elections Commission.

Have any prosecutions resulted from the Racine County sheriff's report?

No. The Racine County district attorney said her hands were tied in pursuing a case because the members of the Wisconsin Elections Commission were not residents of Racine County. She did not question the merits of any case against the commissioners.

"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," District Attorney Patricia 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."

Two of the commissioners are residents of Milwaukee County and prosecutors there said they would not be pursuing charges.

A prosecutor in Milwaukee County District Attorney John Chisholm's office cited a lack of evidence and jurisdiction in a letter he sent Schmaling, who asked Chisholm to prosecute Wisconsin Election Commission members and county residents Ann Jacobs and Mark Thomsen.

"Several claims have been raised surrounding potential fraud in the balloting process. There does not appear to be any support for such propositions," Assistant District Attorney Matthew Westphal wrote.

Soon after, Green Lake County District Attorney Gerise Laspisa announced she would not charge Commissioner Marge Bostelmann because of a lack of evidence.

Has the Elections Commission changed its guidance for nursing home voting in the 2022 elections?

The commission restored its guidance to again dispatch special voting deputies to nursing homes after the pandemic subsided in 2021.

About this feature

This is a weekly feature for online and Sunday print readers delving into an issue in the news and explaining the actions of policymakers. Email suggestions for future topics to jsmetro@jrn.com.

Our subscribers make this reporting possible. Please consider supporting local journalism by subscribing to the Journal Sentinel at jsonline.com/deal.

DOWNLOAD THE APP: Get the latest news, sports and more

This article originally appeared on Milwaukee Journal Sentinel: What you need to know about nursing home voting in Wisconsin in 2020