Racine County prosecutor declines to bring charges against Elections Commission members over voting in nursing home

·4 min read

MADISON – Racine County's district attorney is declining to charge anyone for how voting was conducted at a Mount Pleasant nursing home in 2020.

District Attorney Patricia Hanson criticized the state Elections Commission for the policies it set but told Sheriff Christopher Schmaling in a Thursday letter that she lacked authority to charge the commissioners because none of them live in Racine County.

In addition, she said she would not charge any of the staff at the Ridgewood Care Center in Mount Pleasant, as Schmaling requested.

"It would be unfair for me to expect that these health care professionals would better understand the election laws in Wisconsin than the Wisconsin Elections Commission," Hanson wrote, according to a copy of the letter posted online by WisPolitics.com.

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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 emphasis here was: these people had a right to vote, they had a right to vote safely," Ann Jacobs, the Democratic chairwoman of the commission, said in an interview Friday.

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.

Schmaling investigated voting at Ridgewood and contended some residents should not have voted based on his interviews with staff and family members.

In November, he recommended that Hanson bring felony charges against the five commissioners who consistently backed keeping voting deputies out of nursing homes.

Hanson, who like Schmaling is a Republican, remained quiet about the issue for three months. She determined in her Thursday letter that she could not charge the commissioners because they don't live in her county. She did not recommend having other district attorneys or Democratic Attorney General Josh Kaul pursue the matter.

"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," she wrote. "If even one person’s right to freely choose to vote or not to vote was diminished, then a travesty of justice has occurred."

Attorneys for the five commissioners welcomed Hanson's decision not to charge the commissioners but criticized her for implying they had engaged in wrongdoing.

"Publicly and falsely accusing public servants of crimes they did not commit is a dangerous attack on our democracy. These shameful and unfounded attacks undermine the bedrock of our institutions, and must cease," attorneys Craig Mastantuono and Matthew O’Neill said in a written statement.

Until they issued their statement, it had not been publicly known that the commissioners had hired private attorneys.

Jacobs criticized Hanson for errors in the letter, such as one that said voting deputies can question whether residents are competent to vote. Only a judge can find someone incompetent for voting purposes.

"These are basic errors that show that this is essentially a partisan recitation of false facts rather than a sage legal opinion," Jacobs said of the letter.

She said Hanson did not account for whether special voting deputies could get into nursing homes during the pandemic, saying administrators would not let them in because of public health orders.

"She doesn't explain what was supposed to happen if the SVDs went and someone said, 'I'm sorry. We're following federal and state law and guidance.' What then? They were going to burst through and demand it?'" Jacobs said.

Other commissioners have made similar arguments, saying if they had not told clerks to quickly send absentee ballots to nursing homes, some residents would not have gotten them in time to vote, they have said.

They have noted that lawmakers didn't address the issue in 2020 even though they were aware of the problem at the time.

Contact Patrick Marley at patrick.marley@jrn.com. Follow him on Twitter at @patrickdmarley.

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This article originally appeared on Milwaukee Journal Sentinel: Racine County DA declines to bring charges over nursing home voting