MADISON – A Republican running for governor sued Wisconsin election commissioners Monday just as the Assembly speaker argued five of them — including one he appointed — should be charged with felonies.
Former Lt. Gov. Rebecca Kleefisch, who served in former Gov. Scott Walker's administration when the agency was created and is running for governor in 2022, asked the state Supreme Court on Monday to declare illegal the commission's guidance allowing ballot drop boxes, nursing home poll workers and consolidated polling places.
The lawsuit was filed a day after Assembly Speaker Robin Vos, R-Rochester, said members of the state elections commission "probably" should be charged with felonies over the guidance they adopted last year to ensure nursing home residents received absentee ballots by telling clerks not to follow a state law requiring poll workers to first attempt to visit the residents before sending out ballots.
Kleefisch in a statement said her lawsuit would force the commission "to clean up their act prior to administering the 2022 election."
A spokesman did not respond to a request for an interview.
The Wisconsin Elections Commission is facing fire from the people who created the bipartisan agency six years ago after a recent Racine County investigation determined one resident of a Mount Pleasant nursing home voted absentee in the 2020 election despite being ruled incompetent by a judge.
That resident and seven others at the facility voted absentee because of the commission's guidance, Racine County Sheriff Christopher Schmaling has alleged.
Schmaling in October recommended that five of the six members of the Elections Commission be charged with felonies over the guidance. District Attorney Patricia Hanson has not said whether she will charge anyone.
Schmaling and Lt. Michael Luell have said they found that ballots were not stored securely at the Ridgewood Care Center in Mount Pleasant and questioned whether some of the residents had the mental capacity to cast ballots. Aside from criminal reasons, a person's right to vote may only be removed by a judge.
The investigation's findings were released nearly a year after it began and around the time both GOP-controlled houses of the Legislature launched reviews of the 2020 election and the Legislative Audit Bureau released a report on the commission.
The scrutiny over how Wisconsin elections are administered intensified in late 2020 when former President Donald Trump falsely claimed widespread voter fraud was responsible for his reelection loss.
Nursing home guidance approved in public meeting
The commission voted to adopt the guidance under fire nearly two years ago in public meetings and at a time when nursing homes were restricting visitors because of COVID-19's significant risk of serious illness and death to residents. Lawmakers did not take action against the guidance at the time.
Vos in an appearance on WKOW's "Capital City Sunday" said "there really was nothing more for us to do (in 2020) because the law was crystal clear."
State law says municipal clerks must send poll workers known as special voting deputies to nursing homes so residents can vote. The voting deputies are supposed to make two attempts to visit the nursing homes and after that the clerks can mail residents absentee ballots.
The commission voted unanimously to tell clerks to mail absentee ballots to nursing homes immediately instead of dispatching voting deputies for the April 2020 election for state Supreme Court.
When he asked whether the Racine County district attorney should file charges against five of six commissioners, Vos said "probably."
"I think probably, but I'm not a district attorney. I'm certainly not a lawyer," Vos said. "But I certainly think anybody who breaks the law should pay the ultimate price to say I won't do it again. And you either plead guilty and you say I understand that was a mistake or you go to court and defend yourself. So I assume that that will be the process that plays out there."
Commission chairwoman Ann Jacobs, a Democrat, did not immediately respond to a request for comment. Commission chairman Dean Knudson, who was appointed by Vos, also did not immediately have a reaction.
Senate Majority Leader Devin LeMahieu, R-Oostburg, did not answer a similar question posed to him during an interview on WISN's "UpFront" Sunday morning political news show.
"I'll leave that up to the prosecutors around the state of Wisconsin," LeMahieu said.
Assembly Minority Leader Gordon Hintz, D-Oshkosh, said in a tweet on Sunday that Vos' statements were "appalling."
"It’s appalling that there are elected officials threatening to arrest and imprison individuals serving on a bipartisan state election commission for ensuring that certain older people could vote in an election during the pandemic," Hintz said.
"If these clowns get away w/a witch hunt that criminally charges or implies criminal behavior by bipartisan people serving on the WI Election Commission, then we are witnessing an abuse of power not seen before."
Court declined to take earlier challenge to drop boxes
Kleefisch’s move comes five months after the high court declined to accept a challenge to the use of drop boxes.
Businessman Jeré Fabick in March sued election officials to try to prevent them from using ballot drop boxes. He had hoped to prevent their use in the April election for state schools superintendent.
Fabick brought his lawsuit directly to the state Supreme Court. Typically, challenges to election practices are first filed with the Elections Commission. From there, the challenges go to circuit court and then to higher courts.
On a 4-3 vote, the justices declined to take the case in June, writing that the issues were not “cleanly presented.” The justices noted Fabick had not followed normal procedures, writing that they were not "on call to answer questions from citizens, legislators or executive branch officials whenever the answer to a statutory question is unclear."
The majority consisted of the court's three liberals — Ann Walsh Bradley, Rebecca Dallet and Jill Karofsky — and Brian Hagedorn, who was elected in 2019 with the support of Republicans.
Kleefisch is betting that at least one of those justices will see her challenge as different enough to take it. If they don’t take it, she would have to refile her challenge before the Elections Commission or a circuit court.
Weighing in Kleefisch’s favor is her timing. The justices last year said challenges to voting practices should be made before elections, not after them.
In a decision in December, the same four justices concluded President Donald Trump had waited too long to make his arguments.
"The time to challenge election policies such as these is not after all ballots have been cast and the votes tallied," the majority wrote then.
Patrick Marley of the Milwaukee Journal Sentinel contributed to this report.
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This article originally appeared on Milwaukee Journal Sentinel: Rebecca Kleefisch sues Wisconsin elections commissioners