Election investigation, no charges: Racine County DA

There will be no charges in Racine County's 2020 election investigation, the district attorney announced Friday, Feb. 11.

Racine County District Attorney Patricia Hanson said her hands are tied, and she will not charge five Wisconsin Elections Commission commissioners, as requested by Racine County Sheriff Christopher Schmaling.

"Election statute was in fact not just broken, but shattered by members of the Wisconsin Elections Commission," Schmaling said when announcing his office’s investigation results in October 2021.

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The sheriff said the state’s election commissioners broke Wisconsin law. They decided during the pandemic in 2020 – when nursing homes were limiting visitors – that municipalities across the state should not send special voting deputies (SVDs) into nursing homes. In normal years, they are deputized by clerks. Pairs of them normally help nursing home residents vote. Instead, the commission gave nursing home staff tips to help.

The chair of the Wisconsin Elections Commission defended the move.

"This is nothing more than politics. It is not about the rights of those people in nursing homes to safely vote. That's the paramount question. How are they going to be allowed to do that? This was the way those people got to vote," said Wisconsin Elections Commission Chair Ann Jacobs. "If the special voting deputies were prohibited from entering, which they were, which was in the governor's edicts and the edict from the Centers for Medicare and Medicaid Services, then those people had a right to vote, and the only way they were going to be able to exercise that right to vote was through absentee ballots, which are a permissible way for these people to vote in the law."

Racine County Sheriff Christopher Schmaling

Racine County Sheriff Christopher Schmaling

On Friday Feb. 11, Hanson responded that the elections commission exceeded their authority in making the decision that SVDs were "non-essential." However, she said she does not have jurisdiction to charge the election commissioners. She said Wisconsin statute states that election violations must be prosecuted by the county where the defendant resides, and none of the Wisconsin Elections Commissioners live in Racine County.

"Let me start off by saying that I am disappointed that my hands are tied by this jurisdiction issue. I have spent considerable time reviewing this case and what occurred in Racine County," Hanson wrote in a letter to Schmaling. "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. Dispensing with the mandatory process created by the legislature of using sworn and trained SVDs to assist citizens in nursing homes, directly led to what occurred at Ridgewood Care Center in Racine County."

In her letter, Hanson agreed that things were not handled appropriately. Hanson added that "ballots were requested and votes were cast by residents who did not, and could not, have requested a ballot."

"Residents who did not request ballots voted because someone else made a request for a ballot on their behalf and then voted on their behalf," said Hanson. "If even one person’s right to freely choose to vote or not to vote was diminished, then a travesty of justice has occurred."

Ridgewood Care Center voting investigation

The case started with Shirley, a resident of the Ridgewood Care Center in Mount Pleasant, who died in October 2020 and voted in the presidential election. Her daughter, Judy Westphal-Mitchell, filed a complaint alleging her mother with "diminished mental capacity" was taken advantage of.

"Judy was obviously concerned and asked, you know, ‘How can you actually do this?’ And she was informed that the employees would inquire as to how the resident had voted in the past and they would basically follow those guidelines and vote accordingly," said Racine County Sgt. Michael Luell, who investigated the issue. "Judy, quite astutely asked, ‘Are you telling me that if my mother can only recall JFK, that the staff would have voted Democrat for her?’ And the answer is yes. 'How could my mother know that her vote was recorded accurately, she couldn't see?' Judy was informed by the staff that the staff hoped that the other employees would be honest."

Ridgewood Care Center

Luell found the Ridgewood Care Center had an unusual surge in voting activity in 2020. In past years, it was roughly 10 voters. But in 2020, it rose to 42. Families of eight of those 42 said they think their relatives didn't have the cognitive ability to vote.

"VH would ask her own son, ‘Who are you?’ She couldn't even recognize her own son. And she, she happened to vote in two elections in 2020, but no other elections," said Luell.

Hanson said that she will not charge any of the workers of the nursing home: "I am going to use my discretion to decline prosecution. 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."

Schmaling responds

Schmaling is now asking Wisconsin Attorney General Josh Kaul and prosecutors who do have jurisdiction to take up the case. 

"They've violated the law, and now we're asking that something be done about it. That we hold their hands accountable," Schmaling said. "I'm still going to continue to make my call to our attorney general in the state of Wisconsin to do his job and to prosecute this. This is clearly a statewide issue."

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"Falsely accusing public servants of crimes, because you don't like who won the election, it's a terrible stain on our democracy, and it needs to stop," Jacobs responded.

The attorney general's office in a statement said the facts do not call for a statewide investigation: "As Attorney General Kaul previously stated, the facts here do not warrant a statewide investigation. Criminal investigators in DOJ’s Division of Criminal Investigation investigate violent crime and drug trafficking, among other offenses, and diverting them away from that important work protecting public safety based on speculation and an investigation that didn’t result in criminal charges against Racine County residents would be a poor use of DOJ resources."

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