Racine County Sheriff: Absentee Ballot Voting Election Statute ‘Not Just Broken, But Shattered’ by Wisconsin Elections Commission

Medical personnel serve food during lunch time at a nursing home in Kaysesberg, eastern France, Monday Dec. 21, 2020. France is springing elderly residents from care homes for the holiday season. The aim is to alleviate some of the mental suffering and solitude of the coronavirus pandemic by letting care-home …
AP Photo/Jean-Francois Badias

Racine County, Wisconsin, Sheriff Christopher Schmaling said at a news conference on Thursday the state election statute that governs absentee voting in residential care facilities “was not just broken, but shattered, by members of the WEC, the Wisconsin Election Commission,” in the 2020 election.

Schmaling said that his office prepared a PowerPoint presentation with a detailed timeline of an investigation into a complaint filed by a local resident that a nursing home “took advantage” of her late mother when filing an absentee ballot for her in 2020 “so our citizens can better understand how our election law was broken.”

NewsTalk 1130 WISN reported:

Schmaling said WEC commissioners and staff who prohibited legally-required special voting deputies from entering nursing homes during the COVID-19 pandemic and instead told nursing home staff members to assist residents in voting committed a Class I felony, which is punishable by a maximum sentence of three years, six months in prison and $10,000 in fines.

Wisconsin Statute 6.875 explicitly provides that special voting deputies are the only people authorized to assist in voting in nursing homes and that “no individual who is employed or retained, or within the two years preceding appointment has been employed or retained, at a qualified retirement home or residential care facility in the municipality, or any member of the individual’s immediate family…may be appointed to serve as a deputy.”

On March 10, 2020, WEC requested that Wisconsin Governor Tony Evers suspend the requirement that special voting deputies be deployed to nursing homes. The Governor’s Office informed WEC that the Governor does not have the power to suspend voting laws, even during a public health emergency.

“This isn’t your typical investigation. It’s complex,” Schmaling explained.

Citizens attended the the press conference “to put a face on the election law that was broken,” Schmaling noted.

“I don’t know how or who they voted for. I didn’t ask, because it doesn’t matter. . . The purpose of this presentation today is not political. It’s not about Democrats. It’s not about Republicans. It’s about integrity, it’s about accountability in the election process,” Schmaling added.

Shortly after the press conference, Senator Ron Johnson (R-WI) tweeted:

 

Fox 6 News reported:

Racine County Sgt. Michael Luell investigated the issue and found the Ridgewood Care Facility had an unusual surge in voting activity in 2020. Luell reported eight of 42 families of residents at Ridgewood Care Facility said their loved ones didn’t have the cognitive ability to vote and yet did.

The investigation only related to this one nursing home. But Sheriff Schmaling said he expects Thursday’s announcement will lead to others across the state coming forward.

Schmaling is calling on Wisconsin Attorney General Josh Kaul to launch an immediate investigation.

Schmaling added that he believes the absentee ballot statute was likely violated statewide, not just in Racine County.

Assembly Speaker Robin Vos called on WEC Administator Meagan Wolfe to resign in light of the report. Vos said in a statement released late Thursday:

People’s trust in Wisconsin’s elections has been tested. Many Wisconsinites feel elections are not safe and secure, and now the Racine County Sheriff’s investigation found clear violations and law-breaking within the Wisconsin Elections Commission. Clearly there is a severe mismanagement of WEC, and a new administrator is needed. I am calling for the resignation of Meagan Wolfe as Elections Commission Administrator.

Wolfe responded by saying she would not resign in a statement released by the WEC:

As Wisconsin’s nonpartisan chief election official, I have a statutory obligation to rise above political attempts to undermine our elections.Facts about how our elections are run in a secure, fair, and legal manner are available on our website at https://elections.wi.gov/2020-ElectionQuestions. Despite the current political firestorm, I will continue to apply my full focus on the important work of serving all Wisconsin’s voters and local election officials. It would be irresponsible to spend any energy engaging a blatantly partisan and coordinated attempt to baselessly challenge the integrity of democracy in our great state.

Earlier in the day, Wolfe offered the defense that the decision made by the WEC to “suspend” the Wisconsin SVD law was made in a public meeting:

The discussion about Special Voting Deputy access during the COVID-19 pandemic is over 18 months old and has occurred entirely in public meetings. Information about the topic is available on the WEC website here: https://elections.wi.gov/node/7537. Agency staff cannot speak on behalf of our Commissioners without their guidance to do so.

In his presentation Thursday, Sheriff Schmaling outlined the details of the governing state law, Wisconsin Statute 6.785, “Absentee Voting in Residential Care Facilities:

  • The law provides the exclusive means of absentee voting in facilities
  • Special Voting Deputies (SVDs) shall be dispatched to the facilities
  • No employee of a may be an SVD
  • SVDs shall witness the vote and may assist
  • SVDs can not accept absentee ballots not issued by an SVD
  • No individual other than an SVD or relative may assist with residential absentee ballots

In a detailed timeline, Schmaling noted that the WEC improperly “suspended” this law on March 12, 2020 and again on June 24, 2020 , an act for which they have no statutory authority.

On March 10, 2020 “the Wisconsin Elections Commission (“WEC”) sent a letter to the Governor’s Office asking to “suspend” the Special Voting Deputies (“SVD”) law – Wis. Stat. sec. 6.875.”

The following day, on March 11, 2020, the “Governor’s Office stated they did not have the power to suspend the SVD law.”

Despite that response from the governor’s office, one day later, on March 12, 2020 , the WEC issued a directive “suspending” the SVD law.

On May 26, 2020, the underlying “Safer at Home Order” expired, but the following month, on June 24, 2020, the “WEC extended its directive ‘suspending’  the SVD law.”

Then, on September 22, 2020, complainant “Judy’s mother, Shirley, voted absentee while she was a resident at the Ridgewood Care Center, which is a residential care facility.” Three days later, on September 25, 2020, ” WEC extended its directive ‘suspending’ the SVD law.”

Weeks later, on  October 9, 2020, “Judy’s mother, Shirley, died”

On November 3, 2020, election day, “Shirley’s vote is counted.”

On November 24, 2020, “Judy filed an affidavit with the WEC stating she believed the staff at Ridgewood Care Facility ‘took advantage. of Shirley’s “diminished mental capacity and filled out ballot(s) in her name.”

On December 8, 2020, “Judy’s complaint is referred to the Racine DA’s Office who requested an investigation by RASO [the Racine County Sheriff’s Office].”

On December 18, 2020 investigators for the Racine County Sheriff’s Office found:

  • The Executive Director of the Ridgewood Care Facility  stated he “hoped” his staff was “honest” while marking the voting ballot for the residents.
  • The Director of Recreational Therapy stated that if a resident could only point to the ballot, her staff would fill in the appropriate dot.
  • The Director of Recreational Therapy was “confident” Shirley wanted to vote, but then admitted she did not have contact with Shirley, her staff would have contact with the residents.
  • The Activities Aid stated if the resident did not want to vote, she would come back later.
  • The Activities Aid stated she would leave the news channel on for a few days and then come back and see if the resident wanted to vote.
  • The Activities Aid stated she would keep the ballots in her desk drawer when she was waiting for the residents to decide to vote.

Then on February 11, 2021 the Legislative Council released a report that “State law does not empower the WEC to waive SVD’s and there is no exemption for a pandemic.”

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