by Sharon Rondeau

(Oct. 29, 2021) — On Thursday, Racine County, WI Sheriff Christopher Schmaling gave a press conference revealing that “an incredibly complex investigation” unearthed evidence of election-law violations in the November 3, 2020 election.

A separate “statewide” investigation into voting irregularities has had no impact on his office’s probe, Schmaling said.

During his opening remarks, Schmaling pointed to the “Wisconsin Election Commission” [sic] (WEC) as having failed to follow state law in the 2020 election against the backdrop of two screens displaying the theme, “ELECTION INTEGRITY.”

The complaint his office investigated, Schmaling said, was submitted “nearly a year ago” by a woman named Judy, whose mother was a resident at the Ridgewood Care Facility but has since passed away. Seven other complaints from the same facility surfaced thereafter, he said.

Any “controversial public criticism” which might arise was disregarded during the probe, Schmaling said. The “victims,” he said, were asked not to speak with the media at this time.

The officer who investigated the complaint, Office Luell (sp?), was a county prosecutor prior to joining the police force, Schmaling said. “He spent ten years as a prosecutor…right here in Racine County…” Schmaling said, and expended “hundreds and hundreds of hours” assembling his report, including the PowerPoint presentation to come, according to the sheriff.

Following Schmaling’s opening, Luell assumed the podium and provided a brief summary of his professional experience, which includes his current role as the office’s public information officer.

Judy discovered through a public database that her mother, a resident in the nursing home who was cognitively-impaired and could not have cast a vote, had in fact had a vote tabulated in her name after her death on October 9, 2020, Luell said.

Judy contacted the nursing home, whose executive director reportedly told her that the Wisconsin Elections Commission “authorized the employees of these facilities to execute the vote,” which Luell said was illegal.

“The employees would inquire as to how the resident had voted in the past,” Luell said, “and they would basically follow those guidelines and vote accordingly.”

After conducting her own research, Judy filed a sworn affidavit with the WEC, Luell said, “voicing her concern that the facility took advantage of her mother due to her mother’s diminished mental capacity and filled out ballots in her name.”

As reflected on a screen behind him, Luell detailed Judy’s affidavit describing her mother’s “severe cognitive decline.” The WEC chose not to investigate her complaint, Luell said, but forwarded it to the Racine County district attorney’s office, which sent it to the Racine County Sheriff’s Office, after which it landed within Luell’s purview.

He researched Wisconsin election law, Luell said, and discovered that Special Voting Deputies (SVDs) are dispatched to care homes to collect any absentee ballots as authorized by Wisconsin Statute 6.875.

In regard to absentee voting in nursing homes, the law reads, in part:

(4) 

(a) For the purpose of absentee voting in qualified retirement homes and residential care facilities, the municipal clerk or board of election commissioners of each municipality in which one or more qualified retirement homes or residential care facilities are located shall appoint at least 2 special voting deputies for the municipality. Except as provided in par. (am), upon application under s. 6.86 (1), (2), or (2m) by one or more qualified electors who are occupants of a home or facility, the municipal clerk or board of election commissioners of the municipality in which the home or facility is located shall dispatch 2 special voting deputies to visit the home or facility for the purpose of supervising absentee voting procedure by occupants of the home or facility. The clerk or board of election commissioners shall maintain a list, available to the public upon request, of each home or facility where special voting deputies are dispatched. The list shall include the date and time the deputies intend to visit each home or facility. The 2 deputies designated to visit each qualified retirement home and residential care facility shall be affiliated with different political parties whenever deputies representing different parties are available.

(am) The municipal clerk or board of election commissioners of a municipality need not dispatch special voting deputies to visit any residential care facility unless there are at least 5 registered electors of the municipality who are occupants of the facility.

“We are trying to hold our government accountable,” Luell said, rather than to “change one vote” or “change one election.”

In March 2020, Luell demonstrated, the WEC dispatched a letter to “municipalities” not to use the “Special Voting Deputies process” outlined in Wis. Stat. 6.875, which would have affected the primaries as well as the November 3 general election. Through a public records request, Luell said, he learned the WEC deemed SVDs “non-essential,” meaning that they were not considered “essential” workers permitted to enter a nursing facility in the midst of the COVID-19 pandemic. “…’by implication, well, we just decided,'” Luell characterized the response he received from the WEC.

The investigation came to encompass multiple absentee-ballot applications, Luell said. The “certification” that a voter is “indefinitely confined,” one of the statutory excuses for voting absentee, Luell said, “was either checked before and sometimes after the resident put their signature on this document, and some of these family members are here today to tell you they do not believe their loved ones had the cognitive ability to understand that document.”

It is unknown for whom the votes were cast, Luell said, and “we don’t care.”

Falsely stating one is “indefinitely confined” can result in a $1,000 fine and jail time, Luell said.

The passage of Wis. Stat. 6.84 indicates the legislature was “concerned about fraud or abuse” with excessive absentee voting. “This is really the meat and potatoes,” Luell said of the state election law regarding absentee voting. “This is so very important.”

A portion of that law reads:

(ar) Except as authorized in s. 6.875 (6), the municipal clerk shall not issue an absentee ballot unless the clerk receives a written application therefor from a qualified elector of the municipality. The clerk shall retain each absentee ballot application until destruction is authorized under s. 7.23 (1). Except as authorized in s. 6.79 (6) and (7), if a qualified elector applies for an absentee ballot in person at the clerk’s office, the clerk shall not issue the elector an absentee ballot unless the elector presents proof of identification. The clerk shall verify that the name on the proof of identification presented by the elector conforms to the name on the elector’s application and shall verify that any photograph appearing on that document reasonably resembles the elector. The clerk shall then enter his or her initials on the certificate envelope indicating that the absentee elector presented proof of identification to the clerk.

Wis. Stat. 6.875 outlines “Absentee Voting in Facilities” and the role of SVDs, Luell illustrated. Employees of the facility are barred from assisting residents to vote, the statute states. “‘The SVDs shall witness the voting, and the SVDs may assist,” Luell read from the statute. “No individual other than an SVD or a relative may assist the voter.”

Both the governor’s office and the Legislative Council “told them (the WEC) what you’re doing is not legal,” Luell said, “but it was the theory of the WEC to use the back end of this statute kind of as a loophole, and they theorized that 6.875, sub-6, sub-e, gave them a little leeway.”

That section of the statute reads:

(e) If a qualified elector is not able to cast his or her ballot on 2 separate visits by the deputies to the home or facility, the deputies shall so inform the municipal clerk or executive director of the board of election commissioners, who may then send the ballot to the elector no later than 5 p.m. on the Friday preceding the election.

Rather, Luell said, the WEC rationalized that “we should just do it this way, and just mail it,” without dispatching SVDs. “‘Forget the statute, forget all the “shalls”‘…” he characterized the WEC’s decision, which was contrary to the governor’s instruction and “the United States Constitution.”

He then outlined the concept of separation of powers, stressing that “an agency of the executive branch…said, ‘Nah, we’ll do it; we’ll do it on our own,’ against the law.”

Employees of Ridgewood described to investigators how they were “advised” to indicate residents’ “votes” if they were unsure of the voter’s intent, Luell said. Further, absentee ballots were found “floating around the facility, unsealed, in the ballot envelope, just floating around the facility,” in violation of the law.

Employees further told him, Luell said, they made multiple attempts to have a resident complete a ballot, with the ballots continuing to “float about,” violating the chain-of-custody provisions of the law.

A total of 48 residents of the facility “voted,” Luell said, whose families he contacted. Out of those, seven said “their loved one, in their opinion, didn’t have the cognitive ability to request a ballot or to exercise their right to vote.” Of those seven, according to myvote.wis.gov, Luell said, virtually none had cast a vote in any election since 2012.

Video evidence exists of the WEC members having a June 24, 2020 virtual meeting where they discussed their intention “to not follow the law” as it pertained to SVDs, “citing no legal authority,” Luell said.

On Friday morning The Post & Email contacted the Wisconsin Elections Commission for comment, including a link to the presser. The following response was received:

Smalley, John M – ELECTIONS <john.smalley@wisconsin.gov>10:52 AM (57 minutes ago)
to Riley, me

https://elections.wi.gov/node/7561

Hi Sharon,

Here is a link to a statement provided from the Commissioners last night after they held a Special Meeting to discuss the Racine press conference from earlier in the day. Let me know if you have any other questions.

Best wishes,

John Smalley

PIO Desk

Wisconsin Elections Commission

—————-

The statement reads:


Statement from WEC Commissioners regarding Racine County Sheriff’s Department Press Conference

Date: Thu, 10/28/2021 – 20:45

Statement from WEC Commissioners regarding Racine County Sheriff’s Department Press Conference

MADISON – The undersigned commissioners who serve on the bipartisan Wisconsin Elections Commission stated their opposition to, and strenuous disagreement with the allegations made Thursday in a press conference orchestrated by the Racine County Sheriff’s Department.

“To put it simply, we did not break the law,” said Commission Chair Ann Jacobs, an attorney from Milwaukee. “In fact, without action from the Commission, many residents in Wisconsin care facilities could have and would have been disenfranchised and not able to vote in the 2020 elections.”

In the case of nursing homes and other care facilities, statutes state that Special Voting Deputies (SVDs), and election observers, are to be sent to some facilities to allow for in-person voting for residents. Not every care facility utilizes the SVD process. For those that do, during the COVID-19 pandemic, only “essential workers” were allowed into nursing homes as part of the required quarantine for residents.

Statutes call for two attempted visits by SVDs to a facility after a 5-day notice period. If the SVDs are not allowed access, then absentee ballots are sent to those residents. Residents complete those ballots in the same manner as other absentee ballot voters. The timeline for these visits, and the sending and return of absentee ballots, all must occur in the 22 days immediately before an election. In 2020, the U.S. Postal Service advised that clerks should plan for 13 days to send a ballot and have it mailed back to them in time to be counted on Election Day.

In a thoughtful, public, and hours-long discussion at the beginning of the COVID-19 pandemic, commissioners acted in a bipartisan fashion to preserve the right to vote by ensuring ballots were sent to care facility voters in time for the ballots to be mailed and returned.

“We knew that for the protection of residents, only essential workers (which did not include SVDs) were being allowed into facilities across the state,” Commissioner Julie Glancey said. “As such, we knew it was essential to preserve the right to vote for those residents, so rather than require the absurdity of sending SVDs to knock on a locked door, we pivoted to the absentee voting process.”

Among the allegations made by the Racine County Sheriff was that a resident deemed incompetent by a court and not permitted to vote was persuaded into voting by nursing home staff members and perhaps taken advantage of in that process.

“The Commission finds it horrifying and offensive if that sort of thing happened in Racine, or anywhere in Wisconsin,” Commissioner Dean Knudson said. “Nobody should ever be coerced or otherwise influenced as part of exercising their right to vote. We would encourage and expect the full force of the law to investigate that situation and prosecute any identified offenders.”

The Commission believes district attorneys and other law enforcement are the proper authorities to investigate and charge in such instances. Such criminal allegations are outside the jurisdiction of the WEC, whose role is to guide local election officials.

However, it must be stressed that an individual’s voting right can be restricted only by an incompetency order from a judge, not a friend, family member or even a doctor. “The statutes are very clear on this,” Jacobs said.

Further, she explained, once the ballots were issued as part of the absentee process, the rules surrounding assistance for a voter are different than they are for someone utilizing a Special Voting Deputy. An absentee voter can, in fact, receive some measure of help in completing their ballot, as outlined in statutes.

Commissioner Marge Bostelmann pointed out that the Commission consulted with advocates for the aging and disabled communities in addressing the challenge of nursing home voting during the pandemic. The Commission reconsidered its guidance at each statewide election in 2020 and adjusted its guidance based upon the most up-to-date information available to it.

“If we had waited for two unsuccessful attempts by SVDs to enter nursing homes, we would have been in danger of missing the deadline to get their votes collected and counted,” Commissioner Mark Thomsen said. “Our goal was to allow as many eligible voters as possible to participate in the election.”

While the WEC has embraced virtual SVDs as a possible solution to providing nursing home residents with voting assistance, not all facilities have the necessary equipment or training to allow for digital assistance. Additionally, it is unclear how a digital process would work with the rights of observers. The WEC is an agency that can’t make demands on private facilities to purchase technology. Nor does the WEC have control over the individual staff members who work in nursing homes.

Moving forward, the Commission reiterates its commitment to protect a person’s right to vote. In order to guarantee that right in 2020, while facing an unparalleled pandemic, the Commission exercised its best judgment, in consultation with experts and stakeholders, and issued its guidance. The Commission will continue to advocate for the rights of Wisconsinites to exercise their precious, constitutional right to vote.

Chair Ann S. Jacobs
Commissioner Marge Bostelmann
Commissioner Julie Glancey
Commissioner Dean Knudson
Commissioner Mark Thomsen

AttachmentSize
WEC press release regarding Racine news conference.pdf169.47 KB

For more information, contact

Riley Vetterkind, public information officer, riley.vetterkind@wi.gov 


The Post & Email replied:

Thank you; I have updated my article with the full statement.  One question:  Doesn’t the law preclude sending absentee ballots or applications unless they are first requested by a voter? 

Sharon Rondeau, Editor
The Post & Email
www.thepostemail.com

As of 4:12 p.m. EDT, we received no response. However, just before 5:00 p.m. EDT, Mr. Smalley sent the following:

Sharon,

Yes, you are correct on that point. Below is a fuller explanation from one of our staff members who Is well versed on this topic. Let me know if you need anything else.

Best wishes,

John

Yes, voting absentee is a request-based process in Wisconsin.  Voters have the ability under the law to request ballots for a specific election (or elections) or for all elections in a calendar year (these requests expire 12/31 of each year).  The voters also have the ability to self-identify as indefinitely confined which would entitle them to receive a ballot for each election moving forward until they do not return one for an election. 

Each of the voters in this facility would have had to either have an active request on file or would have had to submit a request in order to receive a ballot.  If they did not have a request, the clerk should not have issued them a ballot. 

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  1. Is it normal to hold a press conference over this type of investigation? Was anyone from the Attorney General’s Office there? County DA’s office?

    Over such meager results. Seems very much like Arpaio’s tactic of have press conferences with no underlying crime or investigation ( and no I don’t mean the birth certificate press conferences).

    The election official made an interesting point about them not being able to determine someone’s competence.