The Milwaukee County DA declined to file charges against two members of the state Elections Commission, finding there is insufficient evidence to prove they committed a crime.
Ann Jacobs and Mark Thomsen, both Dem appointees to the commission, were among the five commissioners who voted three times in 2020 to suspend the requirement that local clerks send special voting deputies to nursing homes at least twice before sending absentee ballots to residents who requested them.
The Racine County sheriff had accused them and three other commissioners of committing felony misconduct in office and election fraud.
But Milwaukee County Assistant DA Matthew Westphal wrote in a letter to Racine County Sheriff Christopher Schmaling that the commissioners were well within their powers to issue the guidance on special voting deputies. What’s more, there is no evidence any member of the commission gained a dishonest advantage, a required element to convict someone for misconduct in office.
“There is no evidence to support the belief that the guidance was provided for any motive other than ensuring electors were able to exercise their constitutional right of voting,” Westphal wrote.
Racine County DA Patricia Hanson earlier this year declined to prosecute the five commissioners, finding she lacked jurisdiction because none lived in her county. Schmaling then sent referrals to the four DAs where the five commissioners live. The other referrals were to: the St. Croix County DA for GOP appointee Dean Knudson; the Green Lake County DA for GOP appointee Marge Bostelmann; and the Sheboygan County DA for Dem appointee Julie Glancey.
The Milwaukee County DA’s decision against filing charges was the first public pronouncement of the four who received those referrals.
Jacobs said Westphal’s analysis of the applicable statutes was “outstanding” and the commissioners did nothing wrong.
“What we did in fact do was allow people to safely vote. I’m proud of us having done that,” she said.
A lieutenant for the Racine County Sheriff’s Department didn’t immediately respond to an email seeking comment.
Schmaling recommended filing charges following an investigation that began when a woman complained that her mother, who has dementia and lives in an assisted care facility, voted in the 2020 election. Along with misconduct in office, Schmaling’s department accused the commissioners of voter fraud.
But Westphal wrote there was no evidence that any resident of the nursing home received a ballot despite not requesting one and no evidence that anyone voted on behalf of the residents. Westphal also noted a family’s belief about a loved one’s competence is not sufficient to prevent them from voting; it requires a court order to have them declared incompetent.
He also rejected Schmaling’s assertion that special voting deputies could’ve judged a resident’s competence to vote, noting that power isn’t given to them under stand law. He also noted the assertion that an increase in the number of ballots returned by residents by itself isn’t an indicator of fraud.
“The turnout could’ve just as easily been caused by the increased publicity surrounding the election, the belief it would be a close race, a change in the demographic of the facility, or just a general desire for civic engagement,” Westphal wrote.
Read the document here.
