Photo by Saiyna Bashir, The Capital Times

The Racine County DA today declined to charge five members of the Wisconsin Elections Commission for suspending a requirement that clerks send special voting deputies to assisted care facilities before mailing absentee ballots.

Racine County DA Patricia Hanson wrote in a letter to the sheriff that she lacks jurisdiction in the case because the violations he alleged must be prosecuted where the alleged defendant resides. None of the five commissioners he had recommended face charges live in Racine County.

Racine County Sheriff Christopher Schmaling more than two months ago also recommended charges for employees of the assisted care facility that was at heart of his investigation. Hanson wrote in her letter at least two nursing home employees improperly requested and returned absentee ballots on behalf of residents. But she used her discretion to decline prosecuting them, writing it would be unfair to expect health care professionals to “better understand the election laws in Wisconsin than the Wisconsin Elections Commission.”

She also wrote that the commission’s actions directly led to what happened at the Ridgewood Care Center.

“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,” she wrote.

GOP Commissioner Dean Knudson, one of the five who were targeted for charges, knocked Hanson for taking more than two months to reach the conclusion she lacked jurisdiction when he said was apparent from the start. He called it “district attorney 101.”

He also accused Hanson of declining to press charges because it would’ve opened up the sheriff and herself to misconduct allegations for pursuing a case with no probable cause.

“Now the sheriff won’t be able to be held accountable for what he did with this political circus,” Knudson said. “She just continues on with the same thing.”

The commission originally voted unanimously in March 2020 to suspend the requirement as nursing homes across the state refused to allow special voting deputies to enter the facilities due to the growing COVID-19 pandemic.

GOP appointee Bob Spindell then broke with his colleagues on later votes as they continued to suspend the requirement. He was the only one Schmaling didn’t recommend to face felony misconduct in office charges.

Wisconsin Elections Commission Chair Ann Jacobs, a Dem appointee, knocked Hanson for what she said was a series of faulty conclusions and a letter that “glosses over” the commission’s action was about ensuring residents of nursing homes were able to exercise their right to vote during a pandemic.

Hanson asserted in her letter that the commission made its own determination that special voting deputies were non-essential workers and that Gov. Tony Evers didn’t specify in any of his emergency orders during the pandemic that they were to be considered as such.

But Jacobs said the commission asked the guv to declare special voting deputies essential workers to help them gain entry to assisted care facilities, but he declined.

“This is nothing more than a political stunt that she never had jurisdiction over and is being used to attack the WEC for safety allowing people in nursing homes to cast their votes,” Jacobs said.

Jacobs also said Hanson was incorrect in her assertion that allowing special voting deputies into care facilities would’ve meant two people meeting with “a limited number of residents who wanted to, and were able, to request their ballots.” Hanson wrote those two people would have followed the same guidelines as essential staff to “protect the residents of the care facility and also insure that the integrity of this important election process was upheld.”

Jacobs noted observers must be allowed to accompany the deputies if they express a desire to do so.

Special voting deputies were created to supervise voting at care facilities with five or more residents. Instead of providing photo ID, the residents may submit statements to the deputies verifying their names and addresses. Those declarations are then signed by the special voting deputies. Local clerks are required to send the deputies and partisan observers to a residential care facility at least twice before sending an absentee ballot to a resident who requests one.

The commission suspended the requirement because care facilities weren’t allowing special voting deputies to enter due to the pandemic. Suspending the requirement provided more time for residents to receive their absentee ballots and return them.

Hanson wrote in her letter that she believes the commission exceeded the authority granted it by the Legislature. Still, her letter makes no mention of referring the case to DAs in the counties where the five commissioners live or Wisconsin Attorney General Josh Kaul.

She added there is no way to know whether the ballots sent to the Ridgewood Care Center were properly requested and executed, but there is “good reason to believe that they were not.” Hanson added she’s not suggesting the commission or facility staff in any way tried to influence how residents voted.

“What I do know is that at Ridgewood Care Center, ballots were requested and votes were cast by residents who did not, and could not, have requested a ballot,” she wrote.

But Knudson said Hanson misunderstood the role of special voting deputies. In one part of her letter, she suggested they could question a voter’s competency.

Knudson pointed out only a judge can find a voter incompetent to cast a ballot.

He also questioned her decision not to charge facility employees, saying “clear evidence of fraud” wasn’t being pursued.

“Some of the things that went on in Racine County I think were outliers and not widespread. But they sure weren’t right,” Knudson said.

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