Racine Co. Sheriff alleges elections commission broke the law

Racine County Sheriff Christopher Schmaling alleged in a press conference Thursday that the Wisconsin Elections Commission broke the law when it directed local clerks not to send people into nursing homes to help residents vote during a pandemic that has been especially dangerous to the health of the elderly. 

Nearly a full year after the election, and ten months after a complaint was forwarded to the sheriff’s office, Schamling and Sgt. Michael Luell laid out the case for what they believe is a harmful attack on the state’s election integrity.

“The purpose of this presentation today is not political,” Schmaling said. “It’s not about Democrats or Republicans. It’s about integrity. It’s about accountability in the election process.”

Both law enforcement officers said repeatedly that they weren’t attempting to change the results of the election and that when starting their investigation — which originated as a complaint to the WEC — neither knew how election law works. This assertion of ignorance about election laws echoed a statement by another one of Wisconsin’s election investigators, former Supreme Court Justice Michael Gableman who is looking for evidence of fraud on behalf of Republicans in the state Assembly. 

Several audits, investigations, recounts and court cases have repeatedly affirmed that Joe Biden won Wisconsin by more than 20,000 votes. 

While the Racine County investigation focused on just 42 residents who cast ballots from one Mount Pleasant nursing home, Schmaling and Luell said they were concerned this was a statewide problem in which the elderly were taken advantage of and used for their votes. 

In mid-March 2020, Gov. Tony Evers declared a state of emergency because of the emerging COVID-19 pandemic. On March 12, the WEC held a special meeting to discuss how voting in the upcoming April election would be affected, including the use of special voting deputies who are authorized to go into nursing homes to help people fill out and cast absentee ballots. In that meeting, the six-member commission voted unanimously to declare the special voting deputies “non-essential” which meant they wouldn’t be allowed in nursing homes that were restricting visitors. 

Instead, the commissioners decided that residents of nursing homes should be mailed absentee ballots. This decision remained in effect for every election held in 2020. 

Outlining his investigation, Luell said that without the special voting deputies, staff members of the nursing home he looked into helped residents fill out their ballots, even if they were cognitively impaired. Luell said that he spoke with eight families of residents of the facility including one who was stripped of the right to vote after being found incompetent by a judge. 

Schmaling and Luell allege that the decision by the WEC to not have special voting deputies and the subsequent assistance from nursing home staff violated the law. 

“We don’t want to stifle any vote,” Luell said. “People have a right to vote, but we’re concerned that people were being taken advantage of.”

While the six WEC commissioners returned to the issue of special voting deputies several times over the last year and some of the Republican-appointed commissioners occasionally expressed doubt that the guidance to send absentee ballots was legal, the guidance was approved again and again because of the health threat. 

“Based on the most recent guidance from health experts at DHS, it’s our understanding that DHS health leaders continue to have significant concerns and their consensus was they would not advise that SVDs be used for this election,” a WEC report on special voting deputies from September 2020 states. “Given the high vulnerability of so many care facility residents, we would defer to the health experts and their conclusion that it is not safe to dispatch SVDs for the November election.”

WEC Administrator Meagan Wolfe said in a statement that the decisions about special voting deputies during the pandemic are more than 18 months old and were made in public meetings, but that commission staff can’t make statements on behalf of the commissioners, who the Racine Sheriff’s office is accusing of crimes. 

“The discussion about Special Voting Deputy access during the COVID-19 pandemic is over 18 months old and occurred entirely in public meetings,” said WEC Administrator Meagan Wolfe. “Information about the topic is available on the WEC website. Agency staff cannot speak on behalf of our Commissioners without their guidance to do so.”

There are less than 19,000 nursing home residents in Wisconsin, according to data from the Wisconsin Department of Health Services. So even if nursing home staff had illegally influenced the vote of every nursing home resident in the state and all of them had been forced to cast a vote for Biden, that influence would not have changed the results of the election. 

Luell and Schmaling said repeatedly they didn’t have access to, and don’t know, how each of the 42 residents in the Mount Pleasant nursing home voted. 

Schmaling said that there was more investigating to be done but also that it was a “natural stopping point” for Luell’s investigation. Luell and Schmaling also said that so far there have only been “conversations” with the Racine County District Attorney’s Office and the case hasn’t been turned over to the DA for charging. 

Even though the case isn’t yet ready to be handed over to prosecutors, according to Schmaling and Luell, its findings were ready to be announced at a widely watched news conference that drew the attention of former President Donald Trump — who has spent the last year baselessly claiming the election was stolen.

Ultimately, Schmaling and Luell said they believe the decision not to use special voting deputies lead to violations of election law in all 72 counties of the state and called on the Wisconsin Department of Justice to investigate. 

A spokesperson for the Department of Justice said that the department was in previously contact with Schmaling and suggested he conduct more interviews before moving forward with the case. The spokesperson added that other allegations are not being made elsewhere in the state.

“We’re confident that local law enforcement and District Attorneys in Wisconsin take voter fraud seriously and that, if there are credible allegations of fraud, they will be thoroughly investigated by local law enforcement,” the spokesperson, Gillian Drummond, said. “In the event that local law enforcement or District Attorneys need assistance in any case involving credible evidence of fraud, the Wisconsin Department of Justice is available to assist. Here, DOJ was previously in contact with Sheriff Schmaling and DOJ advised that certain interviews be conducted that had not been at that time. Significantly, no charges have been filed in this case by the Racine County DA’s office. DOJ is also currently not aware of similar allegations anywhere else in Wisconsin.”

Schmaling’s allegations that election officials trying to adapt to a deadly pandemic broke the law comes after he repeatedly ignored government measures to prevent the spread of COVID-19 over the past two years. In July 2020, Schmaling announced that his deputies wouldn’t enforce a statewide mask mandate, and earlier this year, Schmaling directed his deputies to continue executing evictions despite a moratorium from the CDC against them.  

The Racine Sheriff’s investigation is one of several ongoing reviews of the 2020 election. Gableman’s partisan investigation is still ongoing despite a series of errors and widespread condemnation. Earlier this week, Republican leaders in the state Senate announced the start of yet another investigation to investigate the findings of a recently concluded investigation by the nonpartisan Legislative Audit Bureau. That review will be conducted by the Senate Committee on Elections. 

Assembly Speaker Robin Vos (R-Rochester) whose district is in Racine County and has been central in continuing investigations into last year’s election, said the sheriff’s office’s findings show the law was broken and called for Wolfe’s resignation.

“People’s trust in Wisconsin’s elections has been tested,” Vos said. “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. Cover-ups and complacency with law-breaking are red flags Wisconsinites cannot ignore.”

In response to Vos’ comments, Gov. Tony Evers said in a statement, “Elected officials can — and often do — disagree on plenty. But what is beneath the offices we hold and the responsibility entrusted to us is using our platforms to publicly and baselessly disparage and singularly belittle public servants.”

“Speaker Vos’ comments are unbecoming of his office and the people we serve,” Evers added. “It’s my expectation — and one Wisconsinites share — that elected officials in this state treat others with civility and respect. The speaker’s behavior today fell woefully short of those expectations.”

Democratic Party of Wisconsin interim Executive Director Devin Remiker said in a statement that Racine’s investigators may have broken the law in their handling of ballot certificates during a “publicity stunt” of an investigation that only further spreads disinformation about the 2020 election. The DPW alleges that by removing ballot materials from the custody of the local elections clerk, the Sheriff’s Office may have violated state and federal law that requires those materials to remain in the hands of election officials. 

“Today’s press conference was nothing more than a publicity stunt,” Wikler said. “The Racine County Sheriff’s Department has been wasting taxpayer money in an attempt to rehash discredited claims about the 2020 election results. There weren’t any charges filed or even any suggested. The press conference didn’t shed light on any election fraud, but did reveal the Racine County Sheriff’s department may have broken the law during their own farce of an investigation.” 

The Wisconsin Department of Justice did not respond to a request for comment on Schmaling’s call for a statewide investigation.