Schmaling reacts to Milwaukee DA’s decision not to prosecute elections commissioners

The first, Racine County District Attorney Tricia Hanson, said it was not within her jurisdiction to charge the commissioners who waived a set of election laws regarding those in long-term care facilities amid the COVID-19 pandemic leading up to the 2020 presidential election. None of their actions occurred within Racine County, even if their decisions did have effects statewide.

The second to decline to press charges was the Milwaukee County District Attorney’s Office.

In a Monday letter to Schmaling and RCSO Lt. Michael Luell, Assistant District Attorney Matthew Westphal said: “The Milwaukee County District Attorney’s Office’s statutory mandate is limited to prosecuting crime. Upon a review of the facts and law, it has been determined that there is insufficient evidence to prove beyond a reasonable doubt that a crime was committed.

“At this time, this office has no basis to issue criminal charges in this matter.”

The RSCO requested charges against five of the six appointees to the Wisconsin Elections Commission for their votes to waive the laws that say Special Voting Deputies “shall” be sent into nursing homes and other similar facilities to carry out absentee voting. Another law waived was a ban on nursing home staff members assisting residents with absentee voting.

The WEC does not have the authority to waive laws, leading to Schmaling and Luell requesting that charges be filed against five of the six commissioners.

Those the RCSO requested charges against were three Democratic appointees — Julie M. Glancey, Ann S. Jacobs and Mark L. Thomsen — and two Republican appointees — Dean Knudson and Marge Bostelmann.

One commissioner, Republican-appointee Bob Spindell, initially voted to waive the laws, but in subsequent balloting voted against the waiver. As such, the RCSO did not request charges against him.

The WEC has argued that in 2020, SVDs would likely have not been given access to nursing homes in order to carry out the vote due to COVID-19 protocols. As such, the measures they took were necessary, the commissioners argued.

Schmaling and Hanson are Republicans. Milwaukee County District Attorney John Chisholm is a Democrat.

After Hanson declined to file charges, the RCSO contacted the district attorneys of the home counties of each of those five commissioners, seeking the charges including misconduct in public office and election fraud as a party to a crime to be filed.

The Milwaukee County DA’s decision to not file charges against those who live in Milwaukee County (Jacobs and Thomsen) is the first such decision made public.

Three other district attorneys — those of Sheboygan, Green Lake and St. Croix counties — have yet to publicly announce their decisions, if any have been made.

In a Tuesday morning email, St. Croix DA Karl Anderson, a Republican, said: “I have not quite finished my review of everything.”

The RCSO accepted the decision of the Milwaukee County DA’s office to not press charges against the two WEC commissioners who reside in that county, but criticized the decision and the Milwaukee DA’s office in a lengthy Facebook post and news release Monday evening.

The Milwaukee DA’s decision, as the RCSO put it, found “that … the words ‘shall’ and ‘not’ are not mandatory and/or controlling in the interpretation of the statute, but merely ‘directory and not mandatory.’ It should be noted that the first three cases cited in the support of the (Milwaukee) DA’s Office are from rarely referenced cases from 1955, 1966, and 1974.”

Those were not the only cases cited by the Milwaukee DA’s Office. At least three other cases also were referenced, from from 2001, 2004 and 2010.

“Despite the long history of the Milwaukee DA’s Office no-charging or under charging criminal cases,” the RCSO’s statement continued, “the Sheriff’s Office is appreciative that they had an ADA review the reports.”

The post continued by taking a written swipe at Wisconsin Attorney General Josh Kaul, a Democrat who has declined to launch a statewide investigation at the request of the RCSO following the investigation in Mount Pleasant. “The Racine County Sheriff’s Office further appreciates the review of the Milwaukee DA’s Office, at least, unlike AG Kaul/the Department of Justice/and the Division of Criminal Investigation (which includes the Elder Abuse Unit), that Milwaukee DA’s Office accepted Racine’s investigative reports, reviewed the reports and rendered a decision.”

Kaul previously called the RCSO investigation a “publicity stunt … a transparently political effort and an abuse of authority.”

“It … seems clear that, in providing guidance regarding SVDs, the WEC was exercising a discretionary power of office, as the WEC is statutorily authorized to provide guidance and advisory opinions in the administration of elections,” the letter from the Milwaukee DA stated.

Among the reasons cited in the letter Monday for charges to not be filed was that “it must be noted that the overarching purpose of the election laws is to give effect to the will of the electors.” The letter described the laws surrounding SVDs as “directory statutes that do not require mandatory compliance.”

Westphal later quoted from a 2001 court decision, which said “(the courts have) consistently sought to preserve the will of the electors by construing election provisions as directory if there has been substantial compliance with their terms.”

As such, Westphal argued, the RCSO’s strict reading of the law is inappropriate when faced with how it may have been impossible or at least more difficult for those in nursing homes to vote had the SVD law not been ignored.

“Allowing seniors to vote is not a crime,” Thomsen said in a tweet Monday.

The letter continued, calling into question the thoroughness of Luell’s investigative work, which Schmaling has repeatedly defended, at the Ridgewood Care Center in Mount Pleasant.

RCSO did not directly interview Ridgewood residents whom Luell and Schmaling asserted did not have the mental capacity to vote. Rather, the investigation relied on testimony from loved ones of those living in the nursing home. Schmaling repeatedly asserted it would be disrespectful to interview those who were reported to not be able to recognize their loved ones and were hallucinating.

The Milwaukee DA’s letter said: “Claims have been made that residents who did not request a ballot voted because someone requested a ballot on their behalf and voted on their behalf. There has been no evidence submitted that any of the individuals who received ballots did not request them.

“There has been no evidence that someone voted on the behalf of one of the residents. There were interviews done with family members, where the family questioned the ability of their loved one to request a ballot and vote. The family’s belief about the resident’s competency to vote is not the same as a competency determination by a court that the person is disqualified from voting.

“The assessment of a layperson, even where that person is close family, is not the equivalent of an adjudication by a court that a person is incompetent. Absent such a court adjudication, a family’s concerns about an individual’s ability to vote would not disqualify that person from requesting a ballot and voting.

“Further, none of the individual electors were interviewed to determine whether they did request a ballot or request someone do so on their behalf. Regardless, the WEC had no role in requesting ballots or voting on behalf of residents. The specific WEC guidance to clerk (sic) was that ballots should only issue to those who request one. There is no evidence they conspired or encouraged anyone to improperly request or submit a ballot.”

Reacting to the news Monday, Jacobs tweeted that the Milwaukee DA’s letter “is an incredibly thorough analysis and debunks the false claims of the Racine Sheriff & (Michael) Gableman. Simply put — there was no crime whatsoever.”