MADISON, Wis. - The Milwaukee County district attorney will not file charges against two Democratic members of the bipartisan Wisconsin Elections Commission, saying Monday there is not enough evidence to prove beyond a reasonable doubt that they committed any crimes.
District Attorney John Chisholm, a Democrat, rejected calls from the Republican Racine County sheriff to prosecute five members of the commission — three Democrats and two Republicans — who voted not to send election deputies into nursing homes in 2020 to assist residents with voting.
That action has been cited by Republican critics of how the election was run in 2020 as opening the door to potential voting fraud in nursing homes. To date, only 24 people have been charged statewide with voter fraud, a number on par with past elections and nowhere near enough to affect President Joe Biden's nearly 21,000-vote win over Donald Trump.
The Republican Racine County district attorney in February also declined to bring charges against elections commission members, saying she didn't have jurisdiction because none of them lived in her county. That led the sheriff to request that charges be brought in the counties where they live.
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Matthew Westphal, a deputy Milwaukee County district attorney, wrote to Racine County Sheriff Christopher Schmaling on Monday to tell him that no charges would be brought against commissioners Ann Jacobs or Mark Thomsen. Jacobs is the chair of the commission.
In an analysis, the district attorney's office noted that the elections commission is entrusted with administering Wisconsin's elections laws and the decisions it made related to nursing home voting assistants was not inconsistent with those duties.
"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," the district attorney's analysis concluded.
Sate law requires local election clerks to send so-called special voting deputies to nursing homes to give residents an opportunity to vote. After trying to make two visits, the deputies can mail absentee ballots to the residents instead.
But early in the COVID-19 pandemic, when the Wisconsin Elections Commission made its decision not to send in the deputies, the state was under a safer-at-home order and nursing homes were severely limiting who could come into their facilities, often not even allowing immediate family members inside.
The elections commission in March 2020 voted unanimously that poll workers could not be sent into nursing homes. The commission voted 5-1 in two follow-up votes extending the order through the November 2020 election before rescinding it in March 2021. Instead of sending in voting deputies, the commission directed clerks to mail absentee ballots to nursing home residents who had requested them.
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The nonpartisan Legislative Audit Bureau determined that the commission broke the law by not sending in the voting assistants.
"It is clear that there was no crime," Jacobs said in response to the district attorney’s decision. "Instead, the commission acted to protect the right to vote for all Wisconsin citizens during an unprecedented pandemic."
Thomsen did not immediately return a message seeking comment.
Michael Gableman, a former Wisconsin Supreme Court justice hired by Republicans to investigate the election, also raised concerns with voting in nursing homes in his report submitted last week.
Gableman voted for Trump. Schmaling, the sheriff who called for the charges, supported Trump in 2020.
Biden's victory has withstood recounts, multiples lawsuits, a nonpartisan audit and other reviews.
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