The Milwaukee County district attorney’s office said on Monday it would not charge members of the Wisconsin Elections Commission, rejecting a sheriff’s call to prosecute them for how they advised clerks ahead of the 2020 presidential election.
In declining to file charges, the office of Milwaukee’s top prosecutor was the first of four county district attorneys who had received criminal referrals from Racine County Sheriff Christopher Schmaling to declare its stance on the issue.
In a letter to Schmaling, Assistant District Attorney Matthew Westphal said there was “insufficient evidence to prove beyond a reasonable doubt that a crime was committed” by the election commission’s members in the run-up to the 2020 vote.
Schmaling, a Republican, had called for five of the state’s six appointed elections commissioners to be criminally charged for telling election officials to keep Special Voting Deputies – who by law are required to help nursing home residents vote – from entering such facilities due to the COVID-19 pandemic.
The move by Schmaling has been one flashpoint in the ongoing battle in the state between Democrats and Republicans, many of whom refuse to accept that President Joe Biden beat Donald Trump in the battleground state by nearly 21,000 votes, despite multiple recounts and a state audit affirming the result.
Last week, a former Wisconsin Supreme Court justice who led a Republican review of the 2020 election called on Wisconsin lawmakers to dissolve the bipartisan elections commission, while also suggesting they consider decertifying the results – a move many legal scholars said was not feasible.
The former justice, Michael Gableman, focused much of the report he released on the alleged problems with voting in nursing homes that had been highlighted in Schmaling’s investigation, which had been triggered by a complaint. Gableman said absentee ballots cast by incapacitated elderly residents of the facilities had created doubts about the 2020 election.
Wisconsin Attorney General Josh Kaul has called Schmaling’s investigation a “publicity stunt” and declined to bring charges.
Racine County District Attorney Tricia Hanson, a Republican, also reviewed the evidence and said while she believes a crime occurred she lacked jurisdiction. That prompted Schmaling to refer the case to the counties where the commissioners live.
The Milwaukee County District Attorney’s Office, led by a Democrat, had only looked at potential charges against commissioners Ann Jacobs and Mark Thomsen because they live in the county. Prosecutors in Green Lake, Sheboygan and St. Croix counties, who are reviewing referrals against commissioners Marge Bostelmann, Julie M. Glancey, and Dean Knudson, have yet to say if they intend to bring charges.
In his letter, Milwaukee County’s Westphal said the commissioners’ guidance was “not inconsistent” with their duties to administer elections and said it was aimed at addressing a “global pandemic and a vulnerable community that may have been unable to exercise their constitutional right to vote.”