Toney seeks removal of 5 elections commission members

MADISON, Wis. (AP) — A Republican district attorney and candidate for attorney general on Tuesday filed a complaint with Democratic Gov. Tony Evers seeking the removal of five members of the bipartisan Wisconsin Elections Commission, even though an attorney for the Legislature says he can only remove two of them.

Fond du Lac County District Attorney Eric Toney submitted a complaint with Evers asking him to remove two Republicans and three Democrats from the board because they did not allow special voting deputies into nursing homes in 2020 to assist residents with voting.

The election commission’s decision affecting nursing homes has been cited by Republican critics of how that election was run as opening the door to potential voting fraud in nursing homes. The Racine County Sheriff, a supporter of former President Donald Trump, called for prosecuting the board members but no prosecutor has filed charges. The action was also cited in a widely discredited report from Michael Gableman, a former Wisconsin Supreme Court justice hired by Republican Assembly Speaker Robin Vos to investigate the election.

The Racine County district attorney, a Republican, declined to bring charges against commission members in February, saying she didn’t have jurisdiction because none of them live in her county. District attorneys in Milwaukee and Green Lake counties have also declined to bring charges, saying there wasn’t enough evidence to prove commission members living in those counties committed a crime.

Toney said he also doesn’t have jurisdiction, but that he can ask Evers to remove the board members.

“They went rogue,” Toney said of the commissioners. “What they did was illegal. They committed crimes and they should be held accountable.”

A spokesman for the elections commission, Riley Vetterkind, had no immediate comment. Evers’ spokeswoman, Britt Cudaback, referred to past comments Evers has made defending the actions of the commission.

Toney insisted that Evers has the legal authority to remove the commissioners. But a nonpartisan attorney with the office that advises the Legislature said that Evers could only remove the two commission members he appointed. The other three — two Democrats and one Republican — could be removed by the legislative leaders who appointed them, said Legislative Council attorney Peggy Hurley.

Toney also asked the elections commission itself to refer the matter to county prosecutors to bring charges. And if no charges are brought, he asked that a special prosecutor be appointed. That is highly unlikely to happen because the commissioners he wants to have criminally charged would have to vote to refer the matter for investigation.

Toney’s Republican challenger in the Aug. 9 primary for attorney general, Adam Jarchow, called the complaint a “political stunt.”

“My focus is on restoring order and keeping our citizens safe in Milwaukee, Green Bay, and other places across the state where violence is out of control,” Jarchow said in a statement.

The winner of the primary will face Democratic Attorney General Josh Kaul in November.

State 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.

Toney was not seeking the removal of the one commissioner who changed his vote, Republican Bob Spindell.

The nonpartisan Legislative Audit Bureau determined that the commission broke the law by not sending in the voting assistants.