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WEC sued in nursing home voter case

By M.D. Kittle

MADISON — The scandal-plagued Wisconsin Elections Commission is facing another lawsuit, this time filed by a Waukesha man whose severely cognitively impaired mother residing in a Brookfield long-term care facility was made to vote in the 2020 presidential election.

The lawsuit follows a Racine County Sheriff’s Department investigation that found the Elections Commission broke election law in its decisions barring special voting deputies (SVDs) from nursing homes during the pandemic, opening the door to voting manipulation.

But the latest lawsuit, filed by Cedarburg attorney Joe Voiland and Brookfield attorney Kevin Scott,  declares the whole system is out of order. WEC does not have the authority under state statute to issue “guidance” or directives on election law without first going through the legislative rule-making process as other state agencies are required to do.

“Under the guise of ‘administering’ Wisconsin election law, these defendants have evaded the rule-making process that is required by statute and have directed or encouraged others to violate state election law in doing so,” the lawsuit filed last week in Waukesha County Circuit Court alleges.

The claim seeks an injunction “prohibiting the commissioners, WEC Administrator Meagan Wolfe, Assistant Administrator Richard Rydecki, and unnamed agency staff “from issuing, publishing or distributing any directive that interprets or implements Wisconsin election law without first complying with the statutorily required rule-making procedures set forth in Wisconsin Statutes Chapter 227.” The lawsuit includes all six Elections commissioners, the city of Brookfield and Brookfield Interim Clerk Renee Tadych as defendants.

According to the complaint, Paul Archambault claims his mother was ruled legally incompetent in 2015 by the Waukesha County Court. The elderly woman was diagnosed with a degenerative brain disorder. She is an involuntary plaintiff in the lawsuit, identified only as Jane Doe.

Archambault was named his mother’s legal guardian. Her rights to register to vote or to vote in an election were revoked in full in the Guardianship Order, and “may not be exercised by any person,”  the lawsuit states. Archambault was unaware of any attempts to assist his mother vote until December, a month after the November 2020 presidential election. He checked the My Vote Wisconsin website and discovered his mother had “cast ballots in the August 11, 2020, Partisan Primary and the November 2020 General Election.”

Archambault  said he never attempted to assist his mother with voting after her voting rights were revoked, and he never gave anyone else permission to do do so, the complaint states. He couldn’t. That would be illegal. Only special voting deputies may assist with voting at residential care facilities and retirement homes, and only eligible voters may vote, under state law. Two SVDs — one from the Democratic Party, the other from the Republican Party — are dispatched to the facilities and are required to delivere the ballot to the voter.

“No individual who is employed or retained, or within the 2 years preceding appointment has been employed or retained, at a qualified retirement home or residential care facility in the municipality, or any member of the individual’s immediate family, as defined in s. 19.42 (7), may be appointed to serve as a deputy,” the law states.

But in March 2020, just as Gov. Tony Evers was locking down Wisconsin amid the onset of the COVID-19 outbreak, the six-member Elections Commission was voting to keep SVDs out of residential care facilities. The directive, ordering local elections officials to mail ballots to nursing home residents, remained in effect through earlier this year. It remained in place long after Evers’ public health order expired.

Facility administrators and staff are able to assist residents in filling out their ballots or certificate envelopes and assist in completing voter registration forms and absentee requests, witness ballots, or sign a special certificate envelope (EL-122sp) if necessary,” states a Sept. 25, 2020 memo written by Wolfe and her assistant administrator.

WEC doesn’t have the authority to make such directives, according to the lawsuit. The agency must first begin the process of promulgating a rule per Wisconsin Statutes Chapter 227. And proposed rules must go through the Legislature’s Joint Committee for Review of Administrative Rules (JCRAR).

State. Sen. Steve Nass (R-Whitewater), co-chair of the committee, took on WEC earlier this year, demanding the agency stop issuing directives blocking special voting deputies. Nass also released a legal opinion from the Wisconsin Legislative Council making clear that “state law does not empower the Elections Commission to waive” a statutory requirement that local clerks must dispatch SVDs to these facilities.

“The Wisconsin Elections Commission and its staff have been issuing improper directives to local municipal clerks that raise serious questions regarding the integrity of absentee voting by residents of residential care facilities across the state.  The law on SVDs and the absentee ballot process for residents of residential care facilities is crystal clear.  The WEC has been issuing directives it has no authority to under the law,” Nass said.

The senator’s spokesman did not return a call seeking comment. A WEC spokesman did not answer Wisconsin’s Spotlight’s email Friday afternoon.

In May 2020, the Wisconsin Supreme Court struck down Evers’ state lockdown order for the same reasons, that the administration did not go through the administrative rules process.

WEC’s illegal directives required local elections officials and residential care facilities to break state elections law, the lawsuit alleges.

It’s another claim of abuse of cognitively impaired voters, even as Wisconsin Attorney General Josh Kaul’s office insists it has not heard of similar fraud allegations.

Racine County Sheriff’s Department investigators say they found eight cases in which severely cognitively impaired residents at a Racine County nursing home were manipulated or made to vote in the 2020 presidential election. The sheriff has recommended felony charges of misconduct and election fraud against WEC officials.

In one case a resident in a state of steep mental decline at the time was assisted by a nursing home staff member in casting an absentee ballot. The family said the resident had not asked for an absentee ballot. The families of the other seven residents told investigators their loved ones didn’t have the cognitive ability to vote or request a ballot. Many hadn’t voted since 2012.

Voiland is involved in several liberty lawsuits over the course of the pandemic, including a claim against La Crosse’s overreaching city clerk who prohibited a long-time poll worker from assisting in elections because he could not wear a face covering.

WEC is facing multiple complaints involving outside liberal groups funded by Facebook founder Mark Zuckerberg infiltrating the presidential election in Wisconsin’s five largest cities.

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