Apr. 11, 2022 | MacIver News Service
By: Bill Osmulski
After investigating the 2020 election for the past year and a half, Wisconsin lawmakers are reaching the limits of what they hope to accomplish, and they’re starting to realize they don’t have the power to hold anyone accountable for breaking the law.
“I can pass a law. Is anyone out there going to do anything with it, and is it going to be enforced? And that’s a huge problem,” Rep. Dave Murphy said in an Assembly elections committee hearing on Mar. 24th.
The answer to Rep. Murphy’s question is a decisive “no.”
The legislature’s work has included a report by the Legislative Audit Bureau, two reports by the Office of Special Counsel headed by Michael Gableman, and twelve informational hearings by the Assembly Committee on Campaigns and Elections.
“I can pass a law. Is anyone out there going to do anything with it, and is it going to be enforced? And that’s a huge problem,” Rep. Dave Murphy said.
So far, this has produced evidence indicating that public officials broke at least 17 state laws potentially implicating thousands of officials, poll workers, and consultants. Prosecutors still have not charged or investigated any public officials over these incidents.
“The legislature doesn’t have the power to arrest anybody. We don’t have the power to prosecute anybody. We don’t have the power to do anything more than to investigate and then show it to the public and refer it to the people, whose job that is – district attorneys and the attorney general,” Assembly Speaker Robin Vos told Meg Ellefson on her show, WSAU-AM Feedback on Mar. 22nd.
The MacIver Institute reviewed all the potential crimes reported to the legislature involving the 2020 election. Eleven of the violations break state law, but carry no criminal penalty. Those include ballot curing, ballot drop boxes, having an outside consultant run the election, preventing election observers from seeing the pollbook, and not sending special voting deputies to nursing homes. Breaking those state laws is not a felony nor misdemeanor nor forfeiture. The only punishment if convicted is not being allowed to serve as an election official for five years.
However, if public officials committed those crimes and knew they were crimes – that’s a whole different story. Those officials could be charged with misconduct in public office, a Class I Felony that could mean up to 3.5 years in prison and a $10,000 fine. It’s also a Class I Felony for a public official to direct someone else to break an election law.
“The legislature doesn’t have the power to arrest anybody. We don’t have the power to prosecute anybody. We don’t have the power to do anything more than to investigate and then show it to the public and refer it to the people, whose job that is – district attorneys and the attorney general,” Assembly Speaker Robin Vos said.
The Racine County Sheriff’s Department produced video evidence of the Wisconsin Elections Commission admitting that they were about to direct local clerks to break the law, and then voted unanimously to do it. The Racine County District Attorney (a Republican) declined to charge those commissioners with Misconduct in Public Office or Election Fraud because none of them live in Racine County. Wisconsin Attorney General Josh Kaul has also ignored the incident.
That potential crime had a ripple effect throughout the state. A private lawsuit in the City of Brookfield claims the city clerk also committed a felony when she received that illegal guidance from WEC and directed others to carry it out. Hundreds of other local clerks could potentially be implicated under similar circumstances.
In Racine and Brookfield, that illegal guidance resulted in nursing home workers potentially committing another Class I felony – helping people mark their ballots without legal authorization. The Racine District Attorney said she didn’t want to charge nursing home workers, because they might not have known they were breaking the law. Although this was a statewide problem, no other district attorney in the state has filed charges either.
“She referred some of those charges to other DAs. Not a single one in the state has said there’s enough evidence. So yeah, it’s frustrating to me too,” Vos said.
It’s also a Class I Felony to observe how someone marked their ballot unless requested to assist the voter. Witnesses told the legislature they saw poll workers and an outside consultant doing that at central count on election night.
That situation in Green Bay is related to another issue lawmakers are investigating. A private organization funded by Facebook billionaire Mark Zuckerberg provided grants to hundreds of local governments across Wisconsin to help run their elections and get out the vote. Most of that money wound up in Green Bay, Racine, Milwaukee, Kenosha, and Milwaukee. Michael Gableman told the legislature that taking those funds constitutes election bribery, a Class I Felony. Two Racine residents also filed a formal complaint to WEC that Mayor Cory Mason committed election bribery for his leadership role in promoting those grants.
As part of his investigation for the legislature, Gableman issued 17 subpoenas to public officials like those mayors and the elections commissioners. Speaker Vos signed those subpoenas giving them the force of law. Regardless, none of those officials have complied with the subpoenas. Gableman is fighting that in court, but Vos is having second thoughts. He said there’s a misunderstanding of what the investigation hopes to accomplish.
“A lot of people have this misconception that, somehow, we have the ability to prosecute. We do not,” Vos said.
And in fact, the legislature’s investigation could undermine enforcement, because those subpoenas would grant those officials immunity from prosecution.
Breaking election law usually carries no criminal penalty.
“Any compelled testimony or evidence, or evidence derived from that compelled testimony or evidence, provided by a subpoenaed witness may not be used in a criminal or forfeiture prosecution (except perjury regarding the witness’s testimony),” according to the Legislative Council.
Vos told WSAU-AM, “I am seriously considering pulling back those subpoenas, because it makes no sense to give people immunity now that we see that there is so much that has been found that a Republican attorney general can later prosecute.”
However, if all it took was a Republican, some of the officials on that list would already be in trouble. In January, the MacIver Institute spoke with Racine County District Attorney Patricia Hanson in January about the possibility of investigating or filing charges Racine Mayor Cory Mason. She said no one’s filed a complaint asking her to. Since then, she declined to file any charges related to the Sheriff’s criminal investigation.
The District Attorney in Brown County, David Lasee, is also a Republican. Brown County includes the City of Green Bay, which has more potential election law violations than any other Wisconsin community, according to the legislature’s investigations. Lasee says he won’t investigate any of that until Gableman is done with his investigation.
Then there’s the problem of penalties. Most election laws apparently were written in good faith that public officials could be trusted to follow them. The only potential penalty is being unable to serve as an election official for 5 years. That’s assuming a prosecutor could prove that public official willfully broke the law.
As a result of its investigations, the legislature passed over a dozen election reform bills this session. They sought to make ballot harvesting, all election fraud, absentee ballot curing, coercing nursing home residents to vote, and using private funds to run an election all Class I Felonies. Gov. Evers vetoed every election bill sent to his desk.
The legislature does not plan to vote on any more bills this session, but the investigations continue to uncover more potential crimes that Republican prosecutors are unwilling to pursue, and that the legislature is unable to reform.
Vos hopes the election this year gives Wisconsin Republicans an opportunity to “take back an attorney general who will prosecute some of these people who committed election fraud.”
Of course, that depends on finding a prosecutor willing to prosecute public officials for breaking the law.election-laws
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