Trump-Aligned Sheriffs Target Election Officials

Christopher Schmaling, the sheriff of Racine County, Wisconsin, told the reporters gathered in his office on October 28, 2021 that he’d called a press conference “so that our citizens can better understand how the election law was broken.” 

Standing at a podium with large screens behind him blaring “ELECTION INTEGRITY”, Schmaling warned that the allegations might be difficult to follow at first. “This isn’t your typical criminal investigation, it’s complex—to be quite frank, it’s a bit challenging to understand at first,” he told the room full of reporters. But Schmaling promised that by the end of his office’s presentation, the public would “see firsthand that the election statute was in fact not just broken, but shattered by the members of the W.E.C., the Wisconsin Elections Commission.” 

Schmaling and Michael Luell, a sergeant in the sheriff’s office who had investigated a complaint about election malfeasance, spent more than an hour running reporters through a PowerPoint presentation, outlining what they claimed was devastating proof that state election commissioners had committed a crime. At first, the press event, which the sheriff’s office streamed live on its Facebook page, sounded more like a civics lesson than a criminal case, as Schmaling explained the makeup of the state’s election commission—six commissioners serving staggered five year terms, appointed by either legislative leaders or the governor. 

Schmaling and Luell eventually pointed to changes made by the election commission in response to the coronavirus pandemic leading up to the 2020 presidential election, which relaxed requirements for how ballots were handled in nursing homes. The sheriff claimed their investigation had uncovered several local nursing home residents who voted even though their families believed they were too old and no longer had the capacity to cast a ballot. Schmaling, an unabashed supporter of Donald Trump and one of many sheriffs who refused to enforce public health orders during the pandemic, pointed to family members who had gathered inside the office for the press conference, but said they wouldn’t be speaking to reporters. “They’re not here to answer your questions, but rather to put a face on the election law that was broken,” Schmaling said. 

Schmaling, a longtime veteran of the department who was first elected to his post in 2010, forwarded his allegations to multiple district attorneys in Wisconsin, and called on the state’s attorney general to open an investigation into election crimes at nursing homes. Higher authorities all refused to take up Schmaling’s recommendations, cutting the criminal investigation short, yet his allegations have gained traction elsewhere—they were cited in a report commissioned by state Republicans that recently called for decertifying the 2020 presidential results. 

Schmaling’s efforts signal the uniquely aggressive role sheriffs around the country may play in efforts to criminalize routine election procedures in the lead-up to 2022 and 2024. Conservative adherents to the constitutional sheriff movement were among the first to fully embrace the myth of the Big Lie, and many other Trump-aligned sheriffs have followed suit in deploying their powers. 

Unlike lawyers, judges, and legislators, county sheriffs have extensive powers to investigate any allegations, seize documents and voting machines and, if they deem necessary, use force or threats of force to gain compliance. 

In many regions, especially more rural areas, sheriffs are enmeshed in the voting process, in charge of securing voting locations and protecting ballots when they are transported to be counted. Throughout the country, they also exert a great deal of control over whether people held in jail have access to ballots. The United States also has a long history of sheriffs and others in law enforcement committing egregious acts of violence against Black voters—hence why many recoiled when Trump vowed to send sheriffs and other cops to watch the polls. 

Trump-aligned sheriffs who target election administrators compound pressures that have been driving people out of the profession. The Big Lie has ratcheted up misinformation around local elections systems, driving up threats and harassment against local election workers. According to a recent poll of election workers by the Brennan Center for Justice, one in five say they will probably quit before the 2024 presidential election.

Many of the officials who will be in power during the next presidential race will be decided in the 2022 midterms, when voters in more than 1,000 counties will elect their sheriffs. Schmaling himself is up for re-election this year in Racine County, a swing county just south of Milwaukee that twice voted for Barack Obama before narrowly voting for Trump in the last two presidential elections. (Wisconsin’s filing deadline is in June, and local elections can be late to take form.)

After Trump’s 2020 loss, one of the first sheriffs to make headlines with a frivolous voter-fraud investigation targeting election workers was Sheriff Dar Leaf, who just weeks before had secured re-election entirely unopposed in Barry County, Michigan. 

An ex-shooting instructor and gun enthusiast, Leaf has a history of supporting militia groups, including the men accused of participating in a plot to kidnap the state’s governor; two of the men charged in the case were recently acquitted at a trial where missteps by the federal law enforcement loomed over the proceedings (a mistrial was declared for two others).  Leaf tried to rally Michigan sheriffs to seize voting machines throughout their counties and sent a private investigator to interrogate long-time election workers amid Trump’s claims of widespread voter fraud following the 2020 election. No charges were filed, and the Barry County prosecutor said there was “no evidence” of crimes.

On the surface, Schmaling’s 10-month investigation into allegations of election crimes in Racine County has at least the trappings of legitimacy. The root of his claim rests on a complaint by Judy Westphal-Mitchell regarding her elderly mother Shirley Westphal, who was in the fall of 2020 a resident at Ridgewood Care Center. (In the press conference, Luell refused to give Judy and Shirley’s last names, but they were identified in investigation documents released by the sheriff’s office and in the media.) Westphal-Mitchell, suspected that her mother had been coerced into voting, and went to the sheriff’s office after both the election commission and local prosecutor’s office reviewed her complaint and declined to take action.

In non-pandemic times, Wisconsin election rules assign special voting deputies (SVD) to assist with collecting absentee ballots in nursing homes and residential care facilities with five or more registered voters ; this is a practice in a number of states but is by no means required nationwide. Such SVDs typically go in bipartisan pairs to avoid any appearance of impropriety. 

In March of 2020, Wisconsin’s election commission voted unanimously to suspend the SVD rules for in care facilities and, instead, directed nursing home employees to assist residents with voter registration and absentee ballots, a move commended by disability and elder rights groups. The commission later affirmed the directive ahead of the presidential election, with election clerks in every county receiving instructions on how to send absentee ballots to residential facilities in lieu of SVDs.

Schmaling argued that election commissioners had committed a felony by improperly casting aside SVD requirements. WEC members argued otherwise. After the sheriff’s press conference, elections commission chair Ann Jacobs said, “He is completely and totally wrong.”  A nonpartisan Legislative Audit Bureau later agreed that the WEC broke the law in discarding SVDs, but did not find any widespread fraud or abuse that resulted from the decision. 

Schmaling’s investigation, despite resulting in no charges, seems poised to throw more gasoline onto a common conspiracy theory in election fraud circles: the idea that older people, portrayed here as helpless, are taken advantage of during the voting process. As Luell framed the issue during the sheriff’s office presentation, “We can all embrace the idea that voting is good…but [this is] preying on people in cognitive decline.”

In Luell’s rendering, Westphal-Mitchell’s mother was victimized by health care workers who persuaded her to vote even though, as Luell put it, “she was giving up on life.” Luell said he then contacted the families of 42 other residents at Ridgewood to ask if their relatives had “cognitive difficulties” and whether they voted (Luell was somewhat vague about how many people he actually contacted during his investigation, but confirmed during his presentation that he did not contact any of the Ridgewood residents directly). Luell said people from seven other families expressed concerns that an elderly relative had improperly voted in the 2020 presidential election.

These claims seem to take advantage of general stereotypes that older people have cognitive difficulties that impede their ability to vote. Legally, elderly people are permitted to vote, a right that can only be taken away in Wisconsin by a specific court finding of “adjudicated incompetence.” Westphal-Mitchell claimed that she had power of attorney over her mother, but everyone seems to agree that her mother could still legally vote, even if, as Westphal-Mitchell alleged in her complaint, her mother “was not up to date on news or current events” and saw “helicopters and other flying objects” that weren’t there. In other words, family members, doctors, and law enforcement cannot independently assess whether a person can vote, even if that person forgets what they ate for breakfast, forgot people’s names, and only cared about Snickers’ bars—all of which were descriptions of older people that Luell included in his PowerPoint slides. 

Casting such aspersions on older voters, portraying them as victims when they have not expressed a desire to be identified as such, is a common tactic for people who are looking for voter fraud, says Nina Kohn, David M. Levy Professor of Law at Syracuse University College of Law and Distinguished Scholar in Elder Law with Yale Law School’s Solomon Center for Health Law and Policy. 

“The fact that an individual is a resident of a long-term care facility is in no way, shape, or form determinative of their ability to vote,” Kohn said. “Only a court of law can remove a person’s right to vote.” The suspicion cast on elderly voters, she said, “really seems to be potent ageism and ableism,” and “says a lot more about what people’s beliefs are about these institutions and what’s going on” than about voting processes themselves.

Kohn points out that WEC regulations were designed to ensure that older citizens are provided access to vote, not to discourage them from voting because of perceived mental defects.  “Especially when election officials aren’t helping residents vote, it is critical that staff step up to do so,” Kohn said. “We shouldn’t be condemning staff for doing the right thing.  In fact, federal law requires nursing homes to help their residents exercise the right to vote.” In a 2006 article, Kohn emphasized that “gate-keeping” by healthcare workers or relatives is “neither legally permissible nor political desirable,” adding that “attitudes and beliefs,” such as screening residents for mental capacity or the type of stereotypes that Luell relied on, “may translate into the active disenfranchisement of residents.”

Barbara Beckert of Disability Rights Wisconsin explained via email that she was “very disturbed by the videos and by the entire investigation” in Racine County. “Residents of long-term care facilities have the same right to vote as any other citizen,” she Beckert said, “whether they are cognitively impaired or unimpaired.”

Schmaling asked Wisconsin Attorney General Josh Kaul to open a state-wide investigation into his allegations of improper voting by people in nursing homes. Kaul, a Democrat facing a tough re-election campaign this year, did not take up the case and has been critical of other claims of widespread election-related crimes. The Racine County District Attorney also declined to prosecute members of the election board as well as nursing home workers who assisted residents with the absentee ballots.

As Schmaling faces re-election this year, his investigation continues to fuel panic about the state of elections in Wisconsin. Last summer, Republicans commissioned an investigation by a former state supreme court justice, Michael Gableman, who said state election officials “stole our votes” days after Trump lost in 2020. In a 136-page report last month detailing his findings, Gableman pointed to Schmaling’s investigation as one of several reasons to decertify the 2020 election—an impossibility—and shutter the WEC, transferring its duties to local election clerks. 

In his report, Gableman says, “systematic problems with voting in elder care facilities [was] an issue that was also recently blown wide open by the Racine County Sheriff,”other vague, uncorroborated reports of people voting in care facilities who allegedly shouldn’t have—a determination disputed by advocates and unsupported by other evidence. Gableman’s report also inspired a series of videos by Erick Kaardal of the right-wing Thomas More Society in which he asks elderly voters hypothetical questions about candidates as a way to imply that they were unfit to vote. For example, in one video, Karrdal asks an elderly woman, in the presence of her daughter, hypothetical questions about nonexistent candidates. In another, he interviews an elderly man reclined in a La-Z-Boy chair.

Janet Zander, the Advocacy & Public Policy Coordinator for the Elder Law & Advocacy Center, said there was no serious problem with absentee voting in nursing homes during the 2020 election. She is more concerned about the impact of investigations like Schmaling’s and the baseless claims of election fraud it has helped bolster—not just in the legislature, but within care facilities during future elections. 

“Imagine now, there have been these workers in care facilities who have assisted people to vote, and they end up being a front page story in some community,” Zander said. “Are you going to really be the one who stands first in line and says, ‘Oh, I’ll be the helper today.’ Nobody wants to touch that with a 10 foot pole for fear they’re going to be accused of coercing somebody.”

Correction: This story initially misstated the election commission vote to suspend SVD rules