The Prosecutor Who Wants More Power to Investigate Elections
Now running for Wisconsin attorney general, DA Eric Toney has ratcheted up election crime prosecutions and attacks on election officials.
Jessica Pishko | October 28, 2022
As itinerant farm workers who lived out of a camper for most of the year, Jamie Wells and her husband Sam Wells used their Post Office Box at a UPS store in Fond du Lac, Wisconsin, as their permanent address for decades without issue—but then they wanted to vote.
Jamie told Wisconsin Watch that the couple was motivated by a desire to help re-elect Donald Trump when they registered to vote for the first time in 2020. But they listed their P.O. Box, unaware that Wisconsin law makes it a felony to register with anything other than a residential address. The Wellses ultimately became two of five people Fond du Lac County District Attorney Eric Toney charged earlier this year with “falsely procuring voter registration,” which carries a punishment of up to three and a half years in prison and a fine of $10,000 each.
According to a criminal complaint Toney filed this past February, Jamie insisted that the offense “didn’t matter anyways” because she’d voted for Trump, who lost. But she also told a detective on the case “he should be looking at the election in Wisconsin because the election was cheated and ‘they took it away from Trump.’”
Toney, the Republican nominee for Wisconsin attorney general this year, has run for statewide office in large part on “prosecuting more election fraud than anyone in Wisconsin.”
His actions and aggressive stance as DA have added a veneer of law enforcement credibility to the groundswell of baseless conspiracy theories about elections that have circulated in the Wisconsin GOP since Trump’s loss in 2020. If he wins, Toney would assume even larger authority to pursue investigations and press criminal charges, potentially spreading his agenda statewide in one of the nation’s most critical swing states.
Toney has also taken steps to distance himself from the Big Lie as a way of appealing to more moderate voters. “I’ve been the most vocal Republican statewide candidate opposed to decertification, saying there was no widespread voter fraud that would overturn the results of the election here in Wisconsin,” Toney said in a debate early this month after his Democratic opponent, incumbent Attorney General Josh Kaul, accused him of “fanning the Big Lie.”
But Toney has associated himself with Wisconsin conservatives at the front row of election conspiracies. He recently attended a fundraiser alongside Michael Gabelman, a former state supreme court judge who released a widely-discredited report calling for decertifying the 2020 election; Toney supported Gableman’s purported investigation. He has also joined in conservative attacks against the state’s bipartisan elections commission and sought to remove its members.
Toney didn’t respond to requests for comment about the prosecutions for illegal registration or his campaign for attorney general.
The AG election in Wisconsin has drawn attention from national Democrats for its potential ramifications on abortion rights in the state. Kaul joined a lawsuit attempting to block a 1849 law banning all abortions in Wisconsin after this summer’s Dobbs ruling. Toney called the lawsuit “a political stunt with dubious legal standing” and has since received endorsements from anti-abortion groups for pledging to enforce the state’s abortion ban and saying he would prosecute instances of abortion even for pregnancies that resulted from rape. Toney has also said a Republican AG’s office would be better suited to bring abortion prosecutions to avoid the discretion of local DAs.
“From touting bogus claims of election fraud, to refusing to rule out prosecuting abortions even in cases of rape and incest, it is clear that Eric Toney will say or do anything to win, including pander to the extreme far-right,” Democratic Party of Wisconsin Rapid Response Director Marnie O’Malley said in a statement to Bolts.
Toney has joined Big Lie evangelists like Christopher Schmaling, the Republican sheriff of Racine County, in calling for the prosecution of Wisconsin Election Commission members (WEC) who, because of the coronavirus pandemic, voted to relax requirements for how ballots were handled in nursing homes ahead of the 2020 election.
The Wisconsin sheriff’s groundless claims of fraud around voting in nursing homes have helped fuel a larger conservative war on the WEC, and they were included in the report released to Republican lawmakers earlier this year by Gableman, who called for shuttering the WEC and transferring its duties to local election clerks. After the Racine County DA declined to bring any charges, Toney echoed Schmaling’s allegations and filed a complaint with Democratic Governor Tony Evers, seeking removal of the WEC members. Toney also asked for the matter to be referred to another county DA’s office, like his, or a special prosecutor, for criminal charges.
Toney has brought his tough talk toward election officials to the campaign trail. His campaign website says he’s “fighting to hold the Wisconsin Election Commission Board accountable for their actions in 2020.” All around the country, local and state elections officials have reported being harassed and threatened by people who believe the conspiracies about the 2020 election, and they have left their positions in droves.
Kaul, the current AG, has argued that Toney’s stances on the WEB or Gableman call into question whether the GOP nominee would defend the results in 2024, should Trump or another candidate seek to overturn an election again.
Kaul has also criticized Toney’s prosecutions over P.O. Box registrations as being fueled by politics, which Toney has in turn called hypocritical. Toney points to the incumbent’s prosecution of a conservative activist who ordered absentee ballots for two other people to try and bolster his argument that it’s too easy to violate state election laws.
Toney’s invective against the WEC represents just one of the GOP attacks on the state’s bipartisan elections commission. A conservative group also sued to overturn WEC guidance that expanded the use of drop boxes for absentee ballots ahead of the 2020 election, resulting in a ruling this summer by the conservative majority on the Wisconsin Supreme Court that effectively outlawed nearly all drop boxes in the state and made it illegal for anyone, including family members, to submit another person’s completed ballot.
Along with the state elections commission, another bogeyman for Toney’s campaign is protests against the police. One of his campaign videos features footage from demonstrations in 2020 with a dramatic voiceover saying, “Wisconsin is under siege by a woke mob.” He has criticized Kaul’s office for opening an investigation into the Kenosha officer who shot and paralyzed Jacob Blake in August 2020 and for advocating for various policy changes like de-escalation training and revised use-of-force standards.
Toney has claimed Kaul’s handling of Blake’s shooting convinced him to run for attorney general, saying in an interview with PBS Wisconsin, “To have an attorney general that’s not standing with our law enforcement, I could not sit back and watch that continue.”
Toney mirrors a larger movement in conservative politics to criminalize voting and elections. More than two dozen states have enacted, expanded or increased the severity of election-related criminal penalties since the 2020 election, according to a recent analysis by States Newsroom. States like Florida have ramped up policing of elections this year, while election denying activist groups in states like Texas have escalated private efforts to monitor voting.
But Toney’s prosecutions in Fond du Lac, which remain pending, still stand out compared to how other DAs in the state have handled similar cases. In La Crosse County, the DA declined to prosecute 16 cases where voters used UPS stores as their address, telling the Milwaukee Journal Sentinel, “We decided it was not an intentional plan to fraudulently vote.” An investigation by Wisconsin Watch found over 100 people registered to vote at a UPS store address, yet only Toney in Fond du Lac County chose to prosecute people.
The fraudulent registration cases Toney is prosecuting also came from an unusual source: tips by an election denier and self-styled vigilante named Peter Bernegger, who in April was fined more than $2,400 by the WEC for filing “frivolous complaints.” In addition to targeting people who registered at P.O. Boxes, Bernegger, who was previously convicted of bank and mail fraud for deceiving investors in two startup companies, also used state open records laws to gather millions of copies of ballots to hunt for election crimes—although he offered no proof earlier this year when called by a Republican-led Assembly panel to testify about “fake votes” in the 2020 election.
Ion Meyn, a law professor at the University of Wisconsin-Madison Law School, accused Toney of basing the prosecutions on a bad-faith reading of the existing statute.
“I find it a total abuse of prosecutorial discretion that undermines democracy,” Meyn told Bolts. He said Toney seems to be pushing for election crimes prosecutions to make a political point, which he called unethical and disqualifying for state office. “Using the criminal system against defendants for your own personal gain is the worst type of abuse of discretion,” Meyn said.