Elections administrator right on who can decide when someone is incompetent to vote

The Wisconsin Elections Commission and its non-partisan administrator have come under Republican fire, including a resolution backing a reprimand and calls for her resignation over allegations of irregularities with nursing home voting.

Meagan Wolfe, the administrator, has said calls for her resignation are "not productive" and "just partisan politics." 

The uproar followed a Oct. 28, 2021 news conference held by Racine County Sheriff Christopher Schmaling who accused state elections commissioners of committing felonies by telling election clerks to mail absentee ballots to nursing homes instead of visiting them in person during the COVID-19 pandemic.

Schmaling said the investigation determined one resident of the Ridgewood Care Facility in Mount Pleasant likely voted illegally in the November 2020 election against a court order declaring the resident incompetent to vote. 

Racine County Sgt. Michael Luell said another seven residents with cognitive problems were "victimized" because trained poll workers were not allowed on site, which led to nursing home workers filling out information on ballots and ballot envelopes for the residents. 

Wolfe has been critical of Republican demands in her public responses, including in an interview that aired Nov. 5, 2021 on "PBS Here and Now." 

"I think it really highlights a lack of understanding about how special voting deputies work in normal circumstances, let alone how that process works during a pandemic," Wolfe said. "I think it overlooks the fact that special voting deputies were not being allowed into facilities last year. They were not being allowed into facilities as recently as this spring. 

"And I also think it overlooks the fact that only a court can decide that somebody is incompetent to vote. I mean, the commission cannot force facilities, private facilities, to allow special voting deputies or anyone into a private care facility."

Is Wolfe right that "only a court can decide that somebody is incompetent to vote" and the commission  "cannot force facilities, private facilities, to allow special voting deputies" inside?

When asked for backup, Wolfe’s staff pointed PolitiFact Wisconsin to state statutes addressing the issue.

Let’s start with Wisconsin statute 54.25(2)(c)1.(g), which says, in part:

"No person may be denied the right to register to vote or the right to vote by reason that the person is alleged to be incapable of understanding the objective of the elective process unless the person has been adjudicated incompetent in this state."

It later notes: 

"Regardless of whether a guardian is appointed, a court may declare that an individual is not competent to exercise the right to register to vote or to vote in an election if it finds by clear and convincing evidence that the individual is incapable of understanding the objective of the elective process." 

Rick Esenberg, president and general counsel of the conservative Wisconsin Institute for Law & Liberty, said the first part of the statement is "generally correct."

"A person may not be denied the right to register or vote because he or she is unable to understand the objective of the electoral process without a judicial finding," he wrote in an email, adding: "A nursing home administrator, relative, special voting deputy, municipal clerk or, for that matter, WEC could not make the decision that someone is incompetent to vote." 

On the second part of the claim, that the commission cannot force facilities to allow deputies inside, Wolfe’s office pointed to state law that covers the limits of what the commission can do.

And its discretion, understandably, is on election officials. According to Wisconsin statutes 5.06(6):

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 "The commission may, after such investigation as it deems appropriate, summarily decide the matter before it and, by order, require any election official to conform his or her conduct to the law, restrain an official from taking any action inconsistent with the law or require an official to correct any action or decision inconsistent with the law. The commission shall immediately transmit a copy of the order to the official. An order issued under this subsection is effective immediately or at such later time as may be specified in the order."

That is, the commission has the ability to order an election official to do something or not under that section. But that doesn’t mean the commission can order someone else to do something -- in this case, a private care facility owner, operator or staff member to allow election workers inside.

"These look to be accurate statements of Wisconsin law," said Robert Yablon, an associate professor at the University of Wisconsin-Madison Law School, of Wolfe’s claim. "I am not aware of any statute or court decision that expressly empowers the Elections Commission to compel private care facilities to allow in special voting deputies."

Esenberg, meanwhile, called this part of Wolfe’s claim "a bit of a misdirection." 

"Sec. 6.875 empowers municipal clerks to send (special voting deputies) to residential care facilities," he said. "I am not aware that anyone has ever tested whether that implies a legal obligation for licensed facilities to let them in."

The real question raised by the scenario, he said, is a different one -- whether the commission can send absentee ballots directly to voters in nursing homes, as it did in an effort to get around being unable to have a deputy go inside.

"An administrative body cannot change a statute," he wrote. "What WEC actually had no authority to do is send ballots directly to residents of these facilities. Maybe it would be good if it could during the COVID pandemic but it just doesn’t. The statutes make clear that absentee voting is a privilege and not a right and that its requisites must be strictly complied with." 

He added:

"One can sympathize with the fact that the pandemic made absentee voting from nursing homes extremely difficult – maybe practically impossible – during at least portions of the pandemic. But that doesn’t give WEC the power to change the law."

To be sure, it is local election officials, not the state election commission that actually sends out the ballots.

Wolfe said "Only a court can decide that somebody is incompetent to vote" -- the state Election Commission "cannot force facilities, private facilities, to allow special voting deputies" inside.

There is little, if any debate on the first part -- declarations of incompetency are the purview of the courts, not election officials or anyone else. On the second part, Wolfe is on target, but in making the claim muddies the waters a bit on the issue at hand.

At issue is whether ballots could be mailed directly to nursing homes. No one has argued the state could have -- or should have -- forced such facilities to change policies and let deputies inside.

For a statement that is accurate but needs clarification or additional information, our rating is Mostly True.

Editor's note: This item was updated on Nov. 29, 2021 to note that local election officials, not the state elections commission, actually sends out absentee ballots. The change does not affect the rating.