Here & Now

Noon Wednesday: The Competency of Voters in Nursing Homes

Marisa Wojcik:

Welcome to “Noon Wednesday,” I’m Marisa Wojcik, multimedia journalist for “Here & Now” on PBS Wisconsin, and today is November 3. Following a press conference from the Racine County Sheriff Office last week, advocates in the disability community are expressing concerns with some of the statements made by the sheriff and an investigator asserting election fraud in long-term care facilities. Barbara Beckert of Disability Rights Wisconsin joins me now to talk about the concerns, and, Barbara, thank you so much for being here.

Barbara Beckert:

Thank you, Marisa.

Marisa Wojcik:

I first want to lay this out piece by piece because there was a lot covered in this press conference in addition to the fact that there are a lot of ongoing election investigations happening right now. So, at this press conference, first was a complaint from the family member of an elderly woman who passed away that her deceased mother’s absentee ballot was submitted after her death, and then after that, prompted a sheriff’s office investigation. Other family members of residents from the same care facility are alleging their loved ones did not have the cognitive ability to vote, and that facility staff members could have taken advantage of them to help them cast ballots, and that all of this was possible because the Wisconsin Elections Commission made a temporary decision to suspend special voting deputies or SVDs, which go into long-term care facilities by law to assist in the voting process. Finally, the investigator alleged they broke the law by suspending SVDs by going into facilities offering voting assistance and by only allowing absentee ballots, and they speculate that voter fraud took place in other facilities across the state. So that’s a lot. I just want to first ask, what was your reaction to the press conference from the Racine County Sheriff’s Office last week?

Barbara Beckert:

Yeah. My reaction was really two-fold. First of all, if any type of coercion, inappropriate coercion or pressure on individuals in care facilities or in the community on how to vote has occurred, that is certainly a concern, and that should be investigated, and if it occurred, those individuals should be prosecuted. However, we also were very concerned that based on the information that was communicated, that there seems to be a lot of confusion about the rights of individuals in care facilities to vote as well as the rights of people with cognitive disabilities, so people who live in a nursing homes or a group home, and people with cognitive disabilities have the right to vote unless they have lost that right because of the decision by a judge, and that did not appear to be the case. Except for one individual who had been found incompetent, and, you know, I think that that may have been an error on the part of the clerk if that individual was sent an absentee ballot.

Marisa Wojcik:

Who are the special voting deputies? What are they required to do by law, and was it harmful to voters that are in long-term care facilities to not allow these SVDs to assist in the voting process in 2020?

Barbara Beckert:

It is very important that people in care facilities have the right to participate in the electoral process, and recognizing that Wisconsin has set up this special voting deputy process to provide support for those voters, and these are individuals who are selected by the municipal clerk, typically they are poll workers, maybe a senior poll worker who has had a lot of experience, and they conduct in-person absentee voting in care facilities that are eligible for the program. So, in order to be eligible, you need to have at least five individuals who are registered to vote, at least one absentee ballot request on file, and at least ten residents in the facility. So, in order for that to happen, it really requires the care facility staff to have some kind of a role in supporting their residents with voting, because, otherwise, they may not be registered to vote or have submitted an absentee ballot application request so I think that’s one thing there’s confusion about. Historically, there is a role, an important one, for care facility staff. Those special voting deputies, when they come, they generally work in teams. They come into a facility, and Wisconsin law requires that when special voting deputies come to the facility, that there must also be election observers from each party who come with them, and the family members are also allowed to observe the process so it is a number of people, and they come to different visits, and those visits need to be scheduled during a very set period of time, and there needs to be a five-day advanced notice, and a minimum of two visits. If any residents don’t vote during the time that the SVDs are on the site, and that’s not an unusual thing, then they are to be sent their absentee ballot just like any other voter after the SVDs have voted. So, there’s always been the opportunity for people in care facilities to vote outside of the SVD process, and that is addressed in the statutes. The Wisconsin Election Commission faced a really tough decision this year. Would you like me to address some of the special challenges during the pandemic?

Marisa Wojcik:

Well, were these SVDs — was the voting process harmed by not allowing them into special long-term care facilities? Was there potential harm done to the voters, and are SVDs typically, even though required by law, are they in every single care facility in Wisconsin in every election?

Barbara Beckert:

So, in terms of whether harm was done, you know, I think policymakers had an extremely difficult choice to make here. They were balancing the right to vote and honestly the right to life because individuals in care facilities were the most vulnerable population at high risk of contracting COVID and of dying from it or suffering serious consequences, so that’s why facilities were locked down, and so even if special voting deputies had been dispatched, it is unlikely, in most cases, that they would have been allowed to enter the facility, so the concern was if we went through this process as a state, SVDs were sent out twice and were not allowed to enter, we would have lost time, time that was needed to get the ballots out to the care facility residents for them to complete them and return them, and as you know, the slow performance of the US Mail was another factor during the 2020 election. After many hours of public meetings, a lot of agonizing, input from health officials, and input from advocacy groups like disability rights group Wisconsin, there was almost complete consensus that the safe thing to do and that the right thing to do from a perspective of upholding the voting rights of residents was to not send in the special voting deputies, but instead, to follow the statutory process for having individuals vote using their absentee ballot applications.

Marisa Wojcik:

Could these care facilities’ staff members, themselves, been deputized to help these long-term care facility residents in the voting process to train them and to have them take an oath and kind of reduce the possibility of taking advantage of care facility residents?

Barbara Beckert:

There currently is no statutory process that would allow for that. What was done is that very detailed directions were provided to care facilities across the staff. We talked about the role of care facilities, what staff are allowed to do to assist a resident, if requested, as directed by the resident, with completing their ballot, with registering to vote, with requesting an absentee ballot, and not in any way to influence or direct how they vote. In addition, a number of trainings were offered. As to whether in the future, you know, that might be an option to deputize care facility staff in the absence of special voting deputies, I think it is certainly something to consider. I’m very much an advocate for providing training for them, and I think there’s been some promising ideas. I know Senator Bernier is very interested in this, and we are very supportive of training. Voting is complex. You want to make sure there is a clear understanding of the process, and of the roles, and of the accommodations people are entitled to, including having assistance with completing their ballot as directed by the voter. Whether given the work force crisis in our care facilities, asking them also to take on the role of being deputized to provide in-person absentee voting on a long-term basis is the way to go, Im not certain. You know, my hope is that the special voting deputies will be able to return in the future and the care facility will play an important role, still, in supporting their residents, because, again, if people are not registered to vote, if they have not requested an absentee ballot application, then SVDs will not be coming. Most SVDs are not able to register voters when they come to the facility. I’d actually like to see the law changed so that they do have the authority to register voters, and that they can do that right up to the election just as municipal clerks can do.

Marisa Wojcik:

Backing up a little bit, because an investigator in the Racine County Sheriff’s Office really reiterated how these care residents were not of a mind to be voting, these family members are alleging that their loved ones did not have the cognitive ability or function to understand they were filling out a ballot to vote in the 2020 election. Do family members have the ability to say whether or not they think their loved ones should vote or whether or not they think their loved one has the cognitive ability to be able to do x, y, or z?

Barbara Beckert:

This is an area where there’s a lot of sensitivity. Family members, understandably, love their family members in the care facility, and they are protective, but the opinion of a care provider, a family member, a friend, or any other person about the competency of their family member should not be allowed to prevent their family member from voting. That is not allowed under our law. Someone is only going to be prevented from voting if a judge has found them incompetent. If a family member has serious concern and are not the guardian, the family member has not been found incompetent, the family member does not have the authority under Wisconsin law to prevent that person from voting, nor should they. Taking away the right to vote is a very serious thing. We often find people think a particular medical diagnosis or disability, having an intellectual or developmental disability or having Alzheimers or Parkinsons that that in and of itself disqualifies someone from voting, and that is not the case.

Marisa Wojcik:

And, so, where this investigation out of Mount Pleasant kind of starts to get more into the area of misconduct, and this was also spoken to by Senator Kathleen with last week she chairs the elections committee and is concerned that facility staff members could have been requesting ballots on residents’ behalf, and essentially having more input over the voters’ candidate choices than they should influencing them or potentially coercing them. Both Bernier and Bob Spindell of the Wisconsin Elections Commission alleged historical voting fraud in nursing homes, particularly larger municipalities like Milwaukee. Do you think this kind of voter coercion is happening in long-term care facilities where staff members could be kind of hoisting ballots upon people who might not otherwise actually be voting. They said that in 2020, more ballots were requested, far more than in previous years, which is why they think some sort of misconduct was occurring.

Barbara Beckert:

Well, first and foremost, if any misconduct or coercion are occurring, you know, as advocates for people with disabilities, we are very concerned about that and think that should be dealt with through our legal system, and I hope that’s what happens in the case of the Racine situation. If there’s individuals who acted in a way that is illegal, then they should be prosecuted. I’m a little confused because it doesn’t seem to be the direction in which that is going. In terms of any kind of widespread fraud or coercion, just based on my own experience, we have done a number of trainings on voting process and procedures for care facility providers, and in my experience, it’s been that they are very anxious to do the right thing, to understand the law, to understand what they can and cannot do, and, actually, my fear is that in the current environment that we are going to see any people potentially be disenfranchised. We should all be worried about that because our state is aging. We all hope to become older adults some day, and we have a vested interest in protecting our right to vote. I received calls from a number of care facility providers who are scared now to assist residents when they ask for assistance with voting. For example, during the April 2021 election, I received a call from a care provider staff. She had a resident who was voting absentee. He needed someone to witness his ballot. She was afraid because there’s been so much media coverage about care facility staff doing things that are illegal. She was very fearful to witness his ballot. You know, I did explain to her that that was appropriate, and that if she was assisting him with the ballot, which it turned out she had not, that she needed to sign as an assister, but all she needed to do was witness the ballot, and he didn’t have anyone else to do it. I’m not sure that she ultimately did it because she was so fearful. We heard from other staff about how they have been called by angry families and threatened with lawsuits and litigation. They have tough jobs. They are short-staffed. If they do not assist their residents with filling out an application to register to vote, with requesting an absentee ballot, their facility may not even be qualified for special voting deputies to visit, so, again, I’m very concerned about the tone of this, and that care facility residents may be disenfranchised, and that includes younger people with disabilities as well as older adults.

Marisa Wojcik:

And the sheriff said last week, we would be foolish to think that this happened at one care facility in one county in the state, end quote, but did not provide any additional information showing that this had occurred elsewhere. What, if any, are unintended consequences or implications of speculating voter fraud is occurring in care facilities all across the state?

Barbara Beckert:

I think the implications are very concerning to us. I think what the statements that we have heard potentially could contribute to an environment in which we see voters with disabilities, in care facilities as well as in the community, and older adults experience discrimination and greater barriers to voting. I think that we really need to take down the temperature here and have a constructive conversation about how in Wisconsin we can do more to ensure that people with disabilities, older adults, and others have their right to vote supported and to make our elections more accessible and inclusive. If there were more votes this year, perhaps it is because all of the care facilities received detailed instructions on how their residents could be assisted with registering to vote and with requesting an absentee ballot application. My preference and our recommendation as an agency would be that this should be a standard procedure. It should be part of the intake when someone moves into a care facility. They are moving. So, there should be a conversation. Are you registered to vote? Do you want to continue to vote? Do you need to update your registration to change your address since you’re living here now, and you probably won’t be able to go to your polling place. Would you like to complete an application for an absentee ballot? So, care facilities across our state received information about how to do that. They all had the opportunity to participate in training. I’m not sure that that’s happened in the past. So having more people have the opportunity to vote, I think, is also a very positive thing, and it is something we should commend the effort put in during a worldwide pandemic to ensure that our older adults and people with disabilities were not disenfranchised.

Marisa Wojcik:

Do you think that there is a potential of election law changes to things like special voting deputies, voting by absentee ballot, or indefinitely confine voters?

Barbara Beckert:

Well, I think, again, that there are many opportunities here, and we actually have a number of policy recommendations that we’ve had very good discussion with some policymakers, including Senator Bernier about, and would welcome the opportunity to see those move forward. For example, the current special voting deputy system, we believe has a number of gaps. We did some analysis about the number of care facilities in the state. I’m just looking at some data here, and in 2016, there were — let’s see a relatively small number of care facility residents participated in the program. Approximately 21,000. When you look at the number of beds in our state, it is over 87,000. Yeah. That seems, to me, like we have a gap there. There’s an equity gap. There are many care facility residents who would like to vote and are not getting the opportunity. So, our municipal clerks have tough jobs. One thing I think might help them out is if the Department of Health Services received some funding and had the responsibility for sending them a comprehensive list of all of the licensed care facilities in the community. You know, they may know about the big nursing homes, but they may not know about smaller group home, and that’s where a lot of younger people with disabilities live. We often hear those individuals are disenfranchised and do not have the opportunity to vote. It would be helpful if the SVD program would visit more facilities. That’s one example of opportunities, and I have a whole list Id love to share with our legislators.

Marisa Wojcik:

What do you recommend to someone watching this who has a disability and is trying to navigate the laws and rules and trying to prepare for the next election?

Barbara Beckert:

Yeah. Well, first of all, we’d welcome the chance to provide assistance to them. We have, through disability rights Wisconsin, we have a voter hotline. We provide assistance 365 days a year. It is not only at election time. It really can require some planning because so many people with disabilities are nondrivers. There’s a very high percentage of people who do not have a driver’s license, and Wisconsin has one of the most restrictive photo id laws in the country. People are often take for granted that everyone has photo id, and I can assure you that is not the case, and getting to the DMV to get a photo id for voting can be a daunting challenge for people who are nondrivers. They may require accessible transportation. Many people may not have paperwork that they need, the birth certificate and so on, to get that photo id. We have in our recommendations some suggestions about expanding requirements for photo id to be less restrictive. But that’s an example of the type of preparation that someone might do. You know, we encourage everyone, make a plan to vote. Go to myvote Wisconsin and see if you are registered now. And, if not, and you need a hand, give us a call, and we’ll be happy to assist you with that? Do you have an acceptable photo id for voting? If not, contact us, and we’ll do our best to assist with that as well. Know there may be a lot of barriers we won’t be able to help overcome because of the shortage of transportation.

Marisa Wojcik:

All right. Well, we need to leave it there, Barbara Beckert of Disability Rights Wisconsin, thank you so much for joining us.

Barbara Beckert:

Thank you, Marissa.

Marisa Wojcik:

For more from “Here & Now” and PBS Wisconsin, you can visit pbswisconsin.org/news, and thank you so much for joining us on “Noon Wednesday.”