At many of his campaign events, Republican attorney general candidate Eric Toney surrounds himself with uniforms. A news conference outside Wisconsin’s Department of Justice in early October was no different.
Flanked by the Republican sheriffs for Dodge and Washington counties, Toney accused Democratic Attorney General Josh Kaul of mismanaging the DOJ.
Toney, a 38-year-old district attorney for Fond du Lac County, has made endorsements from police union groups and dozens of local sheriffs a centerpiece of his campaign.
Stay informed on the latest news
Sign up for WPR’s email newsletter.
“We need people that are going to be serious about public safety, not just giving it lip service,” Toney said. “And that’s why I’m law enforcement’s choice for attorney general.”
Although the Nov. 8 faceoff between Kaul and Toney is getting less attention than this year’s races for Wisconsin’s governor and U.S. Senate, the attorney general’s office is hugely consequential with issues like abortion rights, election integrity and voter access at the forefront.
It’s a job often referred to as the state’s “top cop,” although John Blakeman, a political science professor at the University of Wisconsin-Stevens Point, said the description only partially describes the office.
“In terms of actually fighting crime … there’s very little role or minimal role for the attorney general to play,” Blakeman said. “Working in the larger realm of crime policy, the attorney general can have a lot of impacts.”
Toney touts law enforcement backers, calls for expanded authority in Milwaukee area
But in a year when Republican campaigns around the nation pushed a “tough on crime” message, Toney has leaned into the “top cop” label.
In his speech to the Republican Party of Wisconsin’s annual state convention earlier this year, he said he’d use the attorney general’s office to “lock up dangerous criminals,” telling GOP activists that law enforcement ran in his family.
“This is personal to me,” Toney said. “My dad spent over 30 years as a police officer.”
Toney has spent the last decade as Fond du Lac County’s district attorney, and during that time he’s proven himself as an advocate for local law enforcement, said the county’s Republican Sheriff Ryan Waldschmidt.
“He’s not only worked as a prosecutor, but he’s worked to embed himself in the world of law enforcement,” Waldschmidt said. “He’s done ride-alongs. He comes in in the middle of the night or on weekends, or when there’s big crime scenes.”
Citing spikes in violent crime, Toney has also called for Wisconsin’s Legislature to expand the attorney general’s prosecuting authority over crimes in Milwaukee County, which would otherwise be handled by local prosecutors.
“When we look at Milwaukee, we know that crime in Milwaukee spreads across Wisconsin,” Toney said. “And that’s why we direct those resources to protecting Milwaukee and it protects all of Wisconsin.”
With the exception of high-profile cases, it’s rare for state attorneys general to take on criminal prosecutions, said Blakeman, who studies politics and the legal system.
Much of the role involves civil cases, like enforcing consumer protection and environmental law.
Compared to violent crime, the environment has been less of a focus of Toney’s campaign. Still, he says he’d be willing to sue to enforce environmental regulations, though he’d first pursue strategies of compliance like fines or remediation.
Toney has also emphasized the DOJ’s oversight over crime labs that analyze evidence for local police.
Average processing time for DNA and toxicology evidence increased last year compared to when Kaul first took office in 2019, a DOJ report shows. Kaul has attributed the lag to the coronavirus pandemic and a switch to more complex techniques for analysis, and he’s said that turnaround times are now on the right track.
Kaul has also pledged to reach full staffing capacity by the end of the year, and he’s asked the Republican-controlled Legislature for more funding in the next budget cycle for uses including hiring more prosecutors, special agents and crime lab staff.
Toney faces scrutiny for taking on voter fraud cases as district attorney
Toney’s record, too, has faced scrutiny — particularly his choice to take on voter fraud cases as district attorney while he runs for attorney general.
In all, Toney has charged eight people with voter fraud in Fond du Lac County. Two have been convicted so far, including someone who pleaded guilty to using a P.O. box address to vote despite not living in the county. Another was sentenced for voting illegally as a felon.
Other cases involved people who appear to have been eligible to vote, but who improperly listed a UPS address when they registered, Wisconsin Watch has reported. Wisconsin law requires a residential address.
Some election law experts have called Toney’s decision to charge these voters an abuse of prosecutorial discretion, arguing that an error doesn’t amount to fraud and that a crackdown could discourage people from voting.
Kaul has questioned whether politics have driven Toney’s recent focus on voter fraud, noting that Republicans have made fraud a focus in an attempt to undermine the legitimacy of the 2020 election.
“I think it’s really important that prosecutors are charging people consistently, based on the facts of the case, not based on any political motivations,” Kaul said. “While I can’t speak to what his motivations were in any particular case, there certainly is a change in the pattern from the way that he’s handled those cases.”
“In the event that you have a case where somebody has made an honest mistake,” Kaul added, “I (don’t think) that’s the approach that a responsible prosecutor would take.”
Toney has rejected the argument that someone could have simply been unaware that they need to provide a residential address, noting that sections for both home and mailing addresses are clearly spelled out on the registration form voters sign.
Unlike some Wisconsin Republicans, Toney acknowledges that Joe Biden won the 2020 race, and he’s rejected Kaul’s attempts to tie the Toney campaign to election deniers.
“I’ve been the most vocal statewide Republican candidate saying we cannot decertify and should not attempt to decertify the election here in Wisconsin, and that there was no widespread voter fraud that would have overturned the results of the election,” Toney said. “That being said, I’m prosecuting election fraud, because there are some people that didn’t follow the law and we have to defend the integrity of our electoral process.”
Kaul calls Wisconsin’s abortion law ‘draconian,’ but Toney says he would enforce it
Kaul, who was first elected attorney general in 2018 and who formerly worked as a federal prosecutor, has pushed back against the Toney campaign’s assertion that he’s somehow “soft on crime.” Unlike Toney, Kaul says he would not enforce an 1849 Wisconsin law that bans abortions unless they’re done to save a pregnant woman’s life.
The law, which went back into effect after the U.S. Supreme Court overturned Roe v. Wade this summer, does not include exceptions for rape and incest, and Kaul contends that enforcing the “draconian” restrictions would shift the DOJ’s focus from more serious issues.
“We always have to make decisions about where we’re putting our resources,” Kaul said during a debate at the State Bar Association’s Madison headquarters. “I believe they should go to investigating and prosecuting homicides, sexual assaults, drug trafficking cases, the most serious crimes in the state. My opponent has been clear that he believes those resources should go towards going after people for abortion.”
Kaul has also criticized Toney for comments he made to PBS Wisconsin when he suggested district attorneys could cross county lines to prosecute abortion cases, saying it showed he wanted to empower “roving abortion ban enforcers.” Toney has since said he never expressly advocated for the change.
Kaul’s DOJ is currently suing in an attempt to block the abortion law — prompting Toney to accuse Kaul of playing politics.
“What we need is an attorney general that’s going to follow the rule of law, not personal partisan beliefs,” Toney said in an interview with Wisconsin Public Radio. “That’s what my track record is as a district attorney.”
Blakeman, from the UW-Stevens Point, said it’s no surprise to see the issues Kaul and Toney are highlighting in their campaigns.
“If you look at the most recent Marquette poll, it’s clear for Republican leaders and independents that crime and especially gun crime are the top three issues they’re focused on,” Blakeman said. “Whereas for Democrats, abortion rights are one of the top issues they are focused on.”
Marquette did not poll on the attorney general’s race, but recent history suggests it could be close.
Kaul won the 2018 race for attorney general by about 17,000 votes, or less than a percentage point.
In August, Toney squeezed out a win in the August Republican primary, beating second place finisher Adam Jarchow, a former GOP lawmaker, by less than 3,000 votes out of nearly 600,000 cast.
Since then, Toney has continued to tout crime-fighting credentials from his time as prosecutor. And next week, voters will decide whether that’s enough to make him Wisconsin’s attorney general.
Editor’s note: This story is part of WPR’s series on the election. Read our profile of Democratic Attorney General Josh Kaul here.
Wisconsin Public Radio, © Copyright 2024, Board of Regents of the University of Wisconsin System and Wisconsin Educational Communications Board.
