Flawed Wisconsin Race Proves Need for Transparency, Accountability in Election Procedures

When Wisconsin voters flocked to the polls on April 5, one of the factors driving the high turnout was the State Supreme Court contest between incumbent Justice David Prosser and challenger JoAnne Kloppenburg.

Prosser, whose term ends July 31, often casts the deciding vote on the seven-member court. He is a conservative Republican former Speaker of the Assembly seen as closely allied to Wisconsin's controversial Gov. Scott Walker. Kloppenburg, a virtual unknown who was given little chance of success when she entered the race several months ago, was buoyed by the high passions stirred by Walker's actions to strip government employees of their collective bargaining rights. Though the race is officially nonpartisan, it was seen as both a referendum on Walker and a chance to affect the Supreme Court's ruling on Walker's actions, which are likely to be reviewed by the Court in its next term.

Election night results were considered too close to call, but the next day when seemingly all the votes had been tallied, Kloppenburg claimed victory with a margin of 204 votes of the more than 1.4 million total votes cast. A recount seemed inevitable.

Startling turnaround

Then one day later, County Clerk Kathy Nickolaus of Republican stronghold Waukesha County suddenly announced in a dramatic press conference that she had forgotten to include the votes of the county’s second-largest city, Brookfield, in her tabulation.

The more than 14,000 votes she added now gave Prosser a lead of almost 7,316 votes of the 1,498,880 votes cast, or 0.488%. Wisconsin picks up the tab for recounts where the margin of victory is less than 0.5%, so this falls just barely within the margin of a state-funded recount.

Democratic Canvasser Not Told About the Error

During the press conference, when reporters asked the Democratic member of the Waukesha County Board of Canvassers, Ramona Kitzinger, if she could vouch for the tallies Nickolaus presented, she said that "the numbers jibed." But on Monday, April 11, the Waukesha County Democratic Party released a statement* by Ms. Kitzinger in which she says that she did not learn about the missing Brookfield votes until the press conference, that they were never mentioned at any time during the canvass even though other discrepancies were discussed.

"I was then instructed that I would not say anything at the press conference, and was actually surprised when I was asked questions by reporters," said Kitzinger in her statement. Indeed she seems to be caught off guard when she is asked to step to the microphone, and Nickolaus appears eager to silence her as quickly as possible.

"I am 80 years old and I don’t understand anything about computers. I don’t know where the numbers Kathy was showing me ultimately came from, but they seemed to add up. I am still very, very confused about why the canvass was finalized before I was informed of the Brookfield error and it wasn’t even until the press conference was happening that I learned it was this enormous mistake that could swing the whole election. I was never shown anything that would verify Kathy’s statement about the missing vote, and with how events unfolded and people citing me as an authority on this now, I feel like I must speak up," concludes Kitzinger's statement.

Nickolaus Was Computer Programmer for GOP Caucus

Nickolaus, by contrast, is very familiar with computers. According to the Milwaukee Journal Sentinel, she worked from 1995 to 2001 for the Wisconsin Assembly Republican Caucus as a data analyst and computer specialist. Prosser served as Assembly Speaker in 1995 and 1996. Nickolaus was granted immunity in a 2001 investigation that led to the resignations and criminal convictions of leaders in the Senate and Assembly for using state employees to engage in illegal political activity during work hours. Prosecutors claimed she developed computer software that was used by state officials for tracking donations. Nickolaus says she wrote the software on her own time, hoping to sell it to the state elections agency to automate the filing of campaign reports.

Nickolaus was elected Waukesha County Clerk in 2002 and her current term expires in 2012. She came under fire last year for her unorthodox practice of storing election data on computers in her own office rather than on the county's computer network.

Last August the Waukesha County Board's Executive Committee ordered an audit of her election equipment and system during the fall 2010 elections. According to the Milwaukee Journal-Sentinel, the issue came to a head when Nickolaus removed the election results collection and tallying system from the county computer network the previous spring and installed it on standalone personal computers in her office. She said she did so for security reasons so that the computers would not be connected to the internet, but Director of Administration Norman A. Cummings said Nickolaus had been uncooperative with attempts to have information technologists review the system.

"It is not a good idea to have one person in charge of everything," Cummings told the committee. "There should be more accountability than there is now."

Audit Flags Questionable Practices

When the findings of the audit were presented to the board in January, Nickolaus was far from cooperative. For example, Internal Audit Manager Lori Schubert recommended that Nickolaus stop using the same ID and password for three employees, assigning individual ones instead, as required by county policy, so that an audit trail of each employee's work exists. Nickolaus said she would take the recommendation into consideration, prompting a scolding from County Board Chairman Jim Dwyer over what he later categorized as "smirks."

"There really is nothing funny about this, Kathy," he said, raising his voice. "Don't sit there and say I will take it into consideration," he said, asking her pointedly whether she would change the passwords. She reluctantly agreed after supervisors continued to press her on the issue.

The board also questioned her decision not to report municipal election results on election night, as many other county clerks do. Though not required by law, it would increase election transparency. Nickolaus contends that she does not have the staffing to enter the data, and that people can obtain it directly from the websites of the municipalities.

Nickolaus rebuffed calls for her resignation. "I will serve the remainder of my term," Nickolaus said in a written statement.

Congresswoman Baldwin Asks DOJ to Investigate

In response to concerns raised by her constituents, Congresswoman Tammy Baldwin, a Democrat who represents Madison, WI, sent a letter to Attorney General Eric Holder on Friday, April 8, asking the U.S. Department of Justice to investigate the situation. "They fear, as I do, that political interests are manipulating the results," the letter states.

Citing information reported by the Associated Press and the Wisconsin State Journal staff, the letter asks Holder "to immediately assign the Justice Department Public Integrity section, which oversees the federal prosecution of election crimes, to investigate the questionable handling of vote records in Waukesha County, Wisconsin."

Both Prosser and Kloppenburg have retained high-profile legal counsel and are weighing their next moves. The deadline to file for a recount is Wednesday, April 20. The state's Government Accountability Board has also been conducting an investigation of both the election integrity and procedures and intends to release its report before the recount deadline. Prosser's campaign said that he is open to a recount of the county's ballots.

Kloppenburg's campaign filed open records requests and both sides have been poring through the poll books, voting machine tapes, and other records. Meanwhile the original paper ballots remain in Nickolaus' custody pending the possibility of a recount.

Accountability and Transparency
Are Key to Public Trust

Whatever the outcome of this contest, this episode highlights the need for election processes to take place in full public view, especially when passions are high and public opinion divided. For a single election official to have unfettered access to election tallies without accountability to anyone breeds distrust of the election process.

Fortunately Wisconsin votes on paper ballots where voter intent could be examined in a full hand recount if Kloppenburg decides to pursue that option. That would not be possible in a state such as Maryland where votes are tallied inside electronic machines that provide no independent record of voter intent.

But even a paper trail cannot safeguard an election process as opaque and autocratic as this one. A routine audit of election procedures, comparing vote totals to turnout records, should have flagged any missing votes right away. Discovering a large number of missing votes that flip the outcome two days after an election is guaranteed to raise suspicions of foul play, even if subsequent investigations confirm the legitimacy of the vote counts.

At this time when our nation is so politically divided, we cannot afford to have an election system where the integrity of the process is in doubt.

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[*Note: The original link to the statement on the Waukesha County Democratic Party site is no longer working, but Daily Kos still has the text of the statement posted.]

Update 4/15

The state's Government Accountability Board says it will expand its investigation into vote irregularities in Waukesha County going back 5 years after the Daily Kos blog raised questions about 2006 tallies where the number of votes recorded exceeds the number of voters by more than 17,000 votes. Also suspicious 2004 tallies.