Investigation did not examine accuracy of results, only checked to ensure computer-reported tallies correctly included in County Clerk's final report to state...
By Brad Friedman on 4/19/2011, 7:49pm PT  

The Wisconsin Government Accountability Board (G.A.B.), the state's top election authority, found "no major discrepancy" during its four-day investigation of Waukesha County Clerk Kathy Nickolaus' handling of the contentious April 5th state Supreme Court race.

The state probe, however, did not examine the accuracy of elections results as reported by the county's electronic tabulation systems.

According to an initial report released by the G.A.B. in time for the tomorrow's 5pm deadline for Asst. Attorney General JoAnne Kloppenburg to decide if she will request a state-sponsored "recount," officials carried out a "thorough onsite examination of the documentation submitted from all the reporting units within Waukesha County ... to determine whether the official canvass results certified by the Waukesha County Board of Canvassers matched the returns provided by the municipalities."

Though they found a number of seemingly minor "discrepancies [in] the Waukesha County election returns that could not be explained based upon the documentation reviewed," the officials said that while there were "some anomalies identified, the G.A.B. found no major discrepancies between Waukesha County's official canvass report and the documentation provided by the municipalities." The discrepancies included what appeared to be one provisional vote for the incumbent Justice David Prosser, and two write-in votes for Kloppenburg which were not included in the canvass report turned into the state by Clerk Nickolaus.

The agency said their probe determined no corrections to the canvass were necessary "absent any post election proceedings," and added that "A more thorough discussion of these anomalies will be provided in the agency's complete report" promised within the next 60 days. [The G.A.B.'s complete, one-and-a-half page report, is posted at the end of this article.]

The state's investigation did not, however, appear to include examination of computer vote tabulators or paper ballots to determine the accuracy of optical-scan results reported by the electronic systems used in the county. The report suggests that paper work, such as the "Total Votes Cast Report from Voting Equipment" and "Security Documentation of Voting Equipment Memory Devices," was examined along with "Ballot Container Security Seals/Documentation" and a reconciliation of poll lists and other logs.

As The BRAD BLOG has noted since unofficial results of the election --- which had become a proxy battle between supporters and opponents of Republican Gov. Scott Walker's union-stripping legislation --- the optically-scanned paper ballot results, tallied by oft-failed, easily-manipulated computer tabulators in Waukesha, as well as the rest of the state, have not been verified for accuracy by human beings. Rather, the state's post-election canvass procedures rely only on computer-reported totals as checked against poll books and the number of ballots cast as reported by the computer counters...

On Election Night, Kloppenburg was reported to have been just 204 votes ahead of Prosser, a virtual deadlock. Two days following the election, in a stunning news conference, Nickolaus announced that she had left more than 14,000 votes out of her Election Night tally, resulting in a reversal of the state-wide results, and giving her former colleague Prosser a lead by some 7500 votes.

Prosser had previously served as Nickolaus' boss in the state Assembly Republican Caucus and, during the campaign, had promised to support Walker's legislative agenda if re-elected to another 10-year term. With Prosser in place on the bench, there is currently a 4 to 3 Right-leaning split which would be reversed should Kloppenburg be found to have won the election.

Following the canvassed results in Wisconsin's 72 counties, Prosser is said to hold a 7,316 vote lead out of some 1.5 million ballots cast --- a margin of just 0.488%, entitling Kloppenburg to a machine "recount," paid for by the state, if she so chooses. For a hand examination of all ballots, she would need to receive a court order after demonstrating that such an examination would be likely to reverse the results of the election.

The 14,000+ additional votes from the city of Brookfield, announced by Nickolaus two days after the election, had been previously reported independently on Election Night by a local reporter at the Brookfield Patch. Discrepancies in Nickolaus' explanation for the error, as well as a lengthy record of disturbing election procedures and seemingly inexplicable results in previous elections discovered since last week's press conference, have brought a great deal of scrutiny to the controversial County Clerk.

Nickolaus' checkered history includes, among other concerns, being taken to task by the County Executives after an independent audit of her election procedures discovered a host of questionable practices such as election results being kept only on a personal computer in her office, and the same user ID and password used for all three employees who had access to the system. Last week, the G.A.B. announced they planned to investigate election results in Waukesha going back five years when, in 2006, Nickolaus reported some 20,000 more votes counted than "ballots cast" in a very close state-wide race for Attorney General. The Republican candidate in that election ended up winning the contest by just over 8,000 votes state-wide.

Yesterday during a press conference following the completion of the state-wide canvass, Prosser declared victory and described the election as a "decisive" win.

His campaign attorney vowed to "take every and any step" to block the state-wide count that Kloppenburg is now entitled to, referring to such a verification of the still-unverified results as "frivolous."

According to WTAQ, "Campaign manager Melissa Mulliken said Prosser’s people would have a 'hard case to make' that it would be frivolous to ask for a recount. She said the state law clearly expects recounts when the margin is within one-half-of-one-percent, like it is here."

Last week, VelvetRevolution.us' Protect Our Elections campaign called for a complete, state-wide hand count of all paper ballots cast in the election. Today they issued an alert to members, asking them to contact the Kloppenburg campaign to encourage her to demand such a hand count in hopes of achieving confidence in the final results for both candidates and their supporters. [Disclosure: The BRAD BLOG is a co-founder of VR.]

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The complete 4/19/11 statement from the WI Government Accountability Board on Waukesha County's April 5, 2011, election returns is here in PDF format, and follows in text format below...

Wisconsin Government Accountability Board Statement
on the April 5, 2011, Spring Election Waukesha Election Returns

In response to concerns from the public regarding the unofficial election results reported by the Waukesha County Clerk, the Wisconsin Government Accountability Board (G.A.B.) conducted a thorough onsite examination of the documentation submitted from all the reporting units within Waukesha County. The examination was to determine whether the official canvass results certified by the Waukesha County Board of Canvassers matched the returns provided by the municipalities.

As soon as our office was informed of the misreporting of the unofficial election results from Waukesha County for the office of Justice of the Supreme Court, the Director dispatched Elections Division staff to evaluate the situation onsite. On Friday, April 8, 2011, G.A.B. staff met with Waukesha County Clerk Kathy Nickolaus to examine the election returns from the City of Brookfield and discuss the process which Clerk Nickolaus used when reporting her unofficial election results. The following week, our staff conducted a more thorough review of the election materials from all reporting units in Waukesha County and interviewed Clerk Nickolaus.

The review was conducted over four days and focused on auditing the Spring Election materials, including:

  • Total Votes Cast Report from Voting Equipment
  • Ballot Container Security Seals/Documentation
  • Inspectors' Statement- Election Day Log
  • Write-In Form
  • Security Documentation of Voting Equipment Memory Devices
  • Certification Page of Poll List

All documents were photographed or scanned and any relevant data was recorded by G.A.B. staff. The total votes cast record reported by the voting equipment was compared to the official canvass report from Waukesha County. The ballot container security seals were compared to the required documentation record maintained by the appropriate election officials. The total number of voters recorded on the Inspectors' Statement and Certification Page of Poll List were compared to the total number of ballots cast, to ensure there were not more ballots counted than voter numbers issued.

After completing the review of the election materials from Waukesha County, there were some discrepancies found in the G.A.B.'s evaluation of the Waukesha County election returns that could not be explained based upon the documentation reviewed. The official Waukesha County canvass for the reporting unit of City of Delafield Wards 1-7 recorded one additional vote for candidate David Prosser that was not included in the total votes cast report from the voting equipment. The County Clerk believes this was a provisional ballot. However, we have not yet verified this information. Additionally, two separate reporting units, the Village of Menomonee Falls Wards 20 & 22 and City of Waukesha Ward 36, each recorded a write-in vote for candidate JoAnne Kloppenburg on the Write-In Form. Neither of these write-in votes appear to be included in the official Waukesha County canvass. Finally, there were discrepancies identified with write-in votes and how they were reported in the official canvass. There is no information provided in the materials the G.A.B. reviewed to explain these anomalies.

Although there were some anomalies identified, the G.A.B. found no major discrepancies between Waukesha County's official canvass report and the documentation provided by the municipalities. This does not warrant correction of the canvass absent any post election proceedings. A more thorough discussion of these anomalies will be provided in the agency's complete report.

This statement focuses only on our review of the official returns of the municipalities and the vote totals certified by the Waukesha County Board of Canvassers to the Government Accountability Board. The G.A.B. will continue to review additional documentation and correspondence from the Waukesha County and Municipal Clerks' offices relating to all issues identified for investigation. In light of the potential statewide recount and our review of numerous recall petitions, a detailed report will be completed in the next 60 days.

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Article Categories: Election Irregularities, Wisconsin, Election 2011, WI Supreme Court Election