- Guest blogged by "eowyn_of_rohan"

[Ed Note: The following account from an observer at Milwaukee County's machine "recount" of ballots from Wisconsin's April 5th Supreme Court election between incumbent Republican David Prosser and independent Asst. Attorney General JoAnne Kloppenburg comes on the heels of recently documented reports of complete chain of custody violations such as "wide open" ballots bags in Waukesha County --- where the stunning announcement of the addition of some 14,000 votes two days after the election reversed the originally reported results to give Prosser the unofficial lead over Kloppenburg for the 10-year seat on the state's highest court --- as well as earlier reports of ballots discovered unsecured for weeks in Dane County's city of Verona and unexplained variances in "recount" results as reported during the "recount" by the WI Government Accountability Board (G.A.B.), the state's chief election agency. Thousands of ballots have so far been discovered to have been originally miscounted to date, even with just a minority of counties actually bothering to count ballots by hand during the "recount." - BF]

I worked on the recount in Milwaukee County last Thursday, and it was quite a disturbing and stifling experience. I left there puzzled and frustrated, and have been searching for news on 'anomalies' there, but find next to nothing. News reports have only stated there have been "no major problems," and things are "going smoothly"...

Kloppenburg stated at her recount request press conference:

People have wondered if Waukesha County 'irregularities' were perhaps a red herring, and that maybe we should be looking more closely at what's happening in other counties around the state. I really think so. I've compiled some information on the recount problems in Milwaukee County, many of which I witnessed.

It's important to understand that, in Milwaukee, as in 41 of Wisconsin's 72 counties, ballots are being "recounted" by the same optical-scan machines that tallied them in the first place, unlike the hand-counts that have been the focus of attention elsewhere. It can be very difficult to oversee that type of "recounting." Moreover, while ballots bags have been seen as opened, and their chain of custody violated in the process, in counties such as Waukesha, and stacks of ballots discovered unsecured in Dane County's City of Verona, parts of Milwaukee's count also included bags that were improperly sealed, with the secure chain of custody broken and uncertain.

I also observed a surprising number of undervoted ballots and, as disturbingly, machine tallies at the "recount" which under-reported the results for Kloppenburg as I was able to observe them on ballots before they were fed into the machines.

Some observations detailed below are more significant than others, and this is by no means a comprehensive list, so please feel free to add to it if you have additional info...

It is now officially impossible to know whether thousands of paper ballots being counted in the state of Wisconsin's Supreme Court election "recount" are the same ones actually cast on Election Day. It didn't have to be that way, unlike in Kentucky, where the voters never had a chance, and where high-ranking election officials have now been sentenced to more than 150 years in federal jail following "decades" of manipulated elections.

Thanks to serious chain of custody violations in Wisconsin --- such as ballot bags discovered to have been left "wide open" and unsealed in Waukesha County, and ballots left completely unsecured for weeks in the office of the Verona City Clerk in Dane County --- that now make it quite likely the real winner of the April 5th election for a 10-year term on the bench of that state's highest court will never be known for certain. That, even though thousands of votes have now been verified as having been miscounted during the state's partial hand-count, and even as the hotly-contested seat in question will determine the ideological balance of the court during one of the most contentious moments in Badger State history.

The majority of voters in Wisconsin cast their votes on hand-marked paper ballots. However, due to a failure to count those ballots publicly on Election Night, at the precinct, in front of the public (as per "Democracy's Gold Standard"), citizens are left guessing and forced to place misguided trust in partisan election officials like GOP activist and Waukesha County Clerk Kathy Nickolaus and her unsecure chain of custody and election reporting procedures.

With results that will never be known for certain, the razor-thin contest has now become a fully "faith-based election," in contradiction to the checks and balances necessary for true self-governance.

But where Wisconsin could have had an overseeable and fully verifiable election in which voters might have had confidence, voters in Kentucky, for years, never even had a chance as they were forced to vote on 100% unverifiable touch-screen voting machines.

The good-ish news? That is changing, as much of the Bluegrass State is finally turning to the use of hand-marked paper ballots, though they plan on tallying them similarly to Wisconsin, via oft-failed, easily-manipulated optical-scan systems manufactured by private vendors, rather than counting them transparently in front of the public.

Given Kentucky's recent history, that's a particularly troubling prospect, as underscored by several developments in two different counties in the state of late.

In 2009, a spate of high-ranking election officials in Clay County, KY --- including the County Clerk, a Circuit Court Judge, the School Superintendent, a former Magistrate, and several polling place officials --- were arrested in a massive vote buying/selling and electronic vote-machine rigging conspiracy which netted the criminals millions of dollars over the past decade. The federal charges included the County Clerk and other members of the Board of Elections having intentionally falsified election reports to include inaccurate voting results when submitted to the state.

One Republican election official pleaded guilty after the arrest two years ago, and the other eight were found guilty and convicted last year in federal court. They were sentenced this past March to a total of more than 1,871 months in federal prison.

And last week, in a separate, newly developing case, state officials impounded electronic voting machines in Perry County, KY, after Republican candidates in last November's election complained of "vote rigging" on the county's 100% unverifiable electronic voting machines...

Five out of six bags of ballots from first batch to be counted out of the City of Brookfield in Waukesha County, WI, today were discovered "almost wide open" during Day 9 of the statewide Supreme Court election "recount." The bags were open and unsealed, according to both photographic evidence and an eye-witnesses account from the counting room. (Many more exclusive photos posted below.)

"When the ballot bags were taken out and placed upon the counting table, we were literally stunned," one of the citizen observers, Mary Magnuson, a Kloppenburg volunteer, told The BRAD BLOG this morning. "5 out of the 6 ballot bags were almost literally wide open, and ballots could be clearly seen."

The ballots in those bags were among the 14,000 said to have been cast in the April 5th election, but left off of Waukesha County's tally as reported to the media on Election Night.

Earlier this week we offered a detailed report on the status of the statewide "recount," highlighting a host of disturbing and outright violations of the chain of custody of ballots, including unnumbered and renumbered ballots bags (many of them from Waukesha County); ballots discovered unsecured and/or left out of the original count all together; and exceedingly sloppy record-keeping and reporting of "recount" results by the state's chief election agency, the Wisconsin Government Accountability Board (G.A.B.). In sum, we described the state of the "recount" of the contested election between Republican incumbent Justice David Prosser and his independent challenger Asst. AG JoAnne Kloppenburg, as "a mess."

Today, after the newest revelations from the Waukesha County counting room, it got a lot messier.

"We are finding significant anomalies, including chain of custody and missing ballots, that we need to shine light on," Kloppenburg campaign manager Melissa Mulliken told The BRAD BLOG earlier this week, while we were working on our previous story. The anomalies she was referring to, given where today's unsecured ballots are said to come from, have gotten much more "significant" in the past few hours...

As things have gotten even worse over the last day or two since our detailed Tuesday night report on the mess in Wisconsin's Supreme Court election "recount" (we hope to have an updated report with the new news there later today), progressive Wisconsin blogger Patrick DePula of "Dispatches from Fitzwalkerstan" reports today that the fight for recall elections of both Republican and Democratic state senators has gotten particularly ugly with Democrats now prepared to file "formal complaints" charging massive "election fraud" (more appropriately "petition fraud"?) by the Republican Party...

Wisconsin is no Minnesota.

Where Minnesota's post-election hand count of the 2008 U.S. Senate election between then Sen. Norm Coleman and now Sen. Al Franken was, as we wrote at the UK's Guardian at the time, "one of the longest and most transparent election hand-counts in the history of the US," Wisconsin has made it extremely difficult (putting it nicely) to know what the hell is actually going on in their statewide "recount" of the April 5th, 2011, state Supreme Court election between Justice David Prosser and Asst. Attorney General JoAnne Kloppenburg.

Where Minnesota's chief election official, Sec. of State Mark Ritchie, oversaw a process to ensure that updated and accurate numbers were easily tracked and transparently shared with the media on a daily basis, Wisconsin's chief election authority, their Government Accountability Board (G.A.B.), has posted (and even sometimes removed) confusing, misleading, and unclear updates, often with inaccurate information, on various schedules, and frequently with little or no explanation for wholesale changes and deletion of data.

Where Minnesota counted every vote by hand with full public scrutiny, including photographs and video cameras, Wisconsin is tabulating ballots, often by the same oft-failed, easily-manipulated computer systems that counted them in the first place, behind barriers that preclude broad public oversight, under an agreement between both campaigns which disallows the use of video cameras by observers.

The count, which began last Wednesday, often feels as if it's happening in virtual darkness, at least to those of us trying to observe from afar, but the same sentiment has been shared with us by many we've spoken to who are there on the ground. There is an alarming lack of transparency to help the citizenry oversee the process in order to ensure accountability and an accurate count. To make matters worse, if that's possible, chain of custody issues for the ballots appear questionable in a number of reported cases, after ballots have been kept in the same darkness by election officials --- sometimes securely, sometimes not --- for the three weeks following the election and prior to the "recount."

One person we've spoken to who has also been trying desperately, as we have, to closely follow along with the progress, described the situation over the weekend by saying: "Let's call it 'fascinatingly unacceptable.' There are other 'f' words I could use, but we'll leave it at that."

Another Election Integrity veteran was forced to reach for a "bright side" by saying: "It may be worse than Minnesota, but, hey, at least it's no Florida!"

We've not written here about WI's Supreme Court "recount" since it began last Wednesday, largely because we've had such a difficult time making heads or tails of the progress, the accuracy, the integrity of the ballots or the counting, or even of the various reports of bizarre anomalies which continue to occur, often with little explanation for their resolution...

On my KPFK show (L.A.'s Pacifica Radio affiliate) today, I was joined by RadioOrNot.com's Nicole Sandler, fresh after her release from the Broward County, FL, Jail earlier today. She was asked to leave the meeting after asking questions about the GOP's attempts to end welfare as we know it.

Nicole, who hosts her own progressive talk radio show and is the regular fill-in guest host for Randi Rhodes, was held overnight (several hours of it in solitary confinement, during which she was maced by guards), after her arrest at a Fort Lauderdale town hall event held last night by freshman "Tea Party" Republican Rep. Allen West (FL-22). Though she is a constituent of the insane Congressman, she was not allowed to ask questions, as West decided last night that he would take only pre-selected written questions. That, after town hall events have been turning into embarrassments for the GOP over the past week as they've faced questions from constituents angry about their recent vote to make drastic changes to Medicare by replacing the popular single-payer health care system with a voucher program.

We covered the whole sordid affair earlier this morning in detail, including videos of the arrest, etc., as Nicole, my friend and colleague, was unreachable (still in jail) and her whereabouts were still unknown.

In the time since our article concluded with a statement from her after she'd been released and I was finally able to speak to her by phone, and prior to my live KPFK interview with her, RAW STORY obtained and published the probable cause document filed by police along with her arrest.

In the report, the arresting officer claims Nicole became "physically aggressive with this ofc., pushing me several times." The video footage we posted earlier today reveals no such physical aggression or pushing. During our interview, Nicole denied any such aggressiveness on her part, either during the arrest or in jail prior to her being maced by a Broward County jail guard.

The show also includes a quick update at the top on the WI Supreme Court election "recount" which finally got under way across the Badger State earlier today.

Download MP3 or listen online below [appx 28 mins]...

Wednesday morning at 9:00am Central Daylight Time, County Clerks in 72 counties across the state of Wisconsin will convene to oversee just the third statewide election "recount" in Badger State history. Kathy Nickolaus, the embattled Waukesha County Clerk, GOP activist, and former colleague of Justice David Prosser during their tenure in the Assembly Republican Caucus fraught with criminal felony charges and corruption, will not be one of them.

The two previous statewide recounts in Wisconsin were carried out in 1989 and, before that, in 1865.

By agreement of both campaigns, just 31 of the 72 counties will see some of their paper ballots counted by hand in the state-sponsored contest of the April 5th Supreme Court election between the incumbent Republican Prosser and his independent challenger JoAnne Kloppenburg. All other ballots are scheduled to be counted once again by the same oft-failed, easily-manipulated machines made by companies like Diebold, ES&S, and Sequoia, which tallied them originally. Each machine-tallied ballot may be examined --- though they may not be touched --- by representatives of each campaign, prior to being run through the machine again.

Waukesha County --- where some 14,000 votes were said to have been discovered by Nickolaus as unreported Election Night --- resulting in a subsequent reversal of fortunes for Prosser, and a 7,316 vote lead in the unofficial, unverified vote count --- will see all of its paper ballots counted by hand.

Unlike her counterparts in the rest of the state, Nickolaus, who is still under investigation for her actions in this election and several prior, will not oversee that count...

Guest blogged by Ernest A. Canning with Brad Friedman

"This was a decisive election about judicial independence," WI Supreme Court Justice David Prosser said at a press conference in Madison last Monday, declaring victory and explaining his opposition to a recount of the April 5th Wisconsin Supreme Court election.

"The people realized that judges should be much more than partisan politicians who wear black robes. Judges should be impartial in theory and in fact. They should faithfully apply the law without fear, and without favor," he told the assembled media.

However, as an investigation by The BRAD BLOG reveals, there is a stunning gap between the lofty ideals of "independence" espoused by the incumbent Justice as quoted above, and the sordid reality of his own personal record as a hard-Right partisan official in Wisconsin, with the state's GOP caucus, and even during his role as a justice on the state's highest court.

It is a reality, well-documented through court records and other sources, finding Prosser and his former Republican colleagues in the WI Assembly enmeshed in a criminal scheme to utilize state employees and resources at taxpayer expense in order to finance and organize WI GOP political campaigns. A reality which includes an astounding legal filing by this same sitting Supreme Court Justice in which he not only acted as an advocate for the accused, but even confessed to his own participation in the alleged crime.

In short, it's a reality which led The BRAD BLOG to wonder whether Prosser was truly better characterized as an 'independent' jurist, as per his self-description, or a partisan criminal in a robe...

On Wednesday, Wisconsin's Asst. Attorney General JoAnne Kloppenburg announced that she will be exercising her right to file for a statewide "recount" following the April 5th election for state Supreme Court against the incumbent Justice David Prosser. She also said that she intended to ask for a special investigator to be named to look into a number of still-unanswered questions about election results that were misreported by Waukesha County's Clerk Kathy Nickolaus, a former employee of Prosser's when both served in the state's Assembly Republican Caucus.

Kloppenburg's complaints have now been filed, and The BRAD BLOG has been reviewing both them, and several additional points of note since yesterday's dramatic presser, in advance of the count which is scheduled to begin next Wednesday, April 27, according to the WI Government Accountability Board (G.A.B.), the state's top election agency.

Details included in Kloppenburg's request for a special investigator in Waukesha --- including the curious point that Prosser "was observed entering the Governor's Office late in the evening and attending a private, one-on-one meeting with Governor Scott Walker" on the night following the election, on the very same day in which the controversial new GOP Governor publicly stated that there might be "ballots somewhere, somehow found out of the blue that weren't counted before." --- are certainly compelling.

Moreover, information and questions about the "recount" process itself have naturally emerged --- including a noteworthy, video-taped exchange between a citizen activist and the head of the G.A.B. on Wednesday, as well as concerns about which districts will hold court-ordered hand-counts, and which will simply run ballots through oft-failed, easily-manipulated optical-scan computers again (or worse, simply push a button to produce the same printed reported by the same 100% unverifiable touch-screen voting machines)...

On my KPFK/Pacifica show today (which we may be calling "The BradCast" thanks to suggestions here, but still open to others!), we covered the breaking news out of Wisconsin today, naturally. Asst. AG JoAnne Kloppenburg's unflinching announcement that she would be filing for a statewide "recount" in her state Supreme Court election against the incumbent Justice David Prosser, happened in a press conference just prior to air time. So we had to scramble, but think we covered things well (given what we have to work with over here.)

One of my guests was WI's former union organizer, former state planner and former elected official Leslie "Buzz" Davis, a Kloppenburg supporter who spent some 20 minutes with her at her home last night, after she'd invited him in to chat when he went there to deliver 1000 signatures on a petition asking her to recount the state.

I was also joined by Sarah Manski of WisconsinWave.org who, with her group and her husband Ben (who I worked with years ago during another recount, when he worked for the campaign of Green Party Presidential candidate David Cobb in 2004), is raising funds to support Kloppenburg's efforts.

Again, our written coverage of today's breaking news is here. Our audio coverage for KPFK follows below...

Download MP3 or listen online below [appx 28 mins]...

Wisconsin's Asst. Attorney General JoAnne Kloppenburg has filed paperwork for a statewide, state-sponsored "recount" in the controversial April 5th State Supreme Court election. She has also called for a special investigator be named to examine questions about election results in Waukesha County, where the County Clerk's procedures have come under fire both before and since the election.

Speaking to supporters at a press conference moments ago in Madison, Kloppenburg pointed to a number of reported irregularities around the state, including in Waukesha County, as well as Racine and Milwaukee and a number of other areas, which helped lead to her decision to ask for such a count. She also mentioned unusually high undervote rates in a number of districts that the campaign had examined.

"A recount may change the outcome of this election or it may confirm it, but when it is done, a recount will have shed necessary and appropriate light on an election that right now, seems to so many people to be suspect," Kloppenburg said.

In response to a question from reporters, she added, "I've asked for a recount to determine what the right count is, and also to preserve confidence in the electoral process."

Kloppenburg stated that her campaign would be asking for a hand count of ballots in several districts, and will work with the Wisconsin Government Accountability Board (G.A.B.), the state's top election agency, to determine which areas should be hand counted. State recount procedures allow for a machine recount of paper ballots unless a hand examination is ordered by a court.

In response to critics of such a post-election examination of results, including from the campaign of her opponent, Justice David Prosser, Kloppenburg was unflinching in her response, saying they've called it "a drama and a circus. Actually, it's called American Democracy."

During her remarks, she also called for on the G.A.B. "to appoint a special investigator to professionally, thoroughly and completely investigate the actions and words of the Waukesha County Clerk." That County Clerk, Kathy Nickolaus, a GOP activist and former employee of Prosser's while in the Assembly Republican Caucus, has become the focus of a number of anomalies that have emerged in election results since Election Night.

"The recount will reveal if there were discrepancies in the Waukesha vote count, but going forward, an independent investigation needs to determine what the clerk did there and why," she explained, while pointing to a number of still-unanswered questions about post-election vote tallies in Waukesha, including why it is that "conservative bloggers" were told about those adjustments before they were announced publicly.

"I don't know what will happen in the recount, but we're asking for a recount to determine what the proper count should be, and to help, from this point forward, to assure that elections are fair," Kloppenburg said, stressing her belief that the count should move forward for the benefit of all voters in Wisconsin...

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...

Via Eric Kleefeld at TPM...

The Prosser campaign went on the offensive at the presser in hopes of keeping a state-wide examination of ballots, meant to ensure the true winner of the 10-year term on the state's high court, from taking place at all.

As Milwaukee Journal Sentinel's Patrick Marley reports Prosser campaign attorney Jim Troupis said, "We will take every and any step to prevent this frivolous matter going forward."

In other words, they will do everything they can to block the verification of the unverified vote tally for a 10-year term on the state Supreme Court --- despite state law which allows for such a verification if opted for by one of the candidates in such a close race.

"Reporters asked multiple times what grounds the Prosser campaign would use to object to a recount, given that state law entitles a candidate losing by less than 0.5% to request one at state and local expense," writes Kleefeld. "When a reporter bluntly asked Troupis whether he would say what grounds would be listed in an objection to a recount, compared to what is in state law, Troupis simply responded: 'No.'"

The article also quotes Prosser himself, in all his Orwellian wonder announcing, "This was a decisive election about judicial independence." Then, just minutes later, the long-time partisan Republican who had, during the campaign, signaled his intention to help facilitate the political agenda of Gov. Scott Walker and the GOP state legislature, thanked his voters for their support of "the advancement of conservative values as the way to address and ameliorate our many problems."

Talk about your "judicial independence"!...

Milwaukee County has finally turned in their official canvass [XLS] of last week's Supreme Court election in Wisconsin, giving the almost entirely unverified results of the largely paper-ballot election to Justice David Prosser over Asst. Attorney General JoAnne Kloppenburg by 7,316 votes, according to the Wisconsin State Journal:

If Kloppenburg decides to opt for a "recount" the costs would be paid for by the state, since the canvassed results have her trailing by less than 0.5% statewide. Prosser's margin of victory, according to the currently reported numbers, should they become official, would be just 0.488%.

The official canvassing process in Milwaukee (and, indeed, the bulk of Wisconsin), is little more than a reconciliation of the number of voters who signed into poll books, plus the number of voters who registered at the polls on Election Day, plus any absentee ballots not scanned at the polling place (as in Milwaukee, where absentees are now scanned centrally, instead of at the polling place) plus a few provisional ballots later verified and counted, as matched against the number of votes reportedly cast, according to results tapes printed out by optical-scan computers such as those made by Diebold, ES&S, Sequoia and Populex.

Actual results reported by those computers are not verified by human beings as being accurate during the canvass process. Only the number of ballots cast is reconciled, not the actual votes for each candidate, in general. That, despite the fact that hand-marked paper ballots exist --- and could be counted for accuracy --- for the vast majority of the votes cast across the state on April 5th...

Guess what? As per our story published a few hours ago on the still-unexplained anomalies found in past Waukesha County, WI elections, it looks like the state's Government Accountability Board (the body which oversees elections in the state) can't understand County Clerk Kathy Nickolaus' explanations for the anomalous 2006 results either, where some 20,000 more votes were tallied than "ballots cast", according to her own reports.

Just in tonight from the Wisconsin State Journal: "State investigating vote irregularities in Waukesha County going back 5 years"

Our report from earlier this evening offers a great deal more detail on the anomalies in question, and includes explanation (of a sort) and comment from Nickolaus who, the Journal reports, "was unavailable for comment Wednesday and Thursday." She did, for whatever reason, manage to offer The BRAD BLOG comment on these concerns both yesterday and today, terse as it was. FWIW.