Trying to get to the bottom of new anomalies discovered in County Clerk Kathy Nickolaus' bizarre election results...
By Brad Friedman on 4/14/2011, 3:07pm PT  

Waukesha County, Wisconsin's County Clerk Kathy Nickolaus was already known, for some time, to be among the nation's worst elections official. And that's saying quite a bit. But new information being discovered over the past several days suggests she may be even worse than previously known --- which is also saying quite a bit.

We noted last Friday that the stunning 14,000+ "new" votes she announced as having discovered in the state's Supreme Court election from the city of Brookfield last Thursday actually weren't "new" at all. In fact, they were independently reported late on Election Night by Lisa Sink of the Brookfield Patch, exactly as they were eventually included in Nickolaus' final canvass report [XLS].

If anything, as we indicated in the same article, it is perhaps more troubling that the city of Brookfield's numbers didn't change at all from Election Night, suggesting that the ballots have never been examined by any human beings in order to assure the accuracy of the oft-failed, easily-manipulated optical-scanners used to tabulate the paper ballots in Waukesha (and across most of the state.)

That's just one reason why a complete public hand-count of all paper ballots should be carried out in Waukesha right now, presuming the chain of custody for those ballots can be demonstrated as having been secure since Election Night. Given the razor-thin margin of the still unofficial final results in the race between Justice David Prosser (a partisan Republican and avowed Gov. Scott Walker supporter) and the independent Asst. Attorney General JoAnne Kloppenburg, a similarly public hand-count of all paper ballots across the entire state should be a no-brainer at this point in order to achieve some form of confidence in the results of the, reportedly, incredibly close contest.

The "Protect Our Elections" campaign of has now publicly called for exactly that --- a public hand-count of all paper ballots across the entire state. [DISCLOSURE: The BRAD BLOG is a co-founder of VR.]

Last week, The BRAD BLOG also detailed some of Nickolaus' horrific record as County Clerk, and just a few of the embarrassments she's caused for her county, including her practice of keeping election results only on a circa 1995 personal computer in her office; using the same user ID and password for all of the employees allowed to access it; and refusing to release city-by-city, much less ward-by-ward election results on Election Night. (The latter is one of the reasons the "missing" 14,000+ votes weren't noticed by anyone in the media or citizenry earlier.) Those were just a few of the troubling concerns highlighted in an independent audit carried out on behalf of the County Board of Executives last year after they'd discovered many serious deficiencies and security concerns in Nickolaus' election procedures.

But now, thanks to some great citizen oversight --- to be sure, not easy to do in Nickolaus' county, as she makes it as absolutely as difficult as possible for citizens to oversee their own elections --- from a blogger at the Daily Kos, we learn still more troubling facts about elections and their administration in the very Republican-leaning Waukesha, including evidence suggesting 20,000 more votes than "ballots cast" were tallied by Nickolaus in the county's 2006 general election, and a remarkable 97.63% voter turnout there in the 2004 Presidential election.

We've been trying to get to the bottom of these anomalies since they were first discovered a few days ago, and we've been going back and forth with Nickolaus to try and clear them up. Here's what we've been able to figure out...

Where We Stand on the Election At This Hour

The Badger State remains on edge as they await one last county, Milwaukee, to come in with their final canvass report. After which, the candidates will have just three days to determine if they wish to request a computer recount of ballots. In order to have a hand-count of ballots, they would have to receive a court order after somehow demonstrating evidence that the results of the election would be changed if a hand-count was carried out.

Those county canvass reports --- it must be underscored again --- include results which have not been verified by human beings. Rather, the vast majority of results represent unverified totals as reported by computers made by Diebold, ES&S, Sequoia and Populex, programmed for the election by people like Kathy Nickolaus. As of now, Prosser is believed to have a lead over Kloppenburg of just over 7,000 votes out of 1.5 million cast according to those computer-reported results.

In the meantime, as we wait, DailyKos blogger "yourguide" has done a bit of looking over previous election results in Waukesha County elections and has found what appear, in any case, to be some startling anomalies. One of those anomalies, as of last Tuesday night, resulted in a number of addenda --- rather confusing ones, at that --- added by Nickolaus to the Waukesha election results web page in hopes of offering explanation.

97.63% Voter Turnout in 2004?

Let's start first with the 2004 Presidential Election turnout anomaly, as "yourguide" first detailed on Monday:

Apparently in 2004 the polls in Waukesha were teeming with voters as the Waukesha County Clerk's office showed a 97.63% turn out. No, that's not a typo. 97.63%


Of the 236,642 registered voters in Waukesha on Nov 2, 2004 apparently 231,031 of them came out in a hint of rain and drizzle and did their civic duty.

Just to put this in perspective, Australia has compulsory (mandatory) voting and their turnout is 95%.

Indeed, "yourguide" appears to be correct. Here's a screenshot from the report of the official 2004 results as currently posted on the Waukesha County government website:

While waiting to hear back from Nickolaus on our inquiry into that remarkable turnout number, we discussed the possibilities of an explanation for it with John Washburn of Fair Elections Wisconsin. Washburn, an Election Integrity expert and colleague who we've known for some time (he has guest blogged at The BRAD BLOG on several occasions over the years) is a self-described "Ron Paul Republican" and a David Prosser voter who has even spoken on Nickolaus' behalf in the past. He's also held her feet to the fire over the years at the same time, as an Election Integrity advocate and award-winning open records investigator. Despite his Right-leaning political preferences, we've found him to be an impeccable source on such matters.

During our interview with Washburn yesterday on KPFK/Pacifica, in response to our request for a possible explanation for those absurdly high turnout numbers, he joked, "I don't know, Stalin came to Waukesha and got the compulsory vote there too?"

But Washburn had previously speculated off air, during a phone conversation we'd had on Tuesday night, that the "REGISTERED VOTERS = TOTAL" line, as seen above, could refer only to those voters who were registered prior to Election Day, as Wisconsin allows for same-day registration at the polls on the day of the election. So, in fact, he averred, the "TOTAL" number of "REGISTERED VOTERS", as Nickolaus' report describes them, wouldn't actually be the total number of registered voters after Election Day, with a lot of folks signing up to vote at the polls, especially during the much-contested 2004 Presidential Election.

That, in fact, turns out to the explanation that Nickolaus is now offering as well. In a note added to her county election results website last night, following our pressing her for an explanation for this via email on Tuesday and Wednesday, Nickolaus now writes:

How can the percentage of turnout be so high?

* Waukesha County is known for higher than State average turnout. In addition the turnout is calculated using the number of registered voters, prior to Election Day. As Wisconsin allows for Election Day registration the turnout number would be skewed dependent on the number of people that registered Election Day.

You may accept her explanation as you see fit, of course. We didn't offer it to her, but it did match the one that Washburn speculated as a possibility on Tuesday evening, prior to Nickolaus' Wednesday addendum to the county website.

"I don't know how somebody could generate that report, see 97.[6]3 percent and just go 'Oh, wow, we did really good!'," Washburn noted during our on-air interview yesterday. "It just strikes me as someone who just doesn't have a good sense and feel of what numbers ought to be, what ballpark we're playing in. We should have been in the 45 to 65 range, not the 97 range."

Indeed, if Nickolaus' claim is true --- that the appearance of the absurdly high turnout rate is actually explained by unlisted Election Day registrations --- one can only marvel at an election official reviewing that "97.63" percent turnout number in a final election report, but not thinking that an additional line, listing the number of Election Day registrations, would be important to include before publishing. At the very least, changing the description of the line to "REGISTERED VOTERS (PRIOR TO ELECTION DAY)", or some such, would seem to have been common sense.

We've now suggested as much to Nickolaus who has replied to say, "Thanks for the suggestion."

As to the "RUN DATE" of "1/08/08" as seen on the top of that report (see the screenshot above), Nickolaus explained tersely via email: "Reports were in 2008 when webpage was updated."

That may be, although the next anomaly noticed suggests otherwise.

20,000 More Votes Than 'Ballots Cast' in 2006?

"Yourguide" moved on from the 2004 issue, at Daily Kos, by citing a problem which occurred in Waukesha in 2006 and which echoes parts of Nickolaus' explanation for her failure to report Brookfield's 14,000+ votes on Election Night last week. She had chalked that matter up to an initial problem where the Brookfield city clerk had improperly added additional columns to the Excel spreadsheet that was subsequently sent to the county for importing into the master results database in Microsoft Access on Election Night:

Flash forward to the September Primary of 2006. Kathy Nickolaus has what we now know to be a familiar problem:

Computer monitors at the county clerk's office late Tuesday briefly showed Lufter winning her race, as county officials scrambled to correct flawed returns from the City of Waukesha.

Final results later showed Lufter losing to fellow Republican Bill Kramer by a significant margin.

County Clerk Kathy Nickolaus said some returns from the City of Waukesha inexplicably had data recorded in the wrong column, which momentarily skewed results.

Nickolaus and her staff resorted to correcting the city's results manually a process that continued until 1 a.m., with staffers poring over a blizzard of numbers on computerized printouts.

So Nickolaus has been to this rodeo before, but doesn't seem to have taken to the necessary steps to have avoided a similar problem five years later.

But then "yourguide" notes another anomaly equally, if not more puzzling than the turnout numbers from 2004. In Waukesha's November 7, 2006 general election, as reported at the county website here, there appear to be more votes reported than actual "Ballots cast" in the election.

Another DailyKos blogger, "Cieran", neatly synthesized the numbers from that report this way:

156,804 - Total ballots cast in Waukesha county
176,112 - Total votes for Governor/Lt Governor race
174,244 - Total votes for US Senator
174,047 - Total votes for Attorney General
170,440 - Total votes for Secretary of State
168,861 - Total votes for State Treasurer

In other words, as each of the 2006 statewide races listed above reveal, there were some 20,000 more votes reported than the number of "BALLOTS CAST - TOTAL" in Waukesha county, according to the county's own report.

"Yourguide" goes on to note that "After 2006 the Waukesha County election summaries no longer have the number of ballots cast or the turnout percentage at the top of the reports."

"Cieran" then adds this disturbing note to the article [emphasis in original]:

In this 2006 election, Van Hollen won the election for Attorney General with these numbers:

1,065,453 - Van Hollen (R)
1,056,594 - Falk (D)

A difference of 8,859 votes STATEWIDE.

Waukesha county, Kathy Nickolaus' playground, reports 17,243 more votes cast for the Attorney General race in Waukesha county than there were total number of ballots cast.

How many more of those "extra" 17,243 votes were for Van Hollen than were for Kathleen Falk?? I'm guessing it's somewhere right about 8,900 votes :P

Milwaukee's Journal Sentinel picked up on this dKos-discovered anomaly on Tuesday and received a confusing statement from Nickolaus in response to their query about it.

"The answer to your question," she told the paper via email, "is that the number of ballots cast on the summary report will not equal the number of votes cast. It only reflects the votes reported electronically to the office. I have added an asterisk with this clarification to the webpage."

On the county website's election results page on Tuesday evening, an equally confusing asterisked comment was added, as such:

*The Number of Ballots Cast do not reflect all results, only those electronically sent.
(Ballots cast will not be equal to official votes cast).

In trying to make sense of this explanation, we again went to to Fair Elections Wisconsin's Washburn. He was equally perplexed by Nickolaus' cryptic explanations, though offered a possibility of what she could be referring to.

His best guess, he told us, was that she is referring to the two cities in Waukesha --- Menomonee Falls and Mukwonago --- which use optical-scan systems made by ES&S. All of the other cities there use optical-scan systems (and some touch-screen machines for disabled voters who choose to use them) made Sequoia Voting Systems, allowing her to receive results electronically via modem or Internet from those towns for direct import into Sequoia's WinEDS election results tracking system to produce results reports.

Results from the non-compatible ES&S system, Washburn suggested, would have to be entered manually, somehow, into her reporting system database.

After further queries to Nickolaus, in our attempt to get better details on her original cryptic explanation, she removed the asterisk comment, and updated the county's results webpage with more details, including:

What does Ballot Cast mean in the summary reports?

* Ballot Cast is the number of ballots that were fed through the election machines at the polling places and the results were collected using a modem in the office. It does NOT include any hand entered results.
Number of Votes in a particular contest or race is the number of votes certified after canvassing. The results collected using a modem and any results hand entered in the office on election night.
Why would the ballots cast be lower than the number of people that voted in a specific contest or race?

* The ballots cast would be lower if a portion of the results were entered by hand.

So what results, specifically, are entered by hand versus electronically? She does not say on the county webpage, and she has yet to respond to our follow-up query on this. Are they the results from the two non-Sequoia towns as Washburn suggested? And/or are there other reasons ballots may not be scanned and then included in the totals electronically?

Most of Wisconsin sends mail-in absentee ballots to the precincts (wards, as they call them) to be scanned along with other ballots on Election Day, so those are unlikely to be included among ballots "entered by hand." [Note: Milwaukee now counts absentees centrally, not at the precincts, though the entire state did still did so in 2006.]

Moreover, as the state allows for Election Day registration at the polls, provisional ballots --- in most states, given to voters who don't show up in the pre-printed poll books for any number of reasons --- are rarely used in Wisconsin. Such ballots, if cast, however, would have to be sent back to the city or county headquarters where officials later verify the voter as properly registered before tallying (or rejecting) the ballot. So provisional ballots could be included among those "entered by hand" in the final results database.

But Nickolaus confirmed to us in email, "You are correct we do no not have many provisional ballots in Wisconsin."

Washburn has also confirmed that provisionals are extremely rare in Wisconsin are unlikely to account for that many "extra" votes.

Could the ballots "entered by hand" be write-in votes? Op-scan systems cannot read write-in votes, so those must be examined by hand and, perhaps, entered into the system manually. But 20,000 of them in a single county, in all five statewide races in 2006? Seems like a whole lotta write-in votes, and not likely to account for them all --- not by a long shot.

So where do those approximately 20,000 votes in each of the five statewide races listed above specifically come from? We're left to guess at this hour, until and unless we receive a specific explanation from Nickolaus.

In the meantime, we tried adding up the results from the 2006 Attorney General race in Menomonee Falls and the town of Mukwonago to see if that might give us those "extra" 17,243 votes in that race. The numbers still don't jibe.

According to Nickolaus' published ward-by-ward results report published for the November 7, 2006 election (listed with a "RUN DATE" of "11/16/06", as opposed to "1/08/08" as seen on the 2004 report discussed above, credited to the date the county election website was supposedly updated), there were 3,471 votes counted for AG in Mukwonago and 16,907 votes counted in Menomonee.

That's 20,378 votes total from the two cities, and that would exceed the 17,243 "extra" votes seen in Nickolaus' 2006 Attorney General results report.

So the specific and independently verifiable explanation for those 17,243 "extra" votes in the 2006 AG race at this time? We still don't have one. If Nickolaus responds again, or updates the webpage a third time with an explanation, of course, we'll update this item.

Final Thoughts for Now

As mentioned above, it is because of Nickolaus' choice to not include city-by-city, much less ward-by-ward totals in her election results reports (a subject of many prior complaints by media, and a vexing problem for citizens attempting to oversee the results), that the 14,000+ votes said to have been cast, but not reported in the county numbers on Election Night, went unnoticed for a full 48 hours after polls closed, until Nickolaus finally announced it publicly (some 29 hours after she, apparently, had already discovered the problem herself) at her stunning press conference last Thursday.

Her refusal to offer such transparency, allowing the possibility of at least some citizen oversight, as other counties in Wisconsin --- and, indeed, across most of the country --- do, make her county even harder for all of us to provide checks and balances for democratic elections in Waukesha. It is those checks and balances that are key to the integrity of our system of democracy and our promise of self-governance, as we noted in our video "Special Comment" on "Democracy's Gold Standard" as offered in the wake of the Wisconsin Supreme Court election debacle earlier this week.

While hand-marked paper ballots are used across most of the state, ultimately they do little good if the citizenry is not allowed to inspect them publicly, at the polls, on Election Night, in front of all parties and video cameras, with results posting at the precincts before ballots are moved, and the chain of custody becomes suspect. Instead, in most of Wisconsin, ballots are simply run through computer systems which often malfunction, are easily manipulated and impossible to verify as accurate without bothering to hand-inspect the ballots. Citizen oversight and, thus, self-governance become a chimera in the bargain, and we are all left instead to pick at the scraps and clues left behind years later to try and guess whether any given election was recorded accurately as per the voters' intent.

That sort of election administration should be offensive to every American of any, all, or no political party.

Finally, we offer our kudos to the Daily Kos bloggers who have been digging into these matters, discovering these anomalies and forcing both media and election officials to do their jobs better.

We have had a long-standing complaint, documented in a number of occasions over the years on these pages and over the air, in regard to dKos' (apparently) former practice of deleting diaries and banning users for investigating such election anomalies. If the articles by "yourguide" and "Cieran" indicate a change in policy over there, we are delighted to see it, and hope they will continue to focus on things that matter, such as the integrity of elections in our democracy.

All of the policy discussions in the world mean little if, at the end of the day, we don't have a transparent, overseeable democracy in which every voter (or non-voter) can have complete confidence in the results. As this Wisconsin debacle demonstrates yet again, we're still quite a ways off from that worthy goal.

As more and more citizens become interested in matters of Election Integrity, might we suggest "Democracy's Gold Standard" for a quick primer on steps that can be taken now to fight for that important goal in the days, weeks, months and, yes, Presidential Elections ahead.

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UPDATE, 8:45pm: Guess what? The WI Government Accountability Board, the body which oversees elections in the state, can't understand Nickolaus' explanation for the 2006 results either. Just in: "State investigating vote irregularities in Waukesha County going back 5 years"

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