Calls on state officials for changes to electoral system to 'improve compliance with basic election procedures'...
By Brad Friedman on 5/31/2011, 7:06pm PT  

[6/1/11 Ed Note: Kloppenburg was my guest today on my KPFK/Pacifica radio show here in Los Angeles. It was her first interview since conceding yesterday. The audio archive is now here. - BF]

Citing a "cascade of irregularities," thousands of tabulation errors discovered during the statewide "recount," and tens of thousands of ballots found to be unverifiable or otherwise having been in violation of the secure chain of custody, Wisconsin's independent Asst. AG JoAnne Kloppenburg conceded the Wisconsin Supreme Court Election for a 10-year term on the bench to Republican incumbent Justice David Prosser this afternoon at a press conference held in Madison.

"Votes were found to be miscounted in every county in the State," Kloppenburg said in her prepared remarks. [Her complete remarks are posted at the end of this article.].

"Over 150 ballot bags containing tens of thousands of votes were found open, unsealed or torn. Waukesha County had twice as many torn, open or unsealed bags as every other county in the state combined. In many cases, municipal clerks in Waukesha testified the bags weren’t torn when they left cities, towns and villages so the security breaches occurred sometime when the bags were in Waukesha County’s custody."

She continued: "Most every county and most every reporting unit statewide had discrepancies in reconciling poll books in which the number of voters and the number of absentee voters is recorded. In several counties, including Dane, Milwaukee, Marquette and Jackson, missing or uncounted ballots were found in unexpected places during the recount, such as a clerk’s office or left in machines."

Despite the widespread irregularities --- and despite the fact that state officials at the Government Accountability (G.A.B.), the state's top election authority, failed to review thousands of pages of minutes, including hundreds of exhibits recorded during the "recount" documenting the irregularities, as The BRAD BLOG reported exclusively last night --- Kloppenburg announced she would not file for a judicial review of the certified results.

"This recount should serve as a wake-up call to improve Wisconsin’s election processes," the Asst. AG explained to the gathered media...

She said there was "ample evidence that the election processes by which ballots are supposed to handled, recorded, secured and counted are not followed," and that "thousands of votes were not counted, were counted incorrectly, or have been called into question."

"There are unacceptable gaps in ballot security which, if allowed to continue, threaten the integrity of Wisconsin elections and undermine the confidence Wisconsin residents deserve to have in the results of those elections."

She went on to describe "numerous glaring anomalies in Waukesha," which, she said "certainly warrant further, independent investigation."

Nonetheless, she said, describing the bar required by the court for overturning an election, "Wisconsin law makes it clear that even on such a record as has been developed by this recount, the threshold for a Court to overturn an election on appeal is, appropriately, very high. David Prosser has won this election, and I congratulate him.I will not be requesting judicial review of the results."

Kloppenburg also announced that her campaign would be submitting a letter to the G.A.B. which "summarizes the anomalies, irregularities and in some cases the unexplained mysteries uncovered in this recount" in hopes that they might help to "improve the security, accountability and transparency of the election process in Wisconsin, and to ensure that every vote counts and is counted accurately."

"The G.A.B. must improve compliance with basic election procedures," she understated.

Kloppenburg's complete prepared statement today, as well as her letter to G.A.B. Executive Director and General Counsel Kevin Kennedy, summarizing hundreds of "compromised bags" of ballots with "large holes, tears, slits, openings...improperly sealed" and those with "seal and inspector number errors" including "unmatched or missing seal numbers or signatures," are both posted in full below...

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The BRAD BLOG's most recent detailed coverage of the WI Supreme Court election "recount", highlighting a great number of the "cascade of irregularities" referenced by Kloppenburg today...

5/3/11: "WI's Supreme Court Election 'Recount' is a Mess"
5/5/11: "EXCLUSIVE: CITY OF BROOKFIELD BALLOT BAGS FOUND 'WIDE OPEN' IN WAUKESHA COUNTY, WI"
5/11/11: "Many Problems Observed in Milwaukee 'Recount' of WI Supreme Court Election - But No Media Reports!"
5/16/11: "Kloppenburg Responds to Shameful 'Journal Sentinel' Editorial Mocking Need for WI 'Recount'"
5/20/11: "Tale of the Tapes: Wisconsin's 'Dog-and-Pony Show' Faith-Based Supreme Court Election 'Recount'"
5/30/11: "EXCLUSIVE: WI State Election Board Failed to Review Minutes from Waukesha County 'Recount' Before Certifying Supreme Court Election Results"

For our complete coverage of the WI Supreme Court election, see this category page...

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Video of complete press conference (including Q&A with reporters)
Kloppenburg's Prepared remarks of today's concession speech [PDF]
Kloppenburg letter to G.A.B. [PDF]

Prepared Remarks by JoAnne Kloppenburg
May 31, 2011

Good Morning.

Over the past five weeks, clerks and volunteers in Wisconsin’s 72 counties have worked hard and long on a recount of the vote in the April 5 election.

Over the course of their work, votes were found to be miscounted in every county in the State. Over 150 ballot bags containing tens of thousands of votes were found open, unsealed or torn. Waukesha County had twice as many torn, open or unsealed bags as every other county in the state combined. In many cases, municipal clerks in Waukesha testified the bags weren’t torn when they left cities, towns and villages so the security breaches occurred sometime when the bags were in Waukesha County’s custody. Most every county and most every reporting unit statewide had discrepancies in reconciling poll books in which the number of voters and the number of absentee voters is recorded. In several counties, including Dane, Milwaukee, Marquette and Jackson, missing or uncounted ballots were found in unexpected places during the recount, such as a clerk’s office or left in machines.

This recount should serve as a wake-up call to improve Wisconsin’s election processes.

Wisconsin clerks are hardworking public servants who have a big responsibility for a high-profile and important public function: elections. In the thousands of pages of minutes from this recount – which I and my team have analyzed – there is scant evidence of individuals trying to vote fraudulently. There is however, ample evidence that the election processes by which ballots are supposed to handled, recorded, secured and counted are not followed, because those rules are either misunderstood or ignored. As a result, thousands of votes were not counted, were counted incorrectly, or have been called into question.

Some may argue that the fact that the final vote totals changed by about 300 votes from the initial canvass to the certified recount totals, is evidence that Wisconsin elections processes reach an accurate result and this recount was unnecessary. But in the course of the recount we have seen that election procedures are not always followed or well understood. We discovered that compliance with statutory responsibilities is uneven. There are unacceptable gaps in ballot security which, if allowed to continue, threaten the integrity of Wisconsin elections and undermine the confidence Wisconsin residents deserve to have in the results of those elections.

The recount was always about much more than the small difference in votes between the two candidates. Widespread irregularities, unintentional as they may be, around the state, along with the cascade of irregularities in Waukesha, make it clear that we must do more to ensure the electoral process in Wisconsin is beyond reproach.

However, Wisconsin law makes it clear that even on such a record as has been developed by this recount, the threshold for a Court to overturn an election on appeal is, appropriately, very high.

David Prosser has won this election, and I congratulate him.

I will not be requesting judicial review of the results.

Wis. Stat. §5.01(1) provides that the state election laws “shall be construed so as to give effect to the will of the electors, if that can be ascertained, notwithstanding informality or failure to comply with some of its provisions.” It is questionable whether even the statewide extent of noncompliance uncovered by this recount would cross the bar raised by this statutory language. Moreover, Wisconsin courts have held that absent connivance, fraud or undue influence, substantial compliance with the statutory voting procedures is sufficient.

Which brings me to Waukesha and the question of whether-- or if --- there was manipulation of some ballots, given the fact that so many bags were unsealed to the point of being wide open. Here again, evidence of opportunity to manipulate or alter ballots is not enough. There would have to be compelling proof that the integrity of the ballots has been compromised. The numerous glaring anomalies in Waukesha certainly warrant further, independent investigation. However, the defects or irregularities in the sealing and securing of the ballot bags, as documented in the recount minutes, would not be sufficient to meet the threshold set by law.

As an attorney, as an officer of the court and as someone who understands both the power and the limits of the law, it is my obligation to evaluate and recognize the legal grounds on which I can and cannot act. I have reviewed the record, the evidence and the law. It would serve no purpose to bring a suit with insufficient legal basis. That is not the kind of lawyer I am.

Mark Twain once advised “Do the right thing. It will gratify some people and astonish the rest.”

We did the right thing in asking for a recount in this very, very close election. The recount shed light on significant and widespread issues with elections in Wisconsin. The magnitude of those issues surprised clerks, election volunteers, and observers from both campaigns. The problems and gaps ought to be addressed as quickly as possible. And they ought to be fixed.

That is why my campaign is submitting a letter to the Government Accountability Board which summarizes the anomalies, irregularities and in some cases the unexplained mysteries uncovered in this recount. I call on the GAB to take action, along with local clerks, to improve the security, accountability and transparency of the election process in Wisconsin, and to ensure that every vote counts and is counted accurately. The GAB must improve compliance with basic election procedures.

We are also doing the right thing by declining to pursue legal action. Based on the record established in this recount and based on Wisconsin law, the will of the electors has been determined. It is time to learn from this recount, fix the problems it uncovered and ensure that future elections are different.

The campaign I ran – respectful, honest and fair --- allowed me to share my ideas about what a Supreme Court Justice ought to be: independent and impartial. And the campaign reaffirmed my respect for and love of the law and my conviction that we can – and must – have Courts that embody the best of who we are and which are true to the ideal of equal justice under the law. In the end, I hope my supporters share that perspective: The work of this campaign may be ended, but our commitment to doing our part to make Wisconsin’s future --- and our Courts – stronger and better isn’t done. Together, we have more to do.

Thank you.

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