Bi-partisan citizen effort to oversee completely unverified June 5th results 'illegally' blocked by Kathy Nickolaus...
By Brad Friedman on 8/13/2012, 6:35am PT  

[LATE UPDATE:The recall ballots from Waukesha County have been saved from destruction, for now. Full details posted in our follow-up now here...]

One of the most notorious election officials in the nation may be mercifully retiring at the end of this year, but that hasn't stopped her from attempting to block citizens hoping to oversee the accuracy of their own elections in one of the most right-leaning counties in Wisconsin, following one of the most contentious elections of the year and certainly in state history.

Waukesha, WI County Clerk Kathy Nickolaus had, at one time, after the repeated controversies around her failed administration of several elections, promised to step aside and allow her deputy to administer the June 5th recall elections, only to reverse course weeks later. Now, clearly back in the saddle, she has notified an Election Integrity group which has organized hand-counts across the state, that she was preparing to "destroy" the paper ballots cast in the election before they can be hand-counted by the group, unless she receives a court order to do otherwise by noon today.

She had previously informed the group that she was denying them access to examine ballots on the basis that she found their request to be "overly burdensome" on her office. In her response she also added her personal opinion, for some reason, that she does not "believe the public records law should be utilized for the purpose of allowing citizens to conduct hand recounts of an election, especially one in which there was such a large quantity of votes cast."

Among reasons for concerns about the June 5th recall election results are recent failures by similar electronic tabulation systems, same-day Exit Poll results reported by all of the news networks indicating a much closer race in the contest between Gov. Scott Walker and his Democratic opponent, Milwaukee Mayor Tom Barrett, as well as discoveries that have been made by the group over the past several weeks during their examination of ballots and poll-tapes in several counties.

So far, according to group's organizer, they have been allowed to examine ballots in 10 other counties across the state, with another 15 counties already scheduled for examination in the coming weeks. In a number of those counties, the group has explained to The BRAD BLOG, hand-counted tallies "have differed, sometimes significantly, from the recorded numbers," tallied on Election Night by the computer tabulation systems.

But Nickolaus, as has been her practice during her controversial tenure, appears to be taking a different tack from many of her fellow County Clerks, by denying access to hand examinations of the ballots and, worse, she is now threatening to destroy them entirely, save for a court order and despite provisions in the state law requiring the retention of those public records for at least 60 days after the denial of the request.

Nickolaus' threat to destroy the paper ballots and other elections records, as sent to the organizers of Hand-Count Votes Now! (HCVN) coalition in a series of emails obtained by The BRAD BLOG, flies in the face of state statutes which apply to public records, according to contentions made in response to Nickolaus by the group and their legal advisers. HCVN has been working for several weeks, as have several other organizations, in their effort to count ballots by hand in each of the Badger State's 72 counties in an unprecedented statewide public records oversight project.

The effort, the groups charge, is necessary, given the lack of verification of Election Night computer tallies on systems which have reported incorrect "winners" in the past, as recently as March of this year, when the nearly-identical systems to those used in Waukesha named a number of losing candidates to be the "winners" in Palm Beach County, FL. In that case, it was only a partial post-election hand-count examination of paper ballots by the local Supervisor of Elections which revealed that the computers had gotten the results entirely wrong, leading to a complete hand-count and the results of several municipal elections being overturned as a result...

'Unlawful destruction'

Following Gov. Scott Walker's historic June 5th recall election, in which oft-failed and easily-manipulated computer tabulators across the state reported a 100% unverified "victory" for the controversial Republican, a number of multi-partisan Election Integrity groups filed Public Record Requests in hopes of examining paper ballots and electronic voting system print-outs by hand before they were to be destroyed --- by state law --- as early as 30 days following the election.

Margy Lambert, a leader with the HCVN coalition --- the largest of several groups conducting similar efforts across the state --- tells The BRAD BLOG that, along with their coalition partners at the Wisconsin Wave organization, they now have "750 volunteers from all over Wisconsin who have signed up to count ballots," and that they have made a number of troubling discoveries to date.

She says that, as part of the effort, hundreds of volunteers have been "trained to count ballots with training sessions offered each week", and that the group has "counted ballots in over 10 counties so far" with "an additional 10-15 counties scheduled for the next few weeks."

But, in the very Republican enclave of Waukesha, Nickolaus has interceded and attempted to erect a roadblock. She has informed the group via emails reviewed by The BRAD BLOG, that unless she receives "a court order by noon on Monday, August 13, 2012 directing otherwise," she may "destroy the election materials from the June 5, 2012 Recall election".

Lambert and attorneys advising her group are crying foul in response to Nickolaus. They charge that state statutes applying to public records requests mandate at least 60 days following the denial of a request to review records before those records may be destroyed.

Wisconsin Wave has announced a rally this afternoon (Monday) across the street from the Waukesha County government building to protest Nickolaus' actions. They assert that "While many County Clerks have been more than happy to work with us, Waukesha County's Kathy Nickolaus has illegally denied our open records request to view ballots in the county."

"If she goes ahead with the ballot destruction," Wisconsin Wave promises on their website announcing the rally, "she will be held accountable legally!"

Lambert tells us that the groups "are considering our legal options. We have to do everything we can to prevent the unlawful destruction of these ballots and to proceed with counting them as soon as possible."

Good reasons for concern about results

There are a number of reasons to question the accuracy of the results reported on the night of the June 5th recall election, which, at the time --- and even ever since --- were completely unverified by any human beings as accurately tabulated.

On Election Night, as the polls closed at 8pm CT, all of the cable news networks declared that Exit Polls viewed throughout the day showed a neck-and-neck race between Walker and Barrett. They informed viewers that it was simply "too close to call" and was likely to be a very long night as computer-tallied results came in across the state. By 8:45pm, however, almost every network had called the race for Walker by big numbers.

Reporters were straining for an explanation for the disparities between their Exit Poll results and those reported by the electronic voting systems.

"In the Exit Polling today, it looked like it was going to be very very close," MSNBC's Rachel Maddow said while interviewing John Harwood, CNBC's Chief Washington Correspondent, in the hours after the race had been surprisingly called for Walker by all of the news nets. "In the end, it was not very close. Do we know yet what happened?," she asked him.

"I been trying to figure that out myself," Harwood answered, "because we were expecting a long night, maybe not even a call tonight, not until the morning...So I'm quite surprised and don't know exactly what was off in the measurement." He went on to speculate what might have been "off" in the Exit Polling, as Maddow noted "the other unexplained thing connected with the Exit Polls" that they "were still trying to figure out," is why Barack Obama enjoyed an 11-point preference over Mitt Romney among recall voters, according to the same Exit Polls, even though Walker was being declared the easy "winner".

The disparities in those numbers have never been explained. Those still-unexplained Election Night mysteries led to a number of groups across Wisconsin taking action to try and verify the actual results for themselves, since the state of Wisconsin does not.

Unverified computer results

Lambert a scientist, writer, editor, and safety consultant, is working with HCVN on her own behalf, though she has served as a state Democratic Party outreach coordinator for senior and disability voters.

Republican Scott Walker voter John Washburn of Fair Elections Wisconsin, however, shares many of Lambert's concerns about the integrity of the computer-tallied election results reported after the close of polls on June 5th. He has been working with a separate, bi-partisan group, on a parallel effort to examine ballots across the state as well.

On the night of the June 5th election, we spoke with Washburn after the inexplicable computer-reported results had come in. He too wondered about the difference between the much closer Exit Poll results as described by the media compared to the computer-reported tally of ballots showing an easy win for Walker.

"Why is it that the media simply presume the election results are correct, but that the Exit Polls are not?," he asked. "Why is one set of unverified data more trusted than the other, especially when neither are made publicly verifiable?"

Washburn, an Election Integrity expert and award-winning public records investigator, told The BRAD BLOG following the discovery of the massive failures in Palm Beach County, FL, weeks earlier --- when that county's paper-ballot optical-scan systems made by Sequoia Voting Systems had tallied three races incorrectly, leading to the Election Night announcement that two losing candidates there had been incorrectly declared the "winners" --- that "Waukesha uses the exact same version of" the Sequoia tabulation software "as used in Palm Beach."

The same Sequoia software is also used elsewhere in the state, he says. And yet, according to a conversation he says he had following the incident, with an official at Wisconsin's Government Accountability Board (G.A.B.), the state's top election agency, state election administrators hadn't been made aware of the company's "Product Advisory Notice" [PDF] detailing the software failure (as issued after the Palm Beach debacle in March, by Dominion Voting, which now owns and manages many of Sequoia's e-voting systems around the nation) until just before the June 5th election.

Washburn, who, in the past, has actually sat in for Nickolaus at meetings of the Waukesha County Executive Board (though he no longer has confidence in her election administrator), says there is no reason to have faith in the results of the election as reported in Waukesha, or elsewhere around the state, in lieu of human verification of ballots.

The Sequoia systems are not the only ones used in Wisconsin --- and in many states around the country --- which give cause for concern.

As we reported before, during and after the historic June 5th recalls, while most Badger State voters cast their votes on hand-marked paper ballots, those ballots are tabulated, without human oversight, by computer systems with a long record of failure, including in recent elections.

In New York City, in 2010, op-scan systems made by ES&S managed to toss out thousands of valid votes, including as many as 70% in one South Bronx precinct. It took nearly two years before the failures were discovered, after the New York Daily News was finally able to examine the paper ballots via a public records request similar to the one HCVN and others in WI are now trying to carry out.

In Oakland County, Michigan, officials found the same ES&S machines failed to count the same ballots the same way twice in 2008. Election officials there were lucky enough to discover the failure during pre-election testing, which was chalked up to dirty equipment.

And, famously, in Leon County, FL, in 2005, the results of a mock election were entirely flipped on a Diebold optical-scanner after it was hacked by a computer security expert, as seen in the chilling climactic scene of HBO's Emmy-nominated 2006 documentary Hacking Democracy.

In all of the above cases, it was only a hand examination of the paper ballots which revealed the mistabulations by the op-scanners, the same type of examination the citizen auditors are trying to carry out right now across Wisconsin.

HCVN describes "handcounting ballots at the polling locations on Election Night," as a long term goal, given the repeated problems with computer talies in past elections, and as discovered over their weeks of attempting to verify the results of the June 5th election.

Disturbing discoveries so far

While Lambert's group is keeping the specific results of their findings to themselves at the moment, as they double-check concerns and complete their work across the state, she says that they have discovered a number of troubling issues to date.

Among them, Lambert told The BRAD BLOG, "HCVN handcounts have differed, sometimes significantly, from the recorded numbers," reported on Election Night.

Moreover, she explains, the group is finding that "sometimes the numbers on the poll tapes" --- the machine result print-outs created after the close of polls by paper-ballot optical-scan computers as well as touch-screen devices, where they are used --- "do not match the numbers reported by the G.A.B."

"Lax security," has also been observed in a number of counties by the hand-counters. Lambert told us via email that they are finding that "ballots are sometimes stored in regular cardboard boxes sealed with simple tape; some bag seals break when you touch them," and that "some bags and boxes that have been opened for some reason (e.g., by Boards of Canvassers or for a recount) are not always resealed securely, just taped closed."

Furthermore, she explained, official results reported by the G.A.B. do not include undervote totals. So, for example, the investigators are finding that some wards may include uncounted ballots with votes for Barrett which the machines saw, for some reason, as having no vote at all in the Gubernatorial recall contest. "Unusual patterns of high levels of undervotes cannot be assessed unless poll tapes are observed," Lambert explains, even though Nickolaus is threatening to destroy those poll tapes along with the county's voted paper ballots.

Adding to the difficulties the volunteer auditors are encountering in attempting to verify results, are that "many counties have switched over to almost all touchscreen voting machines," which provide no way to verify the accuracy of computer-recorded results at all.

The G.A.B. list of voting systems across the state has also been found to be often incorrect, Lambert says, "so that patterns of voting by machine type for municipality/wards cannot be assessed unless the correct information is obtained from the county or municipal clerk," in the hundreds of municipal jurisdiction across the state.

"Likewise," she explains, "the G.A.B. reported numbers are totals for candidate per polling location/reporting unit, rather than a complete tally sheet with the numbers of votes for each candidate broken down by ward AND by type of machine/method (touchscreen, optical scan, or handcounted paper ballots)."

In Waukesha County, however, unless Nickolaus reverses course, even the information that might be available to determine if results were recorded as per voter intent on June 5th, could soon be destroyed without any human beings ever reviewing it to assure votes were counted as per voters' intent.

Nickolaus blocking citizen oversight

"Frankly, without paper ballots and without audits, we would have let the wrong winners serve," Palm Beach County, FL Supervisor of Elections Susan Bucher told The BRAD BLOG after her Sequoia tabulators reported inaccurate results in March.

"The technology failed, but our procedures prevailed," she explained during our interview, describing how her lucky post-election spot-check of 2% of ballots tallied by the systems resulted in the discovery of the mis-tabulated votes.

Bucher says, "I have a feeling that this isn't the first time," the systems failed in the same way, "but we never noticed," until new state laws mandated the manual spot-check of paper ballots in some of Florida's elections.

In Wisconsin, however, for most elections, there are no statutory procedures or mandates in place for post-election spot-checks or audits. Even in the event of "recounts" for close races, ballots are simply re-tabulated by the same oft-failed, easily-manipulated computer systems that tallied them originally, unless a court issues a ruling to mandate that ballots be hand-counted.

According to state statutes [PDF], ballots and other election materials in Wisconsin are simply destroyed as early as 30 days following non-federal elections, and after 22 months in the case of federal elections. For Presidential races there is a requirement for a minimal post-election spot-check of ballots some months later in the Badger State, according to Washburn, to gauge the accuracy of the voting systems. That check, however, is carried out only long after the election has been certified and after it is too late to affect the results of completely unverified Election Night tallies.

The statewide effort by citizens' groups to oversee their own results has been underway for some weeks. Following the election, public records requests were filed across the state and Kevin Kennedy, Executive Director and Counsel for the G.A.B., issued directives to County Clerks with guidance on how to respond to them. His directives appear to have been in contradiction of state laws.

He had advised that citizen auditors were not to be allowed to touch ballots, and that counties could charge rather exorbitant fees for finding ballots and for holding them up one-by-one to be counted, to avoid them being touched by the auditors. His advisories, however, were consistent with ballots still being held for potential "recount". In this case though, the races have all now been certified and the ballots are otherwise scheduled for destruction --- once they are no longer being retained under rules pertaining to public records requests.

In Marinette County, just last week, the county attorney settled a lawsuit filed by one of the groups attempting to hand-count there. Washburn has been working with that group, as progressive activist Mary Magnuson has made a number of requests to count ballots in a number of wards around the state.

Over the weekend, she announced on a Facebook page that "In less than one week, counsel could obviously see that the Kennedy directives were not founded in law. They will not only allow us to touch the ballots, but will certainly not charge us the $26.12 per hour to count them. We've been given full and complete access! A victory!"

Magnuson goes on to say that "the directives need to be [officially] removed well in advance of the up-coming --- and very likely contentious --- November election so that everyone knows how to proceed, should [Freedom of Information Act public records requests] be sent out."

She adds that they've asked their attorney "to request an Expedited Opinion from the [state] Attorney General as to the directives, again using the very relevant argument that other counties are open to lawsuits based on faulty information given to Clerks by Kennedy."

In Waukesha County, however, as of last week, Clerk Nickolaus was blocking the HCVN auditors anyway.

In mid-July, the Waukesha County Clerk sent a partial denial of the group's open records request [PDF] to review all of the ballots and poll-tapes in the county, arguing that it would simply be too "burdensome for my office to complete."

In a 7-page response sent to Attorney James Mueller who had, at the time, been representing the group, Nickolaus said the open records request filed in each of WI's 72 counties, by fax on July 2 and again by email confirmation on July 3 [PDF] did "not constitute a reasonable request." She claimed that fulfilling the request "would severely impair the normal functioning of this office."

"Likewise, your request to inspect and hand count the used absentee ballot envelops is denied for the same reasons," she wrote.

While other counties have had no problem agreeing to the requests, Nickolaus cited her office's experience during the disastrous six-week hand-count of the 2011 Supreme Court election as evidence that the count of the ballots cast by the people in the Gubernatorial recount in her county would "cause an undue burden on my staff." Lambert, however, is quick to note that the time estimates for the examination, as provided by Nickolaus, are based on a statutory "recount" process, not a citizen audit. She says that the Clerk's estimates amount to "a gross overestimate based on HCVN's experience handcounting ballots in other counties."

The 2011 statewide Supreme Court election hand-count was necessitated by Nickolaus herself after she claimed, two days after the election, that she had discovered some 14,000 unreported election night votes. The new totals ended up flipping the statewide results from a slim margin of victory for independent challenger JoAnne Kloppenburg to a win, instead, for incumbent Justice David Prosser, Nickolaus' former boss in the state's Assembly Republican Caucus.

Nickolaus went on to note, in her July 17 missive to HCVN, that her "office is very busy at this time with elections," including "the upcoming August 14, 2012 primary election which will take place before the November 2012 Presidential election. This high level of election activity limits the staff time I have for other activities."

She also explained that while "the public records law in Chapter 19 of the Wisconsin Statutes does not allow me to ask the purpose for a records request...since you have provided the purpose, I will address it."

"I don't believe the public records law should be utilized for the purpose of allowing citizens to conduct hand recounts of an elections," she offered in her unsolicited opinion, "especially one in which there was such a large quantity of votes cast."

"The fact that multiple citizens are now attempting to perform their own recounts by misusing the public records law emphasizes my point and multiplies the cost of time and money to my office and the taxpayers," Nickolaus asserted without explaining how it is that those same citizens are to have confidence in the results of elections announced and overseen only by her, as tallied by computer systems which have failed to offer accurate results time and time again.

In short, she seems to be telling her constituents and the voters of Wisconsin: "You'll just have to trust me."

Nickolaus' history of failure and her threat to 'destroy' the ballots

"I don't want you to have to trust your election officials," Palm Beach County, Florida Supervisor of Elections Susan Bucher told us after discovering that her county's computer tabulators --- the same one used in Waukesha County, WI --- had failed. "I think your election officials have to prove it."

Waukesha's Nickolaus clearly disagrees with Bucher, her counterpart in sunny Palm Beach. But while trusting in any election official may run counter to the notion of transparent, overseeable self-governance, one would have to be a fool to simply "trust" Nickolaus --- for anything --- given her alarming record of gross incompetence and arrogant failure during her disastrous reign as Waukesha County Clerk.

At the end of her July 17 letter explaining while she was partially denying the original request by HCVN to examine the ballots in her county, she noted that, "If I do not hear from you by August 7, 2012, I will assume that your clients do not intend to proceed with the inspection or copying of these election materials. At that time I will proceed with storage or destruction of the election materials pursuant to statute and GAB guidelines."

Her August 7 deadline was an "arbitrary" one, according to Lambert. Nonetheless, the group contacted Nickolaus on that date, again via email, from the same address they had sent their original July 3 confirmation of their public records request, to notify her that they were "still interested in reviewing your election materials and you should not consider our request withdrawn. We are consulting our legal team regarding your response and will be in touch to schedule appointments with Waukesha County."

Nickolaus was subsequently informed that the group had changed attorneys during July, as they had joined up with the Wisconsin Wave organization to help organize the statewide effort.

In response, Nickolaus wrote, erroneously, that she had "not received any prior records request" from that email address and subsequently stated that Mueller, their former attorney, "did not pursue [the July 17] response or schedule an appointment for inspection of records," and that "His deadline has now passed."

"Unless I receive a court order by noon on Monday, August 13, 2012 directing otherwise, I will proceed to retain or destroy the election materials from the June 5, 2012 Recall election according to state statute and GAB guidelines," she informed them last Wednesday in what seems to be yet another arbitrary date.

Commenting on Nickolaus' threat on Sunday night, the Republican Election Integrity expert Washburn told us "She's in a world of legal pain if she does destroy those ballots." He expects that his group will be "visiting the D.A." in that event, since there is a public records request which has only been "half responded to" at this time.

Lambert and Wisconsin Wave have every reason to be concerned, however, given both state statutes and Nickolaus' history. State law calls for the destruction of ballots 30 days after an election. However, as Lambert informed Nickolaus in a follow up email, on advice of the group's new attorney, she does "not have authorization to set arbitrary deadlines for inspection," of public records.

"You are required to maintain the records for a minimum of 60 days from the July 17, 2012 date of your denial of our records request under Wisconsin Statute 19.35, subsection 5," Lambert informed the County Clerk, adding, "If you proceed with destruction of the election materials as you indicate in your August 8, 2012 email, we will not hesitate to sue you and Waukesha county for punitive damages."

Fighting for citizen oversight of elections in Waukesha County has become an embarrassing, if all too common occurrence in the heavily-Republican county over the past several years. And it's not just Democrats who have faced nightmares in working with the Republican Nickolaus.

The BRAD BLOG began covering Nickolaus and her alarming administration of elections long before the 2011 Supreme Court debacle when, in August of 2010, it was revealed that an audit of her office by the Republican-led County Executive Committee discovered her troubling election practices, including her decision to remove election data storage from the county's computer network and store it on her own circa-Windows '95 personal computer in her office instead. Moreover, she used only one password for access to the system by everybody in her office. "What it gave me was good security of the elections from start to finish, without the ability of someone unauthorized to be involved," she told the Milwaukee Journal Sentinel at the time.

When presented with the audit's findings and recommendations to improve her security and oversight procedures in January of 2011, the Journal Sentinel wrote, Nickolaus told the Executive Committee that she would take the recommendations "into consideration" before she was upbraided by the Committee's Chairman for her "smirks" throughout the discussion.

"There really is nothing funny about this, Kathy," Chairman Jim Dwyer "erupted", according to the paper. "Don't sit there and grin when I'm explaining what this is about. Don't sit there and say I will take it into consideration," he said, as he demanded to know if she would change the passwords.

"I have not made my decision," she responded.

By the time of the Supreme Court election in April of 2011, Nickolaus' arrogance earlier that year had come back to haunt her, as her claim to have missed some 14,000 votes on Election Night, in a razor tight election that served as an early proxy war between Gov. Scott Walker and his opponents and determined the Right/Left balance of the state's high court, was, she said, due to her failure to hit a "SAVE" button in the Microsoft Access database program (which, critics have pointed out, does not actually have a "SAVE" button) on Election Night.

A months-long "recount" process ensued, during which a "widespread...cascade of irregularities", as they were later described by Kloppenburg, were discovered, most notably in Nickolaus' Waukesha.

During the court-ordered hand-count, "wide open" ballot bags and ballots bags with missing or scratched out or changed serial numbers and other related messes and mistallies were discovered in Waukesha, amounting to thousands of pages of documentation and hundreds of photographs compiled by officials during the "recount". Those pages, as we reported exclusively at the time, ultimately went completely unexamined by the G.A.B. before they finally certified the race in favor of the incumbent Republican Supreme Court Justice.

"Waukesha County had twice as many torn, open or unsealed bags as every other county in the state combined," Kloppenburg noted during her concession, after she had determined that a protracted court battle would simply be too costly for her family to bear. "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."

After yet another disastrous Election Night in Waukesha, during this year's April 3rd state primary election, when Nickolaus had changed election procedures to avoid what she says had happened in the Supreme Court race, Nickolaus finally vowed to recuse herself from administration of the contentious recall elections, in the face of calls for her resignation by local papers and even the Republican Chair of the County Executive Committee.

That vow was short-lived, as Nickolaus seemed to have changed her mind weeks later, when her campaign manager (she has since decided to not run for re-election this November), told the Journal Sentinel that she "never ever agreed to hand over the responsibility given to her constitutionally as clerk."

"Kathy is still in charge," he said.

The ballots from Scott Walker's historic June 5th Gubernatorial recount election have been, to echo Kloppenburg during her concession, "in Waukesha County's custody", in the office of Kathy Nickolaus, since the day following the historic June 5th elections. They have never been verified by anybody as having been accurately tallied. Those are the same ballots which Nickolaus is currently refusing to allow citizen access to, and which she has threatened to destroy as early as Monday afternoon, barring a court order.

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UPDATE 9:32pm PT: Following actions taken after the publication of this article, the recall ballots from Waukesha County have been saved from destruction --- for now. Full details, including comments from both state and county officials, posted in our follow-up story here...

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