Wis. Election Officials: Waukesha County Clerk Failed To Follow Election Laws — But Did Not Tamper With Court Race

The Wisconsin Government Accountability Board, which oversees elections in the state, has released its report on the controversial April election for state Supreme Court — where vote-counting problems in Waukesha County resulted in the announced discovery of un-tabulated votes, putting incumbent conservative Justice David Prosser ahead in the state Supreme Court race against his liberal-backed opponent JoAnne Kloppenburg. The report finds probable cause to believe that Waukesha County Clerk Kathy Nickolaus (R) violated the laws and procedures for administering the count — but that her actions were not willful, criminal misconduct.

Notably, the report concludes that Nickolaus could not have possibly manipulated vote totals, as some members of the public came to believe — because the City of Brookfield, the center of the vote-counting controversy, had in fact independently reported its correct vote totals to local media sources on election night. However, Nickolaus may have violated the law requiring county clerks to post all detailed results that night, when she made the mistake in calculating the county’s spreadsheet.

From the GAB’s publicly released report:

As a result of the investigation, the G.A.B. has issued an order requiring Clerk Nickolaus to conform her conduct to law and take certain steps to ensure accountability and transparency in her Election Night reporting practices prior to the February 2012 spring primary. Those steps include releasing detailed results on Election Night, instead of only county-wide figures. Had Clerk Nickolaus reported all results separately on Election Night, her failure to include numbers from the City of Brookfield would have been apparent immediately, rather than the next morning when she discovered the problem.

“Your actions following the April 5, 2011 Spring election did not conform to the legal requirements imposed on county clerks,” G.A.B. Chairperson Thomas H. Barland said in a letter to Clerk Nickolaus. “When one election official fails to act consistent with those responsibilities, steps must be taken to correct the failure in order to prevent it from recurring, and to restore public confidence and trust in the administration of elections.”

Early on, Prosser was expected to easily win re-election, given the advantages of incumbency in terms of fundraising, name recognition, and the organizational backing of the state business establishment and Republican Party in the nominally non-partisan race. However, the widespread protests against Gov. Scott Walker’s anti-public employee union legislation quickly turned this into a proxy political battle, and unions brought a late but very energetic effort on Kloppenburg’s behalf in an effort to defeat Prosser, a former Republican state Assembly Speaker.

Wednesday, April 6, the day after the election, Kloppenburg declared victory on the basis of Associated Press figures showing 100% of precincts reported, with Kloppenburg enjoying the very narrow lead of 204 votes out of nearly 1.5 million.

Then that Thursday, as counties were conducting the official canvass to check for errors in their election night spreadsheets that were reported to the media, Waukesha County Clerk Kathy Nickolaus (R) announced the discovery of un-tabulated votes from the city of Brookfield — giving Prosser a net gain of over 7,000 — saying that her own error had resulted in them not being properly imported and saved into the county’s database.

“I’m thankful that this error was caught early in the process and during the canvass,” Nickolaus said at her press conference at the time.

In mid-April, shortly before Kloppenburg requested the recount, the GAB released a statement that its study of the vote numbers in Waukesha County found that the totals checked out on the ballot-scanning equipment and other documentation from the municipalities.

Then in late May, following the recount, the GAB certified Prosser as the winner, by a margin of 7,004 votes. Kloppenburg conceded a week later.